Equal Employment Opportunity Commission v. Lee's Log Cabin, Inc.

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 wait-staff position because she was HIV-positive. After Log Cabin moved for summary judgment, the EEOC switched 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 HIV-positive. 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.

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 wait-staff 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 *441revise her Log Cabin application. Zas-trow 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 HIV-positive 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 symptoms 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 physi-dans — a violation of the district court’s pretrial order.

The district court faulted the EEOC for its eleventh-hour 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 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 *442issue 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.

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

“[Wjhether a person has a disability under the ADA is an individualized inquiry.” Sutton v. United Air Lines, Inc., 527 U.S. 471, 483, 119 S.Ct. 2139, 144 L.Ed.2d 450 (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®.

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, 118 S.Ct. 2196, 141 L.Ed.2d 540 (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, 118 S.Ct. 2196. 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, 118 S.Ct. 2196.

Here, the district court disallowed the EEOC’s attempt to substitute AIDS for HIV as the factual basis of its 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 dis*443trict 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 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, 550 U.S. 544, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (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 HIV-positive, 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, 118 S.Ct. 2196. 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 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 *444case.3 See Conner, 413 F.3d at 679 (While 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 Buies 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 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 *445reasonable juror could conclude that Stewart’s HIV infection imposed substantial limitations on her reproduction, a major life activity. This is a misreading of Brag-don, 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, 118 S.Ct. 2196. The Supreme Court emphasized that because the claimant’s testimony was uncon-troverted 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, 118 S.Ct. 2196. 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.5 In light 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, 119 S.Ct. 2139, 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. 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 “satisffy] 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 permanent was thus immaterial.6 Accordingly, Stewart was not a *446qualified individual under the ADA, and for this additional reason, summary judgment in favor of Log Cabin was appropriate.

Affirmed.