Rasul Freelain v. Village of Oak Park

In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-4074
RASUL FREELAIN,
Plaintiff-Appellant,

v.

VILLAGE OF OAK PARK and
DINA VARDAL,
Defendants-Appellees.
____________________

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13-CV-3682 — Manish S. Shah, Judge.
____________________

ARGUED DECEMBER 6, 2017 — DECIDED APRIL 30, 2018
____________________

Before WOOD, Chief Judge, and EASTERBROOK and
HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Plaintiff Rasul Freelain worked
as a police officer in the Village of Oak Park, Illinois for five
years before he claims another officer began harassing him.
After an incident in 2012 prompted him to report the miscon-
duct, Freelain began experiencing migraine headaches and
2 No. 16-4074

other medical conditions that he has attributed to stress re-
lated to the harassment. To deal with these medical issues,
Freelain took significant periods of time off work.
As Freelain began taking time off, tensions rose between
him and the police department. Freelain claims that as a result
of his medical condition and use of leave time, the village re-
taliated against him in violation of the Family and Medical
Leave Act, 29 U.S.C. § 2601 et seq., and the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq. The district court
granted summary judgment in favor of the village on all
claims. We affirm. The undisputed facts show that the acts
that Freelain has identified as retaliation would not discour-
age a reasonable employee from exercising his or her rights
under these statutes.
I. Facts for Purposes of Summary Judgment
Because Freelain appeals from a grant of summary judg-
ment, we must view the evidence in the light reasonably most
favorable to him, as the non-moving party, and we must give
him the benefit of conflicts in the evidence. Greengrass v. Int’l
Monetary Systems Ltd., 776 F.3d 481, 485 (7th Cir. 2015). That
means we are not vouching for the objective truth of every fact
that we must assume to be true for purposes of the appeal.
KDC Foods, Inc. v. Gray, Plant, Mooty, Mooty & Bennett, P.A.,
763 F.3d 743, 746 (7th Cir. 2014).
Plaintiff Rasul Freelain began working as a police officer
for the Village of Oak Park in 2002. In 2007, Sergeant Dina
Vardal made what Freelain perceived as inappropriate and
unwelcome sexual advances toward him. According to
Freelain, he was not the only person subjected to sexual har-
No. 16-4074 3

assment by Vardal. After Freelain rebuffed Vardal’s invita-
tions to parties at her house, he claims, she escalated a pattern
of harassment and hypercriticism of his performance.
In April 2012, Freelain says, Vardal suggested giving him
“one on one training” during her “personal time.” This offer
and a later call from Vardal to Freelain on his personal tele-
phone prompted Freelain to file a sexual harassment com-
plaint with the village against Vardal on May 9, 2012. Ten days
after this initial report, Vardal shoved Freelain into the side of
his squad car while shouting “look out! look out!” During this
altercation, Freelain was on duty but Vardal was not. Freelain
amended his harassment complaint to include this incident
and sought the village’s support (without success) to pursue
criminal battery charges against Vardal.
The village retained an outside agency to investigate
Freelain’s complaint. The investigator interviewed only
Freelain and concluded the investigation in June 2012, finding
that his claim was unsubstantiated. Despite the quick dispo-
sition of the investigation, Freelain did not know the outcome
until September 2012 when he returned to work. In the in-
terim, before learning the results of the investigation, Freelain
had begun to suffer migraines, sleeplessness, and stress that
he attributed to the ongoing investigation and the continued
presence of Vardal. In late August 2012, he began taking days
off because of his ailments. By the end of September, Freelain
had used 20 days of leave to deal with his symptoms.
Freelain’s physician cleared him to return to work on Sep-
tember 28, 2012. Freelain then met with Police Chief Richard
Tanksley, who told Freelain that the village would take no ac-
tion against Vardal in response to Freelain’s complaint. Tanks-
ley also told Freelain he would need to pass a psychological
4 No. 16-4074

examination before returning to duty. More than six weeks
passed before the department cleared Freelain to return to
work in November 2012.
These extended absences drained Freelain’s accumulated
days of paid sick leave. Nevertheless, he received full
paychecks for all pay periods except the very last pay period
before the village cleared him to return to work. The village
reduced Freelain’s pay for that final period by a few hours
that he remained absent after exhausting his paid sick leave.
During his extended absence while awaiting clearance from
the psychological test results, Freelain complained that the
village should reclassify his absence as administrative leave
and pay him without draining his sick leave. The village
agreed, but a few months passed before it readjusted
Freelain’s sick leave balance and compensated him for unpaid
hours during the administrative leave.
Shortly after he returned to work in late 2012 but before
his sick leave balance was adjusted, Freelain’s wife was diag-
nosed with cancer. To care for her and his family during this
time, Freelain requested and received additional FMLA leave.
But with his sick leave balance depleted, Freelain faced a dif-
ficult choice—take unpaid time off work to help his family, or
continue working while his wife and family dealt with her ill-
ness. Throughout that ordeal, we assume, Freelain struggled
to balance his obligations by working full-time but taking
time off when his wife had surgery or other urgent needs.
The police department leadership, we must assume, did
not always respond to Freelain’s absences efficiently or with
kind understanding. Freelain says that Chief Tanksley
smirked at him when informing him that he could not return
to work until he passed a psychological evaluation. Another
No. 16-4074 5

supervisor reportedly told Freelain that Tanksley was “tired
of” him. The police department often required Freelain to pro-
vide detailed documentation for his leave and misclassified
portions of his leave. Efforts to approve his leave requests and
to remedy misclassifications bordered on dilatory.
Freelain filed a charge with the Equal Employment Op-
portunity Commission alleging disability discrimination and
retaliation in April 2013. He filed suit against the Village of
Oak Park and Vardal the following month. In his second
amended complaint, Freelain asserted various claims under
the Family and Medical Leave Act and the Americans with
Disabilities Act. The district court granted summary judg-
ment for the village on these federal claims and dismissed re-
maining state law claims against Vardal without prejudice.
Freelain appeals the district court’s rulings on his retalia-
tion claims under the FMLA and the ADA. In particular, he
disputes the district court’s findings that he failed to identify
any materially adverse actions taken against him and failed to
establish a causal nexus between any purported adverse ac-
tions and his protected activity under the statutes. Freelain ar-
gues that the village took three materially adverse actions to
retaliate against him: (1) initially misclassifying his sick leave;
(2) requiring him to undergo a psychological evaluation; and
(3) waiting three months before approving his request to en-
gage in outside employment for a colleague’s private security
company.
We review de novo the district court’s grant of summary
judgment and draw all reasonable factual inferences from the
record in Freelain’s favor. Montgomery v. American Airlines,
Inc., 626 F.3d 382, 389 (7th Cir. 2010). Oak Park is entitled to
6 No. 16-4074

summary judgment only if there is no genuine dispute of ma-
terial fact and the village is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a).
II. Analysis
A. The FMLA and ADA Generally
The Family and Medical Leave Act and the Americans
with Disabilities Act are legally distinct, but in cases claiming
unlawful retaliation, the analyses under the two separate acts
overlap. The ADA prohibits covered employers from discrim-
inating against individuals with disabilities. 42 U.S.C.
§ 12112(a). The FMLA grants qualified employees twelve
weeks of leave during a twelve-month period for qualifying
health reasons. 29 U.S.C. § 2612(a)(1). Congress defined in ex-
pansive terms both the qualifying health reasons triggering
the FMLA and the disabilities protected by the ADA. Id. (de-
fining qualifying health reasons); 42 U.S.C. § 12102(1) (defin-
ing disability). We assume that both statutes covered
Freelain’s situation in 2012 and 2013.
Both the FMLA and the ADA prohibit employers from re-
taliating against employees who assert their statutory rights.
29 U.S.C. § 2615; 42 U.S.C. § 12203. Here, Freelain’s ADA and
FMLA retaliation claims arise from the same situation: his
medical ailments following Vardal’s alleged harassment.
Whether the village retaliated against him because of a medi-
cal disability or because he took leave to deal with that disa-
bility does not matter. Buie v. Quad/Graphics, Inc., 366 F.3d 496,
503 (7th Cir. 2004) (“We evaluate a claim of FMLA retaliation
the same way that we would evaluate a claim of retaliation
under other employment statutes, such as the ADA or Title
VII.”); see also Casna v. City of Loves Park, 574 F.3d 420, 427 (7th
No. 16-4074 7

Cir. 2009). To avoid repetition, we address the ADA and
FMLA claims together.
We must first, though, address the boundaries of the
FMLA because they shape our analysis of Freelain’s claims.
Unlike workers’ rights laws in many other countries, the
FMLA does not require employers to pay employees when
they are on family or medical leave. See 29 U.S.C. § 2612(a),
(c), and (d). The law permits an employer to drain any paid
leave it provides to its employees while they use FMLA leave.
§ 2612(d). These details matter because so many of Freelain’s
arguments are based on his frustration with the village for
taking actions that drained his paid leave account. Freelain
was allowed to take all the unpaid leave he wanted or needed.
His claims in this lawsuit assert that doing exactly what the
FMLA allows—placing an employee on unpaid leave—vio-
lated the anti-retaliation provisions of the FMLA and ADA.
As we view the case, though, granting an employee’s FMLA
rights to unpaid leave consistent with the statute’s explicit
terms cannot constitute a retaliatory adverse action under the
FMLA itself or under the ADA, at least without evidence that
his employer deviated from its normal paid leave practices
and targeted him for unpaid leave because he asserted his
statutory rights. 1

1 A regulation under the FMLA requires an employer to adhere to its
family or medical leave policies that are more generous than the FMLA
itself. 29 C.F.R. § 825.700. Freelain has not offered evidence of such a de-
viation here.
8 No. 16-4074

B. Retaliation Doctrine Under the Statutes
Retaliation claims under the FMLA and ADA require
three familiar elements: (1) the employee engaged in statuto-
rily protected activity; (2) the employer took adverse action
against the employee; and (3) the protected activity caused
the adverse action. Pagel v. TIN, Inc., 695 F.3d 622, 631 (7th Cir.
2012). Freelain engaged in statutorily protected activity by us-
ing his FMLA leave because of his medical ailments. Freelain
has failed, however, to come forward with evidence that the
village took any materially adverse actions against him.
The category of actions prohibited by the statutes’ anti-re-
taliation provisions is broader than the category of adverse
employment actions prohibited by the statutes’ anti-discrimi-
nation provisions. See Breneisen v. Motorola, Inc., 512 F.3d 972,
979 (7th Cir. 2008) (FMLA), citing Burlington Northern & Santa
Fe Railway Co. v. White, 548 U.S. 53, 64 (2006) (Title VII’s “an-
tiretaliation provision, unlike the substantive provision, is not
limited to discriminatory actions that affect the terms and
conditions of employment.”). This difference makes sense be-
cause the provisions banning retaliation create a zone of pro-
tection around the fundamental anti-discrimination principle
so that employers do not chill worker conduct seeking to vin-
dicate that principle. Burlington Northern, 548 U.S. at 63 (anti-
discrimination provisions protect people “based on who they
are, i.e., their status” while anti-retaliation provision “seeks to
prevent harm to individuals based on what they do, i.e., their
conduct”).
To count an employer’s action as materially adverse, a
plaintiff must show that the action would have “dissuaded a
reasonable worker from” engaging in protected activity. Id. at
68 (citation omitted). This test uses an objective standard,
No. 16-4074 9

based on how a reasonable employee might react, not the
plaintiff’s subjective feelings. An employee who is particu-
larly sensitive to an employer’s slights receives no greater pro-
tection than one who is able to shrug them off. See id.
Though the inquiry does not reach the personal feelings of
individual employees, the inquiry does account for the per-
sonal circumstances of those employees. Washington v. Illinois
Dep’t of Revenue, 420 F.3d 658, 662 (7th Cir. 2005) (“seeking out
devices that would be harmless to most people but do real
damage to select targets” can be “materially adverse”). For
example, a schedule change “may make little difference to
many workers, but may matter enormously to a young
mother with school-age children,” so the inquiry adjusts ac-
cordingly. See Burlington Northern, 548 U.S. at 69, citing Wash-
ington, 420 F.3d at 662. The question is whether a reasonable
person in the plaintiff’s circumstances would be dissuaded
from engaging in protected activity.
1. Leave Classifications
Freelain’s first claim fails because the misclassifications of
his leave time that he identifies are not materially adverse.
This claim involves two classification of leave for two differ-
ent periods: first, his time off in August and September 2012,
and second the ensuing time off while he waited for clearance
after his psychological evaluation.
The village classified as “self-sick” Freelain’s August and
September 2012 absence. Under this classification, the village
paid Freelain for his time off but deducted the time off from
his sick time balance. Freelain argues that this time should
have been classified as “sick accident” time because his ail-
ments qualified as a work-related injury in that they resulted
10 No. 16-4074

from Vardal’s harassment of him on the job. Under the “sick
accident” classification, the village would not have deducted
time from Freelain’s paid leave account.
We need not consider in detail the village’s methods for
classifying work-related injuries or ailments. The harm
Freelain claims to have suffered—diminishing his paid sick
leave—is wholly consistent with the terms of the FMLA. Put
slightly differently, a reasonable worker would not be dis-
suaded from using FMLA on pain of losing sick days. The
FMLA itself gives employers the right to count FMLA leave
against paid sick days and the right not to pay employees for
time they are on leave. Cf. Ragsdale v. Wolverine World Wide,
Inc., 535 U.S. 81, 90 (2002) (rejecting a federal regulation that
required twelve weeks of FMLA leave to run after employer’s
more generous, voluntary leave policy if employer failed to
notify workers of intention to run FMLA-mandated leave
concurrently with the employer’s more generous leave).
When Freelain tried to return to work on September 28,
2012, Chief Tanksley ordered him to undergo a psychological
evaluation and to await clearance before returning for duty.
That took nearly seven weeks. During that period, the village
continued to classify Freelain’s leave as “self-sick” and de-
ducted that time from his bank of sick days. Freelain argued
that this time should be classified instead as paid “adminis-
trative leave” since the village required his absence. On No-
vember 10, 2012, the village agreed to reclassify the leave, but
it took another two months to carry out that decision by actu-
ally crediting Freelain’s sick leave balance and paying him for
the time he had remained on leave after exhausting his paid
leave.
No. 16-4074 11

Again, Freelain’s claim founders against the terms of the
FMLA and the ADA. Provided that the employer acts in good
faith, the FMLA limits the employee’s recovery to the “com-
pensation denied or lost … by reason of the violation” or the
“actual monetary losses sustained … as a direct result of the
violation.” 29 U.S.C. § 2617(a)(1)(A). Similarly, the ADA limits
recovery to compensatory damages such as backpay unless
the plaintiff can show malice or reckless indifference. 42
U.S.C. § 1981a(a)(2), (b)(1).
Here, nothing in the facts developed by Freelain ap-
proaches malice or recklessness; the evidence shows bureau-
cratic inertia rather than bad faith. For this reason, Freelain
also could not be entitled to the double-backpay liquidated
damages relief provided by the FMLA. 29 U.S.C. §
2617(a)(1)(A)(iii) (excluding liquidated damages where viola-
tions of the FMLA were in good faith). As a result, all that
Freelain could recover in this action would be the compensa-
tion due or actual losses incurred. Yet the village has already
provided as much. Freelain was eventually made whole for
this misclassification by the restoration of his sick leave and
by compensation for the unpaid time he spent on administra-
tive leave after exhausting his sick leave.
Freelain argues that despite these points, he still suffered
real harm because he had no paid leave remaining when his
wife was diagnosed with cancer the month after he returned
to work. We do not deny that Freelain faced difficult choices
under these circumstances, but neither the FMLA nor the
ADA shelters people from these dilemmas. In such circum-
stances, the FMLA allows employees to take unpaid leave but
to return to their jobs. And both laws protect individuals from
12 No. 16-4074

firing or suffering material negative consequences for engag-
ing in protected activity. Yet neither law requires employers
to provide a single day of paid leave (though as noted the
FMLA does require employers to comply with paid leave pol-
icies they have voluntarily adopted, 29 C.F.R. § 825.700). Also,
nothing in the record suggests that the village knew about
Freelain’s wife’s illness so that this leave classification might
be construed as “pouncing on [his] idiosyncratic vulnerabili-
ties.” Washington, 420 F.3d at 662.
In general, federal courts do not second-guess personnel
decisions that lie within the reasonable discretion of employ-
ers. Dale v. Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir.
1986). In Freelain’s case, our role is not to examine every leave
classification the village created and to dictate how we think
it should apply them. In some circumstances, though, addi-
tional scrutiny may be justified. Suppose the village as a mat-
ter of policy or practice always puts officers undergoing psy-
chological evaluations on administrative leave but did not do
so here. Then we might find sufficient evidence that the devi-
ation was a materially adverse action and was circumstantial
evidence that a retaliatory or discriminatory motive lay be-
hind the variance. In this case, though, we have no evidence
that the village routinely applies its leave classifications dif-
ferently than it did here.
2. Psychological Examination
Freelain’s claim that the village retaliated against him by
requiring a psychological evaluation before he returned to
duty also fails. The facts of this case fit safely within the
bounds of a permissible medical examination. Our cases show
many instances of public safety agencies requiring psycholog-
ical evaluations of their employees. We have accepted these
No. 16-4074 13

measures when they are used to determine a worker’s ability
to perform work functions safely. E.g., Coffman v. Indianapolis
Fire Dep’t, 578 F.3d 559, 565–66 (7th Cir. 2009) (psychological
examination ordered for firefighter after colleagues expressed
concern about her mental health); Nichols v. Southern Ill.
Univ.–Edwardsville, 510 F.3d 772, 786–87 (7th Cir. 2007) (paid
leave pending psychological examination after officer used
force against mentally unstable woman); Krocka v. City of Chi-
cago, 203 F.3d 507, 515 (7th Cir. 2000) (“It was entirely reason-
able, and even responsible, for [the police department] to
evaluate [the officer’s] fitness for duty once it learned that he
was experiencing difficulties with his mental health.”).
The evidence does not show whether the village had a for-
mal policy dictating when to refer officers for psychological
evaluations. Even absent a formal policy, though, the evalua-
tion at issue here could not be considered a materially adverse
action. Psychological evaluations are not unusual in circum-
stances similar to Freelain’s, particularly where an em-
ployee’s failure to do his or her job properly may pose a seri-
ous risk to the safety of the employee or others, as the cases
listed above show. A reasonable jury could not find that the
village acted unreasonably by ordering Freelain to undergo a
fitness for duty evaluation after taking several weeks off due
to stress-related medical symptoms.
Federal courts see quite a few cases where an issue is
whether a police department took adequate measures to ad-
dress risks of officer misconduct. See LaPorta v. City of Chicago,
277 F. Supp. 3d 969, 989–991 (N.D. Ill. 2017); Sassak v. City of
Park Ridge, 431 F. Supp. 2d 810, 813–14, 816 (N.D. Ill. 2006);
McLin v. City of Chicago, 742 F. Supp. 994, 1001 (N.D. Ill. 1990);
see generally U.S. Dep’t of Justice, Investigation of the Chicago
14 No. 16-4074

Police Department at 93–134 (2017), https://www.jus-
tice.gov/opa/file/925846/download. Though research on the
usefulness of psychological assessments in policing does not
yield uniform results, deviations in certain personality traits
correlate to varying degrees with police misconduct. See Mi-
chael J. Cuttler & Paul M. Muchinsky, Prediction of Law En-
forcement Training Performance and Dysfunctional Job Perfor-
mance with General Mental Ability, Personality, and Life History
Variables, 33 Crim. Just. & Behavior 3, 16–17 (2006). Given the
risks posed by an officer who is not well enough to work, the
psychological examination of fitness for duty in this case
served a legitimate purpose. It could not reasonably lead to a
finding that the village retaliated against Freelain or tried to
discriminate against him based on a perceived disability.
In dicta, we have outlined certain circumstances where re-
quiring employees to undergo medical examinations would
be impermissible. See Place v. Abbott Laboratories, 215 F.3d 803,
809 (7th Cir. 2000). For example, a medical evaluation could
be seen as a materially adverse action when a plaintiff showed
that she was “singled out” for the examination while other in-
dividuals in similar situations were not. Id. Even without
comparators, a plaintiff might show that a medical examina-
tion was a materially adverse action if the examination is not
related to the employer’s justification for ordering it or where
a plaintiff has direct evidence that the employer ordered the
examination for an illegal purpose. Nothing in Freelain’s evi-
dence indicates that the village treated him differently from
other officers or singled him out unlawfully for this fitness for
duty examination.
No. 16-4074 15

3. Delay in Approving Secondary Employment
The final retaliatory action identified by Freelain is a three-
month delay in approving his request for approval of second-
ary employment. Freelain points to other officers who re-
ceived this approval more quickly, but he cannot show that
the village had a policy or practice of granting approval for
secondary employment automatically. The co-worker who
sought to hire Freelain for a private security company testified
that the village’s approval of secondary employment varied,
stating, “Well, some officers were getting theirs signed and
some officers wasn’t.”
This highly discretionary and perhaps clumsy process
does not present a materially adverse employment action. In
a similar case, we examined a police department’s decision to
forbid an officer from teaching as his secondary employment.
Silk v. City of Chicago, 194 F.3d 788, 800 (7th Cir. 1999). We re-
jected the officer’s claim that that this decision was retaliatory
because the officer had “not proffered evidence that the policy
was applied inconsistently or that others were treated more
favorably than he was.” Id. The same holds here. The village
retained the authority to approve or disapprove of secondary
employment. The approval process took different times for
different officers, but we see no evidence that this was mate-
rially adverse or that Freelain was singled out for a slow-walk
because he exercised his rights under the FMLA and ADA.
4. Causation
Because the village took no materially adverse actions
against Freelain because of his protected activity, we need not
address his arguments about evidence of causation. It may be
useful, though, to clarify some areas of evidentiary confusion
16 No. 16-4074

on the issues. The village and the district court suggested that
statements made by Chief Tanksley could not be considered
at summary judgment because those statements did not sup-
port an inference of causation or because the statements were
hearsay. First, Chief Tanksley is an employee of the village,
and a senior one at that. The statements he made concerned
matters within the scope of his employment. The statements
therefore would not count as hearsay and would be admiss-
ible if offered by the plaintiff as a statement of an opposing
party. Fed. R. Evid. 801(d)(2).
The village also argues that Chief Tanksley’s comments
would not support an inference of causation. In doing so, the
village relies on cases where we have at times suggested that
biased comments must be “(1) made by the decisionmaker, (2)
around the time of the decision, and (3) in reference to the ad-
verse employment action.” Teruggi v. CIT Group/Capital Fi-
nance, Inc., 709 F.3d 654, 661 (7th Cir. 2013), quoting Hems-
worth v. Quotesmith.com, Inc., 476 F.3d 487, 491 (7th Cir. 2007),
overruled in part by Ortiz v. Werner Enterprises, Inc., 834 F.3d
760, 765 (7th Cir. 2016). The quoted passage from Teruggi
stated standards for direct evidence of unlawful intent. It did
not set boundaries for weighing circumstantial evidence as
part of a larger case.
We have more recently taught that courts considering em-
ployment cases must not erect artificial decisional structures
for dismissing circumstantial evidence. Ortiz, 834 F.3d at 765.
“Few discrimination cases are so straightforward—indeed
they are often factually complex and require sifting through
ambiguous pieces of evidence.” Id. We repeat our caution that
courts should not discard circumstantial evidence simply be-
cause it does not provide direct proof of unlawful intent.
No. 16-4074 17

5. Actions Taken as a Whole
Finally, Freelain has also asked us to consider all the ac-
tions taken against him as a whole. See Hobgood v. Illinois Gam-
ing Board, 731 F.3d 635, 644, 647 (7th Cir. 2013). The question
is whether reasonable individuals would be dissuaded from
exercising their statutory rights due to the employer’s actions.
Again, the substance of the FMLA governs the result. A rea-
sonable employee in Freelain’s shoes should not be dissuaded
from taking unpaid leave because an employer took several
actions that temporarily depleted his sick leave account while
the employee was off work for medical reasons. Perhaps a
claim like this can survive when a worker can show insidious
deviations from an employer’s policies or practices, but
Freelain has failed to offer such evidence. The judgment of the
district court is
AFFIRMED.