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, SpineSports 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 burdenshifting 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, nondiscriminatory 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. 2000e5(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 brightline 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.