231 F.3d 374 (7th Cir. 2000)
DON FREEMAN, Plaintiff-Appellant,v.MADISON METROPOLITAN SCHOOL DISTRICT, Defendant-Appellee.
No. 99-1448
In the  United States Court of Appeals  For the Seventh Circuit
Argued January 7, 2000Decided November 2,  2000

Appeal from the United States District Court  for the Western District of Wisconsin.  No. 98 C 297--John C. Shabaz, Chief Judge.[Copyrighted Material Omitted]
Before POSNER, ROVNER, and EVANS, Circuit  Judges.
ROVNER, Circuit Judge.


1
Don Freeman had  been working as a Custodial Worker for  the Madison Metropolitan School District  ("MMSD") for 13 years when, in 1992, he  injured his knee while trying to roll a  wrestling mat onto a cart. He did not  return to work until 1995, at which time  he had lost his seniority and was  considered a Custodial Worker Trainee.  The course of events between his injury  and his return form the basis of his  Title VII claim that he was discriminated  against because of his race. Freeman, who  is African-American, argues that MMSD  refused to allow him to return to work on  a modified basis to accommodate his  physical limitations even though MMSD's  policy was to provide such work  modifications and that policy was  followed for white employees.


2
A trial was held on the Title VII claim,  but at the close of Freeman's case the  district court granted MMSD's motion for  a directed verdict. Freeman appeals that  ruling as well as the court's pretrial  rulings excluding some evidence.

I.

3
The evidence at trial revealed numerous  and repeated letters, conversations, and  documents relating to Freeman's physical  condition and his capacity to work. A  summary of the more critical evidence is  necessary to understand the contentions  in this case. To contextualize that  evidence, we first examine the physical  requirements of the Custodial Worker I  position that he was performing prior to  the injury. That position involved heavy  work, which included constant standing  and walking, occasional ladder work, and  frequent climbing, squatting and  crouching. It further required lifting or  carrying 21-50 pounds to waist level  occasionally and 51-100 pounds rarely.  Prior to his injury, Freeman was assigned  to the position of Custodial Worker  I Laundry Room Attendant, which he  testified was much less strenuous than a  regular Custodial Worker I position.


4
After the injury in April 1992,  Freeman's ability to fulfill the physical  requirements of the job was severely  restricted. On April 28, 1992, his  treating physician, Dr. Harrington,  completed a physical capabilities form  which stated that Freeman was limited to  performing light medium work, including  lifting 30 pounds maximum, and up to 20  pounds frequently. He further indicated  that Freeman could stand no more than «  hour per day, walk for one hour per day,  and could not climb, squat, kneel, bend,  stoop or crouch. Dr. Harrington followed  that report with a July 1992 form  indicating that Freeman could return to  full-time sedentary work with minimal  standing and no lifting, bending,  stooping or climbing. In response to  Freeman's claim for workers compensation  benefits, MMSD required an evaluation by  Dr. Leonard of the University of  Wisconsin Hospital and Clinics, Spine-  Sports Medicine Center. Dr. Leonard  opined that Freeman could return to work  within the limits of his pain and with  knee braces. A subsequent functional  capacities evaluation report by UW  Hospital & Clinics in February 1993,  however, found that Freeman could perform  only light medium work. That evaluation  noted that Freeman's physical limitations  in standing, walking and lifting did not  meet the requirements of the position.  Freeman was paid $47,500 in settlement of  his worker compensation claim based upon  the permanent partial disability in his  knees.


5
In approximately May or June 1994,  Freeman sought to return to his Custodial  Worker I position. In a letter of May  1994, Dr. Harrington stated that Freeman  was capable of performing light work, and  that his limitation to sedentary work no  longer applied. Dr. Harrington further  recommended that Freeman undergo a work  capacity evaluation to address questions  regarding Freeman's capabilities in  specific job situations. Later that year,  in September 1994, Dr. Harrington  released Freeman to return to work with  some limitations on lifting, including a  maximum of 35 pounds, and some limits on  squatting and climbing. The restrictions  placed him in the medium range of work.  Meanwhile, Freeman was engaging in  ongoing efforts to return to work with  MMSD--to no avail. Dr. Harrington  submitted a letter in December 1994  stating that Freeman might be able to  perform the job duties of game room  monitor (a light work position), craft  room custodian (medium work), or  Custodial Worker II which Dr. Harrington  indicated was similar to Custodial Worker  I but involved more supervision and only  moderate amounts of squatting and  climbing. Because the game room monitor  position was only part-time, however,  Freeman was uninterested in it unless it  could lead to full-time work.


6
Eventually, in February 1995, the  functional evaluation recommended by Dr.  Harrington was performed with a goal of determining Freeman's safe functional  level for the Custodial Worker II  position. That evaluation determined that  he was functioning at the heavy level but  that he could not perform some of the job  requirements. For instance, he was safe  for up to a 32-pound repetitive lift, but  the position specified 50 pounds. His  maximum stand-up lift was 65 pounds, as  opposed to the position maximum of 80.  Finally, he was safe for occasional chest  lifts of 45 pounds which was incompatible  with the 50 pound requirement of the  position. In response, Dr. Harrington  sent a letter the next month indicating  that physical deconditioning resulting  from the delay in the return to work  accounted for some of the functional  limits, and that Freeman could return to  his job after rehabilitation.


7
The efforts to return Freeman to his  position continued in the ensuing months,  and in September 1995 a conference was  held at the State Workers Compensation  Division to explore the cause of the  delay in his reinstatement. MMSD and  Freeman agreed to devise a plan for  returning him to work, and sought Dr.  Harrington's opinion regarding the  necessary physical conditioning. Dr.  Harrington recommended that Freeman  undergo a work hardening and  rehabilitation program at Meritor  Hospital, and obtain a more current work  capacity evaluation. MMSD initially  opposed this recommendation, arguing that  Dr. Harrington's connections with Meritor  rendered it unacceptable because of the  possibility that he could influence the  outcome. In December 1995, however, MMSD  agreed to the plan, and Freeman completed  that program in February 1996. The  reports from Meritor indicated that he  was a very motivated participant and that  he progressed rapidly. The final report  indicated that he met the requirement for  heavy work, and could lift up to 100-105  pounds rarely (up to 10% of the day), 50  pounds occasionally (up to 33% of the  day), and 25 pounds frequently (66% of  the day). It further stated that his  capabilities were consistent with the  requirements of the position as set forth  in the job description. The report  acknowledged that its conclusions  constituted recommendations that were  subject to Dr. Harrington's acceptance.  On February 17, 1996, Dr. Harrington sent  a letter stating that in light of the  Meritor report, a trial return to work  was appropriate and that Freeman should  be judicious in the amount of squatting  and stair climbing he performed,  particularly with heavy loads. That  language in his letter was fodder for yet  another correspondence war between MMSD  and Freeman's attorney. MMSD asserted  that it required formal restrictions so  that it could determine what work was  appropriate for Freeman, and that it  could not be expected to interpret  "judicious." It further sought clarifica  tion of the language indicating a "trial"  return. After a less ambiguous response  was received, Freeman was finally allowed  to return to work. Because the lengthy  delay resulted in the loss of his  seniority under the contract, Freeman was  required to begin as a part-time  Custodial Worker Trainee.


8
The parties present vastly different  characterizations of the protracted  process described above. According to  MMSD, it was willing to return Freeman to  work as soon as he was physically capable  of doing so, but he did not receive an  unrestricted release until March 1996.  MMSD further asserts that it was  distrustful of Dr. Harrington's switch  from indicating permanent partial  disability to stating that Freeman could  return to work. Freeman, on the other  hand, acknowledges that he could not  return to unrestricted work for some  time, but argues that the MMSD policy is  to return workers to a modified position  until they are back at full capacity. He  argues that MMSD's refusal to return him  to work until he was unrestricted was a  result of race discrimination.

II.

9
At the close of Freeman's case-in-chief,  the district court granted MMSD's motion  for a directed verdict. The court held  that Freeman met his burden of  establishing a prima facie case of race  discrimination. The court then declared  that once the prima facie case is  established, the jury must determine  whether race was a motivating factor in  MMSD's decision not to rehire and whether  MMSD's decision would have been the same  regardless of Freeman's race. Transcript  at 184. In its written memorandum and  order on the motion, the court phrased it  slightly differently but with the same  import, stating that the prima facie case  was met and "[t]he issue before the jury  is whether the defendant discriminated  against plaintiff because of his race."  Ct. Order at 2. The court went on to  state that a plaintiff must establish  intentional discrimination, and that no  facts were presented from which race  discrimination could be inferred.


10
We review de novo the grant of the  directed verdict under Federal Rule of  Civil Procedure 50(a). Payne v. Milwaukee  County, 146 F.3d 430, 432 (7th Cir.  1998). In considering whether it was  properly granted, we must consider the  evidence in the light most favorable to  the non-moving party to determine whether  there was no legally sufficient  evidentiary basis for a reasonable jury  to find for the non-moving party. Id.  "Credibility determinations, the weighing  of the evidence, and the drawing of  legitimate inferences from the facts are  jury functions, not those of a judge,  whether he is ruling on a motion for  summary judgment or for a directed  verdict." Anderson v. Liberty Lobby,  Inc., 477 U.S. 242, 255 (1986).


11
It is well-established that a plaintiff  may establish a Title VII violation even  absent direct evidence of race  discrimination through the burden-  shifting method of McDonnell-Douglas  Corp. v. Green, 411 U.S. 792 (1973).  Kaniff v. Allstate Ins. Co., 121 F.3d  258, 263 (7th Cir. 1997). Because Freeman  lacked any direct evidence of race  discrimination, the court properly  recognized that he was proceeding under  the McDonnell-Douglas test. Under that  test, a plaintiff must first establish a  prima facie case of discrimination based  on race. Stewart v. Henderson, 207 F.3d  374, 376 (7th Cir. 2000). If that is  accomplished, the plaintiff has  established a presumption of  discrimination, and the defendant then  bears the burden of production to provide  a legitimate, non-discriminatory reason  for the challenged action. Id. Once the  defendant meets that burden, the  plaintiff must establish that the reasons  proffered by the defendant were  pretextual, by presenting direct evidence  that his race played a role in the  challenged action or indirectly by  creating a genuine issue of material fact  regarding the sincerity of the proffered  reasons for that action. Collier v. Budd  Co., 66 F.3d 886, 892 (7th Cir. 1995).  Indirect evidence of pretext showing that  an employer's proffered reasons are not  credible can include evidence that the  reasons are without basis in fact, did  not actually motivate the challenged  action, or were insufficient to motivate  the discharge. Id.


12
The district court, however, erroneously  applied that test in ruling on the motion  for a directed verdict. After holding  that Freeman indeed met his prima facie  burden, the court did not pause to  consider whether evidence was introduced  that MMSD had a legitimate, non-  discriminatory reason for the challenged  action. Instead, the court considered  only whether Freeman had ultimately  proven discrimination. That step is  critical, not only because MMSD bears the  burden of production at that stage, but  because the pretext analysis necessarily  focuses on the reason provided. See Plair  v. E.J. Brach & Sons, Inc., 105 F.3d 343,  349 (7th Cir. 1997) (to prove pretext,  plaintiff must squarely rebut the  specific reason articulated by the  defendant).


13
Our examination of the trial transcript  reveals little regarding MMSD's  explanation for its ongoing refusal to  return Freeman to work. That is  unsurprising given the context of this  appeal--a motion for a directed verdict  granted before MMSD presented its case.  The only testimony relevant to that  second prong is the testimony of adverse  witness Robert Nadler, who was the  benefits manager for MMSD. Nadler  testified that MMSD had a policy of  allowing workers with temporary  disabilities to return to work and  accommodations are made to allow them to  continue working until they regain their  full ability. He further testified that  MMSD's position was that Freeman had a  permanent rather than temporary  disability, and that position was based  upon Dr. Harrington's medical opinion.  Dr. Harrington, of course, repeatedly  authorized Freeman's return to work and  documented Freeman's steady physical  improvement, but Nadler asserted that  MMSD was confused by Dr. Harrington's  later opinions that the disability was  not permanent given his initial  diagnosis. Thus, the only race-neutral  explanation provided at this point in the  trial is MMSD's contention that it  believed he was permanently disabled  based on Dr. Harrington's initial opinion  that he had a permanent partial  disability of his knees, and thus he did  not fall within the policy covering  temporarily-disabled employees.


14
Freeman, however, presented abundant  evidence indicating that MMSD could not  honestly have believed that his  disability was permanent, and thus  indicating that the race-neutral  explanation was pretextual. From the time  of Dr. Harrington's initial assessment of  permanent partial disability in November  1992, substantial medical evidence  demonstrated that his condition was  improving. A functional capacities  evaluation in February 1993 indicated  that he could perform light medium work,  although Nadler testified that in  awarding workers compensation benefits  that report was disbelieved in favor of  Dr. Harrington's testimony. Moreover, Dr.  Harrington specifically disavowed his  earlier prognosis, indicating that  Freeman's improvement had exceeded his  expectations. Dr. Harrington's letters  chart improvement in his limitations from  sedentary work in 1992, to light work in  May 1994, to medium work in September  1994. Any lingering doubts regarding Dr.  Harrington's credibility could have been  laid to rest by the functional capacities  evaluation in February 1995, which  indicated that he was functioning at the  level of heavy work. Although that  evaluation indicated that he still had  some restrictions on lifting, it rebuts  Nadler's testimony that MMSD believed  Freeman was permanently disabled. In  addition, at the conference at the State  Workers Compensation Division, MMSD  agreed to a plan designed to allow for  Freeman's return to work, which also  refutes Nadler's statement that MMSD  believed him to be permanently disabled  and incapable of improving enough to  resume his job. Finally, Nadler's  contention that it continued to believe  Freeman was permanently disabled because  it was "confused" by Dr. Harrington's  change in position is belied by MMSD's  failure to seek a second opinion to allay  its confusion. The documented progression  in Freeman's physical ability and MMSD's  own action--and inaction--thus provides  evidence that its asserted race-neutral  explanation was not honestly held. That  is sufficient to raise a jury issue of  pretext, and thus of discrimination. Of  course, MMSD may have an entirely  different explanation that it has not yet  had an opportunity to assert, or it may  well be able to establish that its  reasons are not pretextual. We express no  opinion on the merits, but merely hold  that the court erred in granting the  motion for a directed verdict.

III.

15
Freeman sought to introduce additional  evidence of discrimination but was  prevented from doing so by some pretrial  rulings. In light of our holding that the  directed verdict was improper, we must  address those challenges because they  will impact the retrial. First, the  district court held that the statute of  limitations precluded evidence of  discrimination that occurred prior to  September 13, 1995, which was the last  date within the 300-day period of  limitations. See 42 U.S.C. sec. 2000e-  5(e). The court rejected Freeman's  contention that the actions prior to that  date were part of a continuing violation  not barred by the statute of limitations.


16
It is well-established that a Title VII  plaintiff may recover for acts beyond the  limitations period if she can demonstrate  that such acts were part of a "continuing  violation." Jones v. Merchants Nat. Bank  & Trust Co. of Indianapolis, 42 F.3d  1054, 1058 (7th Cir. 1994); United Air  Lines, Inc. v. Evans, 431 U.S. 553  (1971). The continuing violation doctrine  applies only if the plaintiff identifies  acts of discrimination that occurred  within the limitations period as well,  rather than simply the persisting effects  of past discrimination. Merchants Nat.  Bank, 42 F.3d at 1058. In determining  whether the pre-limitations period  conduct constitutes a continuing  violation rather than discrete acts of  discrimination, the court considers  factors such as: "(1) whether the acts  involve the same subject matter; (2) the  frequency at which they occur; and (3)  the degree of permanence of the alleged  acts of discrimination, 'which should  trigger an employee's awareness of and  duty to assert his or her rights.'"  Filipovic v. K & R Exp. Systems, Inc.,  176 F.3d 390, 396 (7th Cir. 1999),  quoting Selan v. Kiley, 969 F.2d 560, 565  (7th Cir. 1992). Courts have identified a  number of different fact patterns that  indicate continuing violations. One such  pattern encompasses decisions, usually  related to hiring and promotions, where  the employer's decision-making process  takes place over a period of time, making  it difficult to determine the actual date  that the allegedly discriminatory act  occurred. Merchants Nat. Bank, 42 F.3d at  1058. In such instances, the statute of  limitations does not begin to run until  the date that the plaintiff knows the  allegedly discriminatory decision has  been made. Id.


17
The facts of this case fall within that  category of continuing violation cases.  There is no specific date that MMSD can  identify on which Freeman was informed  that he would not be accommodated with a  work modification. Instead, the record  reveals a constant back-and-forth between  Freeman and MMSD, in which Freeman would  supply medical information and letters  from his doctors and attorneys, and MMSD  would identify its concerns with the  information it was receiving, and a need  for further information or clarification.  At most, MMSD expressed doubts about  Freeman's ability to return to work, but  it never rejected the possibility  outright. Moreover, he was never informed  that MMSD considered him to be  permanently disabled and thus not subject  to the policy that provided work  accommodations for temporarily disabled  employees. Nothing in the record would  have put Freeman on notice that the  various delays during that time period  were attributable to race discrimination.  This is a classic case in which the  violation unfolded over a long period of  time and continued into the limitations  period. The record reveals no specific  point in time at which Freeman should  have been aware that he was being  discriminated against, because MMSD  shifted its reasons for its decisions as  the circumstances changed, thus creating  at least the appearance of an employer  attempting to work toward the desired  accommodation. Thus, only with the  benefit of hindsight, after the series of  discriminatory acts, could Freeman have  realized he was the victim of unlawful  discrimination. See Moskowitz v. Trustees  of Purdue Univ., 5 F.3d 279, 281-82 (7th  Cir. 1993). Therefore, the district court  erred in holding the continuing violation  doctrine inapplicable to this case.  Because at least some of the decisions  delaying his return to work were made  within the limitations period, Freeman  may proceed to challenge the entire  series of allegedly discriminatory  decisions.

IV.

18
The other evidentiary challenge raised  by Freeman involves the court's decision  on the morning of trial precluding  testimony that Freeman sought to present  of two similarly-situated white MMSD  employees who were treated differently.  Those MMSD employees sustained injuries  and were unable to do the type of work  that their job description required, but  MMSD nevertheless allowed them to return  to work and temporarily assigned them  considerably less strenuous work than  their original jobs. The district court  excluded the testimony regarding those  two employees because their injuries and  work modifications began in approximately  February 1997. The court held that  testimony of similarly situated employees  should be restricted to conduct which  occurred during the time period  beingconsidered by the jury, which was  September 1995 through April 1996 (given  the court's holding that there was  nocontinuing violation.) Because the  proposed testimony involved conduct that  occurred after that time period, the  court granted MMSD's verbal motion in  limine and excluded the testimony.


19
The court erred in holding that  individuals could not be similarly  situated if their testimony involved  conduct that occurred outside the time  period of the alleged acts of  discrimination.1 It is the rare case  indeed in which there is a nearly exact  temporal overlap between the allegedly  discriminatory conduct and the conduct  regarding similarly situated individuals.  The last date of the allegedly  discriminatory conduct is not a bright  line beyond which the conduct of the  employer is no longer relevant in a  discrimination case. Otherwise, clearly  relevant evidence would be arbitrarily  excluded; for instance, a plaintiff in a  race discrimination case would then be  precluded from producing evidence that  the week after he was fired, a white  employee escaped discipline for the exact  same conduct. The focus must remain on  whether the evidence is relevant to  demonstrate that discrimination played a  role in the decision, and that  determination is not served by a bright-  line temporal restriction. Here, the  proffered testimony involved conduct by  the employer approximately ten months  after the last challenged act regarding  Freeman. That is not a very long period  of time given that the policy at issue  here involved employees who became  disabled and sought alternative job  duties during their recoveries--  presumably not a daily occurrence. MMSD's  benefits manager, Nadler, admitted at  trial that the policy at issue regarding  Freeman was in place when Nadler assumed  his position in 1993, and continued to be  the policy unchanged from that time until  the time of trial. Therefore, both the  policy and the person implementing that  policy were the same for Freeman and his  proposed witnesses, and no change in  circumstances is apparent within the ten  months between April 1996 and February  1997. On the limited record before us,  there is no basis for a finding that the  employees are not similarly situated.


20
After rejecting the testimony because it  involved conduct that occurred after the  last act of alleged discrimination, the  court further opined that the jobs and  injuries were different as well, and that  those differences would have to be  explored. Because it concluded the  testimony was time-barred, however, the  court did not further explore that issue.  We note, however, that in determining  whether employees are similarly situated,  the inquiry varies depending upon the  type of employer conduct at issue. For  instance, where a male employee fired for  sexual harassment claimed that women who  engaged in similar conduct were not  terminated, "similarly-situated"  employees would not necessarily be those  who held the same job that he held, but  rather would be those female employees  who had been the subject of comparable  complaints of sexual harassment. Morrow  v. Wal-Mart Stores, Inc., 152 F.3d 559,  561 (7th Cir. 1998). Here, the  uncontradicted testimony was that the  policy at issue was applied to all  employees regardless of job description.  Moreover, it matters not that the  similarly-situated employees proffered by  Freeman had injured their backs whereas  Freeman had injured his knees. Nothing in  the policy rendered that distinction  meaningful. Similarly-situated employees,  for the purpose of this discrimination  case, should include employees covered by  the policy who were injured and unable to  perform the functions required by their  job description, but who were allowed to  return to work and assigned different  tasks during their recovery. MMSD's  argument that the policy did not apply to  Freeman because his injury was permanent  rather than temporary is an issue for the  jury, and does not alter the class  ofpersons who are similarly situated  here. On this record, the court erred in  concluding that the proposed  employeewitnesses were not similarly  situated and in excluding their  testimony.


21
For the above reasons, the decision of  the district court is reversed, and the  case is remanded for further proceedings  in accordance with this opinion.



Notes:


1
 When Freeman renewed during the trial his request  to produce those witnesses, the court again  affirmed its earlier ruling but mentioned that  the testimony must at least be "within hailing  distance." The court did not explain its holding  that this testimony was too remote in time to be  relevant, and we find no basis in the record for  that holding.


