In the

United States Court of Appeals

For the Seventh Circuit

Nos. 99-3734 & 99-4037

Equal Employment Opportunity Commission,

Plaintiff-Appellant,

and 

Judith Keane,

Intervenor-Appellant,

v.

Sears, Roebuck & Co.,

Defendant-Appellee.

Appeals from the United States District Court 

for the Northern District of Illinois, Eastern

Division.

No. 97 C 3971--Charles R. Norgle, Sr., Judge.

Argued September 15, 2000--Decided November 8,

2000

 Before Flaum, Chief Judge, and Kanne and

Williams, Circuit Judges.

 Flaum, Chief Judge. The Equal

Employment Opportunity Commission

("EEOC") filed suit under the Americans

with Disabilities Act ("ADA"), 42 U.S.C.

sec. 12101 et seq., alleging that Sears,

Roebuck & Co. ("Sears"), engaged in

unlawful employment discrimination

against Judith Keane. The court granted

leave to Keane to intervene in this

matter and file an amended complaint. In

addition to the EEOC’s claim that Sears

failed to reasonably accommodate Keane’s

disability, Keane asserts in her

complaint that she has been

constructively discharged from her job

with Sears. The district court granted

summary judgment for Sears on both

claims, based largely on its

determination that Keane was not
considered disabled under the terms of

the ADA. For the reasons stated herein,

we affirm in part and reverse and remand

in part.

I. BACKGROUND

 In September 1992, Judith Keane began

working at the Sears River Oaks

department store in Calumet City,

Illinois. As a sales associate in the

intimate apparel department, Keane’s

tasks included handling purchases,

assisting customers, sizing racks, and

occasionally transporting money to and

from cash registers. In the course of her

employment with Sears, Keane also worked

in other departments, such as handbags,

sportswear, and women’s dresses.

Typically, Keane’s work shifts lasted

five to six hours. 

 In the summer of 1994, Keane began to

experience a numbness in her right leg

that would onset toward the end of her

work shift. While the numbness did not

impact Keane’s ability to walk short

distances in her work area during her

shift, it did sometimes preclude Keane

from taking longer walks such as those

required to reach the employee cafeteria

or the food court. Because of the

difficulties she was encountering, Keane

asked her supervisor, Jacqueline Klisiak,

if Keane could eat in the intimate

apparel stockroom. Though Klisiak

acquiesced to Keane’s request, later that

year she announced a blanket policy that

eating in the stockroom was forbidden. 

 In the fall of 1994, as Keane’s

condition began to worsen, she approached

Klisiak and inquired as to whether Keane

could be permitted to use the shoe

stockroom as a shortcut. Keane explained

that using the stockroom would reduce by

half the distance she would have to walk

from her car to her department within the

store. Klisiak referred Keane to the shoe

department manager Joy Krumweide, who

denied the request. In November, Keane

repeated her request to the store manager

Dave Allen. Allen, like Krumweide before

him, denied Keane’s request. The

following month, Keane began to rely on

the assistance of a cane when taking

longer walks through the store. 

 In late December 1994, Keane was

diagnosed with "neuropathy," a general
description of nerve damage, which was

the result of non-insulin diabetes.

Keane’s neurologist, Dr. Hanlon, provided

Keane with a note on which Hanlon had

written that Keane should avoid walking

long distances and for prolonged periods.

Keane provided that note to a supervisory

co-worker, who left the note for Klisiak.

In January of 1995, Klisiak reviewed the

note and determined that the post-holiday

reduction in hours was sufficiently

limiting the length of Keane’s walking

periods. Roughly during the same time

period, Klisiak gave Keane permission to

use the shoe stockroom as a shortcut.

However, the first day Keane attempted to

use it, Krumweide yelled at Keane to "get

out." 

 In an attempt to further lessen her

walking distance, Keane asked Allen if

she could park in the merchandise pick-up

lot. Allen denied that request but

suggested that instead, Keane park in a

handicap space outside her department.

Parking outside Keane’s department did

not lessen her commute, as she still had

to walk across the store to the employee

check-in location before she could

commence work in her department. 

 In April of 1995, Allen spoke to Keane

and requested that she have her physician

fill out a Sears’ Physician Certification

Form in order to provide the company with

more information regarding Keane’s

condition. Keane’s physician completed

the form, noting that Keane suffered from

diabetes and neuropathy in her right leg.

He recommended that Keane should limit

excessive walking and be granted easy and

short access to her work site. Upon

reading the returned form, Allen assumed

that since Keane was permitted to park in

the handicapped parking space, her

request for accommodation had been

granted. Keane neither provided

additional medical information regarding

her condition nor informed her

supervisors that their accommodations

were unacceptable. 

 In May 1995, Keane met with Klisiak. At

that meeting Keane was informed that

Allen had denied her request to use the

shoe stockroom shortcut. Furthermore,

Klisiak provided Keane with a new work

schedule which required Keane to work on

Thursday evenings and Fridays. Though

Keane protested that she had always been
and was likewise then unavailable to work

on Thursday evenings and Fridays, Klisiak

replied that the schedule could not be

changed. Feeling that Sears had failed to

accommodate her disability and was

attempting to make her work environment

inhospitable, Keane believed she had no

choice other than to resign. 

 The EEOC filed suit against Sears

alleging that the company had failed to

reasonably accommodate Keane’s

disability, in violation of the ADA. When

Keane was granted leave to intervene, her

amended complaint further alleged that

Sears had constructively discharged Keane

from her position. Sears filed a motion

for summary judgment on both claims. The

district court determined that summary

judgment was appropriate on plaintiffs’

first claim after it had concluded that

Keane was not disabled within the terms

of the ADA. Specifically, the court held

that since Keane was able to walk with

the assistance of a cane she was not

substantially limited in her ability to

walk, and thus not disabled. With regard

to Keane’s claim of constructive

discharge, the district court bypassed

the question of whether such a claim is

cognizable under the ADA. Rather, the

court concluded that even assuming such a

claim is theoretically viable, in Keane’s

case the claim would fail, as she was not

(1) disabled, and (2) subjected to

conditions that were so intolerable as to

require resignation. Thus, the court

likewise granted Sears summary judgment

on the constructive discharge claim. The

EEOC and Keane now appeal, arguing that

disputed issues of fact exist as to

whether Keane is disabled as the term is

understood under the ADA.

II. DISCUSSION

A. Standard of Review

 In reviewing a district court’s grant of

summary judgment, we assess the record de

novo and reach our own conclusions of law

or fact as they flow from the record

before us. Miranda v. Wisconsin Power &

Light Co., 91 F.3d 1011, 1014 (7th Cir.

1996). This plenary review of the

evidence requires that we employ the

standard prescribed in Rule 56(c) of the

Federal Rules of Civil Procedure, and

determine that summary judgment is

appropriate "if the pleadings,

depositions, answers to interrogatories,
and admissions on file, together with the

affidavits, if any, show that there is no

genuine issue as to any material fact and

that the moving party is entitled to

judgment as a matter of law." Simply put,

Rule 56(c) mandates an approach in which

summary judgment is proper only if there

is no reasonably contestable issue of

fact that is potentially outcomedeterminative. Wallace v. SMC Pneumatics,

Inc., 103 F.3d 1394, 1396 (7th Cir.

1997). 

 In resolving a motion for summary

judgment, we will neither come to a

conclusion on factual disputes nor weigh

conflicting evidence. Miranda, 91 F.3d at

1014. Rather, we will limit our analysis

of the record to deciding the

aforementioned question of whether a

genuine issue of material fact exists for

trial. Id. Such an issue exists if

"[t]here is sufficient evidence favoring

the nonmoving party for a jury to return

a verdict for that party." Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249

(1986). In reaching a conclusion as to

the presence of a genuine issue of

material fact, we must view the evidence

and draw all inferences in a way most

favorable to the nonmoving party.

Tolentino v. Friedman, 46 F.3d 645, 649

(7th Cir. 1995). However, this is not to

suggest that a non-moving party can

survive summary judgment with merely a

scintilla of evidence supporting its

position. Essex v. United Parcel Serv.

Inc., 111 F.3d 1304, 1308 (7th Cir.

1997). "[A] party will be successful in

opposing summary judgment only when they

present definite, competent evidence to

rebut the motion." Smith v. Severn, 129

F.3d 419, 427 (7th Cir. 1997) (citations

and internal quotation marks omitted).

With the appropriate standard before us,

we now turn to the individual claims and

examine the propriety of the district

court’s grants of summary judgment.

B. "Failure to Reasonably Accommodate" Claim 

 On appeal, plaintiffs first contend that

the district court erred in granting

Sears summary judgment on the claim that

Sears failed to reasonably accommodate

Keane’s disability. The ADA prohibits

discrimination by covered entities,

including private employers, against

qualified individuals with a disability.

Sutton v. United Air Lines, Inc., 527
U.S. 471, 477 (1999). Specifically, the

ADA provides that no covered employer

"shall discriminate against a qualified

individual with a disability because of

the disability of such individual in

regard to job application procedures, the

hiring, advancement, or discharge of

employees, employee compensation, job

training, and other terms, conditions,

and privileges of employment." 42 U.S.C.

sec. 12112(a). Section 12112(b) of the

Act defines the different ways in which

discrimination under section (a) might

occur. Relevant to our inquiry, the ADA

states that "not making reasonable

accommodations to the known physical or

mental limitations of an otherwise

qualified individual with a disability

who is an applicant or an employee" is

considered discrimination, "unless such

covered entity can demonstrate that the

accommodation would impose an undue

hardship on the operation of the business

of such covered entity." 42 U.S.C. sec.

12112(b)(5)(A). Thus, in order for a

plaintiff to recover under the ADA for an

employer’s failure to reasonably

accommodate, that plaintiff must first

show: (1) that she was or is disabled as

defined by the Act, (2) that her employer

was aware of the disability, and (3) that

she was qualified for the position in

question. Best v. Shell Oil Co., 107 F.3d

544, 547-48 (7th Cir. 1997).

 In concluding that summary judgment was

appropriate for Sears on plaintiffs’

"failure to reasonably accommodate" cause

of action, the district court focused

almost exclusively on the first prong of

the above three-part inquiry. Upon

determining that Keane was not disabled

under the ADA, the court resolved that

the entire claim must fail./1 Our

review must therefore center, at least at

the outset, on whether there exists a

disputed issue of material fact regarding

Keane’s status as disabled within the

terms of the ADA.

 Under the Act, a disability is defined

as: "(A) a physical or mental impairment

that substantially limits one or more of

the major life activities of such

individual; (B) a record of such an

impairment; or (C) being regarded as

having such an impairment." 42 U.S.C.

sec. 12102(2). Plaintiffs have not

advanced that Keane should be considered

disabled under either subsections (B) or
(C). Rather, they suggest solely that

Keane’s neuropathy substantially limits

her ability to engage in the major life

activity of walking./2 In determining

whether an individual is substantially

limited in a major life activity, we

examine whether that individual, when

compared to the general population, is

unable to perform or is significantly

restricted as to the condition, manner,

or duration under which she can perform

that major life activity. Duda v. Board

of Educ. of Franklin Park Pub. Sch. Dist.

No. 84, 133 F.3d 1054, 1058 n.5 (7th Cir.

1998); see also 29 C.F.R. sec.

1630.2(j)./3 Furthermore, "if a person

is taking measures to correct for, or

mitigate, a physical or mental

impairment, the effects of those

measures--both positive and negative--

must be taken into account when judging

whether that person is ’substantially

limited’ in a major life activity and

thus ’disabled’ under the Act." Sutton

527 U.S. at 482.

 Once again, it is not our role to come

to a decision as to whether Keane was

disabled under the ADA. See Miranda, 91

F.3d at 1014. Rather, we only need decide

whether a rational jury, viewing the

evidence in the light most favorable to

the plaintiffs, could come to such a

decision. We believe they could. Thus, we

conclude that summary judgment should not

have been granted on the basis that Keane

was not disabled.

 In reaching this decision, we focus on

two distinct factors. First, and of

paramount relevance to summary judgment

proceedings, we find that there exist

disputed issues of material fact

regarding whether or not Keane is

disabled under the ADA. Specifically, we

believe there is conflicting evidence

surrounding whether Keane’s neuropathy

substantially limits her ability to walk.

When determining whether an impairment is

substantially limiting, courts

shouldconsider the nature and severity of

the impairment, its duration and expected

duration, and its permanence or longterm impact. See Hamm v. Runyon, 51 F.3d

721, 725 (7th Cir. 1995). Though the

progression of Keane’s impairment

subsequent to her resignation from Sears

does not factor directly into the

analysis of whether Keane was disabled

when she was employed by Sears, we
believe that her present inability to

walk more than one city block does

provide a certain degree of credence to

the claim that her neuropathy may have

been "substantially limiting" at the time

at issue. In addition, the record

contains evidence that during the

relevant times, doctors diagnosed Keane

as having an impairment that required she

limit her walking. While we do not

suggest that the evidence conclusively

proves that Keane was substantially

limited in her ability to walk, on the

basis of the testimony of both Keane and

her physicians, the plaintiffs have met

their burden of establishing a material

dispute as to the severity of Keane’s

impairment.

 While such a dispute is sufficient to

require our remanding of this case to the

district court, we further note certain

absences in the record. We believe it is

important to point these out, as their

presence could assist a court in making a

proper determination as to whether an

individual is substantially limited in a

major life activity, and thus disabled

under the ADA. First, the record is

incomplete regarding the actual distances

that Keane was able to walk. In the

course of oral argument, counsel for both

sides stated only that these were not

long distances. Further, we do not find

any evidence of how Keane’s impairment

limited her ability to walk in comparison

to the average member of the population.

As we have noted above, such an inquiry,

if not required, is certainly helpful in

resolving any dispute as to whether

someone is substantially limited in a

major life activity. However, in the

absence of such a comparison, we suggest

that a summary judgment determination is

problematic. 

 Additionally, we note that Keane’s use

of a mitigating device, without a study

of its effects, cannot, by itself,

support a finding that Keane was not

substantially limited in her ability to

walk. The district court was correct in

analyzing Keane’s disability with

reference to the mitigating device, as

Sutton mandates. However, we must caution

that the use of a mitigating device does

not automatically bar any possibility of

a person being considered disabled. The

Sutton approach does not unilaterally

exclude from the category of disabled all
those who use a mitigating device to

combat the effects of an impairment.

Rather, Sutton merely dictates that the

analysis of whether a person is

substantially limited in a major life

activity must be conducted with reference

to the mitigating device. 527 U.S. at

482. Sutton, by suggesting that the

analysis must factor in any negative

impacts of a mitigating device,

implicitly rejects the notion that a

mitigating device unilaterally bars the

determination that someone is disabled.

We find that absent in the record is any

analysis of how the use of the cane

impacted Keane’s ability to walk. Here,

evidence on this issue was extremely

relevant. As plaintiffs note throughout,

Keane’s cane did not mitigate her

neuropathy in any sense, but rather

provided her with an alternative means to

travel longer distances without having to

lean against a wall to keep from falling.

 Because of disputes regarding the

severity of Keane’s condition, along with

absences in the record regarding facts

that would have assisted in the

resolution of those disputes, we cannot

conclude that Keane was not disabled as a

matter of law./4 The district court did

not address whether summary judgment was

appropriate based on reasons other than

Keane’s classification as disabled. While

we recognize that the court stated in

footnote that it found such arguments

persuasive, we determine that it is

necessary to remand this case for a more

searching analysis. Therefore, we

reverse the district court’s decision

granting summary judgment on plaintiffs’

"failure to reasonably accommodate" claim

and remand this cause of action./5

C. "Constructive Discharge" Claim

 Plaintiffs’ second argument on appeal is

that the district court erred in granting

Sears summary judgment on plaintiffs’

claim of constructive discharge.

Initially, we note that this Circuit has

not yet determined whether a claim of

constructive discharge stemming from a

hostile work environment is cognizable

under the ADA. See Miranda, 91 F.3d at

1017. In nearly every instance in which

this issue has been raised before this

court, we have assumed arguendo that the

claim does exist. See id. ("In the

present appeal, we need not decide the

question of whether a claim of
constructive discharge is cognizable

under the ADA because, even assuming that

it is, Miranda’s claim falls far short of

what such a successful appeal would

require."); see also, Volmert v.

Wisconsin Department of Transportation,

197 F.3d 293, 297 (7th Cir. 1999). We

will maintain the posture previously

expressed in such cases as Miranda and

Silk v. Chicago, 194 F.3d 788, 803-04

(7th Cir. 1999), and reserve the question

until it is directly presented./6 

Because the underlying claim for

constructive discharge in this instance

is lacking in support, we would not, in

any event, have to reach the issue in

order to uphold the district court’s

grant of summary judgment.

 A claim of discriminatory constructive

discharge would require a plaintiff to

demonstrate first that she was

constructively discharged--that the

employer made the working conditions so

intolerable as to force a reasonable

person to leave. Miranda, 91 F.3d at

1017. Once that showing has been made,

the plaintiff would have to establish

that she was constructively discharged on

account of her disability. Id. Because

such an analysis would require a

determination whether there has been a

constructive discharge prior to any

conclusion as to whether that discharge

was related to a disability, our previous

determination that disputed issues of

fact exist as to Keane’s status as

disabled would not preclude us from

addressing whether summary judgment in

this instance was appropriate. 

 That being said, plaintiffs have not

offered sufficient evidence to create a

triable issue of fact with respect to a

claim of constructive discharge.

"[U]nless conditions are beyond

’ordinary’ discrimination, a complaining

employee is expected to remain on the job

while seeking redress." Perry v. Harris

Chernin, Inc., 126 F.3d 1010, 1015 (7th

Cir. 1997) (citing Rabinovitz v. Pena, 89

F.3d 482, 489 (7th Cir. 1996)).

Plaintiffs have failed to present any

evidence that Sears’ conduct has risen to

the levels which would be required to

maintain such a claim. In support of

their claim, plaintiffs only state that

Keane was being denied reasonable

accommodations at every turn, and that

she was told she would have to work on
Thursday nights and Fridays. Plaintiffs

suggest that Keane’s being forced to work

on days for which she claimed she was

unavailable is supportive of plaintiffs’

position that Keane was being

constructively discharged. However, the

record indicates that Keane was

unavailable to work on Thursday evenings

because that was her "Bingo night," and

Fridays because she liked to clean her

home. While we do not mean to diminish

the importance of recreation time and

household responsibilities, we fail to

see how an employer’s decision, which at

the very most would require an employee

to slightly rearrange her schedule,

constitutes actions that are "beyond

ordinary discrimination."

 Finally, we note that the district court

was correct in determining that quitting

was not the only option available to

Keane. A perusal of the record seems to

indicate that there was poor

communication between both sides through

out this matter. Instead of discussing

the new work schedule and Allen’s refusal

to allow Keane to use the shoe room

shortcut, Keane resigned. While this was

certainly her prerogative, we do not

believe this was her only option. Though

the situation may have been

uncomfortable, we cannot conclude that a

reasonable person in her position would

have been compelled to resign. Because

the district court correctly determined

that there is no disputed issue of

material fact regarding this claim of the

plaintiffs, and that Sears was entitled

to judgment as a matter of law, we affirm

the grant of summary judgment for Sears

on plaintiffs’ claim of constructive

discharge.

III. CONCLUSION

 For the foregoing reasons, we Affirm the

district court’s grant of summary

judgment to the defendant on plaintiff’s

and intervenor’s claim for constructive

discharge; we Reverse the district court’s

grant of summary judgment in favor of the

defendant on plaintiff’s and intervenor’s

claim for failure to reasonably

accommodate a disability under the ADA;

and we Remand this case to the district

court for further proceedings consistent

with this opinion.
/1 The district court was correct in noting that

plaintiffs’ claim could not survive absent a

determination that Keane was considered disabled

under the ADA. "The Act is not a general protection of medically afflicted persons . . . . If

the employer discriminates against them on account of their being (or being believed by him to

be) ill, even permanently ill, but not disabled,

there is no violation." Christian v. St. Anthony

Med. Ctr., Inc., 117 F.3d 1051, 1053 (7th Cir.

1997). Nonetheless, after granting summary judgment to Sears based on its finding that Keane had

not presented any evidence that she was disabled,

the district court, in footnote, stated that it

found Sears’ other arguments on the issue "persuasive." Specifically, the court noted that

while there is a dispute, Sears did allow Keane,

at least for a short time, to use the shortcut as

well as the stockroom to eat. Furthermore, the

court felt that the record suggests that Keane

did not adequately satisfy her duty to communicate her impairment to Sears.

/2 The complaint below also puts forth that Keane

was substantially limited in her ability to

stand. The district court did not believe that

any such difficulties warranted a determination

that Keane was disabled. On appeal, plaintiffs do

not challenge that ruling.

/3 As the Supreme Court noted in Sutton it is

unclear how much, if any weight, should be given

to these regulations, which were promulgated by

the EEOC. 527 U.S. at 478-80. In this instance,

the defendant has not contested the notion that,

for the purpose of determining whether an individual is substantially limited in a major life

activity, that individual must be compared to the

average member of society. As the Court did in

Murphy v. United Parcel Service, Inc., 527 U.S.

516, 523 (1999), we assume, arguendo, that the

EEOC regulations regarding disability determina

tions are valid. 

/4 In determining that summary judgment is inappropriate we note one additional point raised by the

defendant. Though the gravamen of Sears’ claim is

that, as a factual matter, Keane is not significantly impaired in her ability to walk, Sears

does present one interesting argument that demands our attention. Sears contends that despite

how substantially limiting the court might consider Keane’s neuropathy, it cannot qualify as a

disability under the ADA, in that the condition

was episodic. Keane does not dispute that her

condition worsened the longer and farther she was

forced to walk, and hence is to a certain extent

"episodic." The defendants rely on our decision

in Vande Zande v. Wisconsin Dep’t of Admin. for
the proposition that intermittent, episodic

impairments are not disabilities. 44 F.3d 538,

544 (7th Cir. 1995). However, as stated in Vande

Zande, the standard example of an intermittent,

episodic impairment is a broken leg. Id. "[A]n

intermittent impairment that is a characteristic

manifestation of an admitted disability is, we

believe, a part of the underlying disability and

hence a condition that the employer must reasonably accommodate." Id. While we cannot determine

whether Keane is considered disabled, we do

recognize that if a jury were to find her to be

so, it would be based on the fact that she

suffered from neuropathy. That neuropathy manifests itself in a predictable yet intermittent

pattern does not preclude a finding that one

suffering from the condition can be termed disabled. Therefore, in this instance, the fact that

Keane’s condition was episodic is not dispositive

in the disability inquiry. 

/5 We do not mean to suggest with this opinion that

the determination as to whether an individual

falls within the ADA’s definition of "disabled"

is a question that under different circumstances

could not properly be resolved via summary judgment. We have noted in the area of Title VII

cases that though discrimination cases frequently

hinge on the issue of intent, which is often a

contestable issue of material fact, there is no

separate standard governing summary judgment in

Title VII cases which precludes its use. Wallace,

103 F.3d at 1396. Likewise, while we recognize

that the extent of an individual’s infirmities

will in some instances be a contestable factual

determination, we find nothing unique regarding

ADA cases that would mark the field inapt for

summary judgment. 

/6 We note however that a claim for constructive

discharge appears to arise under the general

prohibition against discrimination with respect

to terms or conditions of employment contained in

42 U.S.C. sec. 12112(a). See also 29 C.F.R. sec.

1630.4(i) (stating that it is unlawful to discriminate against a disabled employee in regard

to any "term, condition, or privilege of employment."). In addition, a claim for constructive

discharge is cognizable under Title VII, an area

of law often consulted when analyzing claims

under the ADA. See Miranda, 91 F.3d at 1017;

Vitug v. Multistate Tax Comm’n, 88 F.3d 506, 516-

17 (7th Cir. 1996).