United States District Court, N.D. Illinois
April 11, 2004.
UNITED STATES EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, on behalf of Judith Keane, Plaintiff,
SEARS, ROEBUCK and COMPANY, INC, Defendant
The opinion of the court was delivered by: CHARLES NORGLE, District Judge
OPINION AND ORDER
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 major life activity.
Id. Barring a change in the law, this rule controls all subsequent
proceedings in this case. See Morris. 259 F.3d at 898; Thomas. 11 F.3d at
736; Feldman, 825 F.2d at 130.
The Seventh Circuit then remanded this case to the district court
specifically to examine the defendant's alternative grounds for summary
The district court did not address whether summary
judgment was appropriate based on reasons other
than Keane's classification as disabled. While we
recognize that the court stated in a footnote that
it found such arguments persuasive, we determine
mat it is necessary to remand this case for a more
Sears, 233 F.3d at 440. Barring any "special circumstance," such as "an
intervening change in the law," this would constitute the whole of the
scope of remand, and the district court would not be permitted to
reexamine the issue of whether Keane was disabled under the ADA. See
Thomas, 11 F.3d at 736; Story, 137 F.3d at 520.
III. AN INTERVENING CHANGE IN THE LAW REGARDING
THE DEFINITION OF "DISABILITY" UNDER THE ADA
A. The ADA and Employment Discrimination
The ADA prohibits employers from discriminating against persons with
disabilities in connection with employment activities. See
42 U.S.C. § 12112(a); see also 42 U.S.C. § 12111(2) (entities "covered"
by the ADA include, inter alia, "an employer, employment agency, labor organization"). A "disability" under the ADA is: "(A) a physical or
mental impairment that substantially limits one or more of the major life
activities of [an] individual; (B) a record of such impairment; or (C)
being regarded as having such an impairment" Id.
Keane does not argue that she has a record of an impairment that
substantially limits a major life activity, or that Sears regarded her as
having one. The relevant inquiry is whether Keane has an impairment that
substantially limits a major life activity. A physical impairment is "any
physiological disorder or condition, cosmetic disfigurement, or anatomical
loss affecting one or more of the following body systems: neurological;
musculoskeletal; special sense organs; respiratory; including speech
organs; cardiovascular; reproductive; digestive; genito-urinary; hemic
and lymphatic; skin; and endocrine." 45 C.F.R. § 84.3(j)(2)(i). Keane
clearly has such an impairment: Dr. Hanlon has diagnosed Keane with
neuropathy, or nerve damage. This impairment affects Keane's ability to
walk. Walking is a major life activity. See 45 C.F.R. § 84.3(i)(2)(ii);
see also Toyota, 534 U.S. at 195. The more pointed inquiry thus becomes
whether Keane's physical impairment, which clearly affects a major life
activity, in fact substantially limited her in that major life activity.
Not every impairment that affects a major life activity is considered a
disability under the ADA, For instance, an impairment that is only
temporary is not a disability. See Waggoner v. Olin Corp. 169 F.3d 481,
484 (7th Cir. 1999). The impairment must "in fact" be a substantial
limitation on a given individual's ability to perform the major life
activity; the fact that a given individual performs such an activity
differently than others does not in and of itself indicate that the
individual is disabled under the ADA. See Albertson's. Inc. v. Kirkingburg,
527 U.S. 555, 564-65 (1999). Courts are to look to the following factors
to determine whether an individual has an impairment that substantially
limits a major life activity: "[t]he nature and severity of the
impairment; [t]he duration or expected duration of the impairment; and
[t]he permanent or long-term impact, or the expected permanent or
long-term impact of or resulting from the impairment."
29 C.F.R. § 1630.2(j)(2)(i)-(iii); see also Hamm v. Runyon, 51 F.3d 721,
725 (7th Cir. 1995). Any mitigating measures taken by the impaired
individual must be taken into account in determining whether the
individual is disabled. See Albertson's. 527 U.S. at 565; see also Sutton
v. United Airlines, Inc., 527 U.S. 471, 482 (1999). Finally, courts are
to determine whether individuals are disabled on a case-by-case basis.
See 42 U.S.C. § 12102(2); see also Albertson's. 527 U.S. at 566; Sutton.
527 U.S. at 483.
B. The Seventh Circuit's Rule of Law: EEOC v. Sears
In remanding, the Seventh Circuit indicated that the rule of law
regarding whether an individual is disabled under the ADA was the
following: "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 major life activity." Sears. 233 F.3d at 438
(emphasis added). Keane is considered disabled under this definition of
disability, if she cannot walk, or is significantly limited in her
ability to walk. Under that standard, the Seventh Circuit determined that
"the plaintiffs have met their burden of establishing a material dispute
as to the severity of Keane's impairment." Id. at 439. C. An Intervening Change in the Law: Toyota v. Williams
In Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, the
plaintiff was diagnosed with "bilateral carpal tunnel syndrome and
bilateral tendonitis." 534 U.S. at 187. These impairments restricted
plaintiff's ability to use pneumatic tools and lift heavy objects on her
assembly-line job at defendant's manufacturing plant. See Id. at 184-85.
In determining whether the plaintiff had met her burden of showing a
disability under the ADA, the Supreme Court indicated that the plaintiff
was required to meet a high standard, See Id. at 196-97. The Court first
noted that an impairment must "substantially limit" a major life
activity. Id.; 42 U.S.C. § 12102(2)(A). In order for an impairment to be
substantial, the Court reasoned, the impairment would have to
"considerabl[y]" or "to a large degree" interfere with a major life
activity. Id. at 196. Conversely, "impairments that interfere in only a
minor way" with major life activities are not to be considered
disabilities. Id. at 197. The Court held "that to be substantially
limited in performing manual tasks, an individual must have an impairment
that prevents or severely restricts the individual from doing activities
that are of central importance to most people's lives." Ii at 198
The Toyota decision has changed the law regarding the definition of
"disability" under the ADA. See, e.g., Dvorak v. Mostardi Platt
Associates, Inc., 289 F.3d 479, 484 (7th Cir. 2002) (stating, "the
[Toyota] Court established a higher threshold for the [ADA] statute than
some had believed it contained"). An individual is no longer considered
to be disabled under the first prong of the ADA's definition of
disability if she is significantly limited in performing a major life
activity. See Sears, 233 F.3d at 438. Now, an individual is considered
disabled under the first prong of the ADA's definition of disability of she is severely limited in performing a
major life activity. See Toyota, 534 U.S. at 198; Dvorak, 289 F.3d at
484. The court will therefore proceed in this matter using the Toyota
definition of disability as the appropriate standard.
IV. SUMMARY JUDGMENT STANDARD
A motion for summary judgment will be granted if "the pleadings,
depositions, answers to interrogatories and admissions on file, together
with the affidavits, if any, show that there is no genuine issue of
material fact and that the moving parry is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(c); see also Logan v. Commercial Union
Ins. Co., 96 F.3d 971, 978 (7th Cir. 1996). The moving party bears the
initial burden of pointing to those parts of the record that indicate the
absence of any issue of material fact. See Celotex Corp, v. Catrett,
477 U.S. 317, 323 (1986); see also Logan. 96 F.3d at 978. Should the
moving party meet this initial burden, the non-moving party must then
"set forth specific facts showing there is a genuine issue for trial."
Fed.R.Civ.P. 56(e); see also Logan, 96 F.3d at 978. These facts must be
material, as "[i]rrelevant or unnecessary facts do not preclude summary
judgment even when they are in dispute." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248-49 (1986); see. also Logan, 96 F.3d at 978. In
essence, "summary judgment is proper only if there is no reasonably
contestable issue of fact that is potentially outcome-determinative,"
Sears. 233 F.3d at 436.
In determining whether there is a "genuine dispute of material fact," a
court should look at the evidence in a light "most favorable to the
nonmoving party." Id. at 437. However, if the "record as a whole could
not lead a rational trier of fact to find for the nonmoving party, there
is no genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.
475 U.S. 574, 587 (1986). The party opposing summary judgment must
"present definite, competent evidence to rebut the motion." Sears, 233
F.3d at 437.
A. Keane's Status as "Disabled" under the ADA
The court notes at the outset that due to the change in the law
regarding the definition of "disability" under the ADA, in order to
survive this motion for summary judgment, Keane must present evidence
that her disability severely limits her ability to walk. See Toyota, 534
U.S. at 198. The Toyota court emphasized that the question of whether an
individual is "disabled" is to be analyzed under a "strict" standard;
there is a "demanding standard for qualifying as disabled. . . ." Id. at
197. Keane fails to meet that standard.
Keane argues that she is "disabled" under the ADA based on the
following facts. She was diagnosed with neuropathy (nerve damage) in her
leg. Keane has difficulty walking, numbness in her legs at times, and
requires a cane to walk from her car to her work station. Defendant
argues, however, that certain admissions by Keane indicate that she,
while impaired, is not "disabled" under the ADA.
The following admissions by Keane demonstrate that Keane can present no
evidence that she is severely limited in walking. "While employed by
Sears as a sales clerk, Keane was able to and did walk the short
distances around her sales area." Pls.' Mem. in Opp. to Def.'s Mot for
Summ. J., at l. Keane was able, with the aid of a cane, to walk from
various parking locations to her department. See Id. at 6. Keane had no difficulty standing for five to
six hours at a time on the sales floor while doing her job. See Def.'s
Rule 12(M) Stmt. ¶¶ 21-24. Moreover, Keane did not use a cane while she
was working these five to six hour shifts. See Def.'s Supp. LR56.1 Stmt.
¶ 11 (citing Keane Dep. at 448-49); see also Pls.' Resp, to Def.'s Supp.
LR 56.1 Stmt. ¶ 11. She was able to walk without her cane to other
departments, such as hosiery, which was three-quarters of the way to the
end of the entire Sears store. See Defs Rule 12(M) Stmt. ¶ 22; Defs
Supp. LR 56.1 Stmt. ¶ 11 (citing Keane Dep. at 448-49). Keane admits
these walks were not problematic for her. See Id.; When Keane was working
for Sears, she was able to go shopping after her shift. See Def.'s Supp.
LR 56.1 Stmt. ¶ 17 (citing Keane Dep. at 149). Keane spent up to ten
hours each Friday cleaning her house during her period of employment at
Sears. See Def.'s Rule 12(M) Stmt. ¶ 30 (citing Keane Dep. at 425).
Keane does not use her cane in her home, except to go up and down
stairs. See Def.'s Supp. LR 56. l Stmt. ¶ 18 (citing Keane Dep. at
506). Keane does not use her cane to go from her house to her car in her
attached garage. See id ¶ 19 (citing Keane Dep. at 506).
By way of example, the court points to PGA Tour, Inc. v. Martin,
532 U.S. 661 (2001), as a clear instance of an individual who has a
disability, even under the heightened Toyota standards. Casey Martin is a
professional golfer. See Id. at 669. Professional golfers (other than
those on the Senior PGA Tour) are required to walk the golf courses
during tournament play. See Id. at 666-67. Martin had
Klippel-Trenaunay-Weber Syndrome, a degenerative circulatory disorder.
See id at 668. As a professional golfer, Martin faced the following
difficulties in walking on a golf course. Martin's disorder "obstruct[ed]
the blood flow from his right leg to his heart." Id. "The disease [was] progressive; it cause[d] severe pain and has atrophied his right
leg." Id. "Walking not only caused him pain, fatigue, and anxiety, but
also created a significant risk of hemorrhaging, developing blood clots,
and fracturing his tibia so badly that an amputation might be required."
The court is not unsympathetic to Keane's impairment. However, The
Supreme Court of the United States has indicated that in order to qualify
as "disabled," an individual must show an impairment that severely limits
a major life activity. See Toyota, 534 U.S. at 198. Keane can provide no
such evidence concerning her impairment. Dr. Hanlon's diagnosis of
neuropathy, combined with Keane's testimony regarding her difficulty in
walking, provide sufficient evidence that she is impaired. Keane has,
however, provided no "definite, competent evidence" to indicate that she
is severely limited in walking; in fact, her admissions strongly indicate
the contrary. She testifies that she can walk about her job site, and to
other departments and locations within Sears, without the use of a cane.
Moreover, this court is directed to evaluate Keane's impairment with
reference to mitigating devices, i.e., her cane. See Sutton, 527 U.S. at
482. Keane admits that she was able, with the aid of a cane, to walk from
her car to her job site. Since Keane can present no evidence that she is
"disabled" under the ADA with or without the use of her cane, her claim
must fail as a matter of law.
B. Defendant's Alternative Arguments for Summary Judgment
Assuming arguendo that Keane is disabled under the ADA, the court will
review Sear's alternative arguments for summary judgment. 1. The Three-Step Process for Meeting the Needs of the Working
The ADA contemplates a three-step process in providing for the needs of
the working disabled. If Keane is "disabled" under the ADA, she first has
an obligation to inform Sears of her disability. See
42 U.S.C. § 12112(b)(5)(A) (indicating that employers discriminate
unlawfully against otherwise qualified individuals by "not making
reasonable accommodations to known physical or mental limitations"); see
also Amadio v. Ford Motor Co., 238 F.3d 919, 929 (7th Cir. 2001) ("An
employee has the initial duty to inform the employer of a disability
before ADA liability may be triggered for failure to provide
accommodations."); Hunt-Golliday v. Metropolitan Water Reclamation
Dist., 104 F.3d 1004, 1012 (7th Cir. 1997); Beck v. Univ. of Wis. Bd. of
Regents, 75 F.3d 1130, 1134 (7th Cir. 1996).
Assuming that Keane had made her disability known to Sears, the process
contemplated by the ADA would move to its second step: Keane would have
the duty to engage in an interactive process with Sears to determine what
accommodations would reasonably be needed, 42 U.S.C. § 12112(b)(5)(A);
see also Rehling v. City of Chicago. 207 F.3d 1009, 1015-016 (7th Cir.
2000); Bultmeyer v. Fort Wayne Cmty. Sch., 100 F.3d 1281, 1285 (7th Cir.
1996). Sears, of course, has a duty to engage in this interactive process
with Keane. See Rehling, 207 F.3d at 1015-016: Beck. 75 F.3d at 1135;
Bultmeyer, 100 F.3d at 1285.
Assuming that Keane had made her disability known to Sears, and that
the two parties had engaged in an interactive process to determine how to
accommodate Keane, the process would move to its third and final step:
Sears would be required to provide Keane with reasonable accommodations for her disability. 42 U.S.C. § 12112(b)(5)(A); see also
Beck, 75 F.3d at 1135; Hunt-Golliday, 104 F.3d at 1012. A reasonable
accommodation "is something concrete some specific action required of
the employer" that will accommodate the individual's disability. Beck, 75
F.3d at 1135.
2. Sears' Awareness of Keane's Disability
Keane argues that she fulfilled her duty to inform Sears of her
disability, and that Sears was aware of her disability. See Pls.' Mem. in
Opp. to Defs Mot. for Summ. J., at 16-17. She argues that she complained
to Sears' management personnel regarding her difficulties in walking, and
provided management with two doctor's notes indicating her diagnosis of
neuropathy and her limitations in walking. See id These measures, she
argues, fulfilled her duty to inform Sears of her disability, and also
indicate that Sears was aware of her disability. See id Defendant
argues, on the other hand that Keane's initial duty to inform required
that she give Sears specific information regarding her disability and her
limitations. See Def.'s Mem, in Supp. of Mot for Summ, J., at 14-15.
In Steffes v. Stepan Co., the plaintiff provided her employer with a
doctor's note that simply said that the plaintiff could not have
"exposure to chemicals." 144 F.3d 1070, 1072 (7th Cir. 1998). The Seventh
Circuit reasoned that since the doctor's note indicated only "blanket
restrictions" on work activities, the plaintiff had a further duty to
"update or further clarify the kinds of work she could do," and what
sorts of working conditions were tolerable to her. Id. In this case,
Keane gave Sears two doctor's notes indicating only blanket limitations
on walking. Keane therefore had a duty to further clarify matters for Sears regarding her disability. See Id.
Since plaintiff can provide no evidence that she or either of her doctors
communicated to Sears in greater detail regarding the nature of her
disability or her limitations, the court finds that as a matter of law,
Sears was not aware of the full extent of Keane's disability.
3. The Breakdown of the Interactive Process
Keane next argues that Sears was responsible for the breakdown of the
required interactive process between herself and Sears. See Pls.' Mem. in
Opp. to Def.'s Mot. for Summ. J., at 22-24. Keane argues that Sears made
no reasonable efforts to determine what accommodations may have been
appropriate for her. See Id. at 24. Sears, on the other hand, argues that
Keane was the one who caused the breakdown of the interactive process.
See Def.'s Mem. in Supp. of Mot. for Summ. J., at 18-20.
The court notes that the primary breakdown of the interactive process
occurred when Keane quit her job. Also, the Seventh Circuit has held that
where a disabled employee has an obligation to "further clarify the kinds
of work she can do" and what sort of working conditions she requires, and
fails to do so, such inaction constitutes a breakdown of the interactive
process. See Steffes, 144 F.3d at 1072; Beck 75 F.3d at 1136 ("Where the
missing information is of the type that can only be provided by one of
the parties, failure to provide the information may be the cause of the
breakdown and the party withholding the information may be found to have
obstructed the [interactive] process."). Here, Keane only provided Sears
with two doctor's notes listing blanket limitations on her walking. Keane can provide no evidence that she participated in the interactive
process to the extent contemplated by the ADA. See Steffes, 144 F.3d at
1072; Beck 75 F.3d at 1136. In fact, the potential for any interactive
process ended when Keane quit her job. The court therefore finds that as a
matter of law, Keane caused a breakdown in the interactive process.
4. Reasonable Accommodations
If Keane properly informed Sears of her disability, and did not cause a
breakdown in the interactive process, Sears had a duty to provide keane
with reasonable accommodations for her disability. See 42 U.S.C. § 12111(9)
(listing some examples of reasonable accommodations: "job restructuring,
part-time or modified work schedules, reassignment . . . "); see also
Beck, 75 F.3d at 1135 ("The employer must be willing to consider making
changes in its ordinary work rules, facilities, terms, and conditions in
order to enable the disabled individual to work."). The accommodations
provided to a disabled employee must only be reasonable; "[a]n employer is
not obligated to provide the accommodation he requests or prefers." Gile
v. United Airlines, Inc., 95 F.3d 492, 499 (7th Cir. 1996).
Keane argues that Sears' attempts at accommodating her disability were
not reasonable. See Pls.' Mem. in Opp. to Defs Mot. for Summ. J., at
20-22. This argument focuses on Sears' revocation of permission for Keane
to cut through a storeroom, and the inadequacy of allowing Keane to use
handicapped parking. See Id. Keane argues that the handicapped parking
actually increased her walk to her department. See Id. Sears contends
that Keane never told it that the handicapped parking was inadequate in
this manner, that it offered Keane the use of the Intimate Apparel stockroom in which Keane could eat so that Keane could avoid
walking to the food court, and that Keane's permission to cut through the
Shoe Department storeroom was never "officially" denied. See Defs Mem. in
Supp. of Mot. For Summ. J. at 17-18.
The court finds that Sears did provide Keane with reasonable
accommodations. Sears did allow Keane to park in a handicapped space near
her work-station, and Keane never indicated to Sears that this was
inadequate. Keane used the stockroom to eat, and utilized the short-cut
through the storeroom for a period of time. When a dispute arose over
whether Keane could continue to use the storeroom short cut and the
stockroom for meals, Keane simply quit. The court therefore finds that as
a matter of law, Sears provided Keane with reasonable accommodations.
The court holds that under the Toyota standard, Keane has not met her
threshold burden of showing that she is disabled under the ADA, as she
can present no evidence to convince a trier of fact that she is
"severely" limited in her ability to walk. See Toyota, 534 U.S. at 198.
Secondly, however, even if Keane could present evidence that she was
disabled under Toyota, she can present no evidence that she adequately
informed Sears of her disability, that she did not cause the breakdown in
the interactive process, or that Sears failed to provide her with
reasonable accommodations. For the foregoing reasons, Sears' motion for
summary judgment is granted.
IT IS SO ORDERED.