In the

United States Court of Appeals

For the Seventh Circuit

No. 06-3278

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellant,

v.

LEE’S LOG CABIN, INCORPORATED,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 05 C 507—Barbara B. Crabb, Chief Judge.

ARGUED APRIL 4, 2007—DECIDED OCTOBER 6, 2008

Before KANNE, WILLIAMS, and SYKES, Circuit Judges.

SYKES, Circuit Judge. The Equal Employment Opportunity Commission (“EEOC”) filed suit against Lee’s Log

Cabin restaurant in Wausau, Wisconsin, claiming it

violated the Americans with Disabilities Act (“ADA”)

when it refused to hire Korrin Krause Stewart for a waitstaff position because she was HIV-positive. After Log

Cabin moved for summary judgment, the EEOC switched
2 No. 06-3278

gears and claimed Log Cabin did not hire Stewart because

she had AIDS. The district judge thought the shift in

factual basis was consequential and came too late. A

disability attributed to AIDS, the court held, is “not

synonymous” with a disability attributed to being HIVpositive. Addressing the claim as originally configured,

the court held the EEOC failed to make a threshold showing that Stewart was a “qualified individual with a disability” under the ADA because it had not produced

evidence that being HIV-positive substantially limited one

or more of Stewart’s major life activities as required to

satisfy the ADA’s definition of “disability.” The court

entered summary judgment for Log Cabin, and the

EEOC appealed.

We affirm, although on slightly different grounds. The

district court was well within its discretion in refusing to

entertain the EEOC’s belated attempt to reconfigure its

claim. We need not address whether HIV and AIDS are

synonymous for all purposes under the ADA or whether

being HIV-positive (as distinct from having AIDS) is a

“disability” under the statute. The EEOC’s failed attempt

to substitute factual premises left an empty record on

whether Stewart’s HIV infection limited one or more of

her major life activities, and for that reason summary

judgment was appropriate. In addition, Stewart was not

a “qualified individual” under the ADA because the job

description for wait-staff positions at Log Cabin required

the ability to lift 25-30 pounds multiple times during a

shift, and she indicated on her application that she had

a 10-pound lifting restriction that could not be accommodated.
No. 06-3278 3

I. Background

Korrin Krause Stewart was born with human immunodeficiency virus (“HIV”) but was not diagnosed until she

was fourteen years old. Shortly after diagnosis, she learned

her HIV already had developed into acquired immunodeficiency syndrome (“AIDS”). In March 2004, when she

was 18, Stewart responded to a newspaper ad for a waitstaff position at Lee’s Log Cabin, a restaurant in Wausau,

Wisconsin. Stewart was aware from the job description

that the restaurant’s wait-staff had to lift between 25 and

30 pounds multiple times during a shift; she wrote on her

application that she had a lifting restriction of 10 pounds.

The next question on the application asked whether any

accommodations could be made so that she could perform

all of the required job duties, and Stewart indicated “no.”

Stewart maintains she verbally told Log Cabin’s assistant

manager, Curtis Zastrow, that her lifting restriction was

temporary; Zastrow denies she said anything about the

restriction being temporary.

A month went by and Stewart heard nothing from Log

Cabin, so she returned to the restaurant. Zastrow told her

the owner, Dean Lee, who was the decision-maker with

respect to new hires, was out of town. Zastrow also asked

Stewart if “she was the girl from Quality Foods.” That

question was prompted by a lawsuit Zastrow had read

about in the local paper. In 2002 the EEOC reached a

settlement on Stewart’s behalf stemming from an allegation that her then employer, Quality Foods, fired her

when it learned she was HIV positive. Stewart confirmed

she had worked at Quality Foods and then asked to revise
4 No. 06-3278

The owner never interviewed Stewart, although he knew her 1

as a frequent restaurant customer.

her Log Cabin application. Zastrow retrieved it, and

Stewart noticed that “HIV+” was written on the front of

the application; Zastrow acknowledged he had made

this notation. Lee eventually reviewed Stewart’s application and discussed the HIV notation with Zastrow. Lee

decided not to hire Stewart because she was unable to lift

more than 10 pounds and lacked waitressing experience.1

At the time Log Cabin employed two waitresses who had

no prior waitressing experience before being hired, in

addition to one waitress who could not lift heavy objects

over her head.

The EEOC filed suit alleging Log Cabin violated the

ADA, 42 U.S.C. § 12101 et seq., by failing to hire Stewart

“because it learned that she was HIV positive.” Stewart

actually had AIDS, but there was no mention of that until

the EEOC responded to Log Cabin’s motion for summary judgment. At that point (about a month before trial)

the EEOC filed affidavits from Stewart and her physician

discussing how AIDS (or in some instances “HIV/AIDS”)

affected Stewart’s life activities. Although the complaint

alleged Log Cabin discriminated against Stewart because

she was HIV-positive—not because she had AIDS—the

EEOC presented no evidence about how being HIVpositive alone affected Stewart. Moreover, Stewart’s

affidavit did not provide any information about her

limitations and symptoms at the time she applied for the

wait-staff position in 2004, focusing instead on her symp-
No. 06-3278 5

toms as they existed at the time she signed the affidavit

in 2006. Also, the EEOC submitted the affidavit from

Stewart’s physician even though the agency had failed to

timely disclose its expert and/or treating physicians—a

violation of the district court’s pretrial order.

The district court faulted the EEOC for its eleventhhour attempt to shift the factual basis of the claim. Switching the disability from HIV to AIDS was a “gross departure

from what [the EEOC] alleged in the initial stages of this

lawsuit and it comes too late,” the court held. Because

HIV and AIDS “are not synonymous” for purposes of the

ADA, the judge disregarded the affidavits from Stewart

and her physician. This left an evidentiary void; the

judge held that because the EEOC “adduced no evidence

regarding the effect of HIV on any of Stewart’s major life

activities,” the agency had failed to make a threshold

showing that Stewart’s HIV-positive status met the statutory definition of “disability.” Even if the AIDS claim

were properly before the court, the judge held, there was

no evidence that Log Cabin knew Stewart suffered from

AIDS. See Hedberg v. Ind. Bell Tel. Co., Inc., 47 F.3d 928, 932

(7th Cir. 1995) (“[A]n employer cannot be liable under the

ADA . . . when it indisputably had no knowledge of the

disability.”). Finally, the judge said it was “questionable”

whether Stewart was a “qualified individual” under the

ADA. The court entered summary judgment for Log Cabin

and the EEOC appealed.

II. Discussion

We review de novo a district court’s grant of summary

judgment, viewing the evidence in the light most favorable
6 No. 06-3278

to the nonmoving party. Healy v. City of Chicago,

450 F.3d 732, 738 (7th Cir. 2006). Summary judgment is

appropriate when “the pleadings, the discovery and

disclosure materials on file, and any affidavits show that

there is no genuine issue as to any material fact and that

the movant is entitled to judgment as a matter of law.” FED.

R. CIV. P. 56(c). We may affirm a judgment on any ground

supported in the record “so long as that ground was

adequately addressed in the district court and the

nonmoving party had an opportunity to contest the issue.”

Cardoso v. Robert Bosch Corp., 427 F.3d 429, 432 (7th Cir.

2005).

The ADA prohibits employment discrimination “against

a qualified individual with a disability because of the

disability.” 42 U.S.C. § 12112(a); Furnish v. SVI Sys., Inc.,

270 F.3d 445, 448 (7th Cir. 2001). To prevail on an ADA

claim, the plaintiff must show “(1) he is ‘disabled’; (2) he

is qualified to perform the essential function of the job

either with or without reasonable accommodation; and

(3) he suffered an adverse employment action because of

his disability.” Furnish, 270 F.3d at 448. The ADA defines

“disability” as follows:

The term “disability” means, with respect to an

individual—

(A) a physical or mental impairment that substantially limits one or more of the major life activities

of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.
No. 06-3278 7

42 U.S.C. § 12102(2); 29 C.F.R. § 1630.2(g). This case implicates only the first of these definitions.

“[W]hether a person has a disability under the ADA is

an individualized inquiry.” Sutton v. United Air Lines, Inc.,

527 U.S. 471, 483 (1999). This is because the statute

requires the disability issue to be determined by reference

to “an individual” and whether a given physical or

mental impairment “substantially limits” the “major life

activities of such individual.” Id.; see also § 12102(2)(A).

Major life activities include, but are not limited to, “functions such as caring for [one’s self], performing manual

tasks, walking, seeing, hearing, speaking, breathing,

learning, and working.” 29 C.F.R. § 1630.2(i).

The EEOC complicated the individualized “disability”

inquiry in this case by attempting, extremely late in the

litigation, to refashion its claim as one based on AIDS

rather than HIV. In Bragdon v. Abbott, 524 U.S. 624, 633-37

(1998), involving an ADA claimant who was HIV-positive

but had not yet developed AIDS, the Supreme Court

described the typical medical progression of an initial

HIV infection into the AIDS virus. The Court held that

HIV satisfies the statutory definition of a “physical impairment” and went on to conclude that the claimant’s HIV

infection substantially limited one of her major life activities—specifically, reproduction. Id. at 641-42. This conclusion was based on uncontroverted testimony from the

claimant “that her HIV infection controlled her decision

not to have a child.” Id. at 641.

Here, the district court disallowed the EEOC’s attempt

to substitute AIDS for HIV as the factual basis of its
8 No. 06-3278

The district court might have seen this case differently had the 2

EEOC complied with the pretrial order and timely disclosed its

medical expert, which presumably would have introduced this

new information about Stewart’s condition much earlier in the

case. The district court did not, however, explicitly invoke the

EEOC’s discovery violation as a reason to disregard the physician’s affidavit, and neither do we.

claim, holding, based on Bragdon, that the two are “not

synonymous” for purposes of the ADA. The judge thought

the EEOC’s substitution of AIDS for HIV as the operative

disability came “too late”—a month before trial and in its

response to Log Cabin’s summary judgment motion. The

judge therefore disregarded the affidavits submitted by

Stewart and her physician that described the effect of

AIDS—not HIV alone—on Stewart’s major life activities.

The EEOC argues on appeal that HIV and AIDS are

the same disease when a person has AIDS, and therefore

the district court abused its discretion by refusing to

consider the affidavits. Whether HIV and AIDS are synonymous for all purposes under the ADA need not be

decided in this case. We note only that they are not synonymous for the limited purpose relevant to the determination at issue here—whether to entertain the EEOC’s

belated alteration of the factual basis of its claim—and

the district court’s judgment in this regard was manifestly

reasonable. The very first mention of AIDS came in the

EEOC’s response to Log Cabin’s motion for summary

judgment, and the court was entitled to regard this as

“too late” to change so basic a factual premise in the case.

2

See Conner v. Ill. Dep’t of Natural Res., 413 F. 3d 675, 679 (7th
No. 06-3278 9

Cir. 2005) (upholding district judge’s refusal to consider

a claim raised for the first time in a response to summary

judgment); Grayson v. O’Neill, 308 F.3d 808, 817 (7th Cir.

2002) (holding plaintiff “ ‘may not amend his complaint

through arguments in his brief in opposition to a motion

for summary judgment’ ” (quoting Shanahan v. City of

Chicago, 82 F.3d 776, 781 (7th Cir. 1996))).

Federal pleading rules require the plaintiff to “ ‘give the

defendant fair notice of what the . . . claim is and the

grounds upon which it rests.’ ” Bell Atlantic Corp. v.

Twombly, 127 S. Ct. 1955, 1964 (2007) (quoting Conley v.

Gibson, 355 U.S. 41, 47 (1957)); Killingsworth v. HSBC Bank

Nev., N.A., 507 F.3d 614, 618 (7th Cir. 2007). The EEOC’s

complaint gave notice that its ADA claim was grounded

on discrimination against Stewart because she was HIVpositive, not because she had AIDS. This was not a mere

adjustment in the legal theory of the case, as the EEOC

contends; it was a major alteration of “what the claim is”

and the “grounds upon which it rests.”

In Bragdon, the Supreme Court described the typical

progression of an HIV infection; its initial stage, the Court

noted, usually lasts about three months and is characterized by “Mononucleosis-like symptoms” that “emerge

between six days and six weeks after infection” and “abate

within 14 to 21 days.” 524 U.S. at 635. The infection

then “enters what is referred to sometimes as its asymptomatic phase,” although the Court said “[t]he term is a

misnomer, in some respects, for clinical features persist

throughout, including lymphadenopathy, dermatological

disorders, oral lesions, and bacterial infections.” Id. The
10 No. 06-3278

Our dissenting colleague notes that “persons with AIDS do 3

not cease to be HIV positive; once someone is HIV positive or

is infected with HIV, she is always HIV positive.” Dissent, at

p. 17. This is true but beside the point. No one is suggesting that

Stewart ceased being HIV-positive once she developed AIDS.

Rather, our opinion holds only that because (as Bragdon discusses) the physical effects of AIDS are different—more

severe—than those associated with being HIV-positive, the

district court was within its discretion to reject the EEOC’s late

attempt to substitute AIDS for HIV as the factual basis for

Stewart’s ADA claim. The dissent also notes that “having AIDS

is not inconsistent with being HIV positive.” Id. This is also true,

but being HIV-positive is not the same as having AIDS, as the

Supreme Court discusses at length in Bragdon. And that’s the

(continued...)

Court noted that “in most instances, this stage lasts

from 7 to 11 years” before developing into AIDS. Id. The

ADA’s applicability depends upon whether the

claimant’s asserted impairment is a “disability” within the

meaning of the statute; this, in turn, depends upon

whether the asserted impairment “substantially limits

one or more of the major life activities” of the claimant.

Given the symptomatic variances in the different stages

of this disease, whether an ADA claimant was HIV-positive or had full-blown AIDS at the time of the alleged

discrimination is highly relevant to this foundational

aspect of the claim. The EEOC has not explained why

it waited until its response to summary judgment, a

month before trial, to disclose that Stewart had AIDS

and that this was the actual basis for the discrimination

alleged in the case. See Conner, 413 F.3d at 679 (While 3
No. 06-3278 11

(...continued) 3

material point as to notice here. Log Cabin and the district

court did not know until a month before trial that Stewart had

AIDS and that the EEOC was actually basing Stewart’s disability

claim on her AIDS symptoms. The dissent also asserts that “[i]t

is undisputed that at all relevant times, Stewart was not only

HIV positive . . . but she also had AIDS. So the allegation in the

complaint that Stewart was ‘HIV positive’ is consistent with the

fact that she has AIDS.” Dissent, at p. 18. No, it’s not, but the

opposite is true. That is, an allegation that Stewart has AIDS is

consistent with an allegation that she was HIV-positive, but not

vice versa. If a person has AIDS she is necessarily HIV-positive;

but a person who is HIV-positive does not necessarily have

AIDS. It is undisputed that at the time Stewart applied for the

job and throughout this litigation, Log Cabin knew that

Stewart was HIV-positive, not that she had AIDS. That it is now

known and undisputed that she actually has AIDS does not

excuse the EEOC’s late introduction of that information into

this litigation.

pleading is not a “ ‘game of skill,’ ” it nevertheless is

“vitally important to inform the opposing party of the

grounds upon which a claim rests; a complaint is adequate

only if it ‘fairly notifies a defendant of matters sought to be

litigated.’ ” (quoting Sundstrand Corp. v. Standard Kollsman

Indus., Inc., 488 F.2d 807, 811 (7th Cir. 1973))).

It does no good for the EEOC to suggest, alternatively,

that the district court should have permitted an amendment to the complaint under Rule 15(b) of the Federal Rules

of Civil Procedure. Rule 15(b) concerns amendments that

may be permitted in order to conform the pleadings to

the evidence submitted at trial, which is not at issue
12 No. 06-3278

It is unclear why the EEOC did not plead AIDS in its com- 4

plaint or reference it in the parties’ Rule 26(f) report, although

the most logical explanation is that there is no evidence Log

Cabin was aware Stewart had AIDS. That Log Cabin did not

know Stewart had AIDS is an alternative basis to affirm,

assuming the EEOC’s late attempt to reconstitute the claim

should have been allowed. The dissent faults this conclusion,

noting that “we have never held that an employer who acts

improperly on the basis of a disability need know the extent

to which the disability has progressed to be held liable.” Dissent,

at p. 22. Our opinion does not suggest that this is required. We

hold only that the EEOC’s belated attempt to substitute AIDS

for HIV as the basis for this ADA claim came too late. This is

because the threshold “disability” determination turned on the

extent to which Stewart’s impairment limited her major life

activities, and an AIDS sufferer’s symptoms (and their effect on

her major life activities) differ from those of someone who

is HIV-positive but has not yet developed AIDS.

here. In any event, the EEOC never sought leave to amend

its complaint.4

Accordingly, the district court did not abuse its discretion in disregarding the affidavits submitted by Stewart

and her physician describing the effect of AIDS on her

life activities. This meant the record was silent about

the effect of HIV on Stewart’s life activities, leading

necessarily to the court’s conclusion that the EEOC had not

made a threshold evidentiary showing of a covered

disability within the meaning of the ADA. The agency

argues this was error under Bragdon because a reasonable

juror could conclude that Stewart’s HIV infection

imposed substantial limitations on her reproduction, a
No. 06-3278 13

In her affidavit Stewart states she was married in January 5

2005, became pregnant in August 2005, and on March 22, 2006,

gave birth to a baby boy who has tested negative for HIV. The

affidavit describes the precautions she undertook and difficulties she encountered during pregnancy because of her AIDS, and

steps she and her husband (who also has AIDS) have taken

since the birth of their child to avoid future pregnancies. Because

the district court was within its discretion to disregard this

affidavit—and the one submitted by Stewart’s doctor—this

evidence lies outside the record. (We also note again that the

time period covered by this section of Stewart’s affidavit

postdates the time period at issue in this case.) Necessarily

then, the EEOC is asking for a per se rule that HIV is a disability

under the ADA because of its effects on reproduction.

major life activity. This is a misreading of Bragdon, which

was based on the “unchallenged” testimony of the ADA

claimant in that case that “her HIV infection controlled

her decision not to have a child.” Bragdon, 524 U.S. at 641.

The Supreme Court emphasized that because the claimant’s testimony was uncontroverted in this regard, the

Court “need not address the second question presented,

i.e., whether HIV infection is a per se disability under the

ADA.” Id. at 642. The EEOC’s argument here essentially

asks us to hold that HIV is a per se disability under

the ADA because of its effect on reproduction. In light 5

of the qualifying language in Bragdon and the Court’s

holding in Sutton that the question of disability under

the ADA “is an individualized inquiry,” 527 U.S. at 483,

we decline to adopt such a rule.

This brings us to the question whether Stewart was a

“qualified individual” under the ADA. See Weiler v.
14 No. 06-3278

Household Fin. Corp., 101 F.3d 519, 524 (7th Cir. 1996)

(stating plaintiff bears burden of proof on this point). Log

Cabin argues she was not, and this is an additional or

alternative basis upon which to affirm. A qualified individual is “an individual with a disability who, with or

without reasonable accommodation, can perform the

essential functions of the employment position that such

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

individual must also “satisf[y] the requisite skill, experience, education and other job-related requirements of

the employment position.” 29 C.F.R. § 1630.2(m).

Log Cabin required its wait-staff employees to lift,

transport, and carry objects weighing from 25 to 30 pounds

up to 20 or more times per shift, and Stewart indicated

on her job application that she could not lift more than

10 pounds. The EEOC claims Log Cabin’s heavy-lifting

requirement is pretextual, and as proof points to one

waitress at the restaurant who could not meet the requirement. The agency overstates this waitress’s limitations; she could handle the lifting required by the job, she

simply could not lift over her head. Log Cabin was able

to accommodate her “no overhead lifting” limitation.

Stewart, on the other hand, answered “no” to the application question whether accommodations could be

made to overcome her lifting restriction. See DePaoli v.

Abbott Labs., 140 F.3d 668, 674 (7th Cir. 1998) (holding

plaintiff “faces an insurmountable problem” because she

proposed no accommodation that would permit her to

perform the production-worker job). The factual dispute

over whether the lifting restriction was temporary or
No. 06-3278 15

The dissent offers an explanation for Stewart’s “no” answer to 6

the accommodation question on the job application, suggesting

that “if [Stewart] believed the [lifting] restriction would not be

an issue by the time she began the position, there would be no

reason for the Log Cabin to have to ‘accommodate’ her.”

Dissent, at p. 23. But an employer is entitled to take at face value

a job applicant’s “no” answer to a question about whether a

disability can be accommodated. Stated differently, Stewart’s

subjective reasons for answering “no” to the accommodation

question cannot be imputed to Log Cabin.

permanent was thus immaterial. Accordingly, Stewart 6

was not a qualified individual under the ADA, and for

this additional reason, summary judgment in favor of

Log Cabin was appropriate.

AFFIRMED.

WILLIAMS, Circuit Judge, dissenting. Because I would

reverse the district court’s grant of summary judgment

to Log Cabin, I respectfully dissent. The EEOC alleged in

its complaint that Log Cabin violated the ADA when

it refused to hire Stewart upon learning “that she

was HIV positive,” and then submitted evidence regarding the effect that HIV (which had progressed to the

AIDS stage) had on Stewart’s life activities. The district
16 No. 06-3278

court struck that evidence on the basis of its judgment

that a disability claim based on AIDS is a “gross departure”

from a claim based on “being HIV positive.” Not only

does this distinction improperly focus on the name of

Stewart’s disability rather than its effects on her life

activities, but it also is erroneous and therefore unreasonable. A person diagnosed with AIDS is also HIV

positive. The majority upholds the district court’s judgment as manifestly reasonable because it views the

EEOC as having belatedly refashioned its claim from

one involving HIV to one involving AIDS. In my view,

however, the EEOC did not change its claim, and the

evidence submitted to demonstrate that Stewart is

disabled should not have been disregarded on the basis

of a distinction that has no meaning in this case.

Once a person is infected with HIV (or is “HIV positive”)

that person remains HIV positive until his death. “HIV

infection” (which is often shortened to “HIV” or “HIV

disease”) refers to a single disease that is characterized

by the progressive loss of CD4+ lymphocytes (or white

blood cells). The Supreme Court has described the

disease as having three stages—acute, chronic, and AIDS.

See generally Bragdon v. Abbott, 524 U.S. 624, 633-37 (1998)

(describing the progression of HIV infection). The Center

for Disease Control now recognizes five, rather than three,

stages of HIV infection. See Center for Disease Control,

Living With HIV/AIDS, http://www.cdc.gov/hiv/resources/

brochures/livingwithhiv.htm#q2 (last visited August 31,

2008).

AIDS is the final stage of HIV, but there is no single test

to diagnose AIDS. Id. Usually AIDS is diagnosed when a
No. 06-3278 17

person’s CD4+ cell count drops below 200, but sometimes persons with higher cell counts are diagnosed with

AIDS if they have certain diseases such as tuberculosis

or pneumocystis carinii pneumonia (PCP). See id.; Bragdon,

524 U.S. at 633-36; Doe v. University of Maryland Medical

System Corp., 50 F.3d 1261, 1262 n.3 (4th Cir. 1995) (“AIDS

is the end-stage of HIV infection and is characterized by

the presence of HIV and one or more ‘opportunistic’

infections”). In other words, an AIDS diagnosis can mean

different symptoms for different people, and it does not

necessarily represent a change in debilitation from the

earlier stages of HIV. Rather, individuals suffer from

the effects of HIV/AIDS at various stages in different ways.

HIV and AIDS are not separate diseases. Importantly,

persons with AIDS do not cease to be HIV positive; once

someone is HIV positive or is infected with HIV, she

is always HIV positive. Nor do persons with AIDS no

longer suffer from HIV infection.

Therefore, having AIDS is not inconsistent with being

HIV positive, nor is it a new “cause of action” under the

ADA. By the time Stewart applied for a position as a

waitress at Log Cabin, she was both HIV positive and had

AIDS. Though she did not reveal this to Log Cabin at the

time she applied for the job, a manager at the restaurant

discovered she was infected with HIV and wrote “HIV +”

in large capital letters across her application. Stewart

was not hired. Pursuant to the federal notice pleading

standard, the EEOC’s complaint, which merely initiated

this litigation, provided a short and plain statement of

the grievance: Log Cabin refused to hire Stewart
18 No. 06-3278

“because it learned she was HIV positive.” Any facts

consistent with the complaint’s allegations could be

proved later and did not require an amended complaint.

See Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512-14 (2002);

Doe v. Smith, 429 F.3d 706, 708 (7th Cir. 2006).

To meet its threshold burden of proving that Stewart is

disabled as defined by the ADA, the EEOC submitted

evidence that Stewart’s condition (which the affidavits

refer to as “AIDS” or “HIV/AIDS”) substantially limits

one or more of her major life activities. The district court

acknowledged that Stewart’s disease (AIDS) caused serious

limitations on a number of major life activities, including

self-care, eating, and reproduction. But, inexplicably, it

held that this evidence only pertained to the “AIDS claim”

and could not be considered towards the “HIV claim,” and

therefore that there was no evidence that Stewart’s

HIV substantially impaired any major life activity.

This, to me, is illogical. It is undisputed that at all

relevant times, Stewart was not only HIV positive (meaning she had HIV—the virus), but she also had AIDS. So

the allegation in the complaint that Stewart was “HIV

positive” is consistent with the fact that she has AIDS. It

follows that the evidence regarding the impact that

“HIV/AIDS” or AIDS has on Stewart’s life activities

describes the impact that HIV has on Stewart’s life activities. Although the district court appears to have thought

it necessary for Stewart to submit evidence of how HIV

“alone” affects her life in order to provide evidence

consistent with her complaint, that is impossible in Stewart’s case. The effects of AIDS on her life activities are
No. 06-3278 19

not severable from the effects of HIV. Put another way,

proof that Stewart’s major life activities are affected

by AIDS is not different from proof that her major life

activities are affected by HIV.

Indeed, whether one calls Stewart’s disease “HIV” or

“AIDS” or “HIV/AIDS” misses the point of the ADA. “The

determination of whether an individual has a disability

is not necessarily based on the name or diagnosis of the

impairment the person has, but rather on the effect of that

impairment on the life of the individual.” 29 C.F.R. pt.

1630, app., § 1630.2(j); see Bragdon, 524 U.S. at 637

(holding that the “HIV infection satisfies the statutory

and regulatory definition of a physical impairment during

every stage of the disease” but leaving it to courts to

make a disability determination based on individual circumstances); see also 29 C.F.R. pt. 1630, app. (note discussing § 1630.2(j)) (“HIV infection [is] inherently substantially limiting.”). What matters in analyzing whether

an individual has a “disability” for purposes of the ADA

is the impact of that condition. Sutton v. United Airlines,

Inc., 527 U.S. 471, 483 (1999); Albertson’s, Inc. v. Kirkingburg,

527 U.S. 555, 566 (1999).

Because the EEOC presented evidence demonstrating

that Stewart’s disease—regardless of whether her disease

is called “HIV,” “HIV/AIDS” or “AIDS”—substantially

limits one or more of Stewart’s major life activities, it met

its burden of demonstrating that Stewart is “disabled” for

purposes of the ADA. The names of the stages of this

particular disease (HIV) are inconsequential; what

matters is the impact of the disease on the individual. The
20 No. 06-3278

district court erred in refusing to consider that evidence

on the basis that different names were used to describe

Stewart’s disability.

Despite this evidence, the majority opinion affirms the

grant of summary judgment to Log Cabin on the

rationale that the district court’s determination that the

EEOC was belatedly altering the factual basis of its claim

was “manifestly reasonable.” But I do not see how the

EEOC was trying to “alter” its claim—that Stewart was

discriminated against because she was HIV positive—by

submitting evidence of how Stewart’s HIV/AIDS substantially limits her major life activities.

As an initial matter, the evidence that the EEOC submitted to prove Stewart is “disabled” for purposes of the

ADA is consistent with her complaint, so the EEOC was

not changing its claim. To the extent there is a difference

between HIV and AIDS (not all people with HIV have

AIDS), the majority’s focus on nomenclature overlooks

whether that difference is consequential in this case.

Even if all people with HIV do not have AIDS, it is undisputed that Stewart has both. In light of that, reliance on

the difference between HIV and AIDS to disregard evidence regarding the effect that HIV has on Stewart’s life

is unreasonable.

Furthermore, this is hardly a situation where the plaintiff attempted to reconfigure its claim, or where the

complaint failed to give the defendant fair notice of the

plaintiff’s claim. The EEOC did not allege in its complaint

that Stewart was fired because she had a cold and then

provide evidence that she had cancer. That, to me, would
No. 06-3278 21

To the extent that timing is an issue, it bears noting that the 1

EEOC’s summary judgment response (with the affidavits) was

submitted a month before trial due to a mistake by Log Cabin,

who failed to properly serve the EEOC with its motion for

summary judgment until April 21, 2006 (well past the court’s

deadline for filing dispositive motions) at which point the

district court was forced to revise its entire briefing schedule.

be more similar to the cases cited by the majority for the

proposition that a court need not entertain belated

factual alterations. See Conner v. Ill. Dep’t of Natural Res.,

413 F.3d 675, 679 (7th Cir. 2005) (alleging disparate treatment based on the failure to receive pay for extra work

is different from alleging discrimination based on the

denial of a promotion or a hostile work environment

claim); Grayson v. O’Neill, 308 F.3d 808, 817-18 (7th Cir.

2002) (a retaliation claim based on an EEOC complaint

filed on one date is distinct from a retaliation claim based

on another EEOC complaint filed two months later).

Rather, AIDS is one stage of HIV (similar to what “stage

four cancer” might be to “cancer”), and HIV is a disease

that can render someone “disabled” at all stages of the

disease. AIDS is not a “substitute” disease for HIV.1

The majority relies on Bragdon to contend that the

physical effects of AIDS are different—more severe—than

those “associated with” being HIV positive. But Bragdon

does not characterize AIDS as distinct from being HIV

positive. See, e.g., Bragdon, 524 U.S. at 636 (“During [the

AIDS] stage, the clinical conditions most often associated

with HIV, such as pneumocystis carninii pneumonia,

Kaposi’s sarcoma, and non-Hodgkins lymphoma, tend to
22 No. 06-3278

appear.”) (emphasis added). Rather, the Supreme Court

described the course of illness for a person who is HIV

positive as having three stages—acute HIV, chronic HIV,

and AIDS.

The majority also concludes that because Log Cabin did

not know Stewart had AIDS, she could not have relied on

evidence regarding the impact of AIDS on her life

activities even if the district court had considered it. But

we have never held that an employer who acts

improperly on the basis of a disability need know the

extent to which the disability has progressed to be held

liable. See Sanglap v. LaSalle Bank, FSB, 345 F.3d 515,

520 (7th Cir. 2003) (“[L]iability for disability discrimination

does not require professional understanding of the plaintiff’s condition. . . . It is enough to show that the defendant

knew of symptoms raising an inference that the plaintiff

was disabled.”); cf. Hedberg v. Ind. Bell Tel. Co., Inc., 47

F.3d 928, 932 (7th Cir. 1995) (an employer who has no

knowledge of a disability whatsoever cannot be found to

have been motivated by that disability).

This is not a case where Log Cabin had no knowledge

of Stewart’s disability. It is undisputed Log Cabin knew

she was HIV positive. And there is evidence linking Log

Cabin’s knowledge of Stewart’s disability to its adverse

action (Log Cabin prominently wrote “HIV+” on her

employment application), which distinguishes this case

from the rule of Hedberg. Hedberg does not stand for

the proposition that an employer who knows of a disability must properly diagnose that disability before it can

be held liable for acting on the basis of it. So I do not see
No. 06-3278 23

why the EEOC would need to demonstrate that Log Cabin

knew her HIV infection had progressed to its final stage

in order to hold Log Cabin liable for acting on that knowledge. Indeed, Log Cabin maintains that its reasons for not

hiring Stewart had nothing to do with her disability.

This brings me to whether the EEOC demonstrated

that Stewart was qualified for the position. Log Cabin

asserts on appeal that it is an absolute requirement for

waitresses to be able to lift 25-30 pounds. However, that

assertion is undermined by Log Cabin’s owner, who

when asked at a deposition whether having a lifting

restriction “eliminates” someone from being employed as

a waitress at the restaurant, responded “not necessarily.”

Therefore, there is a material dispute as to whether the

lifting requirement is an absolute requirement of the

waitress job for which Stewart applied.

Even assuming the lifting requirement is an absolute

one, there is a material dispute as to whether Stewart was

not qualified since her lifting restriction was only temporary. Though she noted on her application that there

was no way Log Cabin could accommodate her inability

to lift more than ten pounds, she also contemporaneously

told Log Cabin that her inability to do so was temporary.

Indeed, that would explain why she wrote on her application that there was no accommodation for her restriction. If she believed the restriction would not be an

issue by the time she began the position, there would be

no reason for the Log Cabin to have to “accommodate”

her. Therefore, a reasonable jury could find that Stewart

was qualified for the job.
24 No. 06-3278

It is unfortunate to me that the district court’s focus on

nomenclature obscured the real inquiry in this case, which

is whether Log Cabin discriminated against Stewart.

Indeed, I wonder if this case would have fared differently

if the last stage of HIV were called “Stage 5 HIV” instead

of “AIDS.” Because there is no meaningful difference

between a discrimination claim based on being “HIV

positive” and a discrimination claim based on “AIDS”

when the claimant has AIDS, and because I do not believe

it is possible for a person diagnosed with AIDS to provide

evidence of how HIV alone affects her major life activities,

the district court abused its discretion when it disregarded evidence based on these assumptions. Had the

district court considered the evidence of Stewart’s disability, the EEOC would have met its threshold burden of

demonstrating that Stewart was disabled for purposes of

the ADA. I would reverse.

10-6-08