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April 11, 2004.


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 suit.*fn1

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,
  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 ...

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