Mark Swanson v. Village of Flossmoor

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3309
M ARK S WANSON ,
Plaintiff-Appellant,
v.
VILLAGE OF F LOSSMOOR ,
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.
____________________
A RGUED J UNE 5, 2015 — DECIDED J ULY 24, 2015
____________________
Before WOOD, Chief Judge, and FLAUM and
EASTERBROOK, Circuit Judges.
F LAUM , Circuit Judge. Mark Swanson resigned from
the Village of Flossmoor’s police department after suffer-
ing 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

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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 in-
stances in which Village employees made racially offen-
sive comments to him during the course of his employ-
ment. 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 fa-
vor 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 Oppor-
tunity 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 po-
lice 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 Hund-
ley and Deputy Police Chief Michael Pulec until his ca-
reer 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

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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 experi-
encing 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 ac-
crued medical leave to work a reduced schedule—a rou-
tine that satisfied his doctor’s recommendation until Sep-
tember 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 de-
partment. On December 10, Miller wrote to Swanson to

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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 in-
vestigations division to the patrol division upon his re-
turn 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 epi-
sode, which prompted his doctor to rescind his prior re-
lease and prohibit Swanson from resuming work. After
further consultation with his physician, Swanson re-
signed five days later. His December 21 resignation letter
expressed his disappointment that he was “simply physi-
cally unable to return to [his] duties with the depart-
ment.” 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 Of-
ficer/Detective with the department.” The letter also re-
quested 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 ab-
sence 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—

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No. 14-3309 5
awarding him a disability pension of 50% of his former
salary retroactive to December 21, 2009. Swanson’s appli-
cation 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 de-
termined 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 determi-
nation on January 18, 2013. Swanson appealed the court’s
ruling, but on March 3, 2014 that decision, too, was af-
firmed. To date, Swanson remains medically unable to
work as a Village police officer.
Highly relevant to this appeal, Swanson filed a dis-
crimination charge with the Equal Employment Oppor-
tunity Commission on September 14, 2010. The entirety
of his complaint read:
I began my employment with [the Flossmoor Po-
lice 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 pro-
vided. Subsequently, I was demoted.
I believe that I have been discriminated against
because of my national origin, Puerto Rican, in vi-
olation of Title VII of the Civil Rights Act of 1964,
as amended.

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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 vio-
lations 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 dis-
crimination, respectively, contending that Village em-
ployees discriminated against Swanson by making vari-
ous derogatory comments about his Puerto Rican descent
during the course of his employment. Swanson’s appel-
late brief highlights a few examples. For instance, Swan-
son says that during a February 2000 traffic stop, his su-
pervisor 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 lock-
up, 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-

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No. 14-3309 7
ficers were treated better than non-white officers. He al-
leges, for instance, that a black colleague was once repri-
manded 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, contend-
ing that “after [his] stroke, [he] was excluded from inves-
tigations; 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 discrimi-
nation 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 envi-
ronment. His brief in opposition to the Village’s summary judgment
motion expressly disavowed such a claim, making clear that “Swan-
son has not alleged a hostile work environment. He has alleged a
disparate treatment claim. Thus, Flossmoor’s argument [that Swan-
son’s Title VII claim should be dismissed for failure to prove the ex-
istence of a hostile work environment] is meritless.”

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8 No. 14-3309
ful employment practice. Yet when Swanson filed his dis-
crimination 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 peri-
odic contact with Chief Miller during his leave of absence
somehow delayed the start of the 300-day limitations pe-
riod.
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 dis-
trict court concluded that Swanson simply did not
demonstrate that the Village failed to reasonably accom-
modate his disability. To the contrary, the Village permit-
ted 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 in-
ferences from the evidence in his favor. Nacify v. Ill. Dep’t
of Human Servs., 697 F.3d 504, 509 (7th Cir. 2012).

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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. Indian-
apolis Fire Dep’t, 578 F.3d 559, 563 (7th Cir. 2009). Proceed-
ing 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 simi-
larly 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 spe-
cific racially offensive incidents about which he com-
plains 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 consti-
tute unlawful discrimination under Title VII), Swanson’s

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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 Swan-
son 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 out-
side the limitations period; the theory is that “[a] hostile
work environment claim is composed of a series of sepa-
rate acts that collectively constitute one ‘unlawful em-
ployment practice.’” Id. at 117. Swanson, however, does
not make such a claim. Thus, Swanson’s allegations of
discrimination during the course of his active employ-
ment are time-barred, and he may only pursue his demo-
tion 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

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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 de-
rogatory.” Accordingly, Swanson cannot establish a con-
nection between the alleged racially offensive comments
made to him over the years and his potential reassign-
ment 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 attrib-
ute to Village employees who are said to have made offensive re-
marks about Puerto Ricans during his employ. Swanson also seems
to argue that the Village’s denial of his request for “light duty” con-
stituted 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 recommenda-
tions of his proposed comparators (i.e., whether, unlike Swanson,
their doctors recommended that they be confined to a desk). There-
fore, without more information, we cannot draw a meaningful com-
parison 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).

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12 No. 14-3309
Moreover, because Swanson never returned to work
after his second stroke, he never experienced the demo-
tion about which he complains. Therefore, he never actu-
ally 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) (ci-
tations and internal quotation marks omitted). Here,
Swanson falls far short of demonstrating that he suffered
an adverse employment action on account of his mem-
bership 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 conten-
tion.

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No. 14-3309 13
(again, desk duty) or “part-time” work (which we as-
sume 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 pe-
riod between his return to work after his first stroke (Au-
gust 19, 2009) and the date on which he suffered his sec-
ond 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-and-
take 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-

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14 No. 14-3309
ty” arrangement can be made. Yet, as the Village empha-
sizes, Swanson’s doctor’s note did not recommend “light
duty”; it suggested that he work “part-time.” And Swan-
son 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 ac-
commodation in view of his limitations and his employ-
er’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 lim-
ited 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 addi-
tion 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 en-
tirely unclear why in retrospect he deems these accom-
modations unacceptable.
In his reply brief, Swanson complains that after his
second stroke “Chief Miller never wrote about the possi-

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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 em-
ployers 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 ap-
plication, and in his deposition testimony that his second
stroke rendered him completely unable to resume the re-
sponsibilities of a Village police officer.
Accordingly, Swanson’s ADA claim has no merit.
III. Conclusion
For the foregoing reasons, we A FFIRM the district
court’s grant of summary judgment in favor of the Vil-
lage.

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