Los Angeles Employment Lawyers Resource: Equal Employment Opportunity Commission and Judith Keane v. Sears, Rowbuck & Co.

Equal Employment Opportunity Commission and Judith Keane v. Sears, Rowbuck & Co.
 99-3734 99-4037


 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.

 
 On Appeal from the United States District Court
 for the Northern District of Illinois, Eastern Division
 Honorable Charles R. Norgle, Sr., Judge


 BRIEF OF THE EQUAL EMPLOYMENT
 OPPORTUNITY COMMISSION AS APPELLANT
 

 C. GREGORY STEWART
       General Counsel

       PHILIP B. SKLOVER
       Associate General Counsel

       CAROLYN L. WHEELER
       Assistant General Counsel

       GEOFFREY L.J. CARTER
        Attorney

       EQUAL EMPLOYMENT OPPORTUNITY
          COMMISSION
       Office of General Counsel
       1801 L Street, NW.
       Washington, D.C.  20507
       (202) 663-4728

 TABLE OF CONTENTS
 
 TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . .  iii

 STATEMENT OF JURISDICTION 1

 STATEMENT OF THE ISSUES  2

 STATEMENT OF THE CASE 3

 A. Nature of the Case and Course of Proceedings 3
 
 B. Statement of Facts 4

 C. District Court Decision 13

 STANDARD OF REVIEW  15

 SUMMARY OF ARGUMENT 15

 ARGUMENT  17

 I. THIS COURT SHOULD REVERSE THE DISTRICT COURT'S DECISION
  TO AWARD SUMMARY JUDGMENT TO SEARS ON THE COMMISSION'S CLAIM
 THAT SEARS FAILED TO REASONABLY ACCOMMODATE KEANE'S DISABILITY
 . . . . . . . . . . . . . . . . . . . . . . . 17

 A.  The district court erred when it held that Keane did
  not have a disability within the meaning of the ADA . . . 17

 B.  Because a rational jury also could find that Sears discriminated
 against Keane by failing to reasonably accommodate her disability,
 this Court must reverse the district court's decision to award summary
  judgment to
 Sears on that claim  . . . . . . . . . . . . . . . . . .  23

 1.  A rational jury could find that Keane was
 qualified . . . . . . . . . . . . . . . . . . . . .  24

 2.  A rational jury could find that Sears failed to reasonably accommodate
  Keane's disability . . . . .  25

 II. THIS COURT ALSO SHOULD REVERSE THE DISTRICT COURT'S
 DECISION TO AWARD SUMMARY JUDGMENT TO SEARS ON THE COMMISSION'S CLAIM
 THAT SEARS CONSTRUCTIVELY DISCHARGED KEANE IN VIOLATION OF THE ADA
  . . . . . . . . . . . . . . 28

 A.  A plaintiff may bring a constructive discharge claim under the ADA
 . . . . . . . . . . . . . . . . . . . . . . 28


 B.  A rational jury could find that Sears constructively
  discharged Keane from her job in the intimate apparel department
 . . . . . . . . . . . . . . . . . . . . . . .  30

 CONCLUSION  31

 CERTIFICATE OF COMPLIANCE

 SEVENTH CIRCUIT RULE 30(D) STATEMENT REGARDING APPENDIX
 
 CERTIFICATE OF SERVICE

 APPENDIX

 TABLE OF AUTHORITIES

 CASES PAGE(S)

 Baert v. Euclid Beverage, Ltd., 149 F.3d 626
  (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . 17

  Beck v. University of Wisconsin Board of Regents,
  75 F.3d 1130 (7th Cir. 1996)  . . . . . . . . . . . . . .   25

 Bragg v. Navistar International Transport Corp.,
  164 F.3d 373 (7th Cir. 1998)  . . . . . . . . . . . . . . 30
 
 Bultemeyer v. Fort Wayne Community Schs., 100 F.3d 1281
  (7th Cir. 1996) . . . . . . . . . . . . . . . . . . . . .  24

 Dalton v. Subaru-Isuzu Automotive, Inc., 141 F.3d 667
  (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . .  24
 
 Duda v. Board of Education of Franklin Park Public School District,
 133 F.3d 1054 (7th Cir. 1998) . . . . . . .  17, 18

 Haschmann v. Time Warner Entertainment Co., 151 F.3d 591
  (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . .  25
 
 Hendricks-Robinson v. Excel Corp., 154 F.3d 685
  (7th Cir. 1998) . . . . . . . . . . . . . . . . . . .  15, 25

 Kelly v. Drexel University, 94 F.3d 102 (3d Cir. 1996) . . . .  23

 Miranda v. Wisconsin Power & Light Co., 91 F.3d 1011
   (7th Cir. 1996) . . . . . . . . . . . . . . . . . . .  28, 29

 Penny v. United Parcel Service, 128 F.3d 408
  (6th Cir. 1997) . . . . . . . . . . . . . . . . . . . . .  23

 Rabinovitz v. Pena, 89 F.3d 482 (7th Cir. 1996)  . . . . . . .   30
 
 Rehling v. City of Chicago, No. 99-1771, 2000 WL 291377
  (7th Cir. March 21, 2000) . . . . . . . . . . . . . . . .  25

 Silk v. City of Chicago, 194 F.3d 788 (7th Cir. 1999) . . . .   29

 Sutton v. United Air Lines, Inc., 119 S. Ct. 2139 (1999) . .   14, 18
       19, 22

 Talk v. Delta Airlines, Inc., 165 F.3d 1021
  (5th Cir. 1999) . . . . . . . . . . . . . . . . . . . . .  23

 Young v. Bayer Corp., 123 F.3d 672 (7th Cir. 1997) . . . . . .  26


 STATUTES
 
 28 U.S.C. § 451  . . . . . . . . . . . . . . . . . . . . . . .  2

 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . .  2

 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . .  2
 
 28 U.S.C. § 1337 . . . . . . . . . . . . . . . . . . . . . . .  2

 28 U.S.C. § 1343 . . . . . . . . . . . . . . . . . . . . . . .  2

 28 U.S.C. § 1345 . . . . . . . . . . . . . . . . . . . . . . .  2
 
 42 U.S.C. § 2000e et seq.  . . . . . . . . . . . . . . . . . .   2

 Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. .  1, 3

 42 U.S.C. § 12102 . . . . . . . . . . . . . . . . . . . .  17

  42 U.S.C. § 12111(8)  . . . . . . . . . . . . . . . . . . 24

 42 U.S.C. § 12112(a)  . . . . . . . . . . . . . . . .  16, 28


 REGULATIONS

 29 C.F.R. § 1630.2(j)  . . . . . . . . . . . . . . . . . . . . 17
 
  29 C.F.R. § 1630.2(j)(ii) . . . . . . . . . . . . . . . .  18

 29 C.F.R. Pt. 1630, App. § 1630.2(j) . . . . . . . . . . . . . 21

 29 C.F.R. Pt. 1630, App. § 1630.2(m) . . . . . . . . . . . . . 24

 
 OTHER AUTHORITIES

 Restatement (Second) of Agency § 272 . . . . . . . . . . . . .  26

 Restatement (Second) of Agency § 273 . . . . . . . . . . . . .  26
 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.


 On Appeal from the United States District Court
 for the Northern District of Illinois, Eastern Division
 Honorable Charles R. Norgle, Sr., Judge


 BRIEF OF THE EQUAL EMPLOYMENT
  OPPORTUNITY COMMISSION AS APPELLANT


 STATEMENT OF JURISDICTION

  On June 2, 1997, the Equal Employment Opportunity Commission
  ("Commission") brought this action under the Americans with
   Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., alleging
  that defendant-appellee Sears, Roebuck & Co. ("Sears") engaged in
  unlawful employment discrimination in violation of the ADA.  R.1.<1>
   Specifically, the Commission alleged that Sears discriminated against
  intervenor-appellant Judith Keane ("Keane") by failing to reasonably
  accommodate her disability, and by constructively discharging her
   because of her disability.   Id.  The district court's jurisdiction was
  based on 28 U.S.C. §§ 451, 1331, 1337, 1343, 1345, and on 42 U.S.C. §
  2000e et seq..  Id.
  In response to Sears' motion for summary judgment, the district court
   entered judgment in favor of Sears on September 30, 1999.  R.57.<2>
  The district court's September 30, 1999 order and judgment is a final
  judgment that disposes of all claims as to all parties.  On October
   21, 1999, Keane timely filed her notice of appeal from the district
  court's entry of judgment.  R.58.  On November 24, 1999, the Commission
  timely filed its notice of appeal.  This Court has jurisdiction over
   the Commission's and Keane's appeals pursuant to 28 U.S.C. § 1291.
  This Court has docketed Keane's appeal as No. 99-3734, and has docketed
  the Commission's appeal as No. 99-4037.  There are no prior or related
   appellate proceedings in this case.

 STATEMENT OF THE ISSUES

 1. Whether the district court erred in awarding summary judgment to Sears
 on the Commission's claim that Sears failed to reasonably accommodate
  Keane's disability, where a reasonable jury could find that Keane had
 a disability within the meaning of the ADA, and also could find that
 the Commission established the remaining elements of its failure to
  reasonably accommodate claim.

 2. Whether the district court erred in awarding summary judgment to
 Sears on the Commission's claim that Sears constructively discharged
 Keane because of her disability, where such a claim is cognizable under
  the ADA and a reasonable jury could find that the Commission established
 the elements of its constructive discharge claim.

 STATEMENT OF THE CASE

 A. Nature of the Case and Course of Proceedings
  On June 2, 1997, the Commission filed a complaint (amended on August
   28, 1998) in federal district court, alleging that defendant Sears,
  Roebuck & Co. discriminated against Judith Keane in violation of the
  Americans with Disabilities Act, 42 U.S.C. § 12101 et seq..  R.1; R.17.
   Sears filed a motion for summary judgment on January 29, 1999 (see
  R. 67; R. 70), and the Commission filed its response on February 19,
  1999 (see R.40; R.41).  On April 9, 1999, Sears filed its reply to
  the Commission's response.  R.49.  The district court granted Sears'
   motion for summary judgment on September 30, 1999, entering judgment
  to that effect on the same day.  R.56; R.57.  In response to an October
  15, 1999 motion by Sears to correct the judgment and order (R.61), the
   district court issued an amended order and judgment on October 22, 1999.
  R.60; R.63.  On October 21, 1999, Keane filed her notice of appeal from
  the district court's ruling.  R.58.  The Commission filed its notice
   of appeal on November 24, 1999.  R.75.
 B. Statement of Facts<3>
  In September 1992, Judith Keane began working for Sears as a sales
  associate in the Intimate Apparel department of Sears' store in
   River Oaks Shopping Mall in Calumet City, Illinois. R.42 ¶ 205
  (Keane Dep. at 31, 41-42).  In her capacity as a sales associate,
  Keane assisted customers, handled purchases at the register, sized
  racks, and replaced items.  R.42 ¶¶ 15, 205 (Keane Dep. at 53, 67).
   On occasion, Keane also transported money for the cash registers, and
  worked in the handbags, sportswear, and women's dresses departments.
  R.67 ¶ 13 (Keane Dep. at 43).
  Keane's problems with walking began in the summer of 1994. R.42 ¶ 208
   (Keane Dep. at 114).  That summer, Keane noticed a spot on her right leg.
  Id.  Thereafter, Keane began having substantial difficulty walking at
  the end of her work day, as her right leg would become entirely numb,
   requiring Keane to hold on to walls to support herself as she tried to
  walk out of the building.  Id.  Keane testified that at these times,
  the numbness in her leg made her feel as if she had to use both of
   her hands to lift up her leg to take one step at a time.  R.42 ¶ 211
  (Keane Dep. at 347).  While at her job site, however, Keane was able
  to walk short distances in her work area during her 5-6 hour shift.
   R.67 ¶ 22 (Keane Dep. at 448).  Because of the trouble she was having
  with walking longer distances, Keane asked her supervisor, Jacqueline
  Klisiak, if Keane could eat in the Intimate Apparel stockroom instead
   of eating in the cafeteria or food court, both of which were farther
  away from Keane's job site.  R.67 ¶ 96 (Klisiak Dep. at 89-90).
  Klisiak agreed.  R.67 ¶ 97 (Klisiak Dep. at 90).  Later that year,
  however, Klisiak announced that no one was allowed to eat in the
   Intimate Apparel stockroom.  R.42 ¶ 98 (Keane Dep. at 365-66, 431).
  Because Klisiak did not indicate that Keane was exempt from this rule,
  Keane stopped eating meals in the stockroom and merely brought in soda
   or crackers as a snack.  R.42 ¶¶ 94, 97, 99 (Keane Dep. at 183-84, 274,
  365-66; Klisiak Dep. at 90-92).
  In September or October 1994, Keane also asked Klisiak if she could
  use the shoe stockroom as a shortcut to her job site in the Intimate
   Apparel department.  R.42 ¶ 165 (Klisiak Dep. 93).  Keane asked to
  use the shortcut because she found it extremely difficult to walk from
  her car to the Intimate Apparel department, as she first had to walk
   from her car to the swipe-in clock for employees, and then had to walk
  across nearly the entire store to reach her work area.  R.42 ¶¶ 211,
  215 (Keane Dep. 107, 349).  See also R.42 ¶ 163 (Klisiak Dep. at 86).
   This walk was made more difficult by the fact that once inside the store,
  Keane had to walk on smooth tile floors and often had to navigate her
  way around customers, counters and clothing racks.  R.42 ¶ 211 (Keane
   Dep. at 349-50, 452).  The shortcut, which other employees and managers
  used, would have assisted Keane because it would have cut her walking
  distance in half (the shortcut led directly from the swipe-in clock to
   Keane's department) and would have allowed her to reach her work area
  more easily (i.e., without having to walk on tile floors, and without
  having to dodge customers, racks, and counters along the way).  R.42 ¶¶
   114, 166, 216 (Keane Dep. at 85, 108, 169, 171, 173-74; Keane Aff. at
  ¶ 8; Klisiak Dep. at 98-99).  See also R.42 ¶ 211 (Keane Dep. at 349)
  (explaining that Keane found it easier to walk on carpeted areas like
   the shoe stockroom).
  In response to Keane's request, Klisiak told Keane to ask shoe department
  manager Joy Krumweide for permission to use the shortcut.  R.42 ¶ 165
  (Klisiak Dep. at 93-94).  When Keane spoke with Krumweide and asked if
   she could use the shortcut, Krumweide said "no."  Id.  Klisiak later
  (in November 1994) asked store manager David Allen if Keane could use
  the shortcut because Keane was having problems with her legs, but Allen
   also said "no," and offered no alternative accommodation.  R.42 ¶ 165
  (Klisiak Dep. at 97, 101).
  Meanwhile, Keane's overall condition continued to deteriorate.
  In November 1994, Keane began experiencing constant thirst, sudden weight
   loss, and the need to make frequent trips to the bathroom.  R.42 ¶ 208
  (Keane Dep. at 118).  In December 1994, Keane began relying on a cane
  to assist her with the long walk to and through the store.  R.42 ¶¶
   27, 214 (Keane Dep. at 91, 96-97, 109, 383-84).  Keane's problems with
  walking had become so severe that she could not walk for more than one
  city block at a time without having her leg become numb.  R.42 ¶ 209
   (Keane Affidavit at ¶ 9).  As her condition worsened, Keane complained
  to Shirley Oros (who served as Keane's supervisor when Klisiak was
  unavailable) about her problems with walking and reiterated her desire
   to use the shoe stockroom as a shortcut to her job site.  R.42 ¶¶ 18,
  206, 224 (Keane Dep. at 68, 70, 166, 172).
  In December 1994, Keane met with Dr. Louis Deporter, who diagnosed
  her with diabetes and neuropathy.  R.42 ¶ 149 (Deporter Dep. at 55).
   Neuropathy generally refers to nerve damage, and can result in symptoms
  that range from numbness and tingling to severe pain and paralysis.
  R.42 ¶¶ 146, 149 (Deporter Dep. at 57; Rozenfeld Dep. at 38).  There is
   no treatment for diabetic neuropathy other than pain relief, and there
  is no cure.  R.42 ¶¶ 146, 153 (Rozenfeld Dep. at 27, 47, 59; Hanlon
  Dep. at 41).  After meeting with Keane, Dr. Deporter referred her to
   Dr. Kathryn Hanlon, a neurologist, for further evaluation.  R.42 ¶ 149
  (Deporter Dep. at 38).
  Dr. Hanlon examined Keane on December 22, 1994, and noted that Keane
  had numbness in her leg and had trouble walking, particularly over
   long distances or long periods of time.  R.42 ¶ 151 (Hanlon Dep. at
  12, 32, 42).  Dr. Hanlon provided Keane with a note stating that she
  should limit her walking and "avoid prolonged periods of walking and
   long distances."  R.67, Exh. 13 (Dr. Hanlon Note).  See also R.42 ¶ 155
  (Hanlon Dep. at 22).  On her next working day, Keane gave the note to
  Oros, who placed the note in Klisiak's desk drawer, where it temporarily
   was lost in the shuffle.  R.42 ¶¶ 167-68, 222 (Keane Dep. at 138;
  Klisiak Dep. at 104, 107).
  On January 4, 1995, Keane met with Dr. Hanlon for a follow-up
  appointment.  R.42 ¶ 152 (Hanlon Dep. at 16).  Dr. Hanlon performed a
   nerve conduction study on Keane and determined (based on the study)
  that the nerve responses in Keane's lower extremities (her feet and
  the lower parts of her legs) were absent.  R.42 ¶ 152 (Hanlon Dep. at
   16-17).  Dr. Hanlon diagnosed Keane with a moderate degree of sensory
  motor neuropathy in those areas, meaning that the nerve impulses travel
  very slowly in her feet and in the lower parts of her legs.  R.42 ¶
   152 (Hanlon Dep. at 28-29).
  That same month, Klisiak found Dr. Hanlon's note (written on December 22,
  1994) in her desk drawer.  R.42 ¶ 167 (Klisiak Dep. at 104).  Klisiak
  read the statement that Keane should limit walking long distances and
   walking for long periods of time, but assumed that the note simply
  requested that Keane be allowed to work fewer days and fewer hours.
  R.42 ¶ 169 (Klisiak Dep. at 109, 113).  Klisiak gave the note to Human
   Resources to place in Keane's file, but did not believe that Human
  Resources would take any action in response to the note.  R.42 ¶ 168
  (Klisiak Dep. at 108, 167-68).  Klisiak never met with Keane to determine
   if the reduction in her hours (due to the end of the holiday season)
  accommodated her walking limitations.  R.42 ¶ 169 (Klisiak Dep. at 114).
  In January or February 1995, Klisiak, in response to Keane's  requests,
   granted Keane temporary permission to use the shoe stockroom as a
  shortcut to and from her job site.  R.42 ¶ 223 (Keane Dep. at 180-81).
  See also R.67 ¶ 110 (Klisiak Dep. at 114-15).  Klisiak granted Keane
   permission after a managers meeting at which she, Oros, Krumweide and
  Tanya Branch determined that although Allen would make the ultimate
  decision, they did not see a problem with Keane using the shortcut to
   reduce her walking.   R.42 ¶ 130 (Keane Dep. at 188-89).  Only one day
  after Keane received permission, however, Krumweide (the shoe department
  manager) screamed at Keane for using the shoe stockroom as a  shortcut.
   R.42 ¶ 130 (Keane Dep. at 197-99).  Keane tried to explain to Krumweide
  that Klisiak had authorized her to use the shortcut, but in response,
  Krumweide yelled that Klisiak had no right to grant Keane permission,
   and ordered Keane to get out of the shoe stockroom.  Id.
    Keane also tried to reduce the length of her walk from her car
    to her job site by parking in locations other than the employee
    parking lot.  The most convenient lot for Keane was the merchandise
     pick-up lot, because it allowed her to take a direct route to the
    swipe-in clock and then to the intimate apparel department. R.42 ¶
    221 (Keane Dep. at 437).  See also R.42 ¶ 163 (Klisiak Dep. at 86).
     Keane parked in this lot on five occasions after her problems with
    walking developed, but stopped doing so in the winter of 1995 after a
    security guard yelled at her for parking in the lot.  R.42 ¶¶ 219-20
     (Keane Dep. at 109-10, 206-07).  In early 1995, Klisiak asked Allen
    directly if Keane could park in the merchandise pick-up lot.  R.42 ¶
    199 (Allen Dep. at 100).  Allen said "no," and testified that he
     suggested instead that Keane park in the handicapped parking spaces
    outside her department.  R.42 ¶ 199 (Allen Dep. at 100-01).  Klisiak
    was aware that this option "seemed farther away" than other parking
     arrangements.  R.42 ¶ 199 (Klisiak Dep. at 137). As Keane confirmed
    and Allen admitted, parking in the handicapped spaces did not shorten
    Keane's walk to her job site, because she was still required to walk
     from her car all the way across the store to the swipe-in clock, and
    then back to her job site.  R.42 ¶¶ 201, 218 (Keane Dep. at 96-97,
    109; Allen Dep. at 111, 114).<4>  In addition, Keane could not use
     the doors near the handicapped spaces when she worked until closing,
    because she was required to use the general employee exit when leaving
    after a closing shift.  R.42 ¶ 215 (Keane Dep. at 107).
  In April 1995, Allen finally spoke with Keane directly about the problems
   she was having with getting to and from her department.  R.42 ¶ 225
  (Keane Dep. at 195, 210-11).  Keane renewed her request to use the
  shoe stockroom as a shortcut to her department, and Allen asked Keane
  to provide a note from her doctor so that he could determine what
   they could do for her.  R.42 ¶ 197, 225 (Allen Dep. at 89, 136; Keane
  Dep. at 210).  Keane explained that she already had provided Sears
  (through Oros and Klisiak) with Dr. Hanlon's note requiring that she
   avoid walking for long distances or for long periods of time.  R.42 ¶
  225 (Keane Dep. at 210). See also R.42 ¶¶ 167-68, 222 (Keane Dep. at
  138; Klisiak Dep. at 104, 107).  Allen retrieved the note from Human
   Resources, and after reading the note, decided it was vague and asked
  Keane to have her doctor fill out Sears' physician's certification form.
  R.42 ¶¶ 197-98 (Allen Dep. at 90-92, 136, 147).
  Keane met with Dr. Deporter on April 18, 1995, and on that date,
   the doctor completed the physician's certification form.  See R.42
  ¶¶ 150, 225 (Deporter Dep. at 54; Keane Dep. at 211); R.67, Exh. 14
  (Dr. Deporter's note).  Dr. Deporter expressly stated on the form that
   Keane had diabetes and had neuropathy in her right leg, and stated that
  she should limit "excessive walking" and be allowed "easy/short access to
  [her] job site."  R.67, Exh. 14.  See also R.42 ¶ 150 (Deporter Dep. at
   62, 64).  Allen reviewed the form and assumed that since Keane could
  park in the handicapped parking spaces, her request for accommodation
  was satisfied.  R.42 ¶ 200 (Allen Dep. at 109-10, 114).  In May 1995,
   Klisiak informed Keane  that Allen had denied her request to use the
  shortcut.  R.42 ¶ 127 (Keane Dep. at 233-34).
  At the same May 1995 meeting with Klisiak, Keane also learned that the
  new work schedule listed her as being available to work on Thursday
   evenings and Fridays.  R.42 ¶¶ 126-27 (Keane Dep. at 233, 426-27).
  Keane told Klisiak that she had never been available to work at those
  times, but Klisiak replied that the schedule could not be changed.
  R.42 ¶ 126 (Keane Dep. at 427).  In light of this schedule change,
   the fact that her hours had already been drastically reduced over the
  preceding months, and the fact that Sears had refused to accommodate
  her disability, Keane determined that she had no choice but to resign.
   R.42 ¶¶ 126-27, 229 (Keane Dep. at 233-36, 344-45, 426-27).  The next
  morning, Keane informed Sears of her decision to resign from her
  position as a sales associate.  R.42 ¶ 128 (Keane Dep. at 236-37).
  Klisiak and Allen indicated that Keane was a "good employee" and that
   she maintained a satisfactory job performance while she was employed
  at Sears.  R.42 ¶¶ 158, 204 (Klisiak Dep. at 150; Allen Dep. at 123).
  Since the end of her employment with Sears, Keane's physical condition
   has continued to deteriorate.  Dr. David Rozenfeld, a neurologist who
  treated Keane in 1997 and 1998, stated that the neuropathy in Keane's
  legs has become progressively worse, such that Keane has begun to
   experience additional problems with balance and with numbness in her
  feet.  R.42 ¶¶ 145, 147 (Rozenfeld Dep. at 8, 18, 32, 53).  Dr. Rozenfeld
  also noted that Keane walks with a "steppage" gait, meaning that when
   Keane walks, for each step she lifts her knee high up in the air, her
  foot dangles in mid-air, and then her foot slaps down on the floor as
  she completes the step.  R.42 ¶ 147 (Rozenfeld Dep. at 40).  Dr. Harris
   Barowsky, an endocrinologist who began treating Keane's diabetes in
  1997, also observed Keane's problems with walking, noting that she is
  "dependent on her cane," and has difficulty walking distances as short
   as 20 feet (the distance from the waiting room in Dr. Barowsky's office
  to the examination room).  R.42 ¶¶ 156-157 (Barowsky Dep. at 9, 11,
  35, 41).  Dr. Rozenfeld noted that despite the progression in Keane's
   neuropathy in 1997 and 1998, she still could have performed a job that
  allowed her to work while seated.  R.42 ¶ 148 (Rozenfeld Dep. at 75).
 C. District Court Decision
  The Commission filed this lawsuit on June 2, 1997, alleging that Sears
   discriminated against Keane in violation of the ADA.  On October 3,
  1997, the district court granted Keane's motion to intervene in the
  litigation.
  On January 29, 1999, Sears filed a motion for summary judgment.
   The district court granted Sears' motion on September 30, 1999.<5>
  In analyzing Keane's failure to reasonably accommodate claim, the court
  focused on whether Keane had a disability within the meaning of the ADA.
   R.56 at 5.  Specifically, the court directed its attention to whether the
  Commission could demonstrate a triable issue of fact on whether Keane
  was substantially limited in either walking or standing.  Id. at 6.
   Citing Keane's acknowledgment that she could stand for 5-6 hours at a
  time while on the job, the court held that Keane's neuropathy in her
  legs did not substantially limit her in that activity.<6>  Id. at 7.
   As for Keane's ability to walk, the court noted that although Keane
  testified that she had extreme difficulty walking from her car to the
  job site, she was able to walk within her sales area and occasionally
   walked to the food court or to other departments in the store.  Id.
  In the court's view, this evidence alone suggested that Keane was
  not substantially limited in walking.  Id. at 8.  Ultimately, the
  court held that, because Keane was able to use a cane to assist her in
   walking to and from her job site, she was not substantially limited in
  that walking, and therefore did not have a disability under the Act.
  Id. at 8 (citing Sutton v. United Air Lines, Inc., 119 S. Ct. 2139, 2149
   (1999) (disability under the ADA must be determined with reference to
  any measures used to mitigate or correct the impairment).  Accordingly,
  the court granted Sears' motion for summary judgment on the Commission's
   failure to reasonably accommodate claim.  R.56 at 8.<7>
  Turning to the Commission's (and Keane's) constructive discharge claim,
  the district court questioned "whether a constructive discharge claim
   is cognizable under the ADA."  Id. at 9.  Assuming that such a claim
  could be raised under the statute, the court held that the Commission's
  constructive discharge claim failed because the Commission failed to
   present enough evidence to establish that Keane had a disability, or
  that Keane was subjected to (or sought redress for) conditions that
  were so intolerable that Keane had no choice but to resign from her
  position.  Id.  The court therefore granted Sears' motion for summary
   judgment on that claim as well, and entered judgment in favor of Sears.

 STANDARD OF REVIEW

  This Court reviews de novo a district court's decision to award
  summary judgment.  Hendricks-Robinson v. Excel Corp., 154 F.3d 685,
   692 (7th Cir. 1998).  In reviewing the record, this Court "construe[s]
  all inferences in favor of the party against whom the motion under
  consideration is made."  Id.  Because Sears has filed a motion for
   summary judgment against the Commission, this Court must "examine
  the record in the light most favorable to [the Commission], granting
  [it] the benefit of all reasonable inferences that may be drawn from
   the evidence," and must reverse if the Court finds "a genuine issue
  concerning any fact that might affect the outcome of the case."  Id.
 SUMMARY OF ARGUMENT
  This Court should reverse the district court's decision to award
   summary judgment to Sears, and remand this case for further proceedings.
  In reaching its decision, the district court rested almost exclusively on
  its finding that Keane was not disabled within the meaning of the ADA.
   Because the district court failed to apply the correct standard of
  analysis, and because the court also misapplied the Supreme Court's
  decision in Sutton, its opinion is fatally flawed and incorrectly
  concludes that, as a matter of law, Keane was not disabled during her
   employment with Sears.  This Court now should reverse that decision,
  because a rational jury, applying the correct standard and viewing
  the evidentiary record in the light most favorable to the Commission,
   could find that Keane was disabled because the neuropathy (caused by
  diabetes) in her legs substantially limited Keane's ability to walk
  both before and after she began using a cane.
  With Keane's disability established, this Court should also hold that
   the Commission may proceed with its claim that Sears discriminated
  against Keane by failing to reasonably accommodate her disability.
  A rational jury could find that Keane was qualified for her job in
  the intimate apparel department, and could also find that although
   Keane repeatedly asked her supervisors and managers for a reasonable
  accommodation that would address her walking limitations, Sears rejected,
  failed to implement, or ignored Keane's requests without offering a
   reasonable alternative.
  Finally, this Court should reverse the district court's decision to award
  summary judgment to Sears on the Commission's constructive discharge
  claim.  Constructive discharge claims are cognizable under the ADA, as,
   much like Title VII, these claims arise under the general prohibition
  (in 42 U.S.C. § 12112(a)) against discrimination with respect to the
  terms and conditions of employment. Because a rational jury could find
   that Sears' disability-based discrimination against Keane rendered her
  work conditions so intolerable that a reasonable person would have been
  compelled to resign, this Court should reverse the district court's
   decision and remand the Commission's constructive discharge claim for
  further proceedings.

 ARGUMENT

 I. THIS COURT SHOULD REVERSE THE DISTRICT COURT'S DECISION TO AWARD
 SUMMARY JUDGMENT TO SEARS ON THE COMMISSION'S CLAIM THAT SEARS FAILED
  TO REASONABLY ACCOMMODATE KEANE'S DISABILITY

 A.  The district court erred when it held that Keane did not have a
 disability within the meaning of the ADA
  In this case, the district court awarded summary judgment to Sears solely
   because it did not believe that Keane was disabled within the meaning
  of the ADA.  As the following discussion will demonstrate, however, the
  district court's decision must be reversed because the court committed
   at least two serious errors in its analysis, and consequently failed to
  recognize that a rational jury could find that Keane had a disability
  when she worked for Sears because she was substantially limited in the
   major life activity of walking, even when she used her cane.
  Under the ADA, the term "disability" means "(A) a physical or mental
  impairment that substantially limits one or more of the major life
   activities of [an] individual; (B) a record of such an impairment;
  or (C) being regarded as having such an impairment."  42 U.S.C. §
  12102.  See also Baert v. Euclid Beverage, Ltd., 149 F.3d 626, 629
  (7th Cir. 1998) (citing this definition).  An impairment substantially
   limits a person "when he, as compared to the general population, is
  '[u]nable to perform a major life activity' or is '[s]ignificantly
  restricted as to the condition, manner or duration under which' he 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. § 1630.2(j) (setting forth this definition).  When
   considering whether an impairment is substantially limiting, courts
  should take into account the nature and severity of the impairment,
  its duration or expected duration, and its permanent, long term, or
  expected impact.  See Duda, 133 F.3d at 1058 n.5 (citing 29 C.F.R. §
   1630.2(j)).  Courts should also consider the positive and negative
  effects of any measures the individual takes to correct or mitigate a
  physical or mental impairment.  Sutton, 119 S. Ct. at 2146.
  In this case, the district court committed at least two serious errors
   while assessing whether Keane was substantially limited in the major
  life activity of walking.  First, the  district court completely ignored
  the applicable legal standard in making its ruling.  As this Court
   has recognized, the degree to which an individual is restricted in a
  major life activity, as compared to the average person in the general
  population, is central to whether the individual is substantially
  limited in that activity.  See 29 C.F.R. § 1630.2(j)(ii) (stating this
   principle); Duda, 133 F.3d at 1058 n.5 (citing 29 C.F.R. § 1630.2(j)).
  Courts must also take into account factors such as the nature,
  severity, and permanency of the individual's impairment.  See id.
  Here, the district court made no attempt to apply these standards to
   the question of whether Keane was substantially limited in walking.
  Instead, the district court simply listed the few circumstances that
  Sears alleged Keane could walk, and determined, without analysis, that
   the evidence highlighted by Sears "strongly indicate[d]" that Keane was
  not substantially limited in walking.  R.56 at 7-8.  See also id. at 8
  (concluding, without applying the legal standard set forth in 29 C.F.R. §
   1630.2(j)(ii), that Keane was not substantially limited in walking when
  she used her cane as a mitigating measure).  This approach clearly was
  improper.
  Second, because the district court overlooked the evidence in this
   case that specifies when Keane began using her cane, it misapplied the
  Supreme Court's decision in Sutton.  It is undisputed in the record that
  Keane's problems with walking began in the summer of 1994.  It is also
   undisputed that Keane did not begin using her cane until December 1994.
  Under the Supreme Court's reasoning in Sutton, the district court should
  have analyzed two separate questions: 1) whether Keane was substantially
   limited in walking during the months leading up to December 1994 (before
  she began using a cane); and 2) whether Keane was substantially limited
  in walking in the months after she began using a cane in December 1994.
   See 119 S. Ct. at 2146 (stating that "if a person is taking measures to
  correct for, or mitigate, a physical or mental impairment," the positive
  and negative effects of those measures should be taken into account)
   (emphasis added).  Because the district court failed to recognize this
  distinction, it incorrectly concluded that Keane's use of her cane
  after December 1994 mitigated her walking impairment during her entire
   employment with Sears (including the months before she began using the
  cane).  See  R.56 at 8 (reaching this conclusion).  This Court should not
  allow the district court's fatally flawed analysis to stand on appeal.
   A rational jury could find that Keane was disabled during the  time
  before she began using a cane (i.e., from the summer of 1994 to
  December 1994).  Keane testified that her problems with walking began
  in the summer of 1994, when she began experiencing complete numbness in
   her right leg at the end of the work day.  Because the numbness was so
  severe, Keane felt as if she had to use both of her hands to lift up
  her leg just to take a single step.  Not surprisingly, this numbness,
   which was caused by the neuropathy (nerve damage) in Keane's leg,
  seriously hampered her ability to walk.  As Keane testified, she found
  it extremely difficult to walk from her car to her job site in the
   intimate apparel department.  In addition, when her leg became numb at
  the end of the day, Keane could only walk out of the store if she held
  on to the walls to support herself.
  Viewing this evidence in the light most favorable to Keane, a rational
   jury could find that Keane was substantially limited in walking before
  she began using a cane.  Relying on its common sense and experience,
  a jury reasonably could conclude that Keane was significantly more
   restricted in her ability to walk than the average person in the general
  population.  Indeed, it is obvious that the average person does not
  develop complete numbness in one of his or her legs after a normal day
   at work, much less the type of numbness that required Keane to lean on
  the walls just to keep from falling as she walked out of the store.
  Moreover, the neuropathy in Keane's legs is permanent, and has had a
   substantial long term impact on Keane's ability to walk.  See supra,
  Statement of Facts at pp. 12-13 (describing evidence demonstrating that
  today Keane has difficulty walking distances as short as twenty feet
   with a cane).  Although there is evidence that Keane could walk short
  distances while in her department, this evidence at most demonstrates
  a disputed issue of fact that should be resolved by a jury, which
   nonetheless could find that Keane was significantly more restricted
  in her ability to walk than the average person in society.  See 29
  C.F.R. Pt. 1630, App. § 1630.2(j) (explaining that "an individual who,
   because of an impairment, can only walk for very brief periods of time
  would be substantially limited in the major life activity of walking").
  A rational jury could also find that Keane was substantially limited in
   walking during her employment with Sears after she began using a cane.
  When Keane began using a cane in December 1994, she could not walk
  more than one city block without having her entire right leg go numb.
   That same month, Keane's doctors determined that she had diabetes and
  neuropathy, and Dr. Hanlon, notwithstanding Keane's use of her cane,
  advised Keane that she should limit her walking over longer distances.
   Later, Dr. Hanlon  performed additional tests on Keane's legs,
  determining that the nerve impulses in Keane's feet and lower legs
  traveled very slowly. Meanwhile, Keane continued to struggle with the
   walk from her car to her job site.  Indeed, although Keane had been
  using a cane for at least four months when she visited Dr. Deporter in
  April 1995, Dr. Deporter again advised her (and Sears) to limit excessive
   walking and to reduce the distance she had to travel to her job site.
  As with the discussion of the time period before Keane began using
  a cane, a rational jury relying on its common sense and experience
  could find that Keane was substantially limited in walking after
   she began using her cane as a "mitigating measure."  Keane remained
  significantly more restricted than the average person in her ability
  to walk, as even with the cane she had to contend with the numbness in
   her leg that developed if she walked farther than a single city block.
  In addition, insofar as Keane's doctors continued to recommend that
  Keane limit her walking even after she had begun to use a cane, they
   implicitly recognized that Keane's problems with walking remained severe
  even with the assistance of this mitigating measure.  Indeed, a rational
  jury could find that Keane's cane did not mitigate the neuropathy in her
   legs at all.  The numbness still occurred, and because the neuropathy in
  Keane's legs and feet was permanent and was not treatable, the cane did
  not alleviate the problems that the neuropathy caused, except that it
   provided Keane with an alternative means to keep from falling (i.e.,
  instead of using the walls to support herself as she walked out of
  the store, Keane used her cane).<8>  Consequently, a rational jury
   could conclude that Keane was substantially limited in walking after
  she began using a cane in December 1994.<9>  Accordingly, this Court
  should reverse the district court's erroneous conclusion that Keane
   did not have a disability within the meaning of the ADA.
 B.  Because a rational jury also could find that Sears discriminated
 against Keane by failing to reasonably accommodate her disability,
 this Court must reverse the district court's decision to award summary
  judgment to Sears on that claim

  Based on the preceding analysis, a rational jury could find that Keane
  was disabled during the relevant period (i.e., the summer of 1994 to
  May 1995) of her employment with Sears.  This Court now should remand
   the Commission's claim of failure to reasonably accommodate for further
  proceedings because there is no alternative basis in the record that
  supports the district court's decision.  Instead, a rational jury could
   find in favor of the Commission on each of the remaining elements of
  the Commission's failure to reasonably accommodate claim.

 1.  A rational jury could find that Keane was qualified
  When determining whether an individual is qualified, this Court first
   considers "whether the individual satisfies the prerequisites for the
  position, such as possessing the appropriate educational background,
  employment experience, skills, licenses, etc."  Dalton v. Subaru-Isuzu
   Automotive, Inc., 141 F.3d 667, 676 (7th Cir. 1998).  If the individual
  is able to meet this prong of the analysis, this Court then considers
  "whether or not the individual can perform the essential functions
   of the position held or desired, with or without accommodation."  Id.
  See also 42 U.S.C. § 12111(8) (defining "qualified individual with a
  disability"); 29 C.F.R. Pt. 1630, App. § 1630.2(m) (same).
   In this case, Sears' own actions and admissions establish that  Keane
  was qualified.  First, a rational jury could find that Keane satisfied
  the prerequisites for her job as a sales associate in the intimate
   apparel department.  Sears hired Keane in 1992, and presumably did so
  because (among other things) it determined that Keane met all of the
  prerequisites for her job as a sales associate.  See Bultemeyer v. Fort
   Wayne Community Schs., 100 F.3d 1281, 1284 (7th Cir. 1996) (stating
  that the employer, which had employed the plaintiff for several years,
  could not dispute that the plaintiff satisfied the prerequisites for
   the position in question).  This history is sufficient to satisfy the
  first prong in the analysis.  As for the question of whether Keane was
  able to perform the essential functions of her job, the admissions by
   Keane's supervisors at Sears establish that element.  Specifically,
  Allen admitted that Keane's job performance was satisfactory, and
  Klisiak testified that Keane was a good employee.  Based on this record,
   a rational jury could easily find that Keane was qualified for her
  position at Sears.
 2.  A rational jury could find that Sears failed to reasonably accommodate
 Keane's disability
  This Court has held that "[u]nder the ADA, an employee begins the
   accommodation 'process' by informing his employer of his disability;
  at that point, an employer's 'liability is triggered for failure to
  provide accommodations.'" Hendricks-Robinson v. Excel Corp., 154 F.3d
   685, 693 (7th Cir. 1998) (quoting Beck v. University of Wis. Bd. of
  Regents, 75 F.3d 1130, 1134 (7th Cir. 1996)).  See also Rehling v. City
  of Chicago, No. 99-1771, 2000 WL 291377, at *5 (7th Cir. March 21,
   2000) (reiterating this rule).  "Once an employer's responsibility
  to provide reasonable accommodation is triggered, the employer must
  engage with the employee in an 'interactive process' to determine
   the appropriate accommodation under the circumstances."  Haschmann
  v. Time Warner Entertainment Co., 151 F.3d 591, 601 (7th Cir. 1998)
  (quoting Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563
   (7th Cir. 1996)).  Because liability for the employer ensues when the
  employer is responsible for a breakdown in the interactive process,
  this Court looks for "signs of failure to participate in good faith or
   failure by one of the parties to make reasonable efforts to help the
  other party determine what specific accommodations are necessary."  Beck,
  75 F.3d at 1135.  Signs of this nature may include (among other things)
   evidence that the employer obstructed or delayed the interactive process,
  or that the employer failed to communicate during the process.  See id.
  Applying these guidelines, a rational jury could find that Sears violated
   the ADA because it caused the interactive process to break down,
  and ultimately failed to reasonably accommodate Keane's disability.
  The evidentiary record clearly shows that Keane on more than one
  occasion informed Sears of her disability.  Indeed, a rational jury could
   find that Keane put Sears on notice of the her disability: (1) in the
  summer of 1994 when she asked Klisiak if, because of the problems with
  her legs, she could eat her meals in the stockroom instead of walking
   to the cafeteria or food court; (2) in September or October 1994 when
  Keane asked Klisiak if she could use the shoe stockroom as a shortcut to
  her job site; and (3) in December 1994 when Keane provided Sears with
   a note from her doctor explaining her limitations in walking and told
  Oros that she still wished to use the shoe stockroom as a shortcut.<10>
  Sears caused the interactive process to break down despite being on
   notice of Keane's disability and requests for accommodation.  A rational
  jury could find that Keane proposed at least three accommodations to
  Sears in an effort to reduce her walking distance to a length within
   her limitations, and in each case, Sears either rejected, failed to
  implement, or dismissed the proposal with no suggestion of a reasonable
  alternative.  Specifically, a rational jury could find that Sears:
   (1) prohibited Keane from eating her meals in the intimate apparel
  stockroom, after it had initially granted her request to do so; (2)
  repeatedly denied or ignored Keane's requests to use the shoe stockroom
   as a shortcut to her job site; and (3) denied Keane's request to
  park in a location that would reduce the walking distance to and from
  her job site.  See supra, Statement of Facts at pp. 5-11 (detailing
   Keane's requests, and Sears' denials of her requests).  Further, Sears
  failed to offer Keane any alternative accommodation of her disability
  (except for the suggestion that Keane park in the handicapped spaces,
   which Sears knew would not address Keane's walking limitations) despite
  several opportunities to do so.  In light of this evidence, a rational
  jury could find that Sears violated the ADA by failing to reasonably
   accommodate Keane's disability.

 II. THIS COURT ALSO SHOULD REVERSE THE DISTRICT COURT'S DECISION TO
 AWARD SUMMARY JUDGMENT TO SEARS ON THE COMMISSION'S CLAIM THAT SEARS
 CONSTRUCTIVELY DISCHARGED KEANE IN VIOLATION OF THE ADA
 
  From the preceding discussion, it is clear that a rational jury could
  find that: (1) Keane was disabled during her employment with Sears (see
  supra Section I(A)); (2) Keane was qualified for her sales associate
   position in Sears' intimate apparel department (see supra Section
  I(B)(1)); and (3) Sears, in violation of the ADA, failed to reasonably
  accommodate Keane's disability (see supra Section I(B)(2)).  With this
   foundation, this Court must reverse the district court's decision
  to award summary judgment to Sears on the Commission's constructive
  discharge claim if this Court agrees that such claims are cognizable
   under the ADA, and agrees that a rational jury could find that Keane was
  constructively discharged.  As the following discussion will demonstrate,
  this Court should reverse the district court's decision.
 
 A.  A plaintiff may bring a constructive discharge claim under the ADA

  In its decision, the district court raised the question of "whether a
  constructive discharge claim is cognizable under the ADA."  See R.56
   at 9.  Although the district court chose not to rule on this issue,
  the Commission urges this Court to hold that such claims are indeed
  permissible.  In Miranda v. Wisconsin Power & Light Co., 91 F.3d 1011,
   1017 (7th Cir. 1996), this Court noted that a constructive discharge
  claim under the ADA "would seem to arise under the general prohibition
  against discrimination with respect to terms or conditions of employment
   contained in [42 U.S.C.] § 12112(a)."  See also Miranda, 91 F.3d at 1017
  (citing 29 C.F.R. § 1630.4, which states that the ADA makes it unlawful
  to discriminate against qualified individuals with disabilities in
   the terms, conditions or privileges of employment).  This Court also
  "recognize[d] that claims of constructive discharge are cognizable
  under Title VII," and observed that "in analyzing claims under the
   ADA, it is appropriate to borrow from [the Court's] approach to the
  respective analog under Title VII."  Miranda, 91 F.3d at 1017 (citing
  Vitug v. Multistate Tax Comm'n, 88 F.3d 506, 516-17 (7th Cir. 1996)
   (Title VII case analyzing a constructive discharge claim) and DeLuca
  v. Winer Indus., 53 F.3d 793, 797 (7th Cir. 1995) (holding that an ADA
  plaintiff alleging disparate treatment may establish discrimination
   by relying on either direct evidence or the indirect McDonnell-Douglas
  approach developed under Title VII)).  See also Silk v. City of Chicago,
  194 F.3d 788, 803-04 & n.15 (7th Cir. 1999) (discussing the decision
   in Miranda and collecting cases from other courts of appeals that have
  assumed that hostile work environment and/or constructive discharge
  claims are cognizable under the ADA).  Although the panel in Miranda
   ultimately chose not to decide whether a constructive discharge claim
  is cognizable under the ADA, the Commission urges this Court to do so
  now by holding, based on the reasoning in Miranda, that plaintiffs may
   assert constructive discharge claims under the ADA.
 B.  A rational jury could find that Sears constructively discharged
 Keane from her job in the intimate apparel department
  As this Court has held in other contexts, "[t]o show constructive
   discharge, a plaintiff must establish that: (1) the conditions at work
  were so intolerable that a reasonable person would have been compelled
  to resign; and (2) the working conditions must be intolerable in a
   discriminatory way."  Bragg v. Navistar Int'l Transp. Corp., 164 F.3d
  373, 377 (7th Cir. 1998).  In general, an employee must seek redress
  while remaining on the job "unless confronted with an aggravating
   situation beyond ordinary discrimination."  Rabinovitz v. Pena, 89 F.3d
  482, 489 (7th Cir. 1996) (citing Brooms v. Regal Tube Co., 881 F.2d 412,
  423 (7th Cir. 1989)).
  A rational jury could find that the conditions and difficulties Keane
   experienced at Sears meet the standard for constructive discharge.
  Keane's ability to walk from her car to her job site steadily
  deteriorated because of the neuropathy in her legs and feet.  Although
  she repeatedly asked Sears management to provide her with a reasonable
   accommodation, at every turn Sears either denied, failed to implement,
  or simply ignored her request.  At no point did Sears offer Keane a
  reasonable alternative to her suggestions.  Sears' consistent failure to
   provide Keane with reasonable accommodation, coupled with its decisions
  to reduce Keane's working hours and to assign Keane to work on days when
  Sears knew she was unavailable, created intolerable and discriminatory
   conditions that inevitably would have forced any reasonable person
  to resign, as Keane did in May 1995.  Indeed, by May 1995, Keane had
  exhausted every reasonable avenue for redress, to no avail.  Because a
   rational jury could find that a reasonable person would have resigned
  under these circumstances, the district court erred in awarding summary
  judgment to Sears on the Commission's constructive discharge claim.
 
 CONCLUSION

  For the foregoing reasons, this Court should reverse the district
  court's erroneous decision and remand the Commission's claims of
  failure to reasonably accommodate and constructive discharge for further
   proceedings.

 Respectfully submitted,

 C. GREGORY STEWART
        General Counsel

        PHILIP B. SKLOVER
        Associate General Counsel

        CAROLYN L. WHEELER
        Assistant General Counsel
 


        GEOFFREY L.J. CARTER
        Attorney

        EQUAL EMPLOYMENT OPPORTUNITY
           COMMISSION
        Office of General Counsel
        1801 L Street, NW, 7th Floor
        Washington, D.C.  20507
  May 1, 2000     (202) 663-4728

 CERTIFICATE OF COMPLIANCE

  I certify that this brief complies with the type-volume limitation set
  forth in FRAP 32(a)(7)(B).  This brief contains 8,307 words.


  GEOFFREY L.J. CARTERSEVENTH CIRCUIT RULE 30(D) STATEMENT REGARDING
 APPENDIX

  I certify that the appendix to this brief contains all materials required
  by Seventh Circuit Rules 30(a) and 30(b).


 
 GEOFFREY L.J. CARTERCERTIFICATE OF SERVICE
      I, Geoffrey L.J. Carter, hereby certify that on this 1st day of
      May, 2000, two copies of the attached brief, and one copy of the
      attached brief on digital media, were sent by first class mail,
       postage prepaid, to each of the following counsel of record:
 Steven N. Fritzshall, Esq.
 Brad J. Pawlowski, Esq.
 Fritzshall Law Firm
 309 W. Washington St., 9th Fl.
 Chicago, IL 60606

 Grady B. Murdock, Jr., Esq.
  Mary A. Smigielski, Esq.
 Neal & Associates
 111 W. Washington St., Suite 1700
 Chicago, IL 60602




       GEOFFREY L.J. CARTER
 Attorney

 EQUAL EMPLOYMENT OPPORTUNITY
   COMMISSION
  Office of General Counsel
 1801 L Street, NW, 7th Floor
 Washington, D.C.  20507
 May 1, 2000    (202) 663-4728

 APPENDIX

 1. September 30, 1999 order entering judgment in favor of defendant Sears,
  Roebuck & Co.

 2. September 30, 1999 order granting Sears, Roebuck & Co's motion for
 summary judgment

 3. Amended Version of District Court's order granting Sears, Roebuck &
 Co.'s motion for summary judgment (dated October 22, 1999, and only
  correcting a typographical error on page 10 of1       Citations in
 the form "R.*" refer to the docket entry number listed on the district
 court's docket sheet.

 2       On October 15, 1999, Sears filed a "Motion to Correct Judgment and
  Order," in which it asked the district court to correct two typographical
 errors in its September 30, 1999 order and judgment.  R.61.  On October
 20, 1999, the district court granted Sears' motion and issued a corrected
  judgment and an amended order to correcting the typographical errors in
 the original documents.  R.60.  Because the court made no substantive
 changes to its earlier entry of judgment, the court's action did not
  toll the time for filing an appeal from its September 30, 1999 ruling.

 3       This statement of facts is drawn from the following portions
 of the appellate record: R.42 (EEOC's and Keane's Local Rule 12(N)
  Response to Defendant's Rule 12(M) Statement and Additional Statement
 of Uncontested Material Facts); R.67 (Sears' Local General Rule 12(M)
 Statement of Uncontested Material Facts).  For the Court's reference,
  in this brief the Commission has provided citations to the  deposition
 testimony and other exhibits underlying the parties' Rule 12(M) and 12(N)
 statements.  The depositions cited herein are contained in the appendices
  that the parties submitted to the district court in connection with Sears'
 motion for summary judgment, and are also part of the appellate record.
 See Dr. Hanlon Dep. (R.39-1, Exh. A); Dr. Deporter Dep. (R.39-1, Exh. B);
  Dr. Rozenfeld Dep. (R.39-1, Exh. D); Keane Affidavit (R.39-1, Exh. E);
 Dr. Barowsky Dep. (R.39-1, Exh. F); Keane Dep. (R.67, Exh. 16); Allen
 Dep. (R.67, Exh. 17); Klisiak Dep. (R.67, Exh. 18).

 4       On one occasion, Keane also tried to reduce the amount
  of walking she had to do by driving to the merchandise pick-up lot,
 walking inside to swipe in, walking back outside to her car, driving to
 the handicapped spaces, and walking inside to her job site.  R.42 ¶ 219
  (Keane Dep. at 110-11).  Keane found this alternative to be difficult,
 and this alternative was not always feasible because the doors near
 the handicapped spaces were often not available for use when Keane
 needed them.  See R.42 ¶¶ 119, 215, 221 (Keane Dep. at 107, 234, 438).
 
 5       On October 22, 1999, the district court issued an amended order
 and judgment to correct two typographical errors in its previous ruling.
 R.63.

 6       In this appeal, the Commission does not challenge the district
  court's finding that Keane was not substantially limited in the major
 life activity of standing.

 7       The court did not rule on whether Sears satisfied its duty to
 provide a reasonable accommodation.  See Op. at 8 n.3.
 
 8       In this regard, this case differs from cases like Sutton,
 119 S. Ct. at 2143, where the mitigating measure at issue completely
 corrected the impairment.  Here, the neuropathy in Keane's legs could
  not be corrected or even mitigated to any real degree.  The cane assisted
 Keane in maintaining her balance, but only in spite of the numbness that
 inevitably developed in her leg when she walked to and from her job site
  in the intimate apparel department.

 9       This case is distinguishable from other cases where courts
 have held that a plaintiff is not substantially limited in walking.
 In decisions where courts have determined that a plaintiff with walking
  limitations is not disabled, the plaintiff's evidence only established
 that the plaintiff had slight or moderate difficulty walking.  See,
 e.g., Talk v. Delta Airlines, Inc., 165 F.3d 1021, 1025 (5th Cir. 1999)
  (plaintiff who walked slowly and with a limp was not substantially
 limited in walking); Penny v. United Parcel Serv., 128 F.3d 408, 415-16
 (6th Cir. 1997) (same, where plaintiff limped on occasion and was capable
  of running at a slow pace for 15 minutes); Kelly v. Drexel Univ., 94 F.3d
 102, 107-08 (3d Cir. 1996) (same, where plaintiff could walk more than one
 mile and needed to walk slower while climbing stairs).  Keane's walking
  limitations, by contrast, were much more severe, as instead of having
 a limp that slowed her walking pace, Keane could not walk more than a
 single city block without having her leg become completely numb.

  10       Sears is charged with the knowledge of Allen, Klisiak and Oros,
 all of whom had supervisory authority over Keane.  As explained in the
 Restatement (Second) of Agency § 272, in general "the liability of a
  principal is affected by the knowledge of an agent concerning a matter
 as to which he acts within his power to bind the principal or upon which
 it is his duty to give the principal information."  See also id. § 273
  (explaining that this rule also applies in circumstances where an agent
 appears to have the authority discussed above, and a third party relies
 on that apparent authority); Young v. Bayer Corp., 123 F.3d 672, 674-75
  (7th Cir. 1997) (explaining, in the sexual harassment context, that a
 supervisor who receives a complaint "would be obligated by elementary
 principles of management and good sense either to resolve the problem
  himself or to refer it to someone else in the company, who can").
 Because Allen, Klisiak and Oros each had actual and apparent authority
 at Sears to receive and address (or otherwise act on) requests for
  accommodation, their knowledge of Keane's disability and Keane's requests
 for accommodation are imputed to Sears.