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

Decision Date08 November 2000
Docket NumberNos. 99-3734,s. 99-3734
Citation233 F.3d 432
Parties(7th Cir. 2000) Equal Employment Opportunity Commission, Plaintiff-Appellant, and Judith Keane, Intervenor-Appellant, v. Sears, Roebuck & Co., Defendant-Appellee. & 99-4037
CourtU.S. Court of Appeals — Seventh Circuit

Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 97 C 3971--Charles R. Norgle, Sr., Judge. [Copyrighted Material Omitted] Before Flaum, Chief Judge, and Kanne and Williams, Circuit Judges.

Flaum, Chief Judge.

The Equal Employment Opportunity Commission ("EEOC") filed suit under the Americans with Disabilities Act ("ADA"), 42 U.S.C. sec. 12101 et seq., alleging that Sears, Roebuck & Co. ("Sears"), engaged in unlawful employment discrimination against Judith Keane. The court granted leave to Keane to intervene in this matter and file an amended complaint. In addition to the EEOC's claim that Sears failed to reasonably accommodate Keane's disability, Keane asserts in her complaint that she has been constructively discharged from her job with Sears. The district court granted summary judgment for Sears on both claims, based largely on its determination that Keane was not considered disabled under the terms of the ADA. For the reasons stated herein, we affirm in part and reverse and remand in part.


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. In the course of her employment with Sears, Keane also worked in other departments, such as handbags, sportswear, and women's dresses. Typically, Keane's work shifts lasted five to six hours.

In the summer of 1994, Keane began to experience a numbness in her right leg that would onset toward the end of her work shift. While the numbness did not impact Keane's ability to walk short distances in her work area during her shift, it did sometimes preclude Keane from taking longer walks such as those required to reach the employee cafeteria or the food court. Because of the difficulties she was encountering, Keane asked her supervisor, Jacqueline Klisiak, if Keane could eat in the intimate apparel stockroom. Though Klisiak acquiesced to Keane's request, later that year she announced a blanket policy that eating in the stockroom was forbidden.

In the fall of 1994, as Keane's condition began to worsen, she approached Klisiak and inquired as to whether Keane could be permitted to use the shoe stockroom as a shortcut. Keane explained that using the stockroom would reduce by half the distance she would have to walk from her car to her department within the store. Klisiak referred Keane to the shoe department manager Joy Krumweide, who denied the request. In November, Keane repeated her request to the store manager Dave Allen. Allen, like Krumweide before him, denied Keane's request. The following month, Keane began to rely on the assistance of a cane when taking longer walks through the store.

In late December 1994, Keane was diagnosed with "neuropathy," a general description of nerve damage, which was the result of non-insulin diabetes. Keane's neurologist, Dr. Hanlon, provided Keane with a note on which Hanlon had written that Keane should avoid walking long distances and for prolonged periods. Keane provided that note to a supervisory co-worker, who left the note for Klisiak. In January of 1995, Klisiak reviewed the note and determined that the post-holiday reduction in hours was sufficiently limiting the length of Keane's walking periods. Roughly during the same time period, Klisiak gave Keane permission to use the shoe stockroom as a shortcut. However, the first day Keane attempted to use it, Krumweide yelled at Keane to "get out."

In an attempt to further lessen her walking distance, Keane asked Allen if she could park in the merchandise pick-up lot. Allen denied that request but suggested that instead, Keane park in a handicap space outside her department. Parking outside Keane's department did not lessen her commute, as she still had to walk across the store to the employee check-in location before she could commence work in her department.

In April of 1995, Allen spoke to Keane and requested that she have her physician fill out a Sears' Physician Certification Form in order to provide the company with more information regarding Keane's condition. Keane's physician completed the form, noting that Keane suffered from diabetes and neuropathy in her right leg. He recommended that Keane should limit excessive walking and be granted easy and short access to her work site. Upon reading the returned form, Allen assumed that since Keane was permitted to park in the handicapped parking space, her request for accommodation had been granted. Keane neither provided additional medical information regarding her condition nor informed her supervisors that their accommodations were unacceptable.

In May 1995, Keane met with Klisiak. At that meeting Keane was informed that Allen had denied her request to use the shoe stockroom shortcut. Furthermore, Klisiak provided Keane with a new work schedule which required Keane to work on Thursday evenings and Fridays. Though Keane protested that she had always been and was likewise 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 believed she had no choice other than to resign.

The EEOC filed suit against Sears alleging that the company had failed to reasonably accommodate Keane's disability, in violation of the ADA. When Keane was granted leave to intervene, her amended complaint further alleged that Sears had constructively discharged Keane from her position. Sears filed a motion for summary judgment on both claims. The district court determined that summary judgment was appropriate on plaintiffs' first claim after it had concluded that Keane was not disabled within the terms of the ADA. Specifically, the court held that since Keane was able to walk with the assistance of a cane she was not substantially limited in her ability to walk, and thus not disabled. With regard to Keane's claim of constructive discharge, the district court bypassed the question of whether such a claim is cognizable under the ADA. Rather, the court concluded that even assuming such a claim is theoretically viable, in Keane's case the claim would fail, as she was not (1) disabled, and (2) subjected to conditions that were so intolerable as to require resignation. Thus, the court likewise granted Sears summary judgment on the constructive discharge claim. The EEOC and Keane now appeal, arguing that disputed issues of fact exist as to whether Keane is disabled as the term is understood under the ADA.

A. Standard of Review

In reviewing a district court's grant of summary judgment, we assess the record de novo and reach our own conclusions of law or fact as they flow from the record before us. Miranda v. Wisconsin Power & Light Co., 91 F.3d 1011, 1014 (7th Cir. 1996). This plenary review of the evidence requires that we employ the standard prescribed in Rule 56(c) of the Federal Rules of Civil Procedure, and determine that summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Simply put, Rule 56(c) mandates an approach in which summary judgment is proper only if there is no reasonably contestable issue of fact that is potentially outcome- determinative. Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997).

In resolving a motion for summary judgment, we will neither come to a conclusion on factual disputes nor weigh conflicting evidence. Miranda, 91 F.3d at 1014. Rather, we will limit our analysis of the record to deciding the aforementioned question of whether a genuine issue of material fact exists for trial. Id. Such an issue exists if "[t]here is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In reaching a conclusion as to the presence of a genuine issue of material fact, we must view the evidence and draw all inferences in a way most favorable to the nonmoving party. Tolentino v. Friedman, 46 F.3d 645, 649 (7th Cir. 1995). However, this is not to suggest that a non-moving party can survive summary judgment with merely a scintilla of evidence supporting its position. Essex v. United Parcel Serv. Inc., 111 F.3d 1304, 1308 (7th Cir. 1997). "[A] party will be successful in opposing summary judgment only when they present definite, competent evidence to rebut the motion." Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997) (citations and internal quotation marks omitted). With the appropriate standard before us, we now turn to the individual claims and examine the propriety of the district court's grants of summary judgment.

B. "Failure to Reasonably Accommodate" Claim

On appeal, plaintiffs first contend that the district court erred in granting Sears summary judgment on the claim that Sears failed to reasonably accommodate Keane's disability. The ADA prohibits discrimination by covered entities, including private employers, against qualified individuals with a disability. Sutton v. United Air Lines, Inc., 527 U.S. 471, 477 (1999). Specifically, the ADA provides that no covered employer "shall discriminate against a qualified individual with a disability...

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