In the
United States Court of Appeals
For the Seventh Circuit

Nos. 99-3734 & 99-4037

Equal Employment Opportunity Commission,

Plaintiff-Appellant,

and

Judith Keane,

Intervenor-Appellant,

v.

Sears, Roebuck & Co.,

Defendant-Appellee.



Appeals from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 97 C 3971--Charles R. Norgle, Sr., Judge.



Argued September 15, 2000--Decided November 8,
2000




  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.

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. 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.

II. DISCUSSION
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 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).

  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.

  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.

  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.

  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.

  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.

  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.

  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

  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.

  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.

  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."

  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

  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.
/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).
