In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 14-3309

MARK SWANSON,

Plaintiff-Appellant,

v.

VILLAGE OF FLOSSMOOR,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:11-cv-4421 — Joan B. Gottschall, Judge.

____________________

ARGUED JUNE 5, 2015 — DECIDED JULY 24, 2015

____________________

Before WOOD, Chief Judge, and FLAUM and 

EASTERBROOK, Circuit Judges.

FLAUM, Circuit Judge. Mark Swanson resigned from 

the Village of Flossmoor’s police department after suffering two strokes, six weeks apart, the second of which left 

him unable to perform his job as a detective. Swanson 

claims that the Village failed to reasonably accommodate 

him—in violation of the Americans with Disabilities 

Act—upon his return to work from his first stroke by not 
2 No. 14-3309

permitting him to work exclusively at a desk. He also 

charges the Village with offending Title VII of the Civil 

Rights Act of 1964 by discriminating against him on the 

basis of his race and national origin. He cites various instances in which Village employees made racially offensive comments to him during the course of his employment. He also complains that the Village excluded him 

from criminal investigations after his first stroke and then 

contemplated the possibility of moving him out of the 

investigations division entirely after his second stroke.

The district court granted summary judgment in favor of the Village. The court deemed Swanson’s Title VII 

claims time-barred because Swanson failed to lodge a 

formal charge with the U.S. Equal Employment Opportunity Commission within the requisite 300-day period

following the alleged discrimination. And the court 

branded Swanson’s ADA claim deficient in view of his 

doctor’s recommendation that Swanson work “part-time”

following his first stroke. We affirm.

I. Background

Mark Swanson was hired as a patrol officer by the police department of the Village of Flossmoor, Illinois in 

January 2000. On November 25, 2006, he was promoted

to detective in the criminal investigations unit, where he 

worked under the supervision of Sergeant James Hundley and Deputy Police Chief Michael Pulec until his career was tragically cut short by two strokes that forced 

him to resign.

When Swanson suffered his first stroke on July 31, 

2009, he took a leave of absence pursuant to the Family 
No. 14-3309 3

and Medical Leave Act until August 19, 2009. Swanson 

returned to work with a note from his doctor, which

read: “part-time work suggested until patient seen by 

Neurologist on 9-18-09.” To heed his doctor’s advice, 

Swanson began using two days of his accrued medical

leave each week, enabling him to receive a full paycheck 

while only working three-day weeks.

According to Swanson, upon his return to work, he 

was excluded from several investigations in which he 

should have been involved. He also says that at some 

point during the month of September he began experiencing headaches and lightheadedness, which prompted 

him to ask Pulec if he could be placed on “light duty” (or 

desk duty, as Swanson’s counsel defined the term at oral 

argument). Swanson claims that Pulec told him that the 

police department had no light duty policy and denied 

the request. Swanson therefore continued to use his accrued medical leave to work a reduced schedule—a routine that satisfied his doctor’s recommendation until September 30, when Swanson experienced another stroke.

Swanson’s second stroke rendered him unable to 

work as a detective or patrol officer, and so Swanson’s 

doctor excused him from work until further notice. By 

November 17, Swanson’s status had not changed. He 

submitted paperwork certifying as much and requesting 

FMLA leave retroactively to September 30. The Village 

approved Swanson’s request, and he continued to use his 

paid medical leave to cover his absence.

Following Swanson’s second stroke, then-Police Chief 

William Miller was his sole point of contact at the department. On December 10, Miller wrote to Swanson to 
4 No. 14-3309

inform him that his FMLA leave had expired and that his 

paid medical leave would expire on December 18. The 

letter reminded Swanson that he could request an unpaid 

leave of absence from the Village. It also informed him 

that he would “most likely” be reassigned from the investigations division to the patrol division upon his return to work. 

On December 16, Swanson’s doctor released him back 

to work without restrictions. Before actually returning to 

his job, however, Swanson suffered another medical episode, which prompted his doctor to rescind his prior release and prohibit Swanson from resuming work. After 

further consultation with his physician, Swanson resigned five days later. His December 21 resignation letter 

expressed his disappointment that he was “simply physically unable to return to [his] duties with the department.” It further stated that “due to residual physical and 

neurological issues related to [his] July, 2009 stroke [he 

was] unable to resume [his] duties as a Police Officer/Detective with the department.” The letter also requested a disability pension from the Village, for which 

Swanson formally applied the next day. Around this 

time, Swanson asked to remain on an unpaid leave of absence until February 6, 2010, which would afford him 

continued access to the Village’s health insurance plan, 

despite his planned resignation. The Village granted 

Swanson’s leave-of-absence request.

On February 23, 2011, the Village Pension Board held 

a hearing to review Swanson’s pension application. 

Swanson testified that he could no longer perform his 

duties as a police officer, and the Village agreed—
No. 14-3309 5

awarding him a disability pension of 50% of his former 

salary retroactive to December 21, 2009. Swanson’s application also sought a line-of-duty pension—which would 

have entitled him to 60%, rather than 50%, of his salary—

but the Pension Board denied that request, having determined that the evidence presented did not establish 

that Swanson’s disability was duty-related. Swanson 

sought review of that decision by filing a Complaint for 

Administrative Review in the Circuit Court of Cook 

County. The court affirmed the Pension Board’s determination on January 18, 2013. Swanson appealed the court’s 

ruling, but on March 3, 2014 that decision, too, was affirmed. To date, Swanson remains medically unable to 

work as a Village police officer.

Highly relevant to this appeal, Swanson filed a discrimination charge with the Equal Employment Opportunity Commission on September 14, 2010. The entirety 

of his complaint read:

I began my employment with [the Flossmoor Police Department] in January 2000. My most recent 

position was Detective. During my employment, I 

was subjected to harassment, including, but not 

limited to, comments based on my national origin. 

Respondent is aware of my disability. I requested a 

reasonable accommodation which was not provided. Subsequently, I was demoted.

I believe that I have been discriminated against 

because of my national origin, Puerto Rican, in violation of Title VII of the Civil Rights Act of 1964, 

as amended.
6 No. 14-3309

I believe that I have been discriminated against 

because of my disability, and retaliated against for 

engaging in protected activity, in violation of the 

Americans with Disabilities Act of 1990, as 

amended.

On June 29, 2011, Swanson brought this four-count

lawsuit against the Village. Counts I, II, and III allege violations of Title VII of the Civil Rights Act of 1964, 42 

U.S.C. § 2000e et seq. Count IV alleges a violation of the 

Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.

Counts I and III allege race and national origin discrimination, respectively, contending that Village employees discriminated against Swanson by making various derogatory comments about his Puerto Rican descent 

during the course of his employment. Swanson’s appellate brief highlights a few examples. For instance, Swanson says that during a February 2000 traffic stop, his supervisor Sergeant Hundley asked another officer not to 

call Swanson a “Mexican” because “Puerto Ricans don’t 

like that.” Swanson also complains that, in 2007, Sergeant 

Hundley “would have Detective Swanson try to speak 

Spanish [to Hispanic drivers that they pulled over] even 

though he knew that Detective Swanson did not speak 

Spanish.” Once, Hundley apparently commented: “Oh, 

you don’t speak Spanish, what kind of Mexican are you?” 

On other occasions, when a Hispanic person was in lockup, unidentified “Village employees” would remark to

Swanson: “some of your people are in lockup.” Swanson 

says that these types of comments persisted until his last 

day of employment with the Village police department. 

Swanson also believes that, as a general matter, white of-
No. 14-3309 7

ficers were treated better than non-white officers. He alleges, for instance, that a black colleague was once reprimanded for leaving his taser on his desk, while a white 

colleague went without admonishment despite leaving a 

loaded rifle on the back of his office door after every 

shift.1

Count II alleges retaliatory discrimination, contending that “after [his] stroke, [he] was excluded from investigations; demoted to patrol officer; and had his position 

replaced.” Swanson, however, abandons this claim on 

appeal.

Count IV, the ADA charge, alleges that the Village 

failed to make reasonable accommodations for him when 

he returned to work, following his first stroke, on August 

19, 2009. Consequently, Swanson says, “he has suffered 

and will continue to suffer damage including loss of 

wages and benefits ... pain and suffering, and extreme 

and severe mental anguish and emotional distress.” 

The Village filed a motion for summary judgment, 

which the district court granted in full. The court deemed 

Counts I and III time-barred, because Title VII discrimination claims are only actionable if first complained 

about to the EEOC within 300 days of the alleged unlaw-

 1 Curiously, Swanson does not attempt to make out a Title VII claim 

premised on an allegation that he experienced a hostile work environment. His brief in opposition to the Village’s summary judgment 

motion expressly disavowed such a claim, making clear that “Swanson has not alleged a hostile work environment. He has alleged a 

disparate treatment claim. Thus, Flossmoor’s argument [that Swanson’s Title VII claim should be dismissed for failure to prove the existence of a hostile work environment] is meritless.”
8 No. 14-3309

ful employment practice. Yet when Swanson filed his discrimination charge with the EEOC on September 14, 

2010, more than 300 days had passed since his last day of 

active employment with the Village, September 30, 2009. 

The district court rejected the notion that Swanson’s periodic contact with Chief Miller during his leave of absence 

somehow delayed the start of the 300-day limitations period.

The district court dismissed Count II, Swanson’s 

since-abandoned claim of retaliatory discrimination, for 

failure to identify a protected activity that could serve as 

the basis of such a claim.

Regarding Count IV, Swanson’s ADA claim, the district court concluded that Swanson simply did not 

demonstrate that the Village failed to reasonably accommodate his disability. To the contrary, the Village permitted him to use two days of medical leave each week to 

work the part-time schedule suggested by his doctor. 

On appeal, Swanson contests the district court’s

summary judgment ruling with respect to Counts I, III, 

and IV.

II. Discussion

We review the district court’s grant of summary 

judgment de novo, reading the record in the light most 

favorable to Swanson and construing all reasonable inferences from the evidence in his favor. Nacify v. Ill. Dep’t 

of Human Servs., 697 F.3d 504, 509 (7th Cir. 2012).
No. 14-3309 9

A. Swanson’s Title VII Claims

Title VII prohibits discrimination on the basis of race 

and national origin. Henry v. Jones, 507 F.3d 558, 564 (7th 

Cir. 2007) (citing 42 U.S.C. § 2000e-2(a)(1)). To prove a 

Title VII violation, a plaintiff can avail himself of either 

the direct or indirect method of proof. Coffman v. Indianapolis Fire Dep’t, 578 F.3d 559, 563 (7th Cir. 2009). Proceeding under the direct method of proof requires a plaintiff

to put forth direct (or sufficient circumstantial) evidence 

indicating that he experienced intentional discrimination. 

Id. Under the indirect method of proof, a plaintiff needs

to show that (1) he is a member of a protected class, (2) 

who met his employer’s legitimate job expectations, (3) 

yet suffered an adverse employment action, (4) that similarly situated employees outside his protected class did 

not. See Nacify, 697 F.3d at 511.

But, to bring a Title VII claim at all—as the district 

court noted (and as Swanson acknowledges)—a plaintiff 

must file a complaint with the EEOC within 300 days of 

experiencing the complained-of discrimination. Peters v. 

Renaissance Hotel Operating Co., 307 F.3d 535, 550 (7th Cir. 

2002). A fatal problem for Swanson, then, is that the specific racially offensive incidents about which he complains all occurred years before he filed his EEOC charge 

on September 14, 2010. And, even being as generous as 

possible to Swanson and assuming that similar remarks 

were made as late as his last day of active employment 

on September 30, 2009 (and assuming, for argument’s 

sake, that the mere utterance of such a remark can constitute unlawful discrimination under Title VII), Swanson’s 
10 No. 14-3309

September 14, 2010 filing still was too late; July 27, 2010 

marked 300 days from his last day on the job.

Swanson tries to skirt the timeliness issue by arguing

that his 300-day clock did not commence until December 

10, 2009, when Chief Miller told him that he would most 

likely be reassigned to the patrol division upon his return 

to the police department. He contends that this was a 

demotion and thus an adverse employment action. We 

agree with Swanson that a demotion can constitute an 

adverse employment action. See Hicks v. Forest Preserve 

Dist. of Cook Cnty., Ill., 677 F.3d 781, 787 (7th Cir. 2012). 

However, the Supreme Court has been clear that Swanson cannot sue for otherwise time-barred conduct in this 

instance. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 

101, 113–17 (2002). A plaintiff who complains of discrete 

discriminatory acts (as Swanson purports to do), must 

report each act to the EEOC in the required timeframe. Id.

at 114. By contrast, a plaintiff who makes a hostile work 

environment claim may invoke the continuing violations 

doctrine and recover for related employer conduct outside the limitations period; the theory is that “[a] hostile 

work environment claim is composed of a series of separate acts that collectively constitute one ‘unlawful employment practice.’” Id. at 117. Swanson, however, does 

not make such a claim. Thus, Swanson’s allegations of 

discrimination during the course of his active employment are time-barred, and he may only pursue his demotion complaint. 

To be actionable under Title VII, Swanson must show 

that his employer’s action was discriminatory in nature. 

Problematic for Swanson, then, is that there is no direct 
No. 14-3309 11

evidence that he was being reassigned because of his race 

or national origin. Nor is there a reasonable inference to 

be drawn from the past derogatory comments that he 

cites, none of which were made by Chief Miller. Rather,

the parties’ Statements of Facts establish that Swanson’s 

interactions with Miller were “always professional” and 

that Miller “never made statements to Swanson that 

Swanson considered unprofessional or harassing or derogatory.” Accordingly, Swanson cannot establish a connection between the alleged racially offensive comments 

made to him over the years and his potential reassignment to the patrol division in December 2009, such that a 

discriminatory motive can be imputed to Miller.2

 

2 Swanson’s Title VII allegations also encompass a complaint that he 

was excluded from investigations following his first stroke. This 

claim fails for the same reason; no reasonable inference can be drawn

linking the Village’s conduct to the racial animus he seeks to attribute to Village employees who are said to have made offensive remarks about Puerto Ricans during his employ. Swanson also seems 

to argue that the Village’s denial of his request for “light duty” constituted racial discrimination. But here, again, Swanson offers a 

dearth of evidentiary support. He cites the names of several white 

officers to whom the Village provided “light duty” in the past. But 

he provides us only with the type of injury that they suffered—

including a shattered fibula, broken ankle, a torn rotator cuff, and 

pregnancy—none of which resembles Swanson’s stroke. Moreover, 

Swanson provides us no information about the doctor recommendations of his proposed comparators (i.e., whether, unlike Swanson,

their doctors recommended that they be confined to a desk). Therefore, without more information, we cannot draw a meaningful comparison and, thus, determine whether these folks are similar enough 

to permit a reasonable inference of discrimination. See Coleman v. 

Donahoe, 667 F.3d 835, 841 (7th Cir. 2012).
12 No. 14-3309

Moreover, because Swanson never returned to work 

after his second stroke, he never experienced the demotion about which he complains. Therefore, he never actually suffered an adverse employment action at all. No 

financial consequences flowed from this potential job 

change either. His disability pension was based on his

salary as of his last day of active work (September 30, 

2009), so he felt no monetary impact from his possible 

reassignment to a different division.3 As we have said, 

“not everything that makes an employee unhappy will 

suffice to meet the adverse action requirement. Rather, an 

employee must show that material harm has resulted 

from ... the challenged actions.” Traylor v. Brown, 295 

F.3d 783, 788–89 (7th Cir. 2002) (alteration in original) (citations and internal quotation marks omitted). Here, 

Swanson falls far short of demonstrating that he suffered 

an adverse employment action on account of his membership in a protected class. Therefore, even if his claims 

were not time-barred, he could not make out a Title VII 

violation under either the direct or indirect method of 

proof.

B. Swanson’s ADA Claim

As best we can tell, Swanson premises his ADA claim 

on the Village’s failure to offer him either “light duty”

 

3 At oral argument, Swanson’s counsel at one point contended that 

the Village did cause him financial loss, suggesting that the accrued 

medical leave that Swanson used to arrange his part-time schedule 

would have been paid to him at the time of his resignation, had he 

not been forced to use it. But, when pressed (in light of the absence 

of this claim in his briefs), Swanson’s lawyer abandoned this contention. 
No. 14-3309 13

(again, desk duty) or “part-time” work (which we assume means “part-day” work since, as mentioned, the 

Village allowed him to use his medical leave to work a 

three-day-a-week part-time schedule) in the six-week period between his return to work after his first stroke (August 19, 2009) and the date on which he suffered his second stroke (September 30, 2009). Swanson makes much 

of the fact that when he requested “light duty” work, 

Pulec told him (as Swanson recalls it) that the Village

“had no such policy.” Swanson discredits Pulec’s alleged 

representation by highlighting that, in fact, the Village’s 

Personnel Manual expressly lists “light duty” work as an 

option that the Village will consider for employees who 

become temporarily disabled. Swanson also notes that 

the ADA requires an employer of a disabled employee to 

engage in an “interactive process”—a “flexible give-andtake with the disabled employee ... [to] determine what 

accommodation would enable the employee to continue 

working.” EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 805

(7th Cir. 2005). He argues that Pulec’s refusal to consider 

(let alone acknowledge) a “light duty” option constituted 

a failure to engage Swanson in a sufficiently interactive 

process under the ADA.

There are a few shortcomings with Swanson’s line of 

reasoning. First, the Village Personnel Manual makes 

clear that the decision to offer an employee “light duty” 

work is at the discretion of the department in which the

disabled employee works. It also expressly states that a 

request for “light duty” work will only be considered 

when an employee submits an “acceptable” “physician’s 

report,” specifying the employee’s limitations so that the 

department head can assess whether a suitable “light du-
14 No. 14-3309

ty” arrangement can be made. Yet, as the Village emphasizes, Swanson’s doctor’s note did not recommend “light 

duty”; it suggested that he work “part-time.” And Swanson did just that.

Moreover, even if “light duty” would have been 

Swanson’s preferred accommodation, the ADA does not 

entitle a disabled employee to the accommodation of his 

choice. Rather, the law entitles him to a reasonable accommodation in view of his limitations and his employer’s needs. Accordingly, permitting an employee to use 

paid leave can constitute a reasonable accommodation.

See Vande Zande v. Wis. Dep’t of Admin., 44 F.3d 538, 544–

45 (7th Cir. 1995); Taylor v. Pepsi-Cola Co., 196 F.3d 1106, 

1110 (10th Cir. 1999); Hankins v. The Gap, Inc., 84 F.3d 797, 

801–02 (6th Cir. 1996); cf. 29 C.F.R. pt. 1630 § 1630.2(o)(2) 

(“Reasonable accommodation may include but is not limited to: ... (ii) Job restructuring; part-time or modified 

work schedules; reassignment to a vacant position; ... 

and other similar accommodations for individuals with 

disabilities.”). And the Village’s accommodation (and, 

frankly, its general treatment of Swanson in the wake of

his medical issues) seems quite reasonable here. In addition to permitting him to work a part-time schedule after 

his first stroke, the Village granted Swanson’s requests to 

extend his leave following his second stroke to ensure 

that he would remain on the Village’s health plan during 

his medically difficult time. Swanson’s briefs leave entirely unclear why in retrospect he deems these accommodations unacceptable.

In his reply brief, Swanson complains that after his 

second stroke “Chief Miller never wrote about the possi-
No. 14-3309 15

bility of light and/or part-time duty work.” To the extent 

Swanson seeks to pin an ADA violation on the Village’s 

failure to reasonably accommodate him after his second 

stroke, that claim founders. The ADA only requires employers to reasonably accommodate a disabled employee 

who can “perform the essential functions of the job, with 

or without a reasonable accommodation.” Basith v. Cook 

Cnty., 241 F.3d 919, 931 (7th Cir. 2001). And Swanson 

made clear in his resignation letter, in his disability application, and in his deposition testimony that his second 

stroke rendered him completely unable to resume the responsibilities of a Village police officer.

Accordingly, Swanson’s ADA claim has no merit. 

III. Conclusion

For the foregoing reasons, we AFFIRM the district 

court’s grant of summary judgment in favor of the Village.