Keane, Judith v. Sears Roebuck

In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 04-2222 & 04-2493

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION,

Plaintiff-Appellant,

and

JUDITH KEANE,

Intervening Plaintiff-Appellant,

v.

SEARS, ROEBUCK & COMPANY,

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 MAY 10, 2005—DECIDED AUGUST 10, 2005

____________

Before FLAUM, Chief Judge, and KANNE and WILLIAMS,

Circuit Judges.

FLAUM, Chief Judge. Under the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., an em-

ployer unlawfully discriminates against a “qualified indivi-

2 Nos. 04-2222 & 04-2493

dual with a disability” when it fails to make “reasonable

accommodations to the known physical or mental limita-

tions” of the disabled employee, unless to do so would

impose an “undue hardship” on the employer. §§ 12112(a),

(b)(5)(A). The Equal Employment Opportunity Commission

(“EEOC”) filed suit against defendant-appellee Sears,

Roebuck & Company (“Sears”) for failing to reasonably

accommodate the disability of its employee Judith Keane.

Keane intervened and the district court granted summary

judgment in favor of Sears, concluding that Keane was not

disabled under the ADA. Keane and the EEOC appealed

and, having found genuine issues of material fact as to

whether Keane was disabled, we reversed. See EEOC &

Keane v. Sears Roebuck & Co. (“Keane I”), 233 F.3d 432 (7th

Cir. 2000). On remand, the district court concluded that the

Supreme Court’s decision in Toyota Motor Manufacturing,

Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), issued after

our opinion in Keane I, changed the standard for determin-

ing whether an employee is disabled. The court considered

Sears’ renewed motion for summary judgment in light of

Toyota and held, once again, that no reasonable jury could

find that Keane was disabled. It went on to state that Sears

also must prevail because Keane cannot establish any of the

other elements of her failure to accommodate claim. Keane

and the EEOC appeal a second time and, for the reasons

stated herein, we again reverse.

I. Background

In September 1992, Judith Keane began working at the

Sears River Oaks department store in Calumet City,

Illinois. As a sales associate in the intimate apparel

department, Keane’s tasks included handling purchases,

assisting customers, sizing racks, and occasionally trans-

porting money to and from cash registers. Keane’s immedi-

ate supervisor was Jacqueline Klisiak, but when Klisiak

Nos. 04-2222 & 04-2493 3

was absent, Keane reported to one of two supervisory co-

workers, Shirley Oros or Tanya Branch. All management

personnel reported to the store manager, David Allen.

In the summer of 1994, Keane began experiencing a

numbness in her right leg. While the numbness did not

affect her ability to walk short distances in her work area,

it sometimes precluded her from taking longer walks such

as those required to reach the employee cafeteria or the

food court. Keane explained to Klisiak the difficulty she was

having with her leg and asked if she could eat lunch in the

intimate apparel stockroom. Although Klisiak initially

agreed, she later announced a blanket policy forbidding all

eating in the stockroom.

In the fall of 1994, as Keane’s condition began to worsen,

she asked Klisiak if she could walk through the shoe stock-

room when going between the employee swipe-in area and

the intimate apparel department. Keane explained that this

shortcut would reduce by half the distance she had to walk

at the beginning and end of each shift. Klisiak referred

Keane to the shoe department manager, Joy Krumweide,

who denied the request. Klisiak then went to David Allen

on Keane’s behalf, explained Keane’s problem, and asked if

Keane could use the stockroom shortcut. Allen refused.

Beginning in December 1994, Keane could walk no more

than the equivalent of one city block without losing sensa-

tion in her leg. Once this happened, walking became “nearly

impossible and extremely slow.” Keane explained:

I didn’t know if I was going to make it out of the store

all right. It was very, very difficult to walk, very diffi-

cult. . . . The more that I had to walk, which basically

entailed parking and going in and out of the store, the

more walking I had to do, the more numb the leg

became. And the more difficult it—for instance, when I

would come home from work, it would take a long time

for that feeling to come back.

4 Nos. 04-2222 & 04-2493

Keane eventually began using a cane when taking longer

walks through the store. This, however, did not alleviate

her symptoms or allow her to walk further.

In late December 1994, Keane was diagnosed with

neuropathy, a general description of nerve damage, in ad-

dition to non-insulin-dependent diabetes. Keane’s neurolo-

gist, Dr. Kathryn Hanlon, wrote a note stating that Keane

should avoid walking long distances or for prolonged

periods. Keane brought the note to work and, because

Klisiak was not in, gave it to Shirley Oros who left it on

Klisiak’s desk. Klisiak found the note the following month.

Klisiak knew that Keane’s hours had been reduced at the

end of the holiday season and decided, without discussing

it with Keane, that the shortened schedule sufficiently limi-

ted Keane’s walking. In fact, the change in hours had not

helped Keane because her difficulties arose from walking to

and from her work area, regardless of the length of her

shifts. Klisiak put the doctor’s note in Keane’s personnel file

without sharing it with anyone.

At some point, Klisiak gave Keane temporary permission

to use the shoe stockroom as a shortcut. The first day

Keane attempted to use it, however, Krumweide yelled at

Keane to “get out of here.” When Keane explained that

Klisiak had given her permission, Krumweide screamed,

“Jackie has no right to give you permission. This is my

department.” On another occasion, Keane approached the

shoe stockroom and found a stock manager sitting on a stool

at its entrance. The manager explained that Allen had taken

her from her regular duties, posted her at the entrance, and

instructed her to bar anyone from going through the door.

Despite Keane’s protests that she had Klisiak’s permission

to use the shortcut, the stock manager did not let Keane

enter.

In another attempt to reduce her walking, Keane asked

Allen if she could park in the merchandise pick-up lot near

Nos. 04-2222 & 04-2493 5

the employee entrance. Allen denied that request but sug-

gested that Keane park in a space reserved for people with

disabilities outside of her department. Parking near Keane’s

department did not lessen her commute, however, because

she still had to walk across the store to the employee

swipe-in location and then walk back to her work area at

the beginning and end of each shift.

By the spring of 1995, in addition to her right leg, Keane

began to lose sensation in both feet when walking distances.

As she described it, when “there is no feeling, [ ] it’s almost

as though you have to take both of your hands and lift up

your leg and take one step at a time.” At times, Keane had

to hold on to the wall to avoid falling.

In April 1995, Allen asked Keane to have her doctor fill

out a Sears’ Physician Certification Form. He did not say

that there was anything inadequate about her first doctor’s

note, indicate any specific information that was needed, or

ask Keane what sort of accommodation she was seeking. Dr.

Louis DePorter, Keane’s general practitioner, completed the

form, noting that Keane suffered from diabetes and from

neuropathy in her right leg. He recommended that Keane

limit excessive walking and be allowed “easy/short access to

[her] job site.” When Allen received the form, he assumed

that because Keane was allowed to use the reserved

parking space near her department, her request for accom-

modation had been fulfilled. Allen did not ask for, and

Keane did not provide, additional medical information

regarding her condition or the suitability of this arrange-

ment. Allen told Klisiak to inform Keane that she would not

be permitted to cut through the shoe stockroom. Although

she was aware that the reserved parking space “seemed

farther away”and that Keane would still have to walk

around the building to the employee swipe-in location and

then back to the intimate apparel department, Klisiak did

not tell this to Allen.

6 Nos. 04-2222 & 04-2493

In a meeting the following month, Klisiak told Keane that

Allen had again denied her request to use the stockroom

shortcut. In addition, Klisiak gave Keane a new work

schedule which required her to work on Thursday evenings

and Fridays. Although Keane protested that she had always

been, and was then, unavailable to work on Thursday

evenings and Fridays, Klisiak replied that the schedule

could not be changed. Feeling that Sears had failed to ac-

commodate her disability and was attempting to make her

work environment inhospitable, Keane told Klisiak that the

walking was too much for her and that she was going to

have to resign. Klisiak described her own response in the

following way: “I told her I was sorry to hear that; and I

explained to her how to go about signing out in Personnel.”

Keane did not return.

The EEOC filed suit against Sears alleging that the

company had failed to reasonably accommodate Keane’s

disability in violation of the ADA. After Keane intervened,

she filed an amended complaint which further alleged that

Sears had constructively discharged Keane from her posi-

tion. Sears moved for summary judgment on both claims.

The district court concluded that Keane was not disabled

under the ADA and that she could not show that she had

been subjected to conditions that were so intolerable as to

require resignation. Accordingly, it granted Sears’ motion

as to both claims.

The EEOC and Keane appealed. We affirmed as to the

constructive discharge claim and, finding genuine issues of

material fact as to whether Keane was disabled, reversed

summary judgment on the failure to accommodate claim.

See Keane I, 233 F.3d at 441. We discussed “certain ab-

sences in the record” that were “important to point [ ] 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,” namely, the actual distance that Keane was able to

Nos. 04-2222 & 04-2493 7

walk and her ability to walk compared to the average

person. Id. at 439. We suggested that “a summary judgment

determination is problematic” in the absence of such

evidence. Id. Finally, we also noted that the district court

had briefly mentioned alternative bases for summary

judgment on the failure to accommodate claim. Id. at 440.

We directed the court to conduct a “more searching analy-

sis” of these potential grounds for summary judgment. Id.

On remand, the district court ordered the parties to sup-

plement their statements of facts “to address the concerns

expressed by the 7th Circuit.” In doing so, the parties pri-

marily reargued the facts that previously had been submit-

ted. Keane emphasized evidence regarding the progression

of her condition after she left Sears. According to Keane’s

supplemental statement of facts, Dr. Harris Barowsky

concluded in the summer of 1997 that Keane had difficulty

walking distances as short as 20 feet. In December of that

year, Dr. David Rosenfeld concluded that Keane’s “legs were

weak,” that “there was atrophy of leg muscles in the right

leg,” and that “the way she walked was very abnormal.”

Thereafter, the district court granted Sears’ renewed mo-

tion for summary judgment. EEOC ex rel. Keane v. Sears,

Roebuck & Co., Inc., No. 97 C 3971, 2004 WL 784803 (N.D.

Ill. Apr. 12, 2004). In doing so, the court concluded that the

standard for determining whether a plaintiff is “disabled”

under the ADA had changed after Keane I with the Su-

preme Court’s opinion in Toyota. The district court applied

what it determined to be the new standard and found that

no reasonable jury could find that Keane was disabled. It

held in the alternative that summary judgment was

warranted because Sears had provided Keane with a

reasonable accommodation, Sears had not been aware of

Keane’s disability, and Keane caused the breakdown in the

interactive process.

Keane and the EEOC appeal a second time, asserting that

the district court exceeded its authority on remand by

8 Nos. 04-2222 & 04-2493

“reopening” the issue of disability, and arguing that sum-

mary judgment was improper on each of the grounds cited

by the district court.

II. Discussion

A. District Court’s Authority on Remand

Keane argues that the district court exceeded its author-

ity by “reopening” the issue of Keane’s alleged disability.

Whether a district court has acted outside of the scope of its

authority on remand is a question of law that we review de

novo. United States v. White, 406 F.3d 827, 831 (7th Cir.

2005).

As an initial matter, it cannot be doubted that a district

court acts within its authority when it considers issues that

we expressly have directed it to address. Cf. United States

v. Husband, 312 F.3d 247, 251 (7th Cir. 2002). In Keane I,

we stated that it was “necessary to remand this case for a

more searching analysis” of whether “summary judgment

was appropriate based on reasons other than Keane’s

classification as disabled.” 233 F.3d at 440. Therefore, the

portion of the district court’s opinion in which it considered

alternative bases for summary judgment is clearly within

the scope of the remand.

Despite our holding in Keane I that a genuine issue of fact

exists as to whether Keane is disabled, the district court

also acted within its authority in reconsidering this issue.

In general, any issue conclusively decided by this Court on

appeal may not be reconsidered by the district court on

remand. Husband, 312 F.3d at 251. This is based upon both

the law of the case doctrine, which “posits that when a court

decides upon a rule of law, that decision should continue to

govern the same issues in subsequent stages in the same

case,” Jarrard v. CDI Telecomms., Inc., 408 F.3d 905, 911-

12 (7th Cir. 2005) (quoting Christianson v. Colt Indus.

Nos. 04-2222 & 04-2493 9

Operating Corp., 486 U.S. 800, 815-16 (1988)) (emphasis in

Jarrard), and the mandate rule, which “requires a lower

court to adhere to the commands of a higher court on

remand,” United States v. Polland, 56 F.3d 776, 777 (7th

Cir. 1995). See White, 406 F.3d at 831. Neither rule is

inflexible, however. “An appellate mandate does not turn a

district judge into a robot, mechanically carrying out orders

that become inappropriate in light of subsequent factual

discoveries or changes in the law.” Barrow v. Falck, 11 F.3d

729, 731 (7th Cir. 1993). Similarly, the law of the case

doctrine permits “a court to revisit an issue if an intervening

change in the law, or some other special circumstance,

warrants reexamining the claim.” United States v. Thomas,

11 F.3d 732, 736 (7th Cir. 1993). Our decisions do not bind

the district court when there has been a relevant interven-

ing change in the law. See Page v. United States, 884 F.2d

300, 302 (7th Cir. 1989).

When considering a district court’s authority to reexam-

ine an issue resolved in an earlier appeal, we ask only

whether the district court reasonably concluded that there

has been a relevant change in the law, not whether there in

fact has been such a change. If, on appeal, we disagree with

the district court’s determination that an intervening case

has changed the law in a relevant way, we may reverse to

correct the misinterpretation itself, but we will not find that

the district court exceeded its authority in reconsidering the

issue if its analysis of the intervening case was reasonable.

Here, the district court reasonably concluded that the issue

of Keane’s alleged disability resolved in Keane I required

reexamination in light of the Supreme Court’s decision in

Toyota. Accordingly, it acted within its authority in address-

ing the issue on remand.

B. Summary Judgment

We review the district court’s grant of summary judgment

de novo, viewing all facts and drawing all reasonable

10 Nos. 04-2222 & 04-2493

inferences in the non-moving party’s favor. Eisencorp, Inc.

v. Rocky Mountain Radar, Inc., 398 F.3d 962, 965 (7th Cir.

2005). Summary judgment is appropriate if the evidence

presented by the parties “show[s] that there is no genuine

issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Fed. R. Civ. P.

56(c). “A genuine issue for trial exists only when a reason-

able jury could find for the party opposing the motion based

on the record as a whole.” Moore v. J.B. Hunt Transp., Inc.,

221 F.3d 944, 950 (7th Cir. 2000).

The ADA provides that a covered employer shall not

“discriminate against a qualified individual with a disabil-

ity because of the disability of such individual.” 42 U.S.C.

§ 12112(a). “Discrimination,” under the ADA, includes “not

making reasonable accommodations to the known physical

or mental limitations of an otherwise qualified individual

with a disability who is an applicant or employee,” unless

the employer “can demonstrate that the accommodation

would impose an undue hardship on the operation of the

business.” § 12112(b)(5)(A). Thus, the ADA requires em-

ployers to reasonably accommodate the limitations of its

disabled employees. See Toyota, 534 U.S. at 193.

To establish a claim for failure to accommodate, a plain-

tiff must show that: (1) she is a qualified individual with a

disability; (2) the employer was aware of her disability; and

(3) the employer failed to reasonably accommodate the

disability. Hoffman v. Caterpillar, Inc., 256 F.3d 568, 572

(7th Cir. 2001). As to the third element, the “ADA requires

that employer and employee engage in an interactive

process to determine a reasonable accommodation.” Baert

v. Euclid Beverage, Ltd., 149 F.3d 626, 633 (7th Cir. 1998).

If a disabled employee shows that her disability was not

reasonably accommodated, the employer will be liable only

if it bears responsibility for the breakdown of the interac-

tive process. Beck v. Univ. of Wisc. Bd. of Regents, 75 F.3d

1130, 1137 (7th Cir. 1996).

Nos. 04-2222 & 04-2493 11

The district court granted summary judgment on four

grounds. It held that: (1) Keane was not disabled when she

worked for Sears; (2) if Keane was disabled, Sears reason-

ably accommodated her disability; (3) if Sears did not rea-

sonably accommodate Keane’s disability, this was because

Sears was not aware of the disability; and (4) if Sears was

aware of Keane’s disability, Sears cannot be liable because

Keane caused the breakdown of the interactive process.

EEOC ex rel. Keane, 2004 WL 784803, at *10. To prevail on

appeal, Keane must show that there is a genuine issue of

material fact as to each of these issues.

1. Disability

The ADA defines a “qualified individual with a disability”

as “an individual with a disability who, with or without

reasonable accommodation, can perform the essential

functions of the employment position that such individual

holds or desires.” 42 U.S.C. § 12111(8). The parties agree

that Keane was able to perform the essential functions of

her position at Sears. The district court held, however, that

as a matter of law Keane was not disabled.

The ADA defines “disability” 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.

§ 12102(2). In this case, we are concerned only with the first

definition, under which we conduct a three-step inquiry,

asking whether the plaintiff’s condition constitutes an

impairment under the ADA, whether the activity upon

which the plaintiff relies constitutes a major life activity,

and whether the impairment substantially limited the per-

12 Nos. 04-2222 & 04-2493

formance of the major life activity. See Bragdon v. Abbott,

524 U.S. 624, 631 (1998). The parties agree that Keane’s

neuropathy is a physical impairment and that walking is a

major life activity within the meaning of the Act. We

therefore proceed directly to the third step and review the

district court’s conclusion that no reasonable jury could find

that Keane’s neuropathy “substantially limited” her ability

to walk during the time she worked at Sears.

In Keane I, we held that there was a genuine issue for the

jury on this question. We cited the EEOC’s regulation

defining “substantially limits” in our analysis:

The term substantially limits means:

(i) Unable to perform a major life activity that the

average person in the general population can perform;

or

(ii) Significantly restricted as to the condition, manner

or duration under which an individual can perform a

particular major life activity as compared to the con-

dition, manner, or duration under which the average

person in the general population can perform that same

major life activity.

29 C.F.R. § 1630.2(j)(1) (emphasis added).

On remand, the district court determined that the

Supreme Court’s intervening decision in Toyota changed the

definition of “substantially limits.” EEOC ex rel. Keane,

2004 WL 784803, at *6. Toyota held that “to be substan-

tially limited in performing manual tasks, an individual

must have an impairment that prevents or severely restricts

the individual from doing activities that are of central

importance to most people’s daily lives.” 534 U.S. at 198

(emphasis added). The district court concluded that courts

may no longer rely upon § 1630.2(j)’s “significantly re-

stricted” language, and that the Supreme Court set a higher

threshold by using the phrase “severely restricts.” EEOC ex

Nos. 04-2222 & 04-2493 13

rel. Keane, 2004 WL 784803, at **5-6. According to the

district court, the proper inquiry under Toyota is whether

Keane was “severely limited in performing a major life

activity.” Id. at *6 (emphasis in original). The court found

that Keane was not disabled under this new standard. Id.

at **7-8. In reviewing the district court’s decision, we must

start with Toyota.

In Toyota, the plaintiff, claiming to be disabled because of

her carpal tunnel syndrome and other related conditions,

sued her former employer for failing to provide her with a

reasonable accommodation in her factory assembly-line job.

534 U.S. at 187. The district court granted summary

judgment to the employer but the Sixth Circuit reversed

and granted partial summary judgment to the plaintiff on

the issue of whether she was disabled under the ADA. Id.

The Sixth Circuit found that her impairments substantially

limited her in the major life activity of performing manual

tasks. Id. The Supreme Court granted certiorari “to con-

sider the proper standard for assessing whether an individ-

ual is substantially limited in performing manual tasks.”

Id. at 192.

The Court considered the potential sources of guidance for

interpreting the terms “substantially limits” and “major life

activity.”1 Id. at 193-94. The latter is defined in the regula-

tions interpreting the Rehabilitation Act of 1973, 29 U.S.C.

§ 701 et seq., which were issued by the Department of

Health, Education, and Welfare (“HEW”) in 1977, and

which appear in the current regulations issued by the

Department of Health and Human Services. See id. These

regulations are of particular significance because, at the

time they were issued, HEW was the agency responsible for

coordinating the implementation and enforcement of § 504

1

The parties in Toyota agreed that the plaintiff ’s medical

conditions constituted “impairments” under the Act.

14 Nos. 04-2222 & 04-2493

of the Rehabilitation Act, 29 U.S.C. § 794, which prohibits

discrimination against individuals with disabilities by

recipients of federal financial assistance. Id. at 195. Con-

gress expressly provided that these regulations would be of

continuing importance in interpreting the ADA:

Except as otherwise provided in this chapter, nothing in

this chapter shall be construed to apply a lesser stan-

dard than the standards applied under title V of the

Rehabilitation Act of 1973 (29 U.S.C. § 790 et seq.) or

the regulations issued by Federal agencies pursuant to

such title.

42 U.S.C. § 12201(a). Therefore, the HEW regulation’s list

of “major life activities,” which includes “performing manual

tasks, walking, seeing, [and] hearing,” is persuasive

authority in applying the ADA. Toyota, 534 U.S. at 194-95.

The HEW regulations, however, do not define the term

“substantially limits.” Id. at 195. Therefore, the Court in

Toyota looked to the EEOC’s regulations, but noted that

their persuasive authority “is less clear.” Id. at 194. Con-

gress divided among several agencies the authority to issue

regulations to implement Titles I through V of the ADA.

Sutton v. United Air Lines, Inc., 527 U.S. 471, 478-79

(1999). “No agency, however, has been given authority to

issue regulations implementing the generally applicable

provisions of the ADA, see §§ 12101-12102, which fall

outside of Titles I-V,” including § 12102(2)’s definition of

“disability.” Id. at 479; Toyota, 534 U.S. at 194. Nonethe-

less, the EEOC, which has authority to issue regulations to

carry out the employment provisions of Title I, has issued

regulations interpreting each component of the term

“disability”: “impairment,” “substantially limits,” and “major

life activities.” Sutton, 527 U.S. at 479; Toyota, 534 U.S. at

194.

The Court in Toyota quoted in its entirety the EEOC’s

interpretation of “substantially limits” in 29 C.F.R.

Nos. 04-2222 & 04-2493 15

§ 1630.2(j), which includes the “significantly restricted”

language, and stated that because both parties accepted

that this and other regulations were reasonable, it “as-

sume[d] without deciding that they are” and concluded that

the Court had “no occasion to decide what level of deference,

if any, they are due.” Id. at 194-96. While the Court as-

sumed that § 1630.2(j) was reasonable, it focused on the

statutory language itself, noting that “substantially”

suggests “considerable” or “to a large degree” and “clearly

precludes impairments that interfere in only a minor way

with the performance of manual tasks from qualifying as

disabilities.” Id. at 196-97. For the last proposition, it

quoted with approval its statement in Albertson’s, Inc. v.

Kirkingburg, 527 U.S. 555 (1999), that “ ‘mere difference’

does not amount to a ‘significant restrict[ion]’ and therefore

does not satisfy the EEOC’s interpretation of ‘substantially

limits.’ ” Toyota, 534 U.S. at 197 (quoting Albertson’s, 527

U.S. at 565) (alterations in Toyota). Citing again to the

regulation, the Court concluded:

We therefore hold that to be substantially limited in

performing manual tasks, an individual must have an

impairment that prevents or severely restricts the

individual from doing activities that are of central

importance to most people’s daily lives. The impair-

ment’s impact must also be permanent or long term.

Id. at 198.

In applying this interpretation of “substantially limits” to

the specific facts of the case, the Toyota Court explained

that when the major life activity involved is the ability to

perform manual tasks, the plaintiff must show more than

that she is “unable to perform the tasks associated with her

specific job”; the issue is “whether the claimant is unable to

perform the variety of tasks central to most people’s daily

lives.” Id. at 200-02. The plaintiff in Toyota was not only

unable to raise her arms in the way required to perform a

16 Nos. 04-2222 & 04-2493

specific job in the factory where she worked, but her

condition also caused her to avoid sweeping, to quit danc-

ing, occasionally to seek help dressing, and to reduce how

often she plays with her children, gardens, and drives long

distances. Id. at 202. Nevertheless, she was able to brush

her teeth, wash her face, bathe, tend her flower garden, fix

breakfast, do laundry, and pick up around the house—tasks

the Court found to be more central to daily life than the

tasks she could not perform. Id. The Court concluded that

the plaintiff’s limitations “did not amount to such severe

restrictions in the activities that are of central importance

to most people’s daily lives that they establish a manual

task disability as a matter of law.” Id. It reversed the court

of appeals’ grant of partial summary judgment in favor of

the plaintiff and remanded for further proceedings. Id. at

202-03. It did not direct that summary judgment be entered

for the defendant.

Sears essentially makes two arguments on appeal: (1)

Toyota’s use of the phrase “severely restricts” means that

courts may no longer seek guidance from § 1630.2(j), which

defines “substantially limits” as “unable to perform” or “sig-

nificantly restricted” in performing a major life activity; and

(2) the Supreme Court raised the disability threshold so

that, while there was a genuine issue of material fact as to

whether Keane was disabled before Toyota, under the new

standard Keane was not disabled as a matter of law. The

Supreme Court’s handling of § 1630.2(j) in Toyota makes

clear that Sears’ first assertion is incorrect. The Court

quoted § 1630.2(j) fully, assumed that it was reasonable,

expressly referred to the regulation in its analysis, and

favorably cited its own reliance upon the “significantly

restricts” language in Albertson’s. Id. at 195-97 (quoting

Albertson’s, 527 U.S. at 565). Nothing in the Court’s opinion

suggests that it intended to preclude lower courts from

seeking guidance from § 1630.2(j). If it had intended to bar

future reference to the EEOC’s regulations interpreting

Nos. 04-2222 & 04-2493 17

“disability,” the Court first would have addressed the

question of what, if any, deference they are due. It specifi-

cally declined to do so.

Before today, we have not had the occasion to consider

directly whether Toyota precludes continuing reference to

§ 1630.2(j). We and many of our sister circuits, however,

have continued to seek guidance from this regulation in

interpreting “substantially limits” after Toyota. See, e.g.,

Kupstas v. City of Greenwood, 398 F.3d 609, 612-13 (7th

Cir. 2005); Emory v. AstraZeneca Pharm. LP, 401 F.3d 174,

179-80 (3d Cir. 2005); Albert v. Smith’s Food & Drug Ctrs.,

Inc., 356 F.3d 1242, 1250-51 (10th Cir. 2004); Rossbach v.

City of Miami, 371 F.3d 1354, 1357 (11th Cir. 2004);

Ristrom v. Asbestos Workers Local 34 Joint Apprentice

Comm., 370 F.3d 763, 768-69 (8th Cir. 2004); Wright v.

CompUSA, Inc., 352 F.3d 472, 476 (1st Cir. 2003); Regional

Econ. Cmty. Action Program, Inc. v. City of Middletown, 294

F.3d 35, 47-48 (2d Cir. 2002); Pollard v. High’s of Balt., Inc.,

281 F.3d 462, 467-68 (4th Cir. 2002); Black v. Roadway

Express, Inc., 297 F.3d 445, 448-49 (6th Cir. 2002); EEOC

v. United Parcel Serv., Inc., 306 F.3d 794, 801 (9th Cir.

2002). While we do not express an opinion on the level of

deference due to the EEOC’s regulations interpreting

“disability” (the question reserved by the Supreme Court),

we conclude that Toyota does not prevent courts from

looking to them for guidance.

Although the Supreme Court did not forbid reference to

the EEOC’s regulations, it did seem to caution against

letting them obscure the ADA’s “demanding standard for

qualifying as disabled.” See Toyota, 534 U.S. at 197. The

Court indicated that, rather than turning immediately to

interpretive regulations, it is best to start with the statu-

tory language itself. See id. at 195-97 (quoting 29 C.F.R.

§ 1630.2(j) but returning to consider the statutory language

itself). The Toyota Court asked whether the plaintiff’s im-

pairment “substantially limited” her ability to perform a

18 Nos. 04-2222 & 04-2493

major life activity, noting that this language suggests that

the activity must be limited “considerably” or “to a large

degree,” and not merely in a “minor way.” Id. at 196-97. In

addition, the limitation must be considered in light of that

which most people do in their daily lives, not with reference

to a specific job. Id. at 199-200; see also Mack v. Great Dane

Trailers, 308 F.3d 776, 781 (7th Cir. 2002) (“Toyota’s point

was that an inability to perform ‘occupation-specific’ tasks

does not necessarily show an inability to perform the

central functions of daily life.”). The use of the phrase

“severely restricts” further underscores that the standard

must remain demanding and not be weakened through

reference to regulations or otherwise. In this way, the

Supreme Court in Toyota may have set a “higher threshold

for the statute than some had believed it contained.”

Dvorak v. Mostardi Platt Assocs., Inc., 289 F.3d 479, 484

(7th Cir. 2002). It did not, of course, alter the statutory

prescription applied in Keane I that, to be disabled, one’s

impairment must “substantially limit” a major life activity.

It also did not change the way in which courts are to go

about making this determination—asking whether the

limitation is substantial or considerable in light of what

most people do in their daily lives, and whether the impair-

ment’s effect is permanent or long term.

While this admonition to remain faithful to the strict

statutory requirements of the ADA applies with equal force

to all claims under the Act, there are some aspects of Toyota

which are less broadly applicable. The Supreme Court

expressly limited its grant of certiorari, its analysis, and its

holding, to the major life activity of performing manual

tasks. This is important in analyzing its statement that

“[w]hen addressing the major life activity of performing

manual tasks, the central inquiry must be whether the

claimant is unable to perform the variety of tasks central to

most people’s daily lives,” and considering the weight the

Court gave to the plaintiff’s ability to brush her teeth, wash

Nos. 04-2222 & 04-2493 19

her face, bathe, tend her flower garden, fix breakfast, do

laundry, and pick up around the house. Toyota, 534 U.S. at

200, 202. The ability to perform these types of tasks is much

less telling when considering the major life activity of

walking. The ability of a person who is wheelchair-bound to

wash his face or pick up around the house does not indicate

that he is not disabled under the ADA, and it would not

relieve his employer of the obligation to install a ramp or

reasonably accommodate his limitations in other ways. The

requirement that a plaintiff be unable to perform a “variety

of tasks” like the ones discussed in Toyota may not apply

where the major life activity at issue is something other

than the performance of manual tasks. See Albert v. Smith’s

Food & Drug Ctrs., Inc., 356 F.3d 1242, 1250 n.5 (10th Cir.

2004) (explaining that Toyota was concerned only with the

major life activity of performing manual tasks and “did not

set down the rule that all people claiming a disability must

show an inability to preform the variety of tasks required to

be performed in most people’s daily lives,” and holding that

the requirement did not apply where the major life activity

at issue is breathing); cf. Rooney v. Kock Air, LLC, 410 F.3d

376, 380-81 (7th Cir. 2005) (applying the “variety of tasks”

requirement where the plaintiff “never testified that he was

unable to perform any major life activities” and only

asserted that he could not perform some of the tasks

specific to his job).

To be disabled with regard to the major life activity of

walking, the employee must be “substantially limited” in

her ability to walk, and the limitation must be permanent

or long term, and considerable compared to the walking

most people do in their daily lives. Here, the evidence taken

in the light most favorable to Keane demonstrates that

when she worked at Sears she was unable to walk the

equivalent of one city block without her right leg and feet

becoming numb. When this happened, walking became

“nearly impossible and extremely slow.” She would feel as

20 Nos. 04-2222 & 04-2493

though she had to take both of her hands and lift up her leg

to take one step at a time. Sometimes, Keane would doubt

whether she could make it out of the store safely and would

hold on to the wall for support. There is no evidence that

Keane’s impairment was temporary or short term. In fact,

by the summer of 1997, two years after Keane left Sears,

her condition had deteriorated to the point that she had

difficulty walking even 20 feet. As we noted in Keane I,

“[t]hough the progression of Keane’s impairment subse-

quent 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 [subsequent

condition] does provide a certain degree of credence to the

claim that her neuropathy may have been ‘substantially

limiting’ at the time at issue.” Keane I, 233 F.3d at 438. In

addition, it demonstrates that her condition was not

fleeting. A reasonable jury could conclude, based on this

evidence and its own life experience, that Keane’s severe

difficulty in walking the equivalent of one city block was a

substantial limitation compared to the walking most people

do daily. Accordingly, the district court erred in concluding

that no reasonable jury could find that Keane was disabled

under the ADA.

2. Reasonable Accommodation

Under the ADA, an employer must make “reasonable ac-

commodations” to a disabled employee’s limitations, unless

the employer can demonstrate that to do so would impose

an “undue hardship.” 42 U.S.C. § 12112(b)(5)(A). Sears does

not contend that accommodating Keane’s disability would

have imposed upon it an undue hardship. Rather, it argues,

and the district court held, that Sears provided Keane with

reasonable accommodations.

Reasonable accommodations under the ADA include

“making existing facilities used by employees readily acces-

sible to and usable by individuals with disabilities.”

Nos. 04-2222 & 04-2493 21

§ 12111(9). “It is the employer’s prerogative to choose a

reasonable accommodation; an employer is not required to

provide the particular accommodation that an employee re-

quests.” Jay v. Intermet Wagner, Inc., 233 F.3d 1014, 1017

(7th Cir. 2000). Still, at the very least, the employer is

obliged to provide an accommodation that effectively ac-

commodates the disabled employee’s limitations. See US

Airways, Inc. v. Barnett, 535 U.S. 391, 400 (2002) (“An in-

effective ‘modification’ or ‘adjustment’ will not accommodate

a disabled individual’s limitations.”) (emphasis in original).

The parties agree that Keane was able to perform all of the

aspects of her job but simply had trouble getting to and

from her workstation within the store. If Sears was effective

in making its facility “readily accessible to and usable by”

Keane, then it is not liable. See 42 U.S.C. § 12111(9)(A); see

also Vande Zande v. State of Wisc. Dep’t of Admin., 44 F.3d

538, 546 (7th Cir. 1995) (“The duty of reasonable accommo-

dation is satisfied when the employer does what is neces-

sary to enable the disabled worker to work in reasonable

comfort.”).

In concluding that Sears reasonably accommodated

Keane’s limitations, the district court relied upon Keane’s

use of the parking space reserved for people with disabili-

ties near her work area, her use of the intimate apparel

stockroom to eat lunch, and her use of the shoe stockroom

shortcut “for a period of time.” EEOC ex rel. Keane, 2004

WL 784803, at *10. Whether considered individually or

together, these do not constitute a reasonable accommoda-

tion when the evidence is viewed in the light most favorable

to Keane.

As to the use of the reserved parking space, a reasonable

jury could conclude that this did nothing to make the Sears

facility “readily accessible to and usable by” Keane. Keane’s

limitations made it difficult for her to walk from her car to

the employee swipe-in area and then to her department.

Use of the reserved parking space near her department did

22 Nos. 04-2222 & 04-2493

not reduce the distance she had to walk before and after

each shift because it required her to walk back and forth

across the store to reach the employee swipe-in area. A

reasonable jury could find that, because it did not effec-

tively accommodate Keane’s limitations, this was not a

reasonable accommodation.

As to Keane eating in the intimate apparel stockroom and

using the shoe stockroom shortcut “for a period of time,” a

jury could conclude that these did not make the facility

accessible to Keane because the accommodations were

either rescinded or Keane faced reprimand when she tried

to used them. Although Klisiak initially gave Keane

permission to eat in the stockroom, she later announced a

blanket policy forbidding it. In addition, even if Keane had

been permitted to continue to eat in the stockroom, this

would not have alleviated her difficulty getting to and from

her work area at the beginning and end of each shift.

Similarly, while Klisiak gave Keane temporary permission

to cut through the shoe stockroom, Allen told her she could

not. When Keane tried to use the shortcut, Krumweide

yelled at her and another employee was stationed at the

entrance to prevent her from entering. A jury could con-

clude that these were not reasonable accommodations be-

cause they did not consistently or effectively make the

Sears facility accessible to Keane. The district court erred

in granting summary judgment on this basis.

3. Awareness of Keane’s Disability

An employer only violates the ADA if it fails to provide

“reasonable accommodations to the known physical or men-

tal limitations of an otherwise qualified individual with a

disability.” 42 U.S.C. § 12112(b)(5)(A) (emphasis added).

Thus, a plaintiff alleging a failure to accommodate, “in

addition to showing that she is a qualified individual with

a disability, must show that the employer was aware of her

Nos. 04-2222 & 04-2493 23

disability and still failed to reasonably accommodate it.”

Hoffman, 256 F.3d at 572. This duty is “dictated by common

sense lest a disabled employee keep his disability a secret

and sue later for failure to accommodate.” Beck, 75 F.3d at

1134.

The ADA imposes on an employee the “initial duty to

inform the employer of a disability.” Id. This initial duty,

however, requires at most that the employee indicate to the

employer that she has a disability and desires an accommo-

dation. See id.; see also Jovanovic v. In-Sink-Erator Div. of

Emerson Elec. Co., 201 F.3d 894, 899 (7th Cir. 2000)

(“Although there will be exceptions to the general rule . . .

we believe that the standard rule is that a plaintiff must

normally request an accommodation before liability under

the ADA attaches.”); Bultemeyer v. Fort Wayne Comm.

Schs., 100 F.3d 1281, 1285-86 (7th Cir. 1996) (employee

with a mental illness may not need to explicitly request an

accommodation; “if it appears that the employee may need

an accommodation but doesn’t know how to ask for it, the

employer should do what it can to help.”). Thereafter, the

employer and the employee must work together through an

“interactive process” to determine the extent of the disa-

bility and what accommodations are appropriate and avail-

able. See Beck, 75 F.3d at 1134-36. Where notice is ambigu-

ous as to the precise nature of the disability or desired

accommodation, but it is sufficient to notify the employer

that the employee may have a disability that requires

accommodation, the employer must ask for clarification. See

Bultemeyer, 100 F.3d at 1285. In other words, an employer

cannot shield itself from liability by choosing not to follow

up on an employee’s requests for assistance, or by intention-

ally remaining in the dark.

Viewing the evidence in the light most favorable to Keane,

a reasonable jury could conclude that Sears was sufficiently

aware of Keane’s disability to trigger the interactive pro-

cess. Keane gave to Sears notes from two doctors indicating

24 Nos. 04-2222 & 04-2493

that she suffered from neuropathy and recommending that

she be permitted to avoid walking long distances. In

addition, Keane told Oros (a supervisory co-worker), Klisiak

(the department supervisor), and Allen (the store manager)

that she wished to use the shortcut through the shoe

stockroom because the long walk through the store was

difficult for her. Klisiak was sufficiently aware of Keane’s

condition to tell Allen that Keane “was having problems

with her legs” and wanted permission to use the shortcut.

Thus, supervisors at three levels of Sears management were

aware that Keane suffered from neuropathy which made it

difficult for her to get to her work area and knew the

specific accommodation she was seeking. A jury could

conclude that Sears was aware of Keane’s condition and her

desire to be accommodated, thus triggering Sears’ obligation

to engage in the interactive process.

In reaching the opposite conclusion, the district court re-

lied on Steffes v. Stepan Co., 144 F.3d 1070 (7th Cir. 1998).

In that case, we assumed that the employee’s doctor’s note

stating that she could not be exposed to chemicals was suf-

ficient to provide initial notice. 144 F.3d at 1072. Although

we went on to conclude that the employee was responsible

for the breakdown of the interactive process when she failed

to “update or further clarify the kinds of work she could do

and the level of chemical exposure, if any, she could toler-

ate,” this is irrelevant to the question of a plaintiff’s initial

notice obligation. See id. The employee’s responsibility to

provide additional information arose within the interactive

process and after the employer had sought clarification of

the nature of employee’s disability and whether proposed

accommodations would meet the employee’s needs. We did

not hold in Steffes, as the district court suggested, that an

employee must make the employer “aware of the full extent

of [the employee’s] disability” to trigger the interactive

process. EEOC ex rel. Keane, 2004 WL 784803, at *9.

Nos. 04-2222 & 04-2493 25

Sears worries that it would have been inappropriate, and

possibly discriminatory, for it to have assumed that Keane

was disabled just because she brought in doctors’ notes,

walked with a limp, and used a cane. True, assumptions are

not what the ADA requires. Rather, it obligates an em-

ployer to engage in the interactive process precisely for the

purpose of allowing both parties to act upon information

instead of assumptions. Here, Keane not only provided

doctor’s notes disclosing her diagnosis and limitations, but

she requested a specific accommodation. Once Keane raised

the issue in this way, it was not only appropriate for Sears

to ask questions, but Sears was required to engage with

Keane in deciding upon an appropriate accommodation. The

district court erred in finding that Sears is entitled to

judgment as a matter of law on this issue.

4. Breakdown of the Interactive Process

After an employee’s initial disclosure, “the ADA obligates

the employer to engage with the employee in an ‘interactive

process’ to determine the appropriate accommodation under

the circumstances.” Gile v. United Airlines, Inc., 213 F.3d

365, 373 (7th Cir. 2000) (internal quotations omitted).

“Failure to engage in this ‘interactive process’ cannot give

rise to a claim for relief, however, if the employer can show

that no reasonable accommodation was possible.” Hansen v.

Henderson, 233 F.3d 521, 523 (7th Cir. 2000). Therefore, we

ordinarily look first to whether there is a genuine issue of

material fact regarding the availability of a reasonable

accommodation, and if it is clear that no reasonable accom-

modation was available, we stop there. See Ozlowski v.

Henderson, 237 F.3d 837, 840 (7th Cir. 2001); see also Mays

v. Principi, 301 F.3d 866, 870 (7th Cir. 2002) (“The plaintiff

cannot seek a judicial remedy for the employer’s failure to

accommodate her disability without showing that a reason-

able accommodation existed.”). Here, both parties agree

26 Nos. 04-2222 & 04-2493

that several reasonable accommodations were available,

including use of the stockroom shortcut and moving Keane

to a department closer to the employee swipe-in area.

Therefore, we may proceed directly to consideration of

whether one party was responsible for the breakdown in the

interactive process. See Ozlowski, 237 F.3d at 840.

According to an EEOC regulation, the purpose of the

interactive process is to “identify the precise limitations

resulting from the disability and potential reasonable ac-

commodations that could overcome those limitations.” 29

C.F.R. § 1630.2(o)(3). This step imposes a duty on employers

to engage in a flexible give-and-take with the disabled

employee so that together they can determine what accom-

modation would enable the employee to continue working.

Gile, 213 F.3d at 373. If this process fails to lead to rea-

sonable accommodation of the disabled employee’s limita-

tions, responsibility will lie with the party that caused the

breakdown:

No hard and fast rule will suffice, because neither party

should be able to cause a breakdown in the process for

the purpose of either avoiding or inflicting liability.

Rather, courts should look for signs of failure to partici-

pate in good faith or failure by one of the parties to

make reasonable efforts to help the other party deter-

mine what specific accommodations are necessary. A

party that obstructs or delays the interactive process is

not acting in good faith. A party that fails to communi-

cate, by way of initiation or response, may also be

acting in bad faith. In essence, courts should attempt to

isolate the cause of the breakdown and then assign

responsibility.

Beck, 75 F.3d at 1135.

Sears argues that no reasonable jury could find that it

caused the breakdown of the interactive process because

Keane quit, “precluding any discussion of alternatives.” The

district court adopted this reasoning and assumed that

Nos. 04-2222 & 04-2493 27

Keane’s departure was the cause of the breakdown without

considering the parties’ respective involvement in the

process up to that point. The last act in the interactive

process is not always the cause of a breakdown, however,

and courts must examine the process as a whole to deter-

mine whether the evidence requires a finding that one

party’s bad faith caused the breakdown. See, e.g., Beck, 75

F.3d at 1135-36.

Our cases illustrate that when an employer takes an

active, good-faith role in the interactive process, it will not

be liable if the employee refuses to participate or withholds

essential information. For example, in Beck, we affirmed a

grant of summary judgment in favor of the University of

Wisconsin where a secretary suffering from osteoarthritis

and depression stood in the way of the University’s “numer-

ous steps” to accommodate her. Id. at 1136-37. The parties

had several formal and informal meetings in which they

discussed possible accommodations. Regarding her osteo-

arthritis, Beck requested a reduction of her repetitive key-

board use and suggested that an adjustable computer

keyboard would be helpful. The University responded to

both requests, substantially reducing Beck’s workload and

providing her with a wrist rest. Beck never sought addi-

tional or different accommodations for her osteoarthritis. As

to her depression, the University knew that Beck believed

her overall workload was too high. Upon returning from her

first of several leaves of absence, Beck was given a new

position in which she was permitted to merely practice a

word-processing program for the first few months. Upon

returning from a third leave, the University assigned Beck

to work with only one supervisor and reduced her workload

to substantially less than other secretaries. When Beck

complained that the workload was too low, the University

gave her additional assignments. We summarized: “At no

point did the University fail to respond in some manner to

Beck’s requests for accommodation, and there is nothing in

28 Nos. 04-2222 & 04-2493

the record from which we can discern any attempt by the

University to sweep the problem under the rug.” Id. at

1136. We concluded that, because the University made

“reasonable efforts both to communicate with the employee

and provide accommodations based on the information it

possessed,” it could not be responsible for the breakdown of

the interactive process. Id. at 1137.

In Jackson v. City of Chicago, a police officer who had

been on disability leave claimed that the city failed to en-

gage in the interactive process when she asked to return to

work. ___ F.3d ___, 2005 WL 1618822 (7th Cir. 2005). The

city sent several letters to the plaintiff asking for a descrip-

tion of the extent of her limitations. Id. at *6. The plaintiff

responded with uninformative statements, such as “Officer

Jackson is not claiming that she is physically unable to

return to work. She is asking to be reinstated.” Id. Given

the plaintiff’s failure to respond to the employer’s specific

requests for information, we found that the plaintiff had

caused the breakdown in the interactive process. Id.

In addition to holding employees to their obligation to

fully participate in the interactive process, our cases also

demonstrate that if the employee has requested an appro-

priate accommodation, the employer may not simply reject

it without offering other suggestions or at least expressing

a willingness to continue discussing possible accommoda-

tions. This reflects the give-and-take aspect of the inter-

active process. An employer cannot sit behind a closed door

and reject the employee’s requests for accommodation

without explaining why the requests have been rejected or

offering alternatives. In Gile v. United Airlines, Inc., we

concluded that the employer “flunked its obligations under

the ADA” when, in the face of the employee’s repeated pleas

for a shift transfer, it refused the request and then did

nothing to engage with the employee in determining if any

alternative accommodations would be appropriate. 213 F.3d

365, 373 (7th Cir. 2000). Although the employer believed

Nos. 04-2222 & 04-2493 29

that the employee’s proposed accommodation would have

been ineffective, it “had the affirmative obligation to seek

[the employee] out and work with her to craft a reasonable

accommodation.” Id. We concluded that the employer “failed

its duty of reasonable accommodation because it took no

action other than to reject [the employee’s] request.” Id. at

374.

Here, while Keane may not have articulated to Sears all

of the details of her disability, she discussed with her super-

visors the difficulty she was having in reaching her work

area and requested a specific accommodation, namely, use

of the stockroom shortcut. Sears was not obligated to

provide this accommodation, but it also could not simply

reject the request and take no further action. A reasonable

jury could conclude, however, that this is exactly what

happened.

The evidence taken in the light most favorable to Keane

demonstrates that she made several requests for accommo-

dations which Sears simply denied. Keane asked Klisiak if

she could eat lunch in the intimate apparel stockroom.

Although Klisiak initially gave Keane permission to do so,

when she later announced a blanket policy forbidding all

eating there, Keane believed that this applied to her as

well. On several occasions, Keane asked various managers

if she could use the shoe stockroom shortcut. Krumweide

and Allen denied each request. While Klisiak gave Keane

temporary permission to use the shortcut, Krumweide

yelled at Keane when Keane tried to do so. When Keane

asked Allen if she could park in the merchandise pick-up

lot, he denied the request and offered to let her park in a

reserved space near her department even though Klisiak,

who was acting as the intermediary between Allen and

Keane, understood that this would not shorten Keane’s

walk. Allen later denied Keane’s request to use the stock-

room shortcut a second time, again assuming, without ask-

ing Keane, that use of the reserved space was sufficient.

30 Nos. 04-2222 & 04-2493

Thereafter, Keane told Klisiak that the walking was too

much for her and that she was going to have to resign.

Klisiak simply responded that she was sorry to hear this

and explained to Keane how to sign out.2

Keane is unlike the plaintiffs in Beck and Jackson who

made no specific requests for accommodations and failed to

respond to their employers’ inquiries. In addition, Sears is

unlike the defendants in those cases because it did not

actively engage in the interactive process by suggesting pos-

sible accommodations or requesting information that would

help it do so. Instead, as in Gile, Keane requested ac-

commodations, Sears denied her requests, and then Sears

disengaged from the process. A reasonable jury could find

that Sears’ only communication to Keane, apart from its

2

Sears includes an additional fact in its brief: “Significantly,

[Keane] told Klisiak that she would try something else, i.e., that

she believed there was another option.” (Sears Br. at 26.) Sears

cites to Keane’s deposition testimony about her statements to

Klisiak after she was told that Allen had again denied her request

to use the stockroom shortcut: “I said I was disappointed. I told

her that there was something I was going to try or I had tried

rather, and that was that procedure that I had mentioned about

pulling up and going in, back and forth. I said I don’t know if

that’s going to work.” (Keane Dep. at 234.) It is clear from the

surrounding context that the “procedure” to which Keane referred

was her own experiment with pulling up in front of the employee

entrance, going into the store to swipe in, getting back in her car,

and driving to the reserved parking space near her department.

Read in the light most favorable to Keane, her testimony cannot

be understood as a statement that she “believed there was

another option,” or that she was telling Klisiak that this “proce-

dure” would accommodate her disability. Furthermore, Klisiak

testified that she knew that the “procedure” would probably re-

quire walking an even longer distance than if Keane parked in the

employee lot, walked to the swipe-in area, and then walked to her

work area. (Klisiak Dep. at 176.) This is not evidence of Sears’

meaningful participation in the interactive process.

Nos. 04-2222 & 04-2493 31

denials of her requests, was the suggestion that she use the

reserved parking space which Klisiak knew would do

nothing to facilitate Keane’s access to her work area. This

is not meaningful participation in the interactive process.

Sears argues that Keane should have said to someone

“[y]ou have not gotten back to me” when it failed to respond

to her requests for accommodations. It is not an employee’s

responsibility, however, to repeatedly prod a reticent

employer. Keane was given no indication that Allen or

anyone else at Sears was willing to work with her to

determine a way to reasonably accommodate her disability.

In this context, Sears cannot avoid liability by contending

that Keane should have tried harder to force it out of its

reluctant posture.

Viewing the evidence in the light most favorable to

Keane, a reasonable jury could conclude that Sears caused

the breakdown in the interactive process by failing to en-

gage in a meaningful way despite Keane’s repeated re-

quests. Accordingly, the district court erred in granting

summary judgment in favor of Sears on this basis.

III. Conclusion

Our task has not been to determine whether Keane was

disabled when she worked at Sears, whether Sears was

aware of her disability, whether Sears reasonably accommo-

dated Keane’s disability, or which party caused the break-

down of the interactive process. Rather, we have merely

concluded that there is sufficient evidence to allow each of

these questions to be presented to a jury. Accordingly, we

REVERSE the entry of summary judgment in favor of

defendant-appellee Sears and REMAND for proceedings

consistent with this opinion.

32 Nos. 04-2222 & 04-2493

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—8-10-05