The opinion of the court was delivered by: CHARLES NORGLE, District Judge
Before the court is the Equal Employment Opportunity Commission's
("EEOC") suit on behalf of Judith Keane, alleging that Keane's former
employer, Sears, Roebuck and Company, Inc. ("Sears") violated the
Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112(a), by
failing to reasonably accommodate her disability. The EEOC alleges that
Sears constructively discharged Keane. Keane has since intervened in the
The court previously granted summary judgment for Sears on both
claims, finding that Keane failed to submit any evidence of a disability
as defined by the ADA (the court therefore did not reach defendant's
alternative grounds for summary judgment), and that Keane also had
submitted no evidence that she was constructively discharged. See EEOC
v. Sears, No. 97 C 3971, 1999 WL 977072 (N, D. Ill. Oct 22, 1999). On
appeal, the Seventh Circuit affirmed the grant of summary judgment as to
the constructive discharge claim, EEOC v. Sears, 233 F.3d 432, 440-41
(7th Cir. 2000). However, the Seventh Circuit reversed and remanded as to
the failure to reasonably accommodate claim. Id. at 437-440. The Seventh Circuit found that "there
exist disputed issues of material fact regarding whether or not Keane is
disabled under the ADA." Id. at 438. This case was remanded in order for
the court to undertake a "more searching analysis" as to Sears'
alternative reasons for summary judgment. Id. at 440. On January 26,
2001, Sears filed a motion to reinstate its Motion for Summary Judgment.
See Def.'s Mot. to Reinstate its Mot. for Summ. J. and for Ruling
Thereon. The court granted that motion, and ordered that supplemental
Local Rule 56.1 Statements be submitted, which the parties have
provided. On January 28, 2002, Sears filed a motion for the court to take
judicial notice of the United States Supreme Court's decision in Toyota
Motor Manufacturing Kentucky, Inc. v. Williams. 534 U.S. 184 (2002). The
motion is now fully briefed and before the court.
From September 1992 until May 1995, Judith Keane worked as a
part-time, noncommissioned sales associate at the Sears store in Calumet
City, Illinois. Keane was primarily assigned to the Intimate Apparel
Department, although she occasionally worked in other departments such as
women's dresses, sportswear, handbags, and hosiery. Keane's duties
included assisting customers, sizing racks, and handling purchases at the
cash register. Additionally, Keane picked up money bags in the store
office and dropped them off at cash registers as she arrived on the job.
Keane generally worked five to six hour shifts. Keane's immediate
supervisor was Jacqueline Klisiak, but if Klisiak was absent Keane reported to either Shirley
Oros or Tanya Branch, who were two other supervisors in the department
All management personnel reported to the store manager David Allen.
In the summer of 1994, Keane asked Klisiak is she could eat in the
Intimate Apparel stockroom during her breaks. Keane said she was having
trouble with her legs. Near that stockroom were a refrigerator, a desk,
and Klisiak's office. Klisiak granted Keane permission to eat in the
stockroom, although eating in the stockroom was generally not allowed. On
rare occasion, however, Keane would walk to the food court. Keane does
not say how far away it was or how long it took to walk there.
In December 1994, Keane went to see Louis Deporter, M.D. complaining of
numbness in her leg. Dr. Deporter referred Keane to a neurologist,
Kathryn Hanlon, M.D., who examined Keane on December 22, 1994. Dr. Hanlon
diagnosed Keane with neuropathy, a general description of nerve damage.
Hanlon recorded the diagnosis on a form note. That form note included a
heading entitled "Limit." Under that heading, Dr. Hanlon wrote the
following: "Walking avoid prolonged periods of walking and long
distances." Additionally, in January 1995, Dr. Deporter diagnosed Keane
as having non-insulin dependent diabetes.
When Keane returned to Sears, she gave Dr. Hanlon's form note,
including the limitation on walking, to Oros to pass on to Klisiak. Keane
did not discuss the form note with Klisiak. Klisiak reviewed the form
note in early January 1995 and believed that Keane's limit on walking
could be accommodated by having her spend less time walking on the sales
floor. Because sales associates1 hours were typically reduced after the holidays, Klisiak believed
that Keane was walking less and that the form note's limitation had been
met. Klisiak then forwarded the note to the store manager Allen.
Allen reviewed the form note and thought it was vague and that it did
not provide enough information about any physical restrictions Keane
might have had. Allen asked Keane to provide additional information so
that he could determine what steps Sears could take to assist her. Allen
also provided Keane with a Sears Physician Certification form and
requested that she have her physician complete it.
Keane submitted the Certification form to Dr. Deporter in April 1995,
and he completed it on April 18, 1995. Dr. Deporter indicated on that
form that no surgery had been performed, and that Keane had been
diagnosed with neuropathy and diabetes. Under the "Limitation" portion of
that form, Dr. Deporter wrote: "Excessive walking allow easy/short
access to job site."
Allen reviewed the completed Certification form and allowed Keane
easier access to both the store and her department. Allen believed that
Sears had complied with the specified limitation. Sears had modified
Keane's parking arrangement so that she could park in the spaces located
immediately outside the door leading to the Intimate Apparel Department.
Sears normally required that employees park in the employee parking area,
which was at the far reaches of Sears' parking lot Additionally, since
January of 1995, Klisiak had allowed Keane to cut through the Shoe
Department storeroom to get to and from the Intimate Apparel Department.
Though this short-cut reduced Keane's walk to her department by half,
Keane used it only occasionally. On one occasion, the manager of the Shoe Department, Joy Krumweide, told Keane not to
cut through the storeroom because it was a restricted area due to
security concerns. Krumweide was unaware of Keane's health condition.
In May of 1995, Keane resigned allegedly because Allen denied her the
use of the short-cut through the Shoe Department storeroom. This suit
followed in June 1997,
II. SCOPE OF REMAND
A district court reviewing a case on remand is free to examine only
certain aspects of the case, namely those issues that have been
specifically remanded to the district court. See United States v.
Husband, 312 F.3d 247, 251 (7th Cir. 2002): see also United States v.
Morris. 259 F.3d 894
, 898 (7th Cir. 2001). When an appellate court
decides an issue in a particular case, that issue remains decided for the
purposes of any subsequent proceedings in the same case. See Husband, 312
F.3d at 251. Thus, when an appellate court remands a case to a district
court, the district court is not free to reexamine issues already decided
by the appellate court. See Id. "[A]ny issue conclusively decided by [the
Appellate Court] on the first appeal is not remanded." Id.; see also
Morris, 259 F.3d at 898; United States v. Thomas. 11 F.3d 732
, 736 (7th
Cir. 1993). In order to decide what issues are not within the scope of
remand, "the opinion needs to be looked at as a whole." Husband. 312 F.3d
at 251; see also United States v. Parker. 101 F.3d 527, 528 (7th Cir.
1996) ("[T]he scope of remand is determined not by formula, but by
inference from the opinion as a whole.").
The "general principle that the district court can only hear a case
within the scope of remand" originates with the law of the case
doctrine. Id.; see also Morris, 259 F.3d at 898, "Generally, under the law of the case doctrine, `when a court decides upon a rule of law,
that decision should continue to govern the same issues in subsequent
stages of the same case.'" Id.; see also Thomas, 11 F.3d at 736; United
States v. Feldman, 825 F.2d 124, 130 (7th Cir. 1987) ("This doctrine
serves to maintain consistency and avoid reconsideration of matters once
decided during the course of a single continuing lawsuit,").
In reviewing cases on remand, district court judges are not always
bound by principles of law decided by appellate courts. "An appellate
mandate does not turn a district judge into a robot, mechanically
carrying out orders mat become inappropriate in light of subsequent
factual discoveries or changes in the law." Barrow v. Falck, 11 F.3d 729,
731 (7th Cir. 1993); see also United States v. Story, 137 F.3d 518, 520
(7th Cir. 1998) ("Although we have the discretion to reconsider an issue
that we have already decided in prior stages of litigation, (citations
omitted), we usually decline to do so unless `an intervening change in
the law, or some other special circumstance, warrants reexamining the
claim."). The law of the case doctrine therefore does not require
district court judges on remand to apply rules of law decided upon by
appellate courts, if a controlling authority has changed the law at
issue. The doctrine of the law of the case "allows some flexibility,
permitting a court to revisit an issue if an intervening change in the
law, or some other special circumstance, warrants reexamining the claim."
Thomas, 11 F.3d at 736; see also United States v. Mazak, 789 F.2d 580,
581 (7th Cir. 1986).
The Seventh Circuit found that "there exist disputed issues of material
fact regarding whether or not Keane is disabled under the ADA." Sears.
233 F.3d at 438. In making that determination, the Seventh Circuit relied upon the following rule of law:
[A] disability is defined as: "(A) a physical or
mental impairment that substantially limits one or
more major life activities of such individual . . .
42 U.S.C. § 12102(2) . . . In determining whether an
individual is substantially limited in a major life
activity, we examine whether that individual, when
compared to the general population, is unable to
perform or is significantly restricted as to the
condition, manner, or duration under which she can
perform that ...