In the

United States Court of Appeals
              For the Seventh Circuit

No. 06-3278

E QUAL E MPLOYMENT O PPORTUNITY C OMMISSION,

                                              Plaintiff-Appellant,
                               v.


L EE’S L OG C ABIN , 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.



      A RGUED A PRIL 4, 2007—D ECIDED O CTOBER 6, 2008




  Before K ANNE, W ILLIAMS, and SYKES, Circuit Judges.
  S YKES, Circuit Judge. The Equal Employment Opportu-
nity 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
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 HIV-
positive. Addressing the claim as originally configured,
the court held the EEOC failed to make a threshold show-
ing that Stewart was a “qualified individual with a disa-
bility” 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 accom-
modated.
No. 06-3278                                               3

                      I. Background
  Korrin Krause Stewart was born with human immuno-
deficiency virus (“HIV”) but was not diagnosed until she
was fourteen years old. Shortly after diagnosis, she learned
her HIV already had developed into acquired immuno-
deficiency 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 allega-
tion 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

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 applica-
tion 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 sum-
mary 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 symp-



1
  The owner never interviewed Stewart, although he knew her
as a frequent restaurant customer.
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 eleventh-
hour attempt to shift the factual basis of the claim. Switch-
ing 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 statu-
tory 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., 

, 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,

, 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. C IV. 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., 

, 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.,

, 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.” 

. The ADA defines
“disability” as follows:
      The term “disability” means, with respect to an
    individual—
        (A) a physical or mental impairment that substan-
        tially 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 impli-
cates 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.,

, 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, “func-
tions 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, 

, 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 impair-
ment” and went on to conclude that the claimant’s HIV
infection substantially limited one of her major life activi-
ties—specifically, reproduction. 

This conclu-
sion was based on uncontroverted testimony from the
claimant “that her HIV infection controlled her decision
not to have a child.” 

  Here, the district court disallowed the EEOC’s attempt
to substitute AIDS for HIV as the factual basis of its
8                                                   No. 06-3278

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 syn-
onymous for all purposes under the ADA need not be
decided in this case. We note only that they are not syn-
onymous for the limited purpose relevant to the determi-
nation 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., 

, 679 (7th


2
  The district court might have seen this case differently had the
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 physi-
cian’s affidavit, and neither do we.
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, 

, 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, 

, 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, 

, 1964 (2007) (quoting Conley v.
Gibson, 

, 47 (1957)); Killingsworth v. HSBC Bank
Nev., N.A., 

, 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 character-
ized by “Mononucleosis-like symptoms” that “emerge
between six days and six weeks after infection” and “abate
within 14 to 21 

. The infection
then “enters what is referred to sometimes as its asymp-
tomatic 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.” 

                                                   No. 06-3278

Court noted that “in most instances, this stage lasts
from 7 to 11 years” before developing into AIDS. 

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-posi-
tive 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. 3 See 

(While


3
   Our dissenting colleague notes that “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.” 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 dis-
cusses) 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.” 

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...)
No. 06-3278                                                    11

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., 

, 811 (7th Cir. 1973))).
  It does no good for the EEOC to suggest, alternatively,
that the district court should have permitted an amend-
ment 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


3
   (...continued)
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.
12                                                   No. 06-3278

here. In any event, the EEOC never sought leave to amend
its complaint.4
   Accordingly, the district court did not abuse its discre-
tion 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


4
   It is unclear why the EEOC did not plead AIDS in its com-
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.
No. 06-3278                                                     13

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.” 

.
The Supreme Court emphasized that because the claim-
ant’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.” 

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 

,
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.


5
   In her affidavit Stewart states she was married in January
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 difficul-
ties 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.
14                                              No. 06-3278

Household Fin. Corp., 

, 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 individ-
ual 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, experi-
ence, 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 re-
quirement. The agency overstates this waitress’s limita-
tions; 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 ap-
plication question whether accommodations could be
made to overcome her lifting restriction. See DePaoli v.
Abbott Labs., 

, 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

permanent was thus immaterial.6 Accordingly, Stewart
was not a qualified individual under the ADA, and for
this additional reason, summary judgment in favor of
Log Cabin was appropriate.
                                                       A FFIRMED.




   W ILLIAMS, 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 re-
garding the effect that HIV (which had progressed to the
AIDS stage) had on Stewart’s life activities. The district


6
  The dissent offers an explanation for Stewart’s “no” answer to
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.
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 unrea-
sonable. A person diagnosed with AIDS is also HIV
positive. The majority upholds the district court’s judg-
ment 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, 

, 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. 

is diagnosed when a
No. 06-3278                                              17

person’s CD4+ cell count drops below 200, but some-
times persons with higher cell counts are diagnosed with
AIDS if they have certain diseases such as tuberculosis
or pneumocystis carinii pneumonia (PCP). See id.; 

; Doe v. University of Maryland Medical
System Corp., 

, 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., 

, 512-14 (2002);
Doe v. Smith, 

, 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 (mean-
ing 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 activi-
ties. 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 Stew-
art’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 

(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 cir-
cumstances); see also 29 C.F.R. pt. 1630, app. (note dis-
cussing § 1630.2(j)) (“HIV infection [is] inherently sub-
stantially 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., 

, 483 (1999); Albertson’s, Inc. v. Kirkingburg,

, 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 sub-
stantially limits her major life activities.
   As an initial matter, the evidence that the EEOC submit-
ted 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 undis-
puted that Stewart has both. In light of that, reliance on
the difference between HIV and AIDS to disregard evi-
dence regarding the effect that HIV has on Stewart’s life
is unreasonable.
   Furthermore, this is hardly a situation where the plain-
tiff 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

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.,

, 679 (7th Cir. 2005) (alleging disparate treat-
ment 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, 

, 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., 

(“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


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

,
520 (7th Cir. 2003) (“[L]iability for disability discrimination
does not require professional understanding of the plain-
tiff’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., 

, 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 disa-
bility 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 knowl-
edge. 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 tempo-
rary. 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 ap-
plication that there was no accommodation for her re-
striction. 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 disre-
garded evidence based on these assumptions. Had the
district court considered the evidence of Stewart’s disabil-
ity, 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