Equal Employment Opportunity Commission v. Sears , Roebuck & Company

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-2222 & 04-2493
E QUAL E MPLOYMENT O PPORTUNITY
C OMMISSION ,
Plaintiff-Appellant,
and
J UDITH K EANE ,
Intervening Plaintiff-Appellant,
v.
S EARS , R OEBUCK & C OMPANY ,
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.
____________
A RGUED M AY 10, 2005—D ECIDED A UGUST 10, 2005
____________
Before F LAUM , Chief Judge, and K ANNE and W ILLIAMS ,
Circuit Judges.
F LAUM , 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-

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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

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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.

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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

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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.

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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

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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

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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.

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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

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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).

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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-

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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

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Nos. 04-2222 & 04-2493 13
1 The parties in Toyota agreed that the plaintiff’s medical
conditions constituted “impairments” under the Act.
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

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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.

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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

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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

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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

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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

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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

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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.”

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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

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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

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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

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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.

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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

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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

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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

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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

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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.

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30 Nos. 04-2222 & 04-2493
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.
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

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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
R EVERSE the entry of summary judgment in favor of
defendant-appellee Sears and R EMAND for proceedings
consistent with this opinion.

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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

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