Freeman v. Madison Metropolitan School

• Decision Date: 02 November 2000
• Docket Number: No. 99-1448,99-1448
• Citation: 2000 WL 1640952,231 F.3d 374
• Parties: (7th Cir. 2000) DON FREEMAN, Plaintiff-Appellant, v. MADISON METROPOLITAN SCHOOL DISTRICT, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 374

231 F.3d 374 (7th Cir. 2000)

DON FREEMAN, Plaintiff-Appellant, v. MADISON METROPOLITAN SCHOOL DISTRICT, Defendant-Appellee.

No. 99-1448

In the United States Court of Appeals For the Seventh Circuit

Argued January 7, 2000

Decided November 2, 2000

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

ROVNER, Circuit Judge.

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...