In the
United States Court of Appeals
For the Seventh Circuit

No. 99-1448

DON FREEMAN,

Plaintiff-Appellant,

v.

MADISON METROPOLITAN SCHOOL DISTRICT,

Defendant-Appellee.



Appeal from the United States District Court
for the Western District of Wisconsin.
No. 98 C 297--John C. Shabaz, Chief Judge.


Argued January 7, 2000--Decided November 2,
2000



  Before POSNER, ROVNER, and EVANS, Circuit
Judges.

  ROVNER, Circuit Judge. 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.

  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.

  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.

  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.

  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.

  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.

  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.

  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.

  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.

  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).

  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.

  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).

  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.

  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.

  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.


  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.

  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.

  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.

  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.

  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.

  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.



/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.
