EEOC v. Sears, Roebuck & Co. (7th Cir.) Brief as appellant Nov. 17, 2004 No. 04-2493 (Consolidated with No. 04-2222) __________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT __________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, and JUDITH KEANE, Plaintiff-Intervenor, v. SEARS, ROEBUCK & CO., Defendant-Appellee. __________________________________________________ On Appeal from the United States District Court for the Northern District of Illinois, Eastern Division Hon. Charles R. Norgle, Sr., Judge ________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ________________________________________________________ ERIC S. DREIBAND GAIL S. COLEMAN General Counsel Attorney EQUAL EMPLOYMENT LORRAINE C. DAVIS OPPORTUNITY COMMISSION Acting Associate General Counsel Office of General Counsel 1801 L Street, N.W., Room 7034 CAROLYN L. WHEELER Washington, D.C. 20507 Assistant General Counsel (202) 663-4055 STATEMENT REGARDING ORAL ARGUMENT The Equal Employment Opportunity Commission ("EEOC") requests oral argument. It is a question of first impression in this Circuit whether Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), changed the standard for establishing disability under the Americans with Disabilities Act ("ADA") from proving a "significant" limitation to proving a "severe" limitation. Oral argument will help the Court resolve this issue. Additionally, oral argument will highlight the existence of genuine issues of material fact precluding summary judgment. TABLE OF CONTENTS Statement Regarding Oral Argument. . . . . . . . . . . . . . . .i Table of Authorities . . . . . . . . . . . . . . . . . . . . . iv Statement of Jurisdiction. . . . . . . . . . . . . . . . . . . .1 Statement of the Issues. . . . . . . . . . . . . . . . . . . . .2 Statement of the Case. . . . . . . . . . . . . . . . . . . . . .3 A. Course of Proceedings. . . . . . . . . . . . . . . . .3 B. Statement of Facts . . . . . . . . . . . . . . . . . .4 1. Problems with Keane's Legs. . . . . . . . . . . .5 2. Keane's Efforts to Reduce Walking . . . . . . . .8 3. Sears' Response to Keane's Condition. . . . . . 11 4. Keane's Current Condition . . . . . . . . . . . 17 5. History of the Case . . . . . . . . . . . . . . 18 C. District Court's Original Opinion. . . . . . . . . . 19 D. Seventh Circuit's Opinion ("Keane I"). . . . . . . . 19 E. District Court's Opinion on Remand . . . . . . . . . 21 Summary of Argument. . . . . . . . . . . . . . . . . . . . . . 23 Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 The district court erred in granting summary judgment to Sears because a reasonable jury could find that Keane is disabled and that Sears violated its obligations to her under the ADA.. . . . . . 26 A. Standard of Review . . . . . . . . . . . . . . . . . 26 B. Toyota Motor Manufacturing, Kentucky, Inc. v. Williams provides no basis for reconsidering whether Keane is disabled because it does not change the relevant law. . . . . . . . . . . . . . 27 C. Even if Toyota requires an ADA plaintiff to demonstrate a greater degree of limitation than was previously necessary, the evidence in this case would still permit a reasonable jury to find that Keane is disabled . . . . . . . . . . . 33 D. Keane notified Sears of her disability and her need for accommodation, thereby triggering Sears' reasonable accommodation obligations under the ADA. . . . . . . 39 E. Sears, rather than Keane, was responsible for the breakdown of the interactive accommodation process . . . . . . 43 F. Sears did not provide Keane with reasonable accommodations47 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Certificate of Compliance Appendix Certificate of Service TABLE OF AUTHORITIES Cases Albert v. Smith's Food & Drug Ctrs., Inc., 356 F.3d 1242 (10th Cir. 2004)31 Albertson's, Inc. v. Kirkingburg, 527 U.S. 555 (1999) . . . . 30 Baert v. Euclid Beverage, Ltd., 149 F.3d 626 (7th Cir. 1998), overruled in part on other grounds by Sutton v. United Airlines, Inc., 527 U.S. 471, 482 (1999). . . . . . . . . . . . . . . . . 45 Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130 (7th Cir. 1996) . . . . . . . . . . . . . . . . . .40, 45-46 Belk v. Southwestern Bell Tel. Co., 194 F.3d 946 (8th Cir. 1999) 38 Black v. Roadway Express, 297 F.3d 445 (6th Cir. 2002) . . . . 34 Bultemeyer v. Fort Wayne Cmty. Sch., 100 F.3d 1281 (7th Cir. 1996) 46, 47 Dvorak v. Mostardi Platt Assoc., 289 F.3d 479 (7th Cir. 2002) 31 EEOC v. Sears, Roebuck & Co. ("Keane I"), 233 F.3d 432 (7th Cir. 2000) . . . . . . . . . . . . . . . .19-21, 33, 36 EEOC v. UPS, 306 F.3d 794 (9th Cir. 2002) . . . . . . . . . . 31 Feliberty v. Kemper Corp., 98 F.3d 274 (7th Cir. 1996) . . . . 48 Fenney v. Dakota, Minn., & E. R.R., 327 F.3d 707 (8th Cir. 2003)31 Fraser v. Goodale, 342 F.3d 1032 (9th Cir. 2003), cert. denied, 124 S. Ct. 1663 (2004) . . . . . . . . . . . . . . . .38-39 Gagliardo v. Connaught Labs., Inc., 311 F.3d 565 (3d Cir. 2002)30 Gile v. United Airlines, Inc., 213 F.3d 365 (7th Cir. 2002). . 44 Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11 (1st Cir. 2002)30, 37 Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928 (7th Cir. 1995) . . 43 Hendricks-Robinson v. Excel Corp., 154 F.3d 685 (7th Cir. 1998) 45 Hoskins v. Oakland County Sheriff's Dep't, 227 F.3d 719 (6th Cir. 2000) 37 Hunt-Golliday v. Metro. Water Reclamation Dist., 104 F.3d 1004 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . .39-40 Jankowski Lee & Assoc. v. Cisneros, 91 F.3d 891(7th Cir. 1996) 43 Kelly v. Drexel Univ., 94 F.3d 102 (3d Cir. 1996) . . . . . . 35 Mack v. Great Dane Trailers, 308 F.3d 776 (7th Cir. 2002) 28-29, 31-32 Mahon v. Crowell, 295 F.3d 585 (6th Cir. 2002) . . . . . . . . 30 Marinelli v. City of Erie, 216 F.3d 354 (3d Cir. 2000) . . . . 39 Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57 (1986) . . . . . 41 Moore v. J.B. Hunt Transp., Inc., 221 F.3d 944 (7th Cir. 2000)34-35 Northwestern Nat'l Ins. Co. v. Maggio, 976 F.2d 320 (7th Cir. 1992)29 Payne v. Pauley, 337 F.3d 767 (7th Cir. 2003). . . . . . . . . 26 Penny v. UPS, 128 F.3d 408 (6th Cir. 1997) . . . . . . . . .35-36 Pollard v. High's of Baltimore, Inc., 281 F.3d 462 (4th Cir. 2002)30-31 Rakity v. Dillon Cos., 302 F.3d 1152 (10th Cir. 2002). . . . . 30 Reg'l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35 (2d Cir. 2002) . . . . . . . . . . . . . . . 30 Ristrom v. Asbestos Workers Local 34 Jt. Apprentice Comm., 370 F.3d 763 (8th Cir. 2004). . . . . . . . . . . . . . . 30 Rossbach v. City of Miami, 371 F.3d 1354 (11th Cir. 2004). . . 30 Schlup v. Delo, 513 U.S. 298 (1995) (Scalia, J., dissenting) . 29 Steffes v. Stepan Co., 144 F.3d 1070 (7th Cir. 1998) . . . 42, 46 Sutton v. United Airlines, Inc., 527 U.S. 471 (1999)18, 33, 37-38 Talk v. Delta Airlines, 165 F.3d 1021 (5th Cir. 1999). . . . . 35 Taylor v. Nimock's Oil Co., 214 F.3d 957 (8th Cir. 2000) . . . 35 Taylor v. Pathmark Stores, Inc., 177 F.3d 180 (3d Cir. 1999) . 35 Todd v. Societe BIC, S.A., 21 F.3d 1402 (7th Cir. 1994) . . . 29 Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002) . . . . . . .i, iii, 2, 21, 23-24, 27-33 United States v. Husband, 312 F.3d 247 (7th Cir. 2002) . . . . 32 Vande Zande v. Wisc. Dep't of Admin., 44 F.3d 538 (7th Cir. 1995)48 Waldrip v. Gen. Elec. Co., 325 F.3d 652 (5th Cir. 2003). . . . 30 Weber v. Strippit, Inc., 186 F.3d 907 (8th Cir. 1999). . . . . 35 Wood v. Crown Redi-Mix, 339 F.3d 682 (8th Cir. 2003) . . . . . 34 Statutes 28 U.S.C. 1291 . . . . . . . . . . . . . . . . . . . . . . . .2 28 U.S.C. 1331 . . . . . . . . . . . . . . . . . . . . . . . .2 Americans with Disabilities Act ("ADA"), 42 U.S.C. 12101 et seq.1 12112(b)(5)(A). . . . . . . . . . . . . . . . . . . . . 39 12117(a) . . . . . . . . . . . . . . . . . . . . . . . .2 Rules and Regulations 29 C.F.R. 1630.2(j)(1)(ii) . . . . . . . . . . . . . 21, 28, 36 Fed. R. App. P. Rule 4(a)(1)(B). . . . . . . . . . . . . . . . .2 Miscellaneous Interpretive Guidance on Title I of the ADA, 29 C.F.R. Part 1630, App., 1630.9 (2003). . . . . . . . 49 Restatement (Third) of Agency 5.03 (T.D. No. 4, 2003). . . . 41 No. 04-2493 (Consolidated with No. 04-2222) __________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT __________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, and JUDITH KEANE, Plaintiff-Intervenor, v. SEARS, ROEBUCK & CO., Defendant-Appellee. __________________________________________________ On Appeal from the United States District Court for the Northern District of Illinois, Eastern Division Hon. Charles R. Norgle, Sr., Judge ________________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS APPELLANT ________________________________________________________ STATEMENT OF JURISDICTION The EEOC and plaintiff-intervenor Judith Keane sued Sears under the Americans with Disabilities Act ("ADA"), 42 U.S.C. 12101 et seq., alleging in part that Sears had failed to reasonably accommodate Keane's disability. (R.1, Complaint; R.9, Order Granting Keane's Motion to Intervene.) The district court had jurisdiction under 28 U.S.C. 1331 and 42 U.S.C. 12117(a). The district court originally granted summary judgment to Sears on October 1, 1999. (R.57, Judgment.) The EEOC and Keane appealed, (R.58, 75, Notices of Appeal), and this Court reversed and remanded. (R.96, Opinion, reprinted at App. at A-7.) Sears renewed its motion for summary judgment. (R.99, Motion.) On April 12, 2004, the district court granted the motion once again, entering final judgment for Sears and disposing of all parties' claims. (R.118, Minute Order, reprinted at App. at A-20.) Keane filed a timely notice of appeal on May 11, 2004, pursuant to Rule 4(a)(1)(B) of the Federal Rules of Appellate Procedure. (R.119, Notice of Appeal.) The EEOC filed a timely notice of appeal, also pursuant to Rule 4(a)(1)(B), on June 10, 2004. (R.127, Notice of Appeal.) This Court has jurisdiction under 28 U.S.C. 1291. STATEMENT OF THE ISSUES 1. Did the district court exceed the scope of this Court's remand by reopening the question of whether Keane is "disabled" under the ADA based on a faulty reading of the Supreme Court's decision in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002)? 2. Even if Toyota requires an ADA plaintiff to demonstrate a greater degree of limitation than was previously necessary, did the district court err in granting summary judgment to Sears when the evidence would still permit a reasonable jury to find that Keane is disabled? 3. Could a reasonable jury conclude, contrary to the district court's holding, that Keane adequately notified Sears of her disability and her need for accommodation? 4. Could a reasonable jury conclude, contrary to the district court's holding, that Sears, rather than Keane, was responsible for the breakdown of the interactive accommodation process? 5. Could a reasonable jury conclude, contrary to the district court's holding, that Sears did not provide Keane with reasonable accommodations? STATEMENT OF THE CASE This is an appeal from a final judgment of the district court in favor of Sears. A. Course of Proceedings The EEOC filed this ADA action against Sears on June 2, 1997. (R.1, Complaint.) Keane intervened as a plaintiff on October 7, 1997. (R.9, Minute Order.) On October 1, 1999, the district court granted summary judgment to Sears. (R.57, Judgment.) The EEOC and Keane appealed, (R.58, 75, Notices of Appeal), and this Court reversed and remanded on November 8, 2000. (R.96, Opinion, reprinted at App. at A-7.) On January 26, 2001, Sears renewed its motion for summary judgment. (R.99, Motion.) The district court granted the renewed motion on April 12, 2004. (R.118, Order, reprinted at App. at A-20.) B. Statement of Facts Judith Keane was a salesperson from 1992 through May 1995 in the Women's Department of Sears in Calumet City, Illinois. (R.67-4, Vol. II, ex. 16, Keane Dep. at 31, 41-42.) She generally worked in the Intimate Apparel section, but occasionally she filled in for other people in Hosiery, Handbags, Dresses, or Sportswear. (Id. at 42-43.) Her primary duty was to serve customers. (Id. at 53.) The job required a great deal of standing, which she was able to do without difficulty throughout her tenure at Sears. (Id. at 87, 152-53, 384, 390.) Sears required its employees to park on the outskirts of the customer parking lot in order to reserve prime parking spaces for customers. (Id. at 46, 57.) Employees would walk to the employee entrance, located near merchandise pick- up, where they swiped in their timecards and hung up their coats. (Id. at 46, 51; R.67-4, Vol. III, ex. 18, Klisiak Dep at 86.) At the time of Keane's employment, this was the only location where employees could swipe in or out, (R.67-4, Vol. II, ex. 16, Keane Dep. at 46, 93, 107, 304), although Sears has since made additional swipe-in machines available in other places. (R.67-4, Vol. III, ex. 18, Klisiak Dep. at 87.) The Intimate Apparel section was on the opposite side of the store from the swipe-in machine. (R.67-4, Vol. II, ex. 16, Keane Dep. at 52.) Keane had to walk all the way around the store in order to get to her work site. Id. At the end of the day, she had to reverse this route in order to swipe out. (Id. at 93, 107.) 1. Problems with Keane's Legs In fall l994, Keane suddenly began to develop problems with her legs. (Id. at 79, 119.) Initially she noticed a red spot on one of her legs. (Id. at 114, 125.) Then she developed a heaviness and numbness from the knees down. (Id. at 114, 156.) The problem grew worse toward the end of each day, as the cumulative effect of the day's walking took its toll. (Id. at 114, 131, 445, 452.) Keane's right leg began to go entirely numb as she left the store at the end of the day, and she started holding onto walls to support herself as she left. (Id. at 114, 155-57, 347.) By spring 1995, the numbness had progressed to both feet. (Id. at 151-52.) The lack of sensation in her leg and feet caused Keane "constant discomfort" when she walked between her car and the Intimate Apparel section. (Id. at 342.) Between December 1994 and May 1995, she could not walk for more than one city block at a time without having her leg become completely numb. (R.39-1, ex. E, Keane Aff.  9.) Once her leg became numb, walking became "nearly impossible" and "extremely slow." Id. Keane testified, "It's very difficult to explain to people how you can be walking a straight line, and all of a sudden it feels as though you have no leg, and you have this tremendous walk ahead of you, and there is no feeling, and 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. And . . . as I was walking around the store, I would actually have to hold onto the walls and hope that I didn't fall." (R.67-4, Vol. II, ex. 16, Keane Dep. at 347.) The emotional effects from the numbness were also significant. Keane testified, "I dreaded every time I had to make that walk because I didn't know how I was going to get from Point A to Point B." (Id. at 349.) She explained, "[E]very time I had to make this walk, I was terrified. Not that I was suffering extreme physical pain, I was suffering fear, and I was suffering this feeling that I couldn't deal with because I didn't know what to do. 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 difficult. . . . 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 . . . when I would come home [from] work, it would take a long time for that feeling to come back." (Id. at 348.) In December 1994, Keane began to use a fold-up cane when she walked between her car and the Intimate Apparel section. (Id. at 96, 98, 109.) Shortly after she began using it, Department Manager Jackie Klisiak stopped her as she walked into work and told her that Store Manager David Allen said that he did not want to see the cane. (Id. at 263-64, 383.) Keane replied that she never used the cane while she was working on the sales floor. (Id. at 264, 384.) She did not use the cane even when she needed to walk from the Intimate Apparel section to the Hosiery section, three quarters of the way across the floor. (Id. at 264, 448-49.) The cane, however, enabled her to walk from one end of the store to the other without holding onto walls, and it even allowed her to go shopping occasionally following her sales shift. (Id. at 149.) The cane did not reduce the numbness or the sense of heaviness that made walking so hard and so laden with anxiety. (Id. at 351.) Nor did it alleviate her sense of vulnerability as she slowly walked alone from the store to her car in the dark after closing. (Id. at 206, 350-51.) In late December, Keane saw a general practitioner, Dr. DePorter, about her legs. (R.39-1, ex. B, DePorter Dep. at 16.) He referred her to a neurologist, Dr. Hanlon. (Id. at 38.) Dr. Hanlon found that Keane's lower extremity nerve responses were absent, and she concluded that Keane had "fairly significant" nerve damage, or "neuropathy," in both legs. (R.39-1, ex. A, Hanlon Dep. at 16-17.) Neuropathy is an often progressive disorder with no cure. (Id. at 41-42.) At around the same time that Dr. Hanlon diagnosed Keane with neuropathy, Dr. DePorter diagnosed her with diabetes. (R.39-1, ex. B, DePorter Dep. at 55.) Keane's doctors have not determined whether the two conditions are related. (Id. at 92; R.39-1, ex. D, Rozenfeld Dep. at 27.) 2. Keane's Efforts to Reduce Walking Keane sought in various ways to reduce the length of her walk between her car and the Intimate Apparel section. Within the store, she sought permission to use a manager-only shortcut between the swipe-in location and the Intimate Apparel section. (R.67-4, Vol. II, ex. 16, Keane Dep. at 85, 136, 161.) This shortcut ran through the shoe storeroom, into the Intimate Apparel stockroom, and out to Keane's work site. (Id. at 85, 97, 161.) Sears restricted access to the shortcut in order to prevent theft, (R.67-4, Vol. III, ex. 17, Allen Dep. at 86, 120), although employees did sometimes sneak through. (R.67-4, Vol. II, ex. 16, Keane Dep. at 147; R.67-4, Vol. III, ex. 18, Klisiak Dep. at 99.) Using the shortcut would not only reduce Keane's walking distance by about one half inside the store, (R.39-1, ex. E, Keane Aff.  5), but would also enable her to walk on a carpeted surface rather than on the linoleum sales floor. (R.67-4, Vol. II, ex. 16, Keane Dep. at 349-50, 452- 53.) Walking on carpeting was far easier for her than walking on smooth surfaces. (Id. at 349.) Additionally, the shortcut would eliminate any need to dodge customers or go around counters on the sales floor. (Id. at 350, 452.) Keane testified that using the shortcut "would have made a difference in pain and recovery time." (Id. at 349.) Outside the store, Keane tried to park closer to the swipe-in location. Approximately five times, she parked in the merchandise pick-up location, just outside the entrance with the swipe-in machine. (Id. at 110.) She stopped doing this after a security guard yelled at her for parking there. (Id. at 206-08.) Keane also tried to reduce her walking by using alternative locations for lunch. When she first started working for Sears she took her lunch break in either the cafeteria or the employee lunchroom. (Id. at 53, 103, 272.) After a food court opened in the shopping mall in 1994, she also ate there a handful of times, although this required her to walk "some distance" past approximately ten store fronts in order to reach it. (Id. at 77-78, 92-93.) By January 1995, as her symptoms worsened, Keane ate almost all of her meals in the Intimate Apparel stockroom. (Id. at 93, 102, 272.) Department Manager Jackie Klisiak initially allowed Keane to do this, (R.67-4, Vol. III, ex. 18, Klisiak Dep. at 90), but one day Klisiak began "ranting and yelling that no one was going to eat back there anymore; that they had a rodent problem and they were going to have exterminators in." (R.67-4, Vol. II, ex. 16, Keane Dep. at 183.) Klisiak did not indicate to Keane that she was exempt from the general prohibition on eating in the stockroom, (R.67-4, Vol. III, ex. 18, Klisiak Dep. at 91), and, with one exception, Keane stopped eating her lunch there. (R.67-4, Vol. II, ex. 16, Keane Dep. at 183, 366.) Because the cafeteria and the lunchroom were so far away, she generally skipped lunch and got by with snacks. (Id. at 184, 274.) Keane obtained a state-issued handicapped parking permit, (id. at 438), and, four or five times when the weather was warm enough that she did not need a coat, she parked in a handicapped spot near the doors to the Intimate Apparel section and ate in her car. (Id. at 96, 104-06, 207, 229.) Although this arrangement enabled Keane to eat lunch, it did not reduce her walk to her work site. (Id. at 445.) The handicapped space was closer to the building than the employee parking was, but it still required her to walk all the way around the store in order to swipe in. (Id. at 96-97.) When she worked the opening or closing shift, as she frequently did, she would have to make this walk on the outside of the building as the outside doors to the Intimate Apparel section would be locked. (Id. at 107-09, 225; R.67-4, Vol. III, ex. 18, Klisiak Dep. at 175.) One time, as an experiment, Keane drove to the employee entrance, went inside to swipe in, then returned to her car and drove to a spot outside Intimate Apparel. (R.67-4, Vol. II, ex. 16, Keane Dep. at 111, 220.) She told Department Manager Jackie Klisiak, "I don't know if that's going to work." (Id. at 234.) Klisiak later testified that even if the outside doors to the Intimate Apparel section were open, Keane would probably have to do more walking through this experiment than she would if she simply parked in the employee parking lot, as she would need to "backtrack[] herself" after swiping in. (R.67-4, Vol. III, ex. 18, Klisiak Dep. at 176.) 3. Sears' Response to Keane's Condition In September or October of 1994, Keane began telling coworkers and management personnel that she was having trouble walking, that her leg was becoming numb, and that she was having trouble leaving the building. (R.67-4, Vol. II, ex. 16, Keane Dep. at 131, 136, 154-55, 166.) She testified that her comments "seemed to be almost an ongoing thing. I can't say how many times I said I was having difficulty. It wasn't a formal request. It was hoping they would get the message, I'm having trouble here." (Id. at 145.) Keane mentioned to one of her supervisors, Shirley Oros, that she would like to use the shortcut through the shoe storeroom. (Id. at 95, 136, 172.) She told Oros how much easier this would be for her, although she did not believe that Oros had the authority to grant her permission. (Id. at 172.) Store manager David Allen later testified that it would be appropriate for an employee seeking an accommodation to bring the request to the attention of her immediate supervisor. (R.67-4, Vol. III, ex. 17, Allen Dep. at 43.) Department manager Jackie Klisiak testified that a supervisor who received a request for an accommodation was responsible for bringing that request to her, and that she in turn was responsible for taking the request to Allen and the human resources department. (R.67-4, Vol. III, ex. 18, Klisiak Dep. at 43- 45.) Keane also asked Klisiak directly for permission to use the shortcut through the shoe storeroom. (R.67-4, Vol. II, ex. 16, Keane Dep. at 141; R.67-4, Vol. III, ex. 18, Klisiak Dep. at 93.) She testified that she was "somewhat timid about pushing an issue" with Klisiak, but that she "wanted her to understand that I needed some help and hoped that she would do something about it. I just hoped that she was the key to grant the permission." (R.67-4, Vol. II, ex. 16, Keane Dep. at 178.) Klisiak went to Allen on Keane's behalf. She testified, "I went in and I [said] Judy had been requesting to cut through the shoe stockroom because she was having problems with her legs, and he said no." (R.67-4, Vol. III, ex. 18, Klisiak Dep. at 97.) Klisiak relayed this information to Keane. (Id. at 101.) In December 1994, Keane's neurologist wrote a note to Sears stating that Keane had neuropathy and recommending that she avoid "prolonged periods of walking and long distances." (R.67-4, Vol. II, ex. 16, Keane Dep. at 138; R.50, ex. 20 at S0013, Neurologist's Note, reprinted at App. at A-28.) Klisiak was not around when Keane returned to Sears with this note. Because Keane understood that Oros was in charge when Klisiak was absent, (R.67-4, Vol. II, ex. 16, Keane Dep. at 70), she gave the note to Oros. (Id. at 138.) Oros put the note in Klisiak's desk, where Klisiak discovered it the next month. (R.67-4, Vol. III, ex. 18, Klisiak Dep. at 103-05.) Klisiak testified that she understood the note to be requesting shorter hours, although it mentioned nothing about the length of Keane's shifts. (Id. at 109-12.) Klisiak also testified that she believed Keane had already been accommodated because everyone's hours were normally reduced after the holiday season. (Id. at 110.) Klisiak did not ask Keane whether she was understanding the note correctly. (Id. at 110, 112, 114, 169.) She put the note in Keane's personnel file without showing it to anyone else. (Id. at 108-09.) Soon afterwards, Keane overheard Oros tell Klisiak and others at a supervisors' meeting that she had received a note from Keane's doctor requesting that Keane be permitted to minimize her walking. Oros explained that Keane was seeking permission to use the shortcut. Keane overheard each of the supervisors at the meeting including Klisiak and Joy Krumweide, manager of the shoe department say that they had no problem with this request but that the final decision would belong to Allen. (R.67-4, Vol. II, ex. 16, Keane Dep. at 188-89.) After some time had passed and Keane had still heard nothing, she approached someone in the front office to ask about the status of her request. (Id. at 189, 353.) Later that day, Keane was at her register waiting on a customer when Klisiak "came running down the aisle screaming at the top of her lungs and accusing me of lying to this person about having a meeting." (Id. at 191.) Several days later, Klisiak told Keane that she had not yet spoken to Allen. (Id. at 194.) She added, however, that Keane should use the shortcut in the meantime and that if anyone stopped her, she should say that Klisiak had given her permission. (Id. at 180, 194- 95, 353.) The very next day, Krumweide came across Keane using the shortcut through the shoe storeroom and screamed at her, "What are you doing in here, get out of here." Keane explained that Klisiak had given her permission to use the shortcut, and Krumweide screamed back, "Jackie has no right to give you permission. This is my department." Keane was surprised at Krumweide's reaction, since Keane had overheard Krumweide at the supervisors' meeting saying that she had no objection to Keane's using the shortcut. (Id. at 197-98.) Keane continued to use the shortcut even after Krumweide's outburst, reasoning that her own supervisor had given her temporary permission. (Id. at 355.) Keane testified that she finally heard from Allen when he called her at home. (Id. at 356.) Allen told Keane that he wanted a doctor's note from her "so we know what we can do for you." (Id. at 210.) She told him that she had already provided a doctor's note. He said that he had seen it but he wanted a new one on a Sears form. (Id.) He told Keane that a note from her general practitioner would be acceptable. (Id. at 210, 282.) He did not give her any specific information about what he needed to see in the note, and he did not ask Keane what sort of accommodation she was seeking. (Id. at 294; R.67-4, Vol. III, ex. 17, Allen Dep. at 148.) On Keane's next working day, Klisiak gave her a blank form and told her that this was the form Allen wanted her doctor to submit. (R.67-4, Vol. II, ex. 16, Keane Dep. at 211.) Keane brought the form to Dr. DePorter the following week. (Id. at 211.) He mailed it back to Sears. His note specifically mentioned neuropathy and recommended that Keane avoid prolonged walking and long distances. (R.50, ex. 20, at S0014, General Practitioner's Note, reprinted at App. at A-29.) The day after Keane's appointment with Dr. DePorter, she arrived at work and approached the shortcut with one of her supervisors, Tanya Branch. (R.67-4, Vol. II, ex. 16, Keane Dep. at 199, 204.) Stock manager Jan Licata was sitting on a stool outside the entrance to the shoe department. (Id. at 200, 287.) Licata told Keane and Branch that Allen had taken her from her regular duties, ordered her to be posted there, and instructed her to bar anyone from going through the door. Licata refused to let them through. (Id. at 204, 373.) From this point on, not even managers were supposed to use the shortcut although Klisiak, who had a key, continued to do so. (R.67-4, Vol. III, ex. 17, Allen Dep. at 128; R.67-4, Vol. III, ex. 18, Klisiak Dep. at 118-19, 158.) By May 1995, approximately eight months had elapsed since Keane had first sought permission to use the shortcut. Keane testified that "it was just a constant putting off, as if your request isn't important and we'll get to it when we get to it." (R.67-4, Vol. II, ex. 16, Keane Dep. at 371.) She finally received an answer when she met with Klisiak in May for her performance review. Id. Klisiak told Keane that Allen had decided that she could park in a handicapped spot (which she was already doing), but that she could not use the shortcut. (Id. at 233-34.) Without consulting Keane, Allen had decided that parking in a handicapped spot would adequately limit Keane's walking. (R.67-4, Vol. III, ex. 17, Allen Dep. at 114.) Klisiak, who knew that Keane would still have to walk around the building to the swipe-in machine and then back through the building to Intimate Apparel, realized that the handicapped parking "seemed farther away." (R.67-4, Vol. III, ex. 18, Klisiak Dep. at 137.) She did not, however, present any alternative suggestions. (R.67-4, Vol. II, ex. 16, Keane Dep. at 235.) Indeed, she believed that no alternatives were available. "There was nothing else that we could have done to give her shorter walking," Klisiak testified, "because already she was told that she could not cut through the shoe stockroom, and that's the only shortcut to that department. There is no other way." (R.67-4, Vol. III, ex. 18, Klisiak Dep. at 162.) Keane resigned the next day. (R.67-4, Vol. II, ex. 16, Keane Dep. at 237.) 4. Keane's Current Condition Since leaving Sears, Keane's neuropathy has worsened. (Id. at 146; R.39-1, ex. D, Rozenfeld Dep. at 27.) Her most troublesome side-effect while at Sears was the numbness in her leg. (R.67-4, Vol. II, ex. 16, Keane Dep. at 146-47.) Since then, she has also developed loss of balance and the muscles in her right leg have atrophied. (Id. at 146-47, 500; R.39-1, ex. D, Rozenfeld Dep. at 30.) She now walks in a "very abnormal" way, lifting her knee high up into the air, dangling her foot, and then slapping her foot down on the floor. (R.39-1, ex. D, Rozenfeld Dep. at 30, 40; R.39-1, ex. F, Barowsky Dep. at 39, 41.) Keane testified that she can no longer work as a salesperson, but that if she had been given easy access to her job site she could have done so until she developed a loss of balance in the winter of 1995-96. (R.67-4, Vol. II, ex. 16, Keane Dep. at 398.) Once she was in her department, she testified, she did not have a problem with mobility. (Id. at 429.) This could have been, in part, because the floor of her department was carpeted. (Id. at 452.) 5. History of the Case The EEOC and Keane sued Sears, alleging constructive discharge and violation of the ADA. (R.1, Complaint; R.9, Minute Order.) Sears moved for summary judgment, arguing that Keane was not "disabled," that she did not properly communicate her disability to her employer, that Keane rather than Sears was responsible for the breakdown of the interactive process, and that Sears had in fact provided Keane with reasonable accommodations. Sears also argued that Keane had not been constructively discharged. (R.67, Motion; R.67, Memo at 2.) Following briefing in the district court, the Supreme Court held in Sutton v. United Airlines, Inc., 527 U.S. 471, 482 (1999), that the existence of a disability under the ADA must be examined in light of any mitigating measures taken by the individual with an impairment. Sears asked the district court to take judicial notice of this opinion, arguing that Keane's ability to walk "must be evaluated with regard to mitigating measures, here the use of her cane and/or medication, not how she hypothetically would have walked without those mitigating measures." (R.54, Motion at 4.) C. District Court's Original Opinion The district court granted summary judgment to Sears. (R.56, Order, reprinted at App. at A-3 and 1999 WL 977072.) Noting that Keane was able to walk without her cane while working, and that she was able to go shopping after work while using her cane, the court said, "it is beyond dispute that Keane's ability to walk was not substantially limited when she used her cane." Id. at A-5, *4. Accordingly, the court held that Keane was not disabled within the meaning of the ADA. Id. The court did not reach Sears' other arguments, although it noted that "they appear persuasive." Id. at A-6, *4 n.3. D. Seventh Circuit's Opinion ("Keane I") This Court affirmed the award of summary judgment on the issue of constructive discharge, but it reversed on the question of disability. (R.96, Opinion, reprinted at App. at A-7 and 233 F.3d 432.) Emphasizing the procedural posture of the case, the Court explained: "[I]t is not our role to come to a decision as to whether Keane was disabled under the ADA. Rather, we only need decide whether a rational jury, viewing the evidence in the light most favorable to the plaintiffs, could come to such a decision. We believe they could." Id. at A-16, 233 F.3d at 438. The Court highlighted the existence of disputed issues of material fact regarding whether Keane was disabled under the ADA. The Court noted that during the relevant time, "doctors diagnosed Keane as having an impairment that required she limit her walking." Id. The Court added that Keane's "present inability to walk more than one city block . . . provide[s] a certain degree of credence to the claim that her neuropathy may have been 'substantially limiting' at the time at issue." Id. Thus, the Court concluded, "the plaintiffs have met their burden of establishing a material dispute as to the severity of Keane's impairment." Id. at A-16, 233 F.3d at 439. The Court also noted that the absence of certain evidence in the record rendered a summary judgment determination "problematic." Id. Specifically, the Court pointed to the lack of any comparison between Keane's ability to walk and that of an average person in the general population. Additionally, the Court said, the record was silent regarding the way in which use of a cane affected Keane's ability to walk. "[E]vidence on this issue," the Court said, "was extremely relevant. As plaintiffs note throughout, Keane's cane did not mitigate her neuropathy in any sense, but rather provided her with an alternative means to travel longer distances without having to lean against a wall to keep from falling." Id. at A-17, 233 F.3d at 439. For all of these reasons, this Court reversed the district court's conclusion that Keane was not disabled as a matter of law. It remanded the case for consideration of Sears' remaining arguments. Id. at A-17, 233 F.3d at 439-40. E. District Court's Opinion on Remand While the district court's decision on remand was pending, the Supreme Court issued an opinion which the district court read erroneously to suggest that an impairment must "severely restrict" an individual's ability to perform a major life activity in order to qualify as a disability under the ADA. See Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002), reprinted at App. at A-30. EEOC regulations require a "significant" restriction, not a "severe" restriction. 29 C.F.R.  1630.2(j)(1)(ii). The district court ruled that Toyota's use of the term "severe" constitutes a change in the law of disability. (R.118, Order, reprinted at App. at A- 21, A-24 and 2004 WL 784803, at *6 ("An individual is no longer considered to be disabled under the first prong of the ADA's definition of disability if she is significantly limited in performing a major life activity. Now, an individual is considered disabled under the first prong of the ADA's definition of disability if she is severely limited in performing a major life activity.") (emphasis in original)). That change, the court held, meant that this Court's reversal of summary judgment was no longer binding. Id. Re-examining the record evidence in light of its interpretation of Toyota, the district court held that Keane was not "severely limited" in walking and therefore was not disabled. Id. at A-26, *8. The district court pointed to several of Keane's "admissions" in support of its holding: During her shifts, Keane walked on the sales floor without her cane; Keane walked from her car to her work site with her cane; Keane was able to walk from Intimate Apparel to Hosiery without her cane; Keane was able to go shopping after work with her cane; Keane cleaned her home every week; and Keane did not use her cane in her home except to go up and down stairs. See id. at A-25, *7. Her ability to do all these things, the court said, meant that she could "present no evidence that she is 'disabled' under the ADA with or without the use of her cane." Id. at A-26, *8. The district court also agreed with Sears' alternative arguments for summary judgment. First, the court held that because her doctors' notes contained "only blanket limitations on walking," Keane had not adequately informed Sears of the full extent of her disability. Id. at A-26, *9. Second, the court held that Keane, and not Sears, was primarily responsible for the breakdown of the interactive process because Keane quit her job without adequately clarifying the type of accommodations that she needed. Id. at A-27, *10. Finally, the court held that Sears provided Keane with reasonable accommodations by letting her park in a handicapped spot near the Intimate Apparel section, by letting her eat in the Intimate Apparel stockroom, and by temporarily allowing her to use the shortcut through the shoe storeroom. Id. SUMMARY OF ARGUMENT The district court granted summary judgment to Sears because it misread Toyota Motor Manufacturing, Kentucky, Inc. v. Williams and failed to make all reasonable inferences in favor of Keane and the EEOC. This Court should reverse because a reasonable jury could conclude that Keane is disabled and that Sears violated its obligations to her under the ADA. Contrary to the district court's interpretation, Toyota does not change the standard for establishing disability from proving a "significant" limitation to proving a "severe" limitation. In Toyota, the Supreme Court clarified that an individual's restrictions with regard to the major life activity of performing manual tasks must be evaluated with respect to the tasks that are of central importance to most people's daily lives, not merely with respect to the particular manual tasks associated with an assembly line job. The Court specifically assumed the validity of the EEOC's regulations defining "substantially limited" as meaning "significantly" limited. Its use of the word "severe" was meant only to emphasize that limitations on a small subset of work-related manual tasks are insufficient to rise to the level of disability. The Court did not mean for its offhand use of this term to overturn the EEOC regulations that it had already assumed to be valid. Because Toyota did not change the standard for establishing a "substantial limitation" under the ADA, the district court erred by reopening the question of whether Keane was disabled. The district court had already examined this issue in connection with Sears' first motion for summary judgment, and this Court had already instructed the district court that under existing law the record does raise a genuine issue of material fact regarding Keane's disability. Toyota did nothing to change this holding. Even if the district court were correct that Toyota makes it harder for a plaintiff to show a "substantial limitation," the evidence in this case would still permit a reasonable jury to find that Keane is disabled. Keane had great difficulty walking past ten store fronts in a shopping mall, and she could walk for no more than one city block at the time in question before her right leg became completely numb. Even with her cane, she was "terrified" when she walked out of Sears at the end of her shift because she did not know whether she would be able to reach her destination. A reasonable jury could conclude under these facts that Keane was both "significantly" and "severely" limited in walking. A reasonable jury could also conclude that Keane notified Sears of her disability and her need for accommodation, thereby triggering Sears' reasonable accommodation obligations under the ADA. Keane submitted two doctors' notes specifically mentioning her neuropathy and her need to avoid walking long distances. Sears now argues that it did not understand the meaning of neuropathy, and that it believed Keane merely wanted to work fewer hours. This argument ignores Sears' obligation to engage with Keane in an interactive accommodation process a process in which Sears should have asked Keane to clarify unclear terminology and to confirm its understanding of her requests. If Sears did not know the meaning of neuropathy, it had an obligation to ask. It cannot now blame Keane for failing to tell it about her disability. Similarly, a reasonable jury could conclude that it was Sears, and not Keane, who was responsible for the breakdown of the interactive accommodation process. For approximately eight months, Keane informed her supervisors of her difficulty walking and sought permission to use a shortcut through the shoe storeroom. Sears repeatedly put her off and failed to act on her requests. Ultimately, Sears denied permission to use the shortcut and concluded that no other options were available. Looking at the evidence in the light most favorable to Keane and the EEOC, a reasonable jury could find that Sears failed in its obligation to work with Keane to craft a reasonable accommodation. Finally, a reasonable jury could disagree with the district court that Sears reasonably accommodated Keane. Although it is true that Sears temporarily allowed Keane to eat in the Intimate Apparel stockroom and temporarily allowed her to use the shortcut through the shoe storeroom, Sears revoked both of those accommodations. Temporary permission which is then rescinded is not a reasonable accommodation for an individual with a permanent and progressive disability. Sears' permission to park in a handicapped space near the Intimate Apparel section was also not a reasonable accommodation, as this space was not close to the employee swipe-in machine and therefore did not alleviate Keane's long walk to work. For all of these reasons, the district court erred by renewing its award of summary judgment to Sears. The record in this case is full of genuine issues of material fact. This Court should reverse and remand for trial. ARGUMENT The district court erred in granting summary judgment to Sears because a reasonable jury could find that Keane is disabled and that Sears violated its obligations to her under the ADA. A. Standard of Review This Court reviews a district court's award of summary judgment de novo. Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003). The Court must determine whether a reasonable jury could return a verdict for the nonmovant, viewing all of the evidence in the light most favorable to the nonmovant and making all reasonable inferences in that party's favor. See id. B. Toyota Motor Manufacturing, Kentucky, Inc. v. Williams provides no basis for reconsidering whether Keane is disabled because it does not change the relevant law. The district court erroneously held that it was entitled to revisit the question of whether Keane is "disabled" under the ADA because, in its view, Toyota changed the standard for establishing disability from proving a "significant" limitation to proving a "severe" limitation. See R.118, App. at A-24, *6. In fact, Toyota did no such thing. In Toyota, the Supreme Court reversed a decision holding that the plaintiff was disabled because she was substantially limited in her ability to perform certain manual tasks associated with an assembly line job. 534 U.S. at 187. The Court explained that the lower court "did not apply the proper standard . . . because it analyzed only a limited class of manual tasks and failed to ask whether respondent's impairments prevented or restricted her from performing tasks that are of central importance to most people's daily lives." Id. In the course of looking at a broader set of manual tasks, the Court specifically assumed the validity of the EEOC's regulations defining "substantially limited." Id. at 194. Those regulations say, in part, that an individual is substantially limited within the meaning of the ADA if she is "significantly restricted as to the condition, manner or duration under which [she] can perform a particular major life activity as compared to the condition, 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)(ii) (emphasis added). The Court in Toyota held that "[t]he word 'substantial' . . . precludes impairments that interfere in only a minor way with the performance of manual tasks from qualifying as disabilities." 534 U.S. at 197. It then summarized its conclusion by stating: "[T]o 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." Id. at 198 (emphasis added). The Supreme Court gave no indication in Toyota that, by using the word "severely" instead of the word "significantly," it intended to depart from the EEOC regulations which it had already assumed to be reasonable. See id. at 194. Nothing about the Toyota opinion indicates any intent by the Supreme Court to alter the regulatory standard for demonstrating a "substantial limitation" under the ADA. To the contrary, as this Court has already recognized, "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." Mack v. Great Dane Trailers, 308 F.3d 776, 781 (7th Cir. 2002). Taken in context, Toyota's discussion of the term "substantially limited" was meant only to highlight the court of appeals' unduly narrow focus on a small subset of work-related manual tasks. The district court in the instant case erred by reading too much into the Supreme Court's use of a single, unexplained word ("severely"). As this Court has recognized, "Judicial opinions are frequently drafted in haste, with imperfect foresight, and without due regard for the possibility that words or phrases or sentences may be taken out of context and treated as doctrines. We shouldn't like this done to our opinions and are therefore reluctant to do it to the opinions of other courts." Northwestern Nat'l Ins. Co. v. Maggio, 976 F.2d 320, 323 (7th Cir. 1992); see also Schlup v. Delo, 513 U.S. 298, 343 (1995) (Scalia, J., dissenting) (criticizing majority for looking at recent decisions and "minutely parsing phrases, and seeking shades of meaning in the interstices of sentences and words, as though a discursive judicial opinion were a statute"); Todd v. Societe BIC, S.A., 21 F.3d 1402,1411 (7th Cir. 1994) (en banc) (quoting Maggio, 976 F.2d at 323, in saying that words of a judicial opinion should not be treated as doctrine). Most courts of appeals agree that, in using the word "severely," Toyota did not impose a new, more stringent standard on an ADA plaintiff seeking to show a "substantial limitation." See Rossbach v. City of Miami, 371 F.3d 1354, 1357 n.4 (11th Cir. 2004) (citing Toyota as precedent for relying on EEOC regulations to interpret "substantially limited"); Ristrom v. Asbestos Workers Local 34 Jt. Apprentice Comm., 370 F.3d 763, 769 (8th Cir. 2004) (same); Waldrip v. Gen. Elec. Co., 325 F.3d 652, 655 (5th Cir. 2003) (quoting "severely restrict" language of Toyota but also quoting Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 565 (1999), which contrasted "mere difference" with a "significant restriction"); Gagliardo v. Connaught Labs., Inc., 311 F.3d 565, 570 (3d Cir. 2002) (citing "severely restrict" language from Toyota and "significantly restrict" language from EEOC regulations without noting any conflict); Rakity v. Dillon Cos., 302 F.3d 1152, 1158 (10th Cir. 2002) (same); Reg'l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 47-48 (2d Cir. 2002) (same); Mahon v. Crowell, 295 F.3d 585, 590-91 (6th Cir. 2002) (explaining Toyota as "mak[ing] clear that any impairment that only moderately or intermittently prevents an individual from performing major life activities is not a substantial limitation under the Act"); Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 23-24 (1st Cir. 2002) (citing Toyota and reversing summary judgment for defendant because evidence can support a finding that plaintiff is "significantly restricted" in lifting); Pollard v. High's of Baltimore, Inc., 281 F.3d 462, 467-68 (4th Cir. 2002) (citing Toyota and relying on EEOC regulations to define "substantially limited"); cf. Albert v. Smith's Food & Drug Ctrs., Inc., 356 F.3d 1242, 1250 n.5 (10th Cir. 2004) ("It is clear from the opinion in Toyota that the Supreme Court was concerned only with what substantially limited meant in terms of the performance of manual tasks which was the major life activity affected by the plaintiff's disability in that case."). But see Fenney v. Dakota, Minn., & E. R.R., 327 F.3d 707, 714-15 (8th Cir. 2003) (describing EEOC regulations as "less restrictive" than Toyota's "severely restrict" standard, although quoting Toyota as "preclud[ing] impairments that interfere in only a minor way"); cf. EEOC v. UPS, 306 F.3d 794, 802-03 (9th Cir. 2002) (applying "severely restrict" language of Toyota without contrasting it to "significantly limit" language of regulations, and emphasizing Toyota's requirement that limitation must affect aspects of life outside the workplace). This Court has not squarely faced the question of whether Toyota raised the standard for showing a "substantial limitation." It has said in dicta, "In [Toyota], the Court established a higher threshold for the [ADA] than some had believed it contained." Dvorak v. Mostardi Platt Assoc., 289 F.3d 479, 484 (7th Cir. 2002). This language, however, can be explained by a subsequent opinion in which the Court extended Toyota's emphasis on identifying limitations outside the work environment beyond Toyota's express focus on the major life activity of performing manual tasks. See Mack, 308 F.3d at 781 ("We see no basis for confining Toyota's analysis to only those cases involving the specific life activity asserted by the plaintiff in that case."). In Mack, this Court emphasized Toyota's statement that a "substantial limitation" must affect the "central functions of daily life." The Court did not suggest that a plaintiff would also have to show a degree of limitation beyond the "significant restriction" identified in the EEOC's regulations. See id. In light of the Supreme Court's express reliance on the EEOC regulations in Toyota, this Court's interpretation of Toyota as requiring an analysis of limitations outside the workplace, and the almost unanimous agreement of other courts of appeals that Toyota did not change the standard for proving a "substantial limitation" under the ADA from showing a "significant" limitation to showing a "severe" limitation, this Court should reject the district court's conclusion that Toyota expanded the scope of the remand in this case. The district court was bound by this Court's holding that the EEOC raised a genuine issue of material fact regarding the existence of a disability. See United States v. Husband, 312 F.3d 247, 250 (7th Cir. 2002) ("this court does not remand issues to the district court when those issues have been waived or decided"). Its holding that Toyota allowed it to reopen this question by changing the applicable law is reversible error. C. Even if Toyota requires an ADA plaintiff to demonstrate a greater degree of limitation than was previously necessary, the evidence in this case would still permit a reasonable jury to find that Keane is disabled. Whatever the applicable standard of limitation, the evidence in this case would permit a reasonable jury to find that Keane is disabled. The determination of whether an impairment is substantially limiting and therefore a disability under the ADA is intensely fact-specific. See Sutton, 527 U.S. at 482-84. Viewing the evidence in the light most favorable to Keane and the EEOC, Keane is substantially limited because she is both "significantly" and "severely" limited in walking. As described supra, Keane could walk for no more than one city block at the time in question before her right leg became completely numb. (R.39-1, ex. E, Keane Aff. 9.) This Court's observation in Keane I that she became unable to walk more than one block only after she left Sears misstates the evidence. Compare Keane I, App. at A-16, 233 F.3d at 438 with R.39-1, ex. E, Keane Aff.  9. Walking past ten store fronts in a shopping mall was "some distance" for her. (R.67-4, Vol. II, ex. 16, Keane Dep. at 77-78.) By spring of 1995, not only Keane's right leg but also both of her feet became numb. (Id. at 151-52.) Once the numbness struck, her leg became oppressively heavy and she felt as though she would have to lift it with both hands in order to take a single step. (Id. at 347.) She felt this way even when she used a cane. (Id. at 351.) The cane did nothing to reverse Keane's neuropathy or correct her symptoms; it merely allowed her to walk from the Intimate Apparel section to her car without having to hold onto the walls of the store for support. (See id. at 149.) Even with the cane, Keane walked so slowly that she feared for her safety when she left the store at night to go to her car. "Every time I had to make this walk," she testified, "I was terrified." (Id. at 348.) Knowing her limitations, Keane's doctor helped her to obtain a handicapped parking permit from the state. (R.39-1, ex. B, DePorter Dep. at 30.) Keane's limitations far exceed those of other plaintiffs whom courts have held not to be substantially limited in walking. Under the fact-specific analysis required by the ADA, Keane therefore qualifies as disabled although other plaintiffs have not. See Wood v. Crown Redi-Mix, 339 F.3d 682, 685 (8th Cir. 2003) (plaintiff not disabled where he can walk one-quarter mile without resting and can walk well enough that he has not obtained a handicapped parking pass); Black v. Roadway Express, 297 F.3d 445, 451 (6th Cir. 2002) (plaintiff not disabled where he can walk two miles and walks for exercise); Moore v. J.B. Hunt Transp., Inc., 221 F.3d 944, 951 (7th Cir. 2000) (plaintiff not disabled where he consistently walks distances up to a mile); Taylor v. Nimock's Oil Co., 214 F.3d 957, 960 (8th Cir. 2000) (plaintiff not disabled where she can walk long distances, including approximately a mile to work); Weber v. Strippit, Inc., 186 F.3d 907, 914 (8th Cir. 1999) (plaintiff not disabled where his doctor testified that he could engage in most forms of exercise, including strenuous exercise); Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 186-87 (3d Cir. 1999) (plaintiff not disabled where he can walk for fifty minutes per hour with the same ability as the average person, and can walk for longer if he takes a break every hour); Talk v. Delta Airlines, 165 F.3d 1021, 1025 (5th Cir. 1999) (plaintiff not disabled where she maintains full mobility although she walks slowly and with a limp); Penny v. UPS, 128 F.3d 408, 415 (6th Cir. 1997) (plaintiff not disabled where he led an active life, including hunting; "a reasonable jury would know that it is impossible to hunt rabbits, squirrels, pheasants and deer without walking"); Kelly v. Drexel Univ., 94 F.3d 102, 106, 108 (3d Cir. 1996) (plaintiff not disabled where he can walk a mile). Unlike these unsuccessful plaintiffs, Keane could walk no more than a single block without experiencing heaviness, numbness, and pain. (R.39-1, ex. E, Keane Aff.  9.) The Sixth Circuit has recognized that "one's inability to walk more than a block without rest would seem to be compelling evidence of disability." Penny, 128 F.3d at 416. Indeed, while under the misimpression that Keane's inability to walk more than one block did not develop until after the time in question, this Court observed that Keane's "present inability to walk more than one city block does provide a certain degree of credence to the claim that her neuropathy may have been 'substantially limiting' at the time at issue." Keane I, App. at A-16, 223 F.3d at 438. The persuasive force of the evidence obviously increases when it becomes clear that the inability to walk more than one block existed at the very time that Keane was working for Sears. (R.39-1, ex. E, Keane Aff.  9.) Keane's neuropathy not only dramatically limited the distances she could walk, but also fundamentally changed the manner in which she did so. See 29 C.F.R. 1630.2(j)(1)(ii) (individual is substantially limited in performing a major life activity if she is "significantly restricted as to the condition, manner or duration under which she can perform [it] as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity") (emphasis added). Keane testified that she was "terrified" when she walked and that she "didn't know how I was going to get from Point A to Point B." (R.67-4, Vol. II, ex. 16, Keane Dep. at 349.) The fear that accompanied her every time she needed to walk longer than one city block was a severe limitation on her ability to walk as compared to that of the average person, who can walk even fairly long distances without fear of being unable to reach a destination. See Gillen, 283 F.3d at 23 (plaintiff with only one arm raises genuine issue of material fact regarding whether she is substantially limited in lifting even though she can lift 40- 50 pounds because "[e]ven if she is able to lift more poundage than many two- handed individuals, the manner in which she lifts and the conditions under which she can lift will be significantly restricted because she only has one available limb"); Hoskins v. Oakland County Sheriff's Dep't, 227 F.3d 719, 725 (6th Cir. 2000) (plaintiff raises genuine issues of material fact regarding whether she is substantially limited in breathing, moving, and performing manual tasks such as doing laundry where she "attempts to do everything" but "must now be careful about the way that she moves"). Keane's inability to walk long distances without holding onto walls or a cane is another severe restriction on her ability to walk as compared to that of the average person in the general population. Most people can walk effortlessly, without needing to steady themselves. Also, most people have two free hands while walking. Keane, who could walk more than a block only if she had something to hold onto, did not. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 482 (1999) (negative as well as positive effects of corrective devices must be considered when determining whether an individual is "substantially limited" in performing a major life activity); Fraser v. Goodale, 342 F.3d 1032, 1039 (9th Cir. 2003) (side effects of a mitigating measure may, themselves, be impairing), cert. denied, 124 S. Ct. 1663 (2004); Belk v. Southwestern Bell Tel. Co., 194 F.3d 946, 950 (8th Cir. 1999) (plaintiff who wears a full-length leg brace is "disabled" even though he can engage in many physical activities with the brace; the brace limits his full range of motion and prevents him from functioning the same as someone without a brace). Downplaying all evidence to the contrary despite its obligation to make all reasonable inferences in favor of Keane and the EEOC the district court erroneously held that "Keane can present no evidence that she is severely limited in walking." R.118, App. at A-25, *7. To support this conclusion, the district court pointed to Keane's ability to walk short distances without a cane at her work site and at her home, her ability to walk with a cane between her car and the Intimate Apparel section, her occasional shopping trips after work with her cane, and the hours she spent on Fridays cleaning her house. See id. The court wholly ignored Keane's numbness and pain, her inability to walk without support, and her fear. See Fraser, 342 F.3d at 1042 ("Sutton does not require us to pretend that treatment measures are completely effective when there is evidence that they are not."). A reasonable jury could infer from the evidence in this case that, from late 1994 to May 1995, Keane was severely limited in her ability to walk as compared to the average person in the general population. Walking is an everyday activity that jurors can readily understand. It is well within their competence to assess the severity of Keane's restrictions. See Marinelli v. City of Erie, 216 F.3d 354, 361 (3d Cir. 2000) (arm and neck pain "are among those ailments that are the least technical in nature and are the most amenable to comprehension by a lay jury"). The district court committed reversible error by holding that Keane had presented "no evidence" of a severe limitation in her ability to walk. To the contrary, Keane and the EEOC presented a genuine issue of material fact, and the question of whether Keane was disabled should go to a jury. D. Keane notified Sears of her disability and her need for accommodation, thereby triggering Sears' reasonable accommodation obligations under the ADA. A reasonable jury could find that Keane adequately notified Sears of her disability and her need for accommodation. See 42 U.S.C. 12112(b)(5)(A) (requiring employer to make reasonable accommodations "to the known physical or mental limitations of an otherwise qualified individual with a disability"); Hunt- Golliday v. Metro. Water Reclamation Dist., 104 F.3d 1004, 1012 (7th Cir. 1997) (employee has initial duty to inform employer of a disability before employer's ADA liability is triggered); Beck v. Univ. of Wis. Bd. of Regents, 75 F.3d 1130, 1134 (7th Cir. 1996) (same). Keane repeatedly told management personnel that she was having trouble walking, that her leg was becoming numb, and that she was having trouble leaving the building. (R.67-4, Vol. II, ex. 16, Keane Dep. at 131, 136, 154-55, 166.) She told Oros, Klisiak, and Allen that she wished to use the shortcut through the shoe storeroom because the long walk through the store was so difficult for her. (Id. at 136, 141, 356.) Management was aware that Keane wished to use the shortcut both before and after she began walking with a cane. (Id. at 91, 131, 136, 145.) In December 1994, Keane's neurologist wrote a note to Sears specifically mentioning her neuropathy and recommending that she avoid "prolonged periods of walking and long distances." (Id. at 138; R.50, ex. 20 at S0013, Neurologist's Note, reprinted at App. at A-28.) In accordance with the general manager's testimony that it would be appropriate for an employee seeking an accommodation to request it from her immediate supervisor, (R.67-4, Vol. III, ex. 17, Allen Dep. at 43), Keane gave this note to Oros. (R.67-4, Vol. II, ex. 16, Keane Dep. at 138.) It was Oros' responsibility to pass the note to Klisiak, which she ultimately did. (R.67-4, Vol. III, ex. 18, Klisiak Dep. at 43-45, 103-05.) At that point, Klisiak acquired specific knowledge of Keane's neuropathy. Klisiak also told Allen, the general manager, that Keane "was having problems with her legs" and wanted permission to take the shortcut through the shoe storeroom. (Id. at 97.) Allen eventually read the neurologist's note, giving him actual knowledge of Keane's neuropathy as well. (R.67-4, Vol. II, ex. 16, Keane Dep. at 210.) At Allen's request, Keane submitted a second doctor's note, this time from her general practitioner. (Id. at 210-11, 282; R.50, ex. 20 at S0014, General Practitioner's Note, reprinted at App. at A-29.) That note, like the neurologist's, specifically mentioned neuropathy. (App. at A-29.) Sears cannot claim to have been unaware of Keane's disability when its general manager and department manager both had actual knowledge of Keane's neuropathy. Allen and Klisiak were Sears' agents, with authority to act upon employees' requests for reasonable accommodations. Their knowledge of Keane's neuropathy must therefore be imputed to Sears. See Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 72 (1986) (employer liability is based on common law rules of agency); Restatement (Third) of Agency 5.03 (T.D. No. 4, 2003) ("notice of a fact that an agent knows or has reason to know is imputed to the principal if knowledge of the fact is material to the agent's duties to the principal . . ."). The district court held that Keane did not adequately inform Sears of her disability because she did not provide enough details about her limitations. See R.118, App. at A-26, *9 (citing Steffes v. Stepan Co., 144 F.3d 1070 (7th Cir. 1998)). Steffes, the case on which the district court relied for this conclusion, did not require an employee to provide details about her limitations in order to trigger her employer's duties under the ADA. In Steffes, the employee told the employer that she had chronic obstructive pulmonary disease requiring her to limit her exposure to chemicals; notification of her disability was not at issue. See Steffes, 144 F.3d at 1072. Instead, the Court analyzed each party's respective obligations once the interactive process surrounding a reasonable accommodation had commenced. See id. The doctor's note that the Court criticized in Steffes was inadequate not because it failed to disclose the disability the employee had already done that it was inadequate because it did not give the employer enough information to allow it to offer a reasonable accommodation. See id. at 1072-73. The case sheds no light on whether Keane adequately notified Sears of her neuropathy. And, in this case, Keane made specific requests for accommodations (e.g., a shortcut through the store), so Sears had enough information to offer a reasonable accommodation. To the extent that Sears may have been inadequately informed about Keane's disability, the responsibility lies with Sears, not with Keane. Keane clearly and repeatedly told Sears that she had neuropathy which made it difficult for her to walk. (R.50, ex. 20 at S0013, S0014, Neurologist's Note and General Practitioner's Note, reprinted at App. at A-28, A-29.) If Sears did not understand the meaning of neuropathy, it had an obligation to ask. See Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928, 934 (7th Cir. 1995) ("deliberate ignorance" regarding an employee's disability may not insulate an employer from liability under the ADA); cf. Jankowski Lee & Assoc. v. Cisneros, 91 F.3d 891, 895 (7th Cir. 1996) (under Fair Housing Act, "[i]f a landlord is skeptical of a tenant's alleged disability or the landlord's ability to provide an accommodation, it is incumbent upon the landlord to request documentation or open a dialogue"). By notifying Sears about her neuropathy, Keane triggered Sears' obligation to explore with her the possibility of a reasonable accommodation. E. Sears, rather than Keane, was responsible for the breakdown of the interactive accommodation process. Contrary to the district court's holding, it was Sears, rather than Keane, who was responsible for the breakdown of the interactive accommodation process. For approximately eight months, Keane advised her supervisors that she was having trouble walking between her car and the Intimate Apparel section, and she repeatedly said that she wished to use the shortcut through the shoe storeroom. (R.67-4, Vol. II, ex. 16, Keane Dep. at 131, 136, 141, 154-55, 166, 356.) Her supervisors stonewalled her and delayed acting on her repeated requests. Additionally, they signaled a lack of flexibility when they did not allow her to park in the merchandise pick-up area and rescinded her permission to eat in the Intimate Apparel stockroom. (Id. at 182-93, 206-08; R.67-4, Vol. III, ex. 18, Klisiak Dep. at 91.) Ultimately, Klisiak told Keane that Allen had denied her request to use the shortcut. (R.67-4, Vol. II, ex. 16, Keane Dep. at 233-34.) In light of Sears' uncooperative stance over the past eight months, Keane had no reason to hope that Allen remained open to further negotiations over a reasonable accommodation. Certainly, neither Allen nor Klisiak indicated that they were willing to continue discussing the subject, and Klisiak later testified that "[t]here was nothing else that we could have done." (R.67-4, Vol. III, ex. 18, Klisiak Dep. at 162.) The ADA imposes an affirmative obligation on employers "to seek . . . out [an employee with a known disability] and work with her to craft a reasonable accommodation, if possible." Gile v. United Airlines, Inc., 213 F.3d 365, 373 (7th Cir. 2000). Once an employee requests an accommodation, the employer must "'engage with the employee in an "interactive process" to determine the appropriate accommodation under the circumstances.'" Id. (quoting Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 563 (7th Cir. 1996)). This duty requires the employer to "make a reasonable effort to explore the accommodation possibilities with the employee." Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 693 (7th Cir. 1998). An employer who simply stonewalls until an employee files suit may be held responsible for causing a breakdown in the interactive process where a reasonable accommodation is possible. See Baert v. Euclid Beverage, Ltd., 149 F.3d 626, 633-34 (7th Cir. 1998), overruled in part on other grounds by Sutton, 527 U.S. at 482. The district court in the instant case erroneously held that "the primary breakdown of the interactive process occurred when Keane quit her job." R.118, App. at A-27, *9. Had the court made all reasonable inferences in favor of Keane and the EEOC, it would have ruled differently. A reasonable jury could find that Sears, not Keane, caused the breakdown of the interactive process when it failed to respond to Keane's numerous requests for permission to use the shortcut and failed to engage her in a discussion about her needs. See Beck, 75 F.3d at 1135 ("A party that obstructs or delays the interactive process is not acting in good faith.") Months passed before Allen ever spoke to Keane, and when he finally asked her for a second doctor's note he did not tell her about any deficiencies in the first note and did not specify the kind of information he was seeking. (R.67-4, Vol. II, ex. 16, Keane Dep. at 294; R.67-4, Vol. III, ex. 17, Allen Dep. at 148.) He merely told her that he needed a doctor's note on a Sears form. (R.67-4, Vol. II, ex. 16, Keane Dep. at 210.) Keane could not know that Sears wanted additional details about her disability and/or her proposed accommodation if Sears did not communicate this fact. As this Court has noted, "an employer cannot expect an employee to read its mind." Bultemeyer v. Fort Wayne Cmty. Sch., 100 F.3d 1281, 1285 (7th Cir. 1996). This case differs from precedents blaming an employee for a breakdown in the interactive process because, unlike the employers in those cases, Sears failed to communicate a need for specific information. See Steffes, 144 F.3d at 1072 (employer explained in a letter to employee that doctor's note indicated a misimpression that the maintenance warehouse was a closed space where all chemicals were in sealed containers; employee did not attempt to correct doctor's misimpression and obtain a more accurate medical release); Beck, 75 F.3d at 1133, 1137 (doctor's note recommended that employer tailor workload to what employee and employer both felt she could realistically accomplish; employer said in memo to employee that it did not understand what accommodations were necessary; "at no point did [the employee] tell the [employer] exactly what she needed"). The district court criticized Keane for providing "two doctor's notes listing blanket limitations on her walking" but ignored Sears' obligation to seek more details. See R.118, App. at A-26, *9. As this Court recognized in another case, "If the precise meaning of [the doctor's] letter was unclear, [the employer] could have spoken with either [the employee] or [the doctor]. Had it done this, it would have been properly engaging in the interactive process." Bultemeyer, 100 F.3d at 1284. At the very least, a genuine issue of material fact remains over which party was responsible for causing the breakdown of the interactive accommodation process. The district court committed reversible error by refusing to send this question to the jury. F. Sears did not provide Keane with reasonable accommodations. The district court was wrong in holding that Sears provided Keane with reasonable accommodations. Although the court correctly noted that Sears temporarily allowed Keane to eat in the Intimate Apparel stockroom and temporarily allowed her to use the shortcut through the shoe storeroom, (R.67-4, Vol. III, ex. 18, Klisiak Dep. at 90; R.67-4, Vol. II, ex. 16, Keane Dep. at 180, 194-95, 353), Sears revoked both of these accommodations and left Keane to struggle alone with the long walk between her car and her work site. (R.67-4, Vol. II, ex. 16, Keane Dep. at 182-83, 204, 366, 373; R.67-4, Vol. III, ex. 18, Klisiak Dep. at 91). Sears allowed her to park in a handicapped space near the Intimate Apparel section, but even Klisiak understood that this spot "seemed farther away" from the swipe-in machine. (R.67-4, Vol. III, ex. 18, Klisiak Dep. at 137.) The accommodations that Sears offered either did not address Keane's needs at all, or were rescinded. Such ineffective and evanescent accommodations did not satisfy Sears' obligation to "do[ ] what is necessary to enable the disabled worker to work in reasonable comfort." Vande Zande v. Wisc. Dep't of Admin., 44 F.3d 538, 546 (7th Cir. 1995). Sears cannot argue that it acted in good faith in accommodating Keane because it stonewalled her for approximately eight months and never engaged her in any discussion about her limitations and her specific needs. While the reasonableness of an accommodation "does not depend solely on effectiveness or timeliness . . . reasonableness does depend on a good-faith effort to assess the employee's needs and to respond to them." Feliberty v. Kemper Corp., 98 F.3d 274, 280 (7th Cir. 1996). Sears utterly failed in this obligation. A jury could reasonably infer from Sears' actions over the eight months in which Keane sought reasonable accommodation that Sears "did not take [Keane's] condition or [her] request seriously." Id. The accommodation that Keane sought permission to walk through the shoe storeroom would not have cost Sears a dime. Sears was not obligated to offer the precise accommodation that Keane sought, but this Court has recognized that "employers should pay careful attention to employees' requests for accommodations." Id. Indeed, "the preference of the individual with a disability should be given primary consideration." Interpretive Guidance on Title I of the ADA, 29 C.F.R. Part 1630, App., 1630.9, at 364 (2003). Especially where, as here, the employee's preference would involve no cost to the employer, the employer should be hard-pressed to explain why it has chosen a different and less effective alternative, or no accommodation at all. A reasonable jury, making all permissible inferences in favor of Keane and the EEOC, could find that Sears did not lessen the obstacles affecting Keane's access to her work site in any meaningful way. The district court committed reversible error by removing the issue from the jury's consideration. CONCLUSION The district court could not have granted summary judgment to Sears if it had viewed all of the evidence in the light most favorable to the EEOC and Keane and had made all reasonable inferences in their favor. Under any understanding of the term, Keane was "substantially limited" in her ability to walk and was therefore disabled under the ADA. The evidence would permit a reasonable jury to find that Keane complied with her statutory obligations to Sears, but that Sears violated its reciprocal obligations to Keane. Because genuine issues of material fact preclude the award of summary judgment, the EEOC respectfully asks this Court to reverse and remand for trial. Respectfully submitted, ERIC S. DREIBAND General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ___________________________ GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7034 Washington, D.C. 20507 (202) 663-4055 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 11,622 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B). This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using WordPerfect 9.0 with 14 point Times New Roman. _______________________________ GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7034 Washington, D.C. 20507 (202) 663-4055 November 17, 2004 Appendix TABLE OF CONTENTS Seventh Circuit Rule 30(d) Statement . . . . . . . . . . . . .A-2 R.56, District Court's Initial Grant of Summary Judgment . . .A-3 R.96, Seventh Circuit's Reversal . . . . . . . . . . . . . . .A-7 R. 118, District Court's Renewed Grant of Summary Judgment (Order)A-20 R.118, District Court's Renewed Grant of Summary Judgment (Opinion)A-21 R.50, ex. 20 at S0013, Neurologist's Note to Sears . . . . . A-28 R.50, ex. 20 at S0014, General Practitioner's Note to Sears. A-29 Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002)A-30 A-1 SEVENTH CIRCUIT RULE 30(d) STATEMENT REGARDING APPENDIX I declare that all of the materials required by parts (a) and (b) of Seventh Circuit Rule 30 are included in the attached appendix. _______________________________ GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7034 Washington, D.C. 20507 (202) 663-4055 November 17, 2004 A-2 CERTIFICATE OF SERVICE I, Gail S. Coleman, hereby certify that I filed this brief and appendix with the Court by sending, via UPS, the original plus 15 copies and by uploading a digital version of the brief and portions of the appendix. I hereby certify that no digital version of the remaining appendix materials is available. I also certify that I served two copies of the brief and appendix, as well as a computer disk containing a digital version of the brief and all digitally available portions of the appendix, this 17th day of November, 2004, by first-class mail, postage pre-paid, to the following counsel of record: Brad J. Pawlowski Fritzshall Law Firm 309 W. Washington St., 9th Floor Chicago, IL 60606 Mary A. Smigielski Neal, Murdock & Leroy, LLC 203 North LaSalle Street, Suite 2300 Chicago, IL 60601-1213 _______________________________ GAIL S. COLEMAN Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 1801 L Street, N.W., Room 7034 Washington, D.C. 20507 (202) 663-4055