E.E.O.C. v. Sears, Roebuck & Co.

• Decision Date: 10 August 2005
• Docket Number: No. 04-2222.,No. 04-2493.,04-2222.,04-2493.
• Citation: 417 F.3d 789
• Parties: EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, and Judith Keane, Intervening Plaintiff-Appellant, v. SEARS, ROEBUCK & COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

417 F.3d 789

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, and Judith Keane, Intervening Plaintiff-Appellant, v. SEARS, ROEBUCK & COMPANY, Defendant-Appellee.

No. 04-2222.

No. 04-2493.

United States Court of Appeals, Seventh Circuit.

Argued May 10, 2005.

Decided August 10, 2005.

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Gail S. Coleman (argued), Jean P. Kamp, E.E.O.C., Steven N. Fritzshall, Fritzshall & Associates, Chicago, IL, for Plaintiff-Appellant.

Mary A. Smigielski (argued), Morgan, Lewis & Bockius, Chicago, IL, for Defendant-Appellee.

Before FLAUM, Chief Judge, and KANNE and WILLIAMS, Circuit Judges.

FLAUM, Chief Judge.

Under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., an employer unlawfully discriminates against a "qualified individual with a disability" when it fails to make "reasonable accommodations to the known physical or mental limitations" of the disabled employee, unless to do so would impose an "undue hardship" on the employer. §§ 12112(a), (b)(5)(A). The Equal Employment Opportunity Commission ("EEOC") filed suit against defendant-appellee Sears, Roebuck & Company ("Sears") for failing to reasonably accommodate the disability of its employee Judith Keane. Keane intervened and the district court granted summary judgment in favor of Sears, concluding that Keane was not disabled under the ADA. Keane and the EEOC appealed and, having found genuine issues of material fact as to whether Keane was disabled, we reversed. See EEOC & Keane v. Sears Roebuck & Co. ("Keane I"), 233 F.3d 432 (7th Cir.2000). On remand, the district court concluded that the Supreme Court's decision in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 122 S.Ct. 681, 151 L.Ed.2d 615 (2002), issued after our opinion in Keane I, changed the standard for determining whether an employee is disabled. The court considered Sears' renewed motion for summary judgment in light of Toyota and held, once again, that no reasonable jury could find that Keane was disabled. It went on to state that Sears also must prevail because Keane cannot establish any of the other elements of her failure to accommodate claim. Keane and the EEOC appeal a second time and, for the reasons stated herein, we again reverse.

I. Background

In September 1992, Judith Keane began working at the Sears River Oaks department store in Calumet City, Illinois. As a sales associate in the intimate apparel department, Keane's tasks included handling purchases, assisting customers, sizing racks, and occasionally transporting money to and from cash registers. Keane's immediate supervisor was Jacqueline Klisiak, but when Klisiak was absent, Keane reported to one of two supervisory coworkers, Shirley Oros or Tanya Branch. All management personnel reported to the store manager, David Allen.

In the summer of 1994, Keane began experiencing a numbness in her right leg. While the numbness did not affect her ability to walk short distances in her work area, it sometimes precluded her from taking longer walks such as those required to reach the employee cafeteria or the food court. Keane explained to Klisiak the difficulty she was having with her leg and asked if she could eat lunch in the intimate apparel stockroom. Although Klisiak initially agreed, she later announced a blanket policy forbidding all eating in the stockroom.

In the fall of 1994, as Keane's condition began to worsen, she asked Klisiak if she could walk through the shoe stockroom when going between the employee swipe-in area and the intimate apparel department. Keane explained that this shortcut would reduce by half the distance she had to walk at the beginning and end of each shift. Klisiak referred Keane to the shoe department manager, Joy Krumweide, who denied the request. Klisiak then went to David Allen on Keane's behalf, explained Keane's problem, and asked if Keane could use the stockroom shortcut. Allen refused.

Beginning in December 1994, Keane could walk no more than the equivalent of one city block without losing sensation in her leg. Once this happened, walking became "nearly impossible and extremely slow." Keane explained:

I didn't know if I was going to make it out of the store all right. It was very, very difficult to walk, very difficult. . . . The more that I had to walk, which basically entailed parking and going in and out of the store, the more walking I had to do, the more numb the leg became. And the more difficult it — for instance, when I would come home from work, it would take a long time for that feeling to come back.

Keane eventually began using a cane when taking longer walks through the store. This, however, did not alleviate her symptoms or allow her to walk further.

In late December 1994, Keane was diagnosed with neuropathy, a general description of nerve damage, in addition to non-insulin-dependent diabetes. Keane's neurologist, Dr. Kathryn Hanlon, wrote a note stating that Keane should avoid walking long distances or for prolonged periods. Keane brought the note to work and, because Klisiak was not in, gave it to Shirley Oros who left it on Klisiak's desk. Klisiak found the note the following month. Klisiak knew that Keane's hours had been reduced at the end of the holiday season and decided, without discussing it with Keane, that the shortened schedule sufficiently limited Keane's walking. In fact, the change in hours had not helped Keane because her difficulties arose from walking to and from her work area, regardless of the length of her shifts. Klisiak put the doctor's note in Keane's personnel file without sharing it with anyone.

At some point, Klisiak gave Keane temporary permission to use the shoe stockroom as a shortcut. The first day Keane attempted to use it, however, Krumweide yelled at Keane to "get out of here." When Keane explained that Klisiak had given her permission, Krumweide screamed, "Jackie has no right to give you permission. This is my department." On another occasion, Keane approached the shoe stockroom and found a stock manager sitting on a stool at its entrance. The manager explained that Allen had taken her from her regular duties, posted her at the entrance, and instructed her to bar anyone from going through the door. Despite Keane's protests that she had Klisiak's permission to use the shortcut, the stock manager did not let Keane enter.

In another attempt to reduce her walking, Keane asked Allen if she could park in the merchandise pick-up lot near the employee entrance. Allen denied that request but suggested that Keane park in a space reserved for people with disabilities outside of her department. Parking near Keane's department did not lessen her commute, however, because she still had to walk across the store to the employee swipe-in location and then walk back to her work area at the beginning and end of each shift.

By the spring of 1995, in addition to her right leg, Keane began to lose sensation in both feet when walking distances. As she described it, when "there is no feeling, [ ] it's almost as though you have to take both of your hands and lift up your leg and take one step at a time." At times, Keane had to hold on to the wall to avoid falling.

In April 1995, Allen asked Keane to have her doctor fill out a Sears' Physician Certification Form. He did not say that there was anything inadequate about her first doctor's note, indicate any specific information that was needed, or ask Keane what sort of accommodation she was seeking. Dr. Louis DePorter, Keane's general practitioner, completed the form, noting that Keane suffered from diabetes and from neuropathy in her right leg. He recommended that Keane limit excessive walking and be allowed "easy/short access to [her] job site." When Allen received the form, he assumed that because Keane was allowed to use the reserved parking space near her department, her request for accommodation had been fulfilled. Allen did not ask for, and Keane did not provide, additional medical information regarding her condition or the suitability of this arrangement. Allen told Klisiak to inform Keane that she would not be permitted to cut through the shoe stockroom. Although she was aware that the reserved parking space "seemed farther away" and that Keane would still have to walk around the building to the employee swipe-in location and then back to the intimate apparel department, Klisiak did not tell this to Allen.

In a meeting the following month, Klisiak told Keane that Allen had again denied her request to use the stockroom shortcut. In addition, Klisiak gave Keane a new work schedule which required her to work on Thursday evenings and Fridays. Although Keane protested that she had always been, and was then, unavailable to work on Thursday evenings and Fridays, Klisiak replied that the schedule could not be changed. Feeling that Sears had failed to accommodate her disability and was attempting to make her work environment inhospitable, Keane told Klisiak that the walking was too much for her and that she was going to have to resign. Klisiak described her own response in the following way: "I told her I was sorry to hear that; and I explained to her how to go about signing out in Personnel." Keane did not return.

The EEOC filed suit against Sears alleging that the company had failed to reasonably accommodate Keane's disability in violation of the ADA. After Keane intervened, she filed an amended complaint which further alleged that Sears had constructively discharged Keane from her position. Sears moved for summary judgment on both claims. The district court concluded that Keane was not disabled under the ADA and that she could not show that she had been subjected to conditions that were so intolerable as to require resignation. Accordingly, it granted Sears' motion as to both claims.

The EEOC and Keane appealed. We affirmed as to the constructive discharge claim and, finding genuine issues of material fact...