233 F.3d 432 (7th Cir. 2000)
Equal Employment Opportunity Commission, Plaintiff-Appellant,andJudith Keane, Intervenor-Appellant,v.Sears, Roebuck & Co., Defendant-Appellee.
Nos. 99-3734 & 99-4037
In the  United States Court of Appeals  For the Seventh Circuit
Argued September 15, 2000Decided November 8,  2000

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.


1
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.

I.  BACKGROUND

2
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.


3
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.


4
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.


5
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."


6
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.


7
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.


8
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.


9
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.

II.  DISCUSSION
A.  Standard of Review

10
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).


11
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.


12
B.  "Failure to Reasonably Accommodate" Claim


13
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 because of  the disability of such individual in  regard to job application procedures, the  hiring, advancement, or discharge of  employees, employee compensation, job  training, and other terms, conditions,  and privileges of employment." 42 U.S.C.  sec. 12112(a). Section 12112(b) of the  Act defines the different ways in which  discrimination under section (a) might  occur. Relevant to our inquiry, the ADA  states that "not making reasonable  accommodations to the known physical or  mental limitations of an otherwise  qualified individual with a disability  who is an applicant or an employee" is  considered discrimination, "unless such  covered entity can demonstrate that the  accommodation would impose an undue  hardship on the operation of the business  of such covered entity." 42 U.S.C. sec.  12112(b)(5)(A). Thus, in order for a  plaintiff to recover under the ADA for an  employer's failure to reasonably  accommodate, that plaintiff must first  show: (1) that she was or is disabled as  defined by the Act, (2) that her employer  was aware of the disability, and (3) that  she was qualified for the position in  question. Best v. Shell Oil Co., 107 F.3d  544, 547-48 (7th Cir. 1997).


14
In concluding that summary judgment was  appropriate for Sears on plaintiffs'  "failure to reasonably accommodate" cause  of action, the district court focused  almost exclusively on the first prong of  the above three-part inquiry. Upon  determining that Keane was not disabled  under the ADA, the court resolved that  the entire claim must fail.1 Our  review must therefore center, at least at  the outset, on whether there exists a  disputed issue of material fact regarding  Keane's status as disabled within the  terms of the ADA.


15
Under the Act, a disability is defined  as: "(A) a physical or mental impairment  that substantially limits one or more of  the major life activities of such  individual; (B) a record of such an  impairment; or (C) being regarded as  having such an impairment." 42 U.S.C.  sec. 12102(2). Plaintiffs have not  advanced that Keane should be considered  disabled under either subsections (B) or  (C). Rather, they suggest solely that  Keane's neuropathy substantially limits  her ability to engage in the major life  activity of walking.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. Duda v. Board  of Educ. of Franklin Park Pub. Sch. Dist.  No. 84, 133 F.3d 1054, 1058 n.5 (7th Cir.  1998); see also 29 C.F.R. sec.  1630.2(j).3 Furthermore, "if a person  is taking measures to correct for, or  mitigate, a physical or mental  impairment, the effects of those  measures--both positive and negative--  must be taken into account when judging  whether that person is 'substantially  limited' in a major life activity and  thus 'disabled' under the Act." Sutton  527 U.S. at 482.


16
Once again, it is not our role to come  to a decision as to whether Keane was  disabled under the ADA. See Miranda, 91  F.3d at 1014. Rather, we only need decide  whether a rational jury, viewing the  evidence in the light most favorable to  the plaintiffs, could come to such a  decision. We believe they could. Thus, we  conclude that summary judgment should not  have been granted on the basis that Keane  was not disabled.


17
In reaching this decision, we focus on  two distinct factors. First, and of  paramount relevance to summary judgment  proceedings, we find that there exist  disputed issues of material fact  regarding whether or not Keane is  disabled under the ADA. Specifically, we  believe there is conflicting evidence  surrounding whether Keane's neuropathy  substantially limits her ability to walk.  When determining whether an impairment is  substantially limiting, courts  shouldconsider the nature and severity of  the impairment, its duration and expected  duration, and its permanence or long-  term impact. See Hamm v. Runyon, 51 F.3d  721, 725 (7th Cir. 1995). Though the  progression of Keane's impairment  subsequent to her resignation from Sears  does not factor directly into the  analysis of whether Keane was disabled  when she was employed by Sears, we  believe that her present inability to  walk more than one city block does  provide a certain degree of credence to  the claim that her neuropathy may have  been "substantially limiting" at the time  at issue. In addition, the record  contains evidence that during the  relevant times, doctors diagnosed Keane  as having an impairment that required she  limit her walking.  While we do not  suggest that the evidence conclusively  proves that Keane was substantially limited in her ability to walk, on the  basis of the testimony of both Keane and  her physicians, the plaintiffs have met  their burden of establishing a material  dispute as to the severity of Keane's  impairment.


18
While such a dispute is sufficient to  require our remanding of this case to the  district court, we further note certain  absences in the record. We believe it is  important to point these out, as their  presence could assist a court in making a  proper determination as to whether an  individual is substantially limited in a  major life activity, and thus disabled  under the ADA.  First, the record is  incomplete regarding the actual distances  that Keane was able to walk. In the  course of oral argument, counsel for both  sides stated only that these were not  long distances. Further, we do not find  any evidence of how Keane's impairment  limited her ability to walk in comparison  to the average member of the population.  As we have noted above, such an inquiry,  if not required, is certainly helpful in  resolving any dispute as to whether  someone is substantially limited in a  major life activity. However, in the  absence of such a comparison, we suggest  that a summary judgment determination is  problematic.


19
Additionally, we note that Keane's use  of a mitigating device, without a study  of its effects, cannot, by itself,  support a finding that Keane was not  substantially limited in her ability to  walk. The district court was correct in  analyzing Keane's disability with  reference to the mitigating device, as  Sutton mandates. However, we must caution  that the use of a mitigating device does  not automatically bar any possibility of  a person being considered disabled. The  Sutton approach does not unilaterally  exclude from the category of disabled all  those who use a mitigating device to  combat the effects of an impairment.  Rather, Sutton merely dictates that the  analysis of whether a person is  substantially limited in a major life  activity must be conducted with reference  to the mitigating device. 527 U.S. at  482. Sutton, by suggesting that the  analysis must factor in any negative  impacts of a mitigating device,  implicitly rejects the notion that a  mitigating device unilaterally bars the  determination that someone is disabled.  We find that absent in the record is any  analysis of how the use of the cane  impacted Keane's ability to walk. Here,  evidence on this issue was extremely  relevant. As plaintiffs note throughout,  Keane's cane did not mitigate her  neuropathy in any sense, but rather  provided her with an alternative means to  travel longer distances without having to  lean against a wall to keep from falling.


20
Because of disputes regarding the  severity of Keane's condition, along with  absences in the record regarding facts  that would have assisted in the  resolution of those disputes, we cannot  conclude that Keane was not disabled as a  matter of law.4 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  footnote that it found such arguments  persuasive, we determine that it is  necessary to remand this case for a more  searching analysis.  Therefore, we  reverse the district court's decision  granting summary judgment on plaintiffs'  "failure to reasonably accommodate" claim  and remand this cause of action.5

C.  "Constructive Discharge" Claim

21
Plaintiffs' second argument on appeal is  that the district court erred in granting  Sears summary judgment on plaintiffs'  claim of constructive discharge.  Initially, we note that this Circuit has  not yet determined whether a claim of  constructive discharge stemming from a  hostile work environment is cognizable  under the ADA. See Miranda, 91 F.3d at  1017. In nearly every instance in which  this issue has been raised before this  court, we have assumed arguendo that the  claim does exist. See id. ("In the  present appeal, we need not decide the  question of whether a claim of  constructive discharge is cognizable  under the ADA because, even assuming that  it is, Miranda's claim falls far short of  what such a successful appeal would  require."); see also, Volmert v.  Wisconsin Department of Transportation,  197 F.3d 293, 297 (7th Cir. 1999). We  will maintain the posture previously  expressed in such cases as Miranda and  Silk v. Chicago, 194 F.3d 788, 803-04  (7th Cir. 1999), and reserve the question  until it is directly presented.6 Because the underlying claim for  constructive discharge in this instance  is lacking in support, we would not, in  any event, have to reach the issue in  order to uphold the district court's  grant of summary judgment.


22
A claim of discriminatory constructive  discharge would require a plaintiff to  demonstrate first that she was  constructively discharged--that the  employer made the working conditions so  intolerable as to force a reasonable  person to leave. Miranda, 91 F.3d at  1017. Once that showing has been made,  the plaintiff would have to establish  that she was constructively discharged on  account of her disability. Id. Because  such an analysis would require a  determination whether there has been a  constructive discharge prior to any  conclusion as to whether that discharge  was related to a disability, our previous  determination that disputed issues of  fact exist as to Keane's status as  disabled would not preclude us from  addressing whether summary judgment in  this instance was appropriate.


23
That being said, plaintiffs have not  offered sufficient evidence to create a  triable issue of fact with respect to a  claim of constructive discharge.  "[U]nless conditions are beyond  'ordinary' discrimination, a complaining  employee is expected to remain on the job  while seeking redress." Perry v. Harris  Chernin, Inc., 126 F.3d 1010, 1015 (7th  Cir. 1997) (citing Rabinovitz v. Pena, 89  F.3d 482, 489 (7th Cir. 1996)).  Plaintiffs have failed to present any  evidence that Sears' conduct has risen to  the levels which would be required to  maintain such a claim. In support of  their claim, plaintiffs only state that  Keane was being denied reasonable  accommodations at every turn, and that  she was told she would have to work on  Thursday nights and Fridays. Plaintiffs  suggest that Keane's being forced to work  on days for which she claimed she was  unavailable is supportive of plaintiffs'  position that Keane was being  constructively discharged. However, the  record indicates that Keane was  unavailable to work on Thursday evenings  because that was her "Bingo night," and  Fridays because she liked to clean her  home. While we do not mean to diminish  the importance of recreation time and  household responsibilities, we fail to  see how an employer's decision, which at  the very most would require an employee  to slightly rearrange her schedule,  constitutes actions that are "beyond  ordinary discrimination."


24
Finally, we note that the district court  was correct in determining that quitting  was not the only option available to  Keane. A perusal of the record seems to  indicate that there was poor  communication between both sides through  out this matter. Instead of discussing  the new work schedule and Allen's refusal  to allow Keane to use the shoe room  shortcut, Keane resigned. While this was  certainly her prerogative, we do not  believe this was her only option. Though  the situation may have been  uncomfortable, we cannot conclude that a  reasonable person in her position would  have been compelled to resign. Because  the district court correctly determined  that there is no disputed issue of  material fact regarding this claim of the  plaintiffs, and that Sears was entitled  to judgment as a matter of law, we affirm  the grant of summary judgment for Sears  on plaintiffs' claim of constructive  discharge.

III.  CONCLUSION

25
For the foregoing reasons, we Affirm the  district court's grant of summary  judgment to the defendant on plaintiff's  and intervenor's claim for constructive  discharge; we Reverse the district court's  grant of summary judgment in favor of the  defendant on plaintiff's and intervenor's  claim for failure to reasonably  accommodate a disability under the ADA;  and we Remand this case to the district  court for further proceedings consistent  with this opinion.



Notes:


1
 The district court was correct in noting that  plaintiffs' claim could not survive absent a  determination that Keane was considered disabled  under the ADA. "The Act is not a general protec-  tion of medically afflicted persons . . . . If  the employer discriminates against them on ac-  count of their being (or being believed by him to  be) ill, even permanently ill, but not disabled,  there is no violation." Christian v. St. Anthony  Med. Ctr., Inc., 117 F.3d 1051, 1053 (7th Cir.  1997). Nonetheless, after granting summary judg-  ment to Sears based on its finding that Keane had  not presented any evidence that she was disabled,  the district court, in footnote, stated that it  found Sears' other arguments on the issue "per-  suasive." Specifically, the court noted that  while there is a dispute, Sears did allow Keane,  at least for a short time, to use the shortcut as  well as the stockroom to eat. Furthermore, the  court felt that the record suggests that Keane  did not adequately satisfy her duty to communi-  cate her impairment to Sears.


2
 The complaint below also puts forth that Keane  was substantially limited in her ability to  stand. The district court did not believe that  any such difficulties warranted a determination  that Keane was disabled. On appeal, plaintiffs do  not challenge that ruling.


3
 As the Supreme Court noted in Sutton it is  unclear how much, if any weight, should be given  to these regulations, which were promulgated by  the EEOC. 527 U.S. at 478-80.  In this instance,  the defendant has not contested the notion that,  for the purpose of determining whether an indi-  vidual is substantially limited in a major life  activity, that individual must be compared to the  average member of society.  As the Court did in  Murphy v. United Parcel Service, Inc., 527 U.S.  516, 523 (1999), we assume, arguendo, that the  EEOC regulations regarding disability determina  tions are valid.


4
 In determining that summary judgment is inappro-  priate we note one additional point raised by the  defendant. Though the gravamen of Sears' claim is  that, as a factual matter, Keane is not signifi-  cantly impaired in her ability to walk, Sears  does present one interesting argument that de-  mands our attention. Sears contends that despite  how substantially limiting the court might con-  sider Keane's neuropathy, it cannot qualify as a  disability under the ADA, in that the condition  was episodic. Keane does not dispute that her  condition worsened the longer and farther she was  forced to walk, and hence is to a certain extent  "episodic." The defendants rely on our decision  in Vande Zande v. Wisconsin Dep't of Admin. for  the proposition that intermittent, episodic  impairments are not disabilities. 44 F.3d 538,  544 (7th Cir. 1995). However, as stated in Vande  Zande, the standard example of an intermittent,  episodic impairment is a broken leg. Id. "[A]n  intermittent impairment that is a characteristic  manifestation of an admitted disability is, we  believe, a part of the underlying disability and  hence a condition that the employer must reason-  ably accommodate." Id. While we cannot determine  whether Keane is considered disabled, we do  recognize that if a jury were to find her to be  so, it would be based on the fact that she  suffered from neuropathy. That neuropathy mani-  fests itself in a predictable yet intermittent  pattern does not preclude a finding that one  suffering from the condition can be termed dis-  abled. Therefore, in this instance, the fact that  Keane's condition was episodic is not dispositive  in the disability inquiry.


5
 We do not mean to suggest with this opinion that  the determination as to whether an individual  falls within the ADA's definition of "disabled"  is a question that under different circumstances  could not properly be resolved via summary judg-  ment. We have noted in the area of Title VII  cases that though discrimination cases frequently  hinge on the issue of intent, which is often a  contestable issue of material fact, there is no  separate standard governing summary judgment in  Title VII cases which precludes its use. Wallace,  103 F.3d at 1396. Likewise, while we recognize  that the extent of an individual's infirmities  will in some instances be a contestable factual  determination, we find nothing unique regarding  ADA cases that would mark the field inapt for  summary judgment.


6
 We note however that a claim for constructive  discharge appears to arise under the general  prohibition against discrimination with respect  to terms or conditions of employment contained in  42 U.S.C. sec. 12112(a). See also 29 C.F.R. sec.  1630.4(i) (stating that it is unlawful to dis-  criminate against a disabled employee in regard  to any "term, condition, or privilege of employ-  ment."). In addition, a claim for constructive  discharge is cognizable under Title VII, an area  of law often consulted when analyzing claims  under the ADA. See Miranda, 91 F.3d at 1017;  Vitug v. Multistate Tax Comm'n, 88 F.3d 506, 516-  17 (7th Cir. 1996).


