Former Cop's Discrimination Case Against Village of Flossmoor Fails in Appeals Court

More than a dozen Flossmoor residents got to know Mark Swanson when the Flossmoor police detective led the town’s first citizens police academy in 2009. He brought together cops, prosecutors, crime scene experts to share insights into police work with average citizens, everything from active shooter situations to traffic stops.

Swanson was in his third year as a detective and criminal investigator, having been promoted after six years on the force.

But that summer, on July 31, Swanson suffered a stroke. Six weeks later, a second stroke hit the veteran cop. Eventually, Swanson would sue the Village of Flossmoor and claim village officials failed to abide by the requirements of the Americans with Disabilities Act.

Last week, six years after the strokes ended his law enforcement career, the 7th Circuit Court of Appeals decided Swanson’s claim was without merit. At issue was whether the Village of Flossmoor had accommodated its employee under the ADA. Swanson’s lawyers argued the village needed to do more than it had.

After his first stroke, Swanson was granted a leave under the Family and Medical Leave Act. After three weeks, the detective requested light duty in accordance with a note from his doctor. His superiors agreed to let him work part time but said there was no “light duty” available.

According to his claim:

“... 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.”

The second stroke left him unable to work. About two months later, Swanson applied for FMLA leave retroactively, which the village granted. His leave expired on Dec. 18, 2009, and Swanson returned to duty.

Prior to returning, Swanson received a letter from the department which stated he could “request an unpaid leave of absence” if he required one. The letter also “informed him that he would ‘most likely’ be reassigned from the investigations division to the patrol division upon his return to work.”

After his return to duty, Swanson suffered another medical setback which forced his doctor to restrict him from work. Swanson submitted his resignation on Dec. 21, 2009, and requested a disability pension. He asked to remain on unpaid leave to continue his health insurance coverage, which the village granted. In 2011, the village pension board granted him a disability pension, 50 percent of his salary, and made it retroactive to 2009. He was denied a “line of duty” pension of 60 percent of his former salary because the pension board found his condition unrelated to his job.

Swanson also filed a complaint with the EEOC, alleging discrimination.

“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.”

Swanson claimed the discrimination is related to how he was treated following his medical issues.

A lower court, however, found in favor of the village of Flossmoor. And because he did not return to work, the court ruled that Swanson was not demoted. On July 24, the 7th District Circuit Court of Appeals affirmed the lower court’s ruling, stating: ”[T]he Village’s accommodation (and, frankly, its general treatment of [the plaintiff] in the wake of his medical issues seems quite reasonable here.”