Equal Employment Opportunity Commission and Judith Keane v. Sears, Roebuck 99-3734 99-4037 IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Nos. 99-3734 & 99-4037 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, and JUDITH KEANE Intervenor-Appellant, v. SEARS, ROEBUCK & CO., Defendant-Appellee. On Appeal from the United States District Court for the Northern District of Illinois, Eastern Division Honorable Charles R. Norgle, Sr., Judge REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel GEOFFREY L.J. CARTER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW. Washington, D.C. 20507 (202) 663-4728 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . ii INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT 4 I. THIS COURT SHOULD REVERSE THE DISTRICT COURT'S DECISION TO AWARD SUMMARY JUDGMENT TO SEARS ON THE COMMISSION'S CLAIM THAT SEARS FAILED TO REASONABLY ACCOMMODATE KEANE'S DISABILITY . . . . . . . . . . . . . . . . . . . 4 A. The district court erred when it held that Keane did not have a disability within the meaning of the ADA . . . 4 B. Because a rational jury also could find that Sears discriminated against Keane by failing to reasonably accommodate her disability, this Court must reverse the district court's decision to award summary judgment to Sears on that claim . . . . . . . . . . . . . . . . . . 9 1. Sears clearly had ample knowledge of Keane's disability and her requests for accommodation . . . 10 2. Sears is liable under the ADA because it caused the interactive process to break down and thereby failed to provide Keane with reasonable accommodation . . . . . . . . . . . . . . . . . . . 13 II. THIS COURT ALSO SHOULD REVERSE THE DISTRICT COURT'S DECISION TO AWARD SUMMARY JUDGMENT TO SEARS ON THE COMMISSION'S CLAIM THAT SEARS CONSTRUCTIVELY DISCHARGED KEANE IN VIOLATION OF THE ADA . . . . . . . . . 20 CONCLUSION 24 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES PAGE(S) Belk v. Southwestern Bell Telegraph Co., 194 F.3d 946 (8th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . 8 Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281 (7th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . 12 Canis v. Coca-Cola Enterprises, Inc., 49 F. Supp.2d 73 (D. R.I. 1999) . . . . . . . . . . . . . . . . . . . . . . 8 Demarah v. Texaco Group, Inc., 88 F. Supp. 2d 1150 (D. Colo. 2000) . . . . . . . . . . . . . . . . . . . . . 8 Dreisse v. Florida Bd. of Regents, 26 F. Supp.2d 1328 (M. D. Fla. 1998) . . . . . . . . . . . . . . . . . . . . 8 Hunter v. Allis-Chalmers Corp., 797 F.2d 1417 (7th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . 3 Janikowski Lee & Associates v. Cisneros, 91 F.3d 891 (7th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . 12 Kauther SDN BHD v. Steinberg, 149 F.3d 659 (7th Cir. 1998) . . . 3 Moreno v. Grand Victoria Casino, 94 F. Supp.2d 883 (N. D. Ill. 2000) . . . . . . . . . . . . . . . . . . . . 8 Mraovic v. Elgin, Joliet & Eastern Railway, 897 F.2d 268 (7th Cir. 1990) . . . . . . . . . . . . . . . . . . . . 4, 10 Needle v. Alling & Cory, Inc., 88 F. Supp.2d 100 (W.D.N.Y. 2000) . . . . . . . . . . . . . . . . . . . . . 8 Sutton v. United Air Lines, Inc., 119 S. Ct. 2139 (1999) . . . 6 Trustmark Life Insurance Co. v. University of Chicago Hospitals, 207 F.3d 876 (7th Cir. 2000) . . . . . . . . . 18 Wilson v. Chrysler Corp., 172 F.3d 500 (7th Cir. 1999) . . . . 14 REGULATIONS 29 C.F.R. § 1630.2(j)(2) . . . . . . . . . . . . . . . . . . . 7 OTHER AUTHORITIES EEOC Compliance Manual, "Enforcement Guidance on Reasonable Accommodation Under the ADA," reprinted in 8 Fair Empl. Prac. ("FEP") Man. (BNA) 405:7601 (March 1, 1999). . . 12, 13 Restatement (Second) of Agency § 9 (1958) . . . . . . . . . . 12 IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Nos. 99-3734 & 99-4037 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, and JUDITH KEANE, Intervenor-Appellant, v. SEARS, ROEBUCK & CO., Defendant-Appellee. On Appeal from the United States District Court for the Northern District of Illinois, Eastern Division Honorable Charles R. Norgle, Sr., Judge REPLY BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT INTRODUCTION In its opening brief, plaintiff-appellant Equal Employment Opportunity Commission ("Commission") argued that this Court should reverse the district court's decision to award summary judgment to defendant-appellee Sears, Roebuck & Co. ("Sears"). The Commission argued that, viewing the evidence in the light most favorable to the Commission, a rational jury could find that intervenor-appellant Judith Keane ("Keane") was substantially limited in her ability to walk during her employment with Sears, and therefore has a disability within the meaning of the ADA. See EEOC's Brief as Appellant ("Opening Brief") at pp. 17-23. The Commission also argued that a rational jury could find in favor of the Commission on each of the remaining elements of its claim that Sears discriminated against Keane by failing to reasonably accommodate her disability, as the evidence demonstrates that Keane was qualified, and shows that Sears, despite its knowledge of Keane's disability and requests for reasonable accommodation, allowed the interactive process to break down and failed to grant Keane any form of reasonable accommodation. See id. at pp. 23-28. Finally, the Commission argued that this Court should reverse the district court's decision to award summary judgment to Sears on the Commission's claim that Sears constructively discharged Keane in violation of the ADA. See id. at 28-31. Sears responds to the Commission's argument that a rational jury could find that Keane has a disability by ignoring or mischaracterizing the Commission's evidence describing the severe limitations on Keane's ability to walk. To support its approach, Sears refers this Court to a sprinkling of evidence that, at best, only remotely sheds light on the question of whether Keane was disabled, and asks this Court to affirm the district court's decision based on unsupported assumptions about the nature of Keane's walking limitations. See Sears Brief at 10-16. In responding to the Commission's claim that Sears failed to reasonably accommodate Keane's disability, Sears makes several contradictory arguments, first asserting that it lacked knowledge of Keane's disability and need for accommodation (see id. at 17-19), then asserting that, despite its lack of knowledge, it provided Keane with reasonable accommodation (see id. at 20-22), and then, in a final reversal of direction, asserting that Keane caused the interactive process to break down (see id. at 23-24). Last, Sears argues that it should prevail on the Commission's constructive discharge claim because the conditions Keane faced at Sears were not intolerable, she did not seek legal redress while on the job or face an aggravated situation beyond ordinary discrimination, and because there is not a sufficient nexus between the intolerable conditions Keane endured and her status as a qualified individual with a disability. See id. at 24-27. For the reasons set forth below, this Court should reject each of Sears' arguments as being without merit, and should reverse the district court's decision to award summary judgment to Sears because there is ample evidence in the record that would allow a rational jury to find in favor of the Commission on its claims that Sears failed to reasonably accommodate Keane and constructively discharged her in violation of the ADA.<1> ARGUMENT I. THIS COURT SHOULD REVERSE THE DISTRICT COURT'S DECISION TO AWARD SUMMARY JUDGMENT TO SEARS ON THE COMMISSION'S CLAIM THAT SEARS FAILED TO REASONABLY ACCOMMODATE KEANE'S DISABILITY A. The district court erred when it held that Keane did not have a disability within the meaning of the ADA As noted above, the Commission argued in its opening brief that a rational jury could find that Keane was substantially limited in walking during her employment at Sears, and therefore had a disability during that time frame. See Opening Brief at 17-23. Sears limits its response to arguing that this Court should hold, as a matter of law, that Keane was not substantially limited in her ability to walk. See Sears' Brief at 10-16.<2> Sears' response, however, provides little support for the district court's erroneous decision to grant Sears' motion for summary judgment, as Sears repeatedly fails to rebut the Commission's evidence and arguments, apparently hoping instead that this Court, with nothing to go on but hyperbole and general references to marginally relevant pieces of evidence, will simply assume that Keane was not substantially limited in walking. This Court should reject Sears' meritless arguments and instead reverse the district court's holding that Keane is not disabled. Beginning with Sears' first argument, this Court should reject Sears' claim that Keane's testimony "precludes" a finding that she was substantially limited in walking during her employment with Sears. See Sears' Brief at 12. In its opening brief, the Commission directed this Court's (and Sears') attention to testimony demonstrating that, because of the numbness that developed in her right leg due to neuropathy,<3> Keane had substantial difficulty walking beyond very short distances both before and after she began using a cane. See Opening Brief at 4-8, 11, 20-23 (noting, for example, that before Keane began using a cane, she had to hold on to the walls to support herself as she tried to walk out of the building, and noting that the numbness in Keane's leg made her feel like she had to use both hands to lift up her leg to take a single step); id. (noting, for example, that when using a cane, Keane could only walk one city block without having her entire right leg become numb).<4> Instead of responding to this evidence, Sears ignores it, and refers this Court to evidence that Keane was able to walk short distances while on the job, and generally was able to care for herself. See Sears' Brief at 12. For example, Sears argues that Keane was not substantially limited in walking because she was able to clean her house, go shopping and play bingo. See id. This Court should reject Sears' argument as specious because Sears makes no attempt to explain how Keane's ability to clean her house, shop and play bingo necessarily relates to her ability to walk (indeed, a person who uses a wheelchair could perform all of these activities), apparently hoping that this Court will assume that Keane's ability to be active means that she must not be substantially limited in walking.<5> This Court should decline Sears' invitation to make assumptions that are not supported by the facts in this case, and should instead give weight to the Commission's unrebutted evidence of Keane's substantial limitations in walking. Similar flaws doom Sears' response to the Commission's argument that the district court misapplied the Supreme Court's decision in Sutton v. United Air Lines, Inc., 119 S. Ct. 2139, 2146 (1999), when it failed to analyze both whether Keane was substantially limited in walking before she began using a cane and after she began using a cane. See Opening Brief at 19. Sears concedes the district court's error when it acknowledges that Keane's "ability to walk must be evaluated with reference to [the] cane to the extent she needed to use it," but goes astray when it (once again) asks this Court to assume, with no evidentiary support, that because Keane did not always use a cane to deal with her difficulty walking, her walking limitations must not have been substantial. Sears' Brief at 12-13. This Court should reject Sears' speculative and unsupported argument, and instead rely on the evidence presented by the Commission that shows that Keane was substantially limited in walking both before and after she began using a cane. See Opening Brief at 4-8, 20-23.<6> Finally, this Court should not be swayed by Sears' laundry list of cases (many of which are unpublished and therefore have little value as precedent) where courts presented with different facts and circumstances than those at issue here have held that the plaintiff is not substantially limited in walking. See Sears' Brief at 13-15 & n.8. Indeed, although Sears fails to cite to them, there are several cases, each with equally or less compelling facts than this case, where courts have found that the plaintiff is substantially limited in the major life activity of walking. See, e.g., Belk v. Southwestern Bell Tel. Co., 194 F.3d 946, 950 (8th Cir. 1999) (plaintiff substantially limited in walking because, although he could engage in various physical activities if he wore his leg brace, the brace limited the full range of motion of his leg, and his gait was hampered by a pronounced limp); Moreno v. Grand Victoria Casino, 94 F. Supp.2d 883, 898-99 (N. D. Ill. 2000) (issue of fact as to whether plaintiff substantially limited in walking where, because of a long-term knee injury, plaintiff's physician advised her to "avoid prolonged walking"); Demarah v. Texaco Group, Inc., 88 F. Supp. 2d 1150, 1155 (D. Colo. 2000) (same, where plaintiff was only able to walk short distances); Needle v. Alling & Cory, Inc., 88 F. Supp.2d 100, 105 (W.D.N.Y. 2000) (same, where plaintiff's diabetes led to the amputation of the toes on his right foot and the surgical removal of his left heel, leading plaintiff's physician to impose permanent restrictions on plaintiff's walking); Canis v. Coca-Cola Enterprises, Inc., 49 F. Supp.2d 73, 79 (D. R.I. 1999) (same, holding that plaintiff who only could walk or be on her feet for four hours at a time was significantly restricted in her ability to walk); Dreisse v. Florida Bd. of Regents, 26 F. Supp.2d 1328, 1334 (M. D. Fla. 1998) (same, where plaintiff's condition caused "painful swelling in his legs and feet" and is "aggravated by prolonged standing or walking"). Further, in devoting two pages of its brief to citing cases, Sears makes little or no attempt to explain how the cases it cites apply or are relevant to this case based on their facts or their analysis of the law. See Sears' Brief at 13-15 & n.8. Instead, Sears asks this Court to eyeball its version of the evidence in this case and hold as a matter of law that Keane's walking limitations are only moderate, and that no rational jury could find otherwise. Unfortunately for Sears, the applicable standard of review precludes such a cursory approach. Instead, as this Court has done in countless cases, it must review the evidentiary record and view the facts in the light most favorable to the Commission and Keane. See Opening Brief at 15 (providing the applicable standard of review). Under that framework, it is clear that a rational jury could find that Keane was substantially limited in walking, and therefore disabled, while employed by Sears. B. Because a rational jury also could find that Sears discriminated against Keane by failing to reasonably accommodate her disability, this Court must reverse the district court's decision to award summary judgment to Sears on that claim The Commission also argued in its opening brief, at 23-27, that no alternative basis exists in the record that supports the district court's decision to award summary judgment to Sears. Specifically, the Commission argued that a rational jury could find in the Commission's favor on each of the remaining elements of its failure to reasonably accommodate claim, as a rational jury could find that: (1) Keane was qualified for her position at Sears (see Opening Brief at 24-25); and (2) Sears failed to reasonably accommodate Keane's disability (see Opening Brief at 25-27). In its response, Sears implicitly concedes (and waives any argument) that Keane is qualified by failing to address that issue. See Mraovic, 897 F.2d at 272 (issues not argued on appeal are waived). On the issue of whether it failed to reasonably accommodate Keane's disability, Sears advances three inconsistent arguments, claiming in one breath that it lacked knowledge of Keane's disability, in the next that it provided her with reasonable accommodation, and in the next that it did not provide reasonable accommodation because Keane caused the interactive process to break down. See Sears' Brief at 16-24. Each of these contradictory arguments fails. 1. Sears clearly had ample knowledge of Keane's disability and her requests for accommodation The Commission explained in its opening brief that Keane informed Sears of her disability on several occasions. See Opening Brief at 5-8, 10, 26 (listing the various occasions when Keane put Sears on notice of her disability). Specifically, the Commission explained that, beginning in the summer of 1994 and continuing up to end of her employment with Sears in May 1995, Keane informed Sears managers David Allen ("Allen"), Klisiak, and Shirley Oros ("Oros") about her disability (i.e., her problems with walking), provided them with two doctors' notes describing her walking limitations, and repeatedly requested various forms of reasonable accommodation. See id. The Commission also explained that Sears is charged with the knowledge of Allen, Klisiak and Oros because each had actual and/or apparent supervisory authority over Keane, including the authority to receive and address her requests for accommodation. See id. at 26-27 n.10. Despite this evidence and analysis, which Sears does not contest,<7> Sears still argues that it lacked adequate knowledge of Keane's disability. Specifically, Sears argues that although Keane spoke with her managers on several occasions about the problems she was having with her legs and provided them with two doctors' notes, Sears still lacked knowledge because she did not take the additional (and unrequested) steps of sitting down "with Sears to explain her medical problems [and] physical limitations," telling Sears "that she was disabled, provid[ing] Sears with medical records, ask[ing] Sears to contact her physicians, [having] her physicians call Sears, or [taking] disability or medical leave." Sears' Brief at 17. The proposition that Keane had to present Sears with all of this information, none of which was requested, just to begin the process of requesting and receiving reasonable accommodation is absurd. Indeed, as this Court has held, "an employer cannot expect an employee to read its mind and know that he or she must specifically say 'I want reasonable accommodation'" or some other magic words that will meet the employer's self-serving standard for notice. Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281, 1285 (7th Cir. 1996). See also EEOC Compliance Manual, "Enforcement Guidance on Reasonable Accommodation Under the ADA," ("EEOC Enforcement Guidance on Reasonable Accommodation"), reprinted in 8 Fair Empl. Prac. ("FEP") Man. (BNA) 405:7601 at 7604 (March 1, 1999) (stating that to request accommodation, an individual need only let the employer know that he or she "needs an adjustment or change at work for a reason relating to a medical condition," and explaining that in making the request, the employee "may use 'plain English' and need not mention the ADA or use the phrase 'reasonable accommodation'"). Nor can an employer like Sears expect an employee to read its mind and determine the magical document that will suffice for notice. See Janikowski Lee & Assocs. v. Cisneros, 91 F.3d 891, 894-95 (7th Cir. 1996) (holding, in a case decided under the Fair Housing Act, that the tenant provided the landlord with sufficient notice of his need for reasonable accommodation, and explaining that "if a landlord is skeptical of a tenant's alleged disability, it is incumbent on the landlord to request documentation or open a dialogue") (emphasis added). Instead, the question of whether an employer has received adequate notice is governed by a reasonable person standard. See Restatement (Second) of Agency § 9 (1958) (explaining that a "person has notice of a fact if he knows the fact, has reason to know it, should know it, or has been given notification of it"). Under that standard, a rational jury could easily find that Keane provided Sears with ample notice of her disability when she verbally informed her supervisors on several occasions that she was having trouble walking, and provided two notes from her doctors, each of which expressly stated that Keane should limit the amount of her walking.<8> 2. Sears is liable under the ADA because it caused the interactive process to break down and thereby failed to provide Keane with reasonable accommodation The Commission also argued in its opening brief that a rational jury could find that Sears violated the ADA by causing the interactive process to break down and ultimately failing to reasonably accommodate Keane's disability. See Opening Brief at 26-27. As the Commission explained, under this Court's case law on reasonable accommodation, Sears' responsibility to provide Keane with reasonable accommodation was triggered when Keane informed Sears of her disability. See Opening Brief at 25 (collecting cases). The Commission also explained that, as this Court has held, an employer like Sears is liable under the ADA when it is responsible for a breakdown in the interactive process required to determine an appropriate accommodation. See id. Finally, the Commission argued that a rational jury could find that Sears is liable because although Keane proposed at least three accommodations that Sears could have implemented to reduce her walking distance to a length within her limitations, Sears either rejected, failed to implement, or ignored Keane's proposed accommodations with no suggestion of a reasonable alternative. See id. at 27. In response, Sears asserts two contradictory arguments, first claiming that it did provide Keane with reasonable accommodation, and then claiming that Keane caused the interactive process to fail. See Sears' Brief at 20-24. This Court should reject both arguments as without merit. Beginning with Sears' claim that it provided Keane with reasonable accommodation, Sears' argument lacks credibility and plausibility given its argument that it did not have adequate knowledge of Keane's disability and need for accommodation. See Sears' Brief at 17-19. See also Wilson v. Chrysler Corp., 172 F.3d 500, 509 (7th Cir. 1999) (observing in a sexual harassment case that the employer placed "itself in a Catch-22: having denied knowledge or notice [of the harassment], it cannot plausibly argue adequate response"). Sears attempts to overcome this inherent flaw in its argument by claiming that it accommodated Keane "in the ordinary course of helping an employee," (Sears' Brief at 20) but that argument is at most simply an admission that it did have knowledge, because Sears states that it was responding to Keane's requests when it gave her what it claims to be reasonable accommodation. See Sears' Brief at 20-21 (stating that "Keane requested permission to take breaks and eat in the intimate apparel stockroom," and noting that "it is undisputed that Keane wanted to cut through the shoe storeroom" to get to her job site). In any event, putting to one side the contradictory nature of Sears' arguments, it is clear that a rational jury could find that Sears did not reasonably accommodate Keane's disability. Sears first argues that it allowed Keane to eat in the Intimate Apparel stockroom, but a rational jury could find that Klisiak revoked that permission when she declared that no one was allowed to eat there. See Opening Brief at 5 (citing R.42 ¶ 98). In addition, a rational jury could find that this accommodation did not resolve Keane's need for an accommodation that reduced the distance she had to walk between her car and her job site, because regardless of where she ate, Keane still had to walk long distances between her car, the clock-in area and her job site at the beginning and end of her shift. See Opening Brief at 4-6, 9-10 (describing Keane's difficulties with walking this distance). Second, Sears asserts that it allowed Keane to park in the handicapped spaces near the Intimate Apparel department, but a rational jury easily could find that this "accommodation" was not adequate because, as Allen admitted, this alternative parking arrangement did not shorten Keane's walk to her job site because she still was required to walk all the way across the store to the swipe-in clock, and then back to her job site. See Opening Brief at 10 (summarizing this testimony and also noting that Keane could not use the doors near the handicapped spaces when she worked the closing shift because she was required to use the general employee exit after the shift). Sears tries to cover for this obviously inadequate accommodation by suggesting that Keane should have complained to someone, but the record establishes that she did not have to because Klisiak already was aware that allowing Keane to park in handicapped parking spaces did not make sense as a solution because it "seemed farther away" than other parking arrangements. See Opening Brief at 10 (citing R.42 ¶ 199). Third, Sears claims that it allowed Keane to use the shoe storeroom as a shortcut to her job site (see Sears' Brief at 21), but glosses over evidence that demonstrates that Keane was only able to use the shortcut for one day before shoe department manager Joy Krumweide, despite having attended a meeting during which she and other managers expressed no opposition to Keane using the shortcut to reduce her walking, yelled at Keane for being in the stockroom and ordered her to leave.<9> See Opening Brief at 9. Finally, Sears implies that it met its duty to provide reasonable accommodation because Keane was able to perform the essential functions of her job once at her job site. See Sears' Brief at 22. Again, Sears' argument is absurd -- by Sears' logic, an employer would have no duty to provide a way for an employee using a wheelchair to reach his work space. Like Keane, the employee would be on his own to find a way to get to work despite any difficulty he faced in reaching the office, and the employer would be able to deny any request for easier access by pointing out that the employee remains able to do the essential functions of his job (assuming he can get to his office to do them at all). Obviously, Sears' argument and the outlandish results it would produce is not consistent with the duty employers have under the ADA to provide reasonable accommodation. A rational jury also could find that it was Sears, rather than Keane, that caused the interactive process to break down. The Commission explained in its opening brief that Keane asked Sears for at least three forms of reasonable accommodation. See Opening Brief at 27 (explaining that Keane asked if she could eat in the intimate apparel stockroom, use the shoe storeroom as a shortcut to her job site, and park in a location that would reduce the walking distance to and from her job site). The Commission argued that a rational jury could find that Sears ignored, denied, or failed to implement each of these requests, and further, find that Sears failed to propose any alternative accommodation (reasonable or otherwise), save for allowing Keane to park in the handicapped spaces, a solution that Sears knew would not address Keane's walking limitations. See Opening Brief at 5-11, 27 (describing Sears' responses to Keane's requests); supra pp. 15-16 (discussing Sears' awareness that this proposed accommodation would not address Keane's walking limitations). In response, Sears makes virtually no attempt to explain how it held up it its end of the interactive process. See Sears' Brief at 23. Instead, Sears argues that Keane should have carried the entire burden of the process, faulting her for being timid and not pushing the issue (above and beyond what she did) of being allowed to use the shoe storeroom as a shortcut, and suggesting that Keane should have proposed (in addition to the three accommodations she presented to Sears) that Sears move her to a department closer to the employee entrance or allow her to clock in in a different manner. See Sears' Brief at 23. The fact that Sears now identifies possible accommodations that might have addressed Keane's walking limitations, and claims that it "would have made alternative arrangements" for her, only underscores the Commission's argument that Sears simply dropped the ball in the interactive process.<10> Specifically, while Keane held up her end of the process by proposing accommodations and providing Sears with additional information about her disability when asked to do so (see EEOC Opening Brief at 5-11, outlining Keane's requests for accommodation and the information that she provided to Sears), the evidence demonstrates that Sears obstructed and delayed the interactive process by ignoring many of Keane's proposed accommodations and denying others without suggesting an alternative solution (such as the ones Sears now proposes in its brief). See Opening Brief at 27. Indeed, the only evidence that Sears presents in support of its claim that it participated in the interactive process is that it allowed Keane to eat in the Intimate Apparel stockroom and allowed her to park in the handicapped parking spaces. See Sears' Brief at 24. These actions do not save Sears here, because a rational jury could find that Sears later revoked Keane's permission to eat in the stockroom, and that the handicapped parking arrangement did not resolve Keane's walking limitations. See supra pp. 15-16. Perhaps more importantly, a rational jury could also find that Sears was aware that these two "accommodations" did not resolve Keane's problems with walking, as Keane repeatedly advised Sears after she began eating in the Intimate Apparel stockroom that she needed to reduce the amount of walking necessary to reach her job site, and Sears was aware that the handicapped parking spaces "seemed farther away" than other parking arrangements, and thus was aware that allowing Keane to park there would not reduce the length of her walk to her job site. See Opening Brief at 5, 7, 10 (indicating that Keane requested shorter access to her job site in September/October 1994, December 1994 and April 1995, and indicating that Klisiak was aware that allowing Keane to park in the handicapped spaces would not resolve her problems with walking).<11> Because Sears was aware that the accommodations it proposed did not actually address Keane's walking limitations, and yet failed to propose other solutions (or accept one of Keane's proposals), a rational jury could find that Sears caused the interactive process to fail and thereby failed to provide Keane with a reasonable accommodation. Accordingly, this Court should reverse the district court's decision to award summary judgment to Sears on the Commission's failure to accommodate claim, because a rational jury could find that Sears failed to accommodate Keane's disability and therefore violated the ADA. II. THIS COURT ALSO SHOULD REVERSE THE DISTRICT COURT'S DECISION TO AWARD SUMMARY JUDGMENT TO SEARS ON THE COMMISSION'S CLAIM THAT SEARS CONSTRUCTIVELY DISCHARGED KEANE IN VIOLATION OF THE ADA Along with its claim that Sears failed to reasonably accommodate Keane's disability, the Commission argued in its opening brief that Sears constructively discharged Keane in violation of the ADA. EEOC Opening Brief at 28. Specifically, the Commission argued that, as this Court's case law indicates, a plaintiff may bring a constructive discharge claim under the ADA. Id. The Commission added that a rational jury could find that Sears constructively discharged Keane from her job in the Intimate Apparel department, as Sears' misconduct in repeatedly denying and/or ignoring her requests for accommodation created intolerable and discriminatory conditions that would have forced any reasonable person to resign. See Opening Brief at 30. Sears, in its response, does not challenge the Commission's argument that constructive discharge claims are cognizable under the ADA. See Sears' Brief at 24. Nor does Sears challenge the Commission's claim that Keane faced discriminatory conditions at Sears. See Sears Brief at 25-26. Instead, Sears argues that Keane was not constructively discharged because: (1) the conditions she faced were not intolerable; (2) the Commission failed to show that Keane sought legal redress for the conditions at Sears before she resigned, or that Keane faced an aggravated situation beyond ordinary discrimination; and (3) there is no nexus between Keane's status as a qualified individual with a disability and the constructive discharge. See Sears' Brief at 25-26. Once again, each of Sears' arguments fails. A rational jury could find that Keane faced intolerable (and discriminatory) conditions at Sears. As the Commission argued in its opening brief at 30-31, Keane faced increasing difficulty walking between her car and her job site because of the neuropathy in her legs and feet. Although she asked Sears on several occasions to reasonably accommodate her disability, Sears repeatedly denied, ignored or failed to implement her requests, leaving Keane to fend for herself despite Sears' responsibility to provide her with reasonable accommodation as required by the ADA. Sears also drastically reduced Keane's working hours (R.42 ¶ 229) and assigned her to work on days when it knew she was not available (R.42 ¶ 126).<12> In response to the Commission's argument, Sears only points the Court to evidence that at most demonstrates a disputed issue of fact about the nature of the conditions Keane faced at Sears, repeating its argument (refuted above, see supra pp. 13-17) that it provided Keane with reasonable accommodation, and contesting the Commission's claim that it reduced Keane's hours and knowingly scheduled her on days when she would not be able to work. See Sears' Brief at 25-26. None of Sears' arguments change the inevitable conclusion that, viewing the evidence in the light most favorable to the Commission, a rational jury could find that Keane did face intolerable conditions at Sears. A rational jury could also find that Keane faced an aggravated situation beyond ordinary discrimination, obviating the requirement that she seek legal redress while on the job. As the Commission noted in its opening brief, by May 1995 Keane had exhausted every reasonable avenue for redress by Sears. See Opening Brief at 30-31. Given that state of affairs, and Sears' continuing refusal to grant her proposed accommodations or propose a reasonable alternative, Keane faced the prospect of either seeking legal redress and attempting to continue working at Sears despite the deteriorating condition of her legs, or resigning. A rational jury could find that because Keane's health (specifically, the progressing neuropathy in her legs) would not have permitted her to continue working in the conditions present at Sears, she did face aggravated circumstances that left her no choice but to resign before seeking legal redress. See, e.g., Opening Brief at 12-13 (indicating that by 1997, Keane was dependent on her cane and had difficulty walking distances as short as 20 feet). Finally, a rational jury could find sufficient nexus between Sears' discriminatory failure to reasonably accommodate Keane's disability and Keane's constructive discharge. Contrary to Sears' implication on page 26 of its response, a rational jury could find that Sears' failure to accommodate Keane was a central factor that led to Keane being constructively discharged. Indeed, it was Sears' failure to provide Keane with reasonable accommodation that in large part created the intolerable working conditions that compelled Keane to resign. Ultimately, a rational jury could find in favor of the Commission on each of the elements of its claim that Sears constructively discharged Keane. Accordingly, this Court should reverse the district court's decision to award summary judgment to Sears on that claim as well. CONCLUSION For the foregoing reasons, this Court should reverse the district court's erroneous decision to award summary to Sears and remand the Commission's claims of failure to reasonably accommodate and constructive discharge for further proceedings. Respectfully submitted, C. GREGORY STEWART General Counsel PHILIP B. SKLOVER Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel GEOFFREY L.J. CARTER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, 7th Floor Washington, D.C. 20507 June 19, 2000 (202) 663-4728 CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation set forth in FRAP 32(a)(7)(B). This brief contains 6,443 words. GEOFFREY L.J. CARTERCERTIFICATE OF SERVICE I, Geoffrey L.J. Carter, hereby certify that on this 19th day of June, 2000, two copies of the attached brief, and one copy of the attached brief on digital media, were sent by first class mail, postage prepaid, to each of the following counsel of record: Steven N. Fritzshall, Esq. Brad J. Pawlowski, Esq. Fritzshall Law Firm 309 W. Washington St., 9th Fl. Chicago, IL 60606 Grady B. Murdock, Jr., Esq. Mary A. Smigielski, Esq. Neal & Associates 111 W. Washington St., Suite 1700 Chicago, IL 60602 GEOFFREY L.J. CARTER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, NW, 7th Floor Washington, D.C. 20507 June 19, 2000 (202) 663-4728 1 The Commission notes that, in its response, Sears improperly relies on documents that, although in the appellate record, may not be used to support its arguments in this appeal. Specifically, Sears attempts to incorporate by reference and rely on various documents that it filed with the district court. See, e.g., Sears Brief at 6 n.4 (referring to Sears' motion to strike, which was denied by the district court); id. at 16, 25 n.13, 26 (referring the Court to arguments made in Sears' summary judgment motion and reply). This Court has held the practice of incorporating district court documents by reference in appellate briefs is "unacceptable" and does not preserve issues for appeal. Kauther SDN BHD v. Steinberg, 149 F.3d 659, 668 (7th Cir. 1998). See also Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, 1430 (7th Cir. 1986) (deeming an issue waived because this Court's rules "do not permit issues to be preserved by references to documents filed in the district court"). This Court should apply that principle in this case and disregard Sears' references to documents that it attempts to incorporate into its appellate brief by reference. 2 In limiting its argument in this manner, Sears concedes that: (1) Keane has an impairment; (2) the district court should have compared the degree of Keane's walking limitations to those of the average person in the general population; and (3) the Commission presented ample evidence for this Court to make that comparison on appeal. Given these concessions, Sears has waived its right to contest these issues. See Mraovic v. Elgin, Joliet & Eastern Ry., 897 F.2d 268, 272 (7th Cir. 1990) (issues not developed by argument or supported by citation are waived on appeal). 3 Sears claims that Keane's physician, Dr. Louis Deporter, determined that Keane's neuropathy was "episodic." See Sears Brief at 15 (citing R.73 ¶ 62). Keane, however, denied telling Dr. Deporter that her problems with walking were episodic, see R.42 ¶ 62 (Keane Dep. at 128), and her testimony indicates that the numbness in her right leg occurred on a regular basis. See EEOC Opening Brief at 4-12 (outlining Keane's problems with walking). 4 Sears' only response to the evidence that Keane could not walk more than a city block without her leg going completely numb appears on page 14 n.7 of its brief, where it suggests that this Court should not consider this evidence. Sears implies that Keane's affidavit (which contains this evidence) contradicts her deposition testimony, but does not (and cannot) provide this Court with any citation to her deposition that even remotely contradicts her affidavit. See Sears' Brief at 14 n.7. Because of the utter lack of support for Sears' objection to this evidence, this Court should reject Sears' invitation to disregard the evidence in Keane's affidavit. 5 Sears also refers the Court to disputed evidence. Specifically, Sears asserts that intimate apparel department manager Jacqueline Klisiak ("Klisiak") claims that she saw Keane walk to the mall and food court on 6-8 occasions in 1995. See Sears' Brief at 12, citing R.73 ¶ 29. Sears fails to mention, however, that Keane disputes Klisiak's testimony, as Keane testified that she only used the food court once or twice in 1995, relying on her cane to make the walk. R.42 ¶ 29 (Keane Dep. at 103-04, 153). 6 The Commission's evidence that Keane's condition worsened after her employment with Sears (see EEOC Opening Brief at 12-13, 20-21) is clearly relevant to the question of whether she was substantially limited in the major life activity of walking when employed by Sears. See 29 C.F.R. § 1630.2(j)(2) (explaining that the nature, severity, duration and long term impact of an impairment should be considered when determining whether an individual is substantially limited in a major life activity). Sears' claim, on page 13 of its response, that the Commission should not rely on this evidence and this well established legal standard should be rejected as nothing more than baseless hyperbole. 7 Sears does suggest in passing that Oros simultaneously was Keane's "co-worker, . . . , a non-management but supervisory employee," see Sears' Brief at 8 (citing R.73 ¶ 46), but this internally inconsistent characterization of Oros' role at Sears is not supported by the record. Paragraph 46 of Sears' Rule 12(M) Statement (R.73 ¶ 46) says nothing about Oros' status as a co-worker, manager or otherwise. Paragraph 20 of Sears' 12(M) Statement (R.73 at ¶ 20) explains, however, that Oros and Tanya Branch were in charge of the Intimate Apparel department in Klisiak's absence. 8 This Court should disregard Sears' claim that the Commission is asking it to assume that every employee who presents a doctor's note is disabled. See Sears' Brief at 18-19. The Commission has argued no such thing. Instead, the Commission argues that, consistent with this Court's precedent, there are no magic words or documents that an employee must say or present to notify an employer of a disability and request accommodation. See supra pp. 11-13. As for Sears' purported concern that it should not assume that an employee has a disability, that concern is not valid in this context because: (1) when an employee requests accommodation, the employee implicitly identifies herself as having a disability; and (2) if an employer wishes to clarify an employee's status as disabled, it needs only to ask reasonable questions or make reasonable requests for more information. See EEOC Enforcement Guidance on Reasonable Accommodation, 8 FEP Manual at 405:7606-07 (explaining the steps that employers may take to verify the existence of a disability, clarify what the individual needs and identify the appropriate reasonable accommodation). 9 Perhaps recognizing the weakness of its argument that it allowed Keane to use the shoe storeroom as a shortcut to her job site, Sears suggests that it had a legitimate business justification for denying Keane's request to use that area as a shortcut. See Sears' Brief at 22 n.12. Sears' explanation, however, contradicts its argument that it allowed Keane to use the area as a form of reasonable accommodation. Sears' explanation also misses the larger point that, even if this Court assumes Sears had a valid reason for limiting access to the shoe storeroom, Sears still caused the interactive process to break down because it never offered Keane a reasonable alternative to her proposed accommodations. See infra pp. 17-20. 10 The Commission also submits that Sears waived this argument (concerning additional accommodations that it claims it would have provided had Keane asked) by failing to present it to the district court. See Trustmark Life Ins. Co. v. University of Chicago Hosps., 207 F.3d 876, 881 (7th Cir. 2000) (arguments not presented to the district court are waived). See also R.72 at 18-20 (Sears' memorandum of law in support of its motion for summary judgment, discussing Sears' conduct in the interactive process). 11 It is disturbing that Sears claims that the "uncontroverted evidence shows that Klisiak and Allen believed that Keane's issues regarding a shorter walk had been addressed by permitting her to park closer to the building." Sears' Brief at 24 (citing R.73 ¶ 79). The citation to the record only establishes that Allen thought this. As the Commission pointed out in its opening brief, Klisiak thought just the opposite, admitting that she knew that the solution of allowing Keane to park in the handicapped spaces did not make sense because it "seemed farther away" from other parking options. R.42 ¶ 199 (Klisiak Dep. at 137). See also EEOC Opening Brief at 10 (citing this evidence). 12 Contrary to Sears' assertion in its response at 26, the Commission provided these record citations in its opening brief. See EEOC Opening Brief at 12.