No. 06-3278 ______________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT ________________________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. LEE'S LOG CABIN, INC., Defendant-Appellee. ________________________________________________________________ On Appeal from the United States District Court for the Western District of Wisconsin, No. 05-C-507-C The Honorable Barbara C. Crabb _________________________________________________________________ REPLY BRIEF OF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS PLAINTIFF-APPELLANT _________________________________________________________________ RONALD S. COOPER PAULA R. BRUNER General Counsel Attorney LORRAINE C. DAVIS EQUAL EMPLOYMENT Acting Associate General Counsel OPPORTUNITY COMMISSION 1801 L Street, N.W., Rm. 7806 CAROLYN L. WHEELER Washington, D.C. 20507 Assistant General Counsel (202) 663-4731(w) (202) 663-7090 (fax) TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . ii INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . .1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .3 A.Summary Judgment Cannot Be Upheld on the Ground that Log Cabin Failed To Discover that Stewart Had a Substantially Limiting Impairment Until the Commission Filed its Brief in Opposition to Summary Judgment . . . . . . . . . . . . . . . . . . . . . . . .3 B.Summary Judgment Should Be Reversed Because There Is a Triable Question Whether Log Cabin Was Sufficiently Aware of Stewart's Condition To Be Held Liable for Disability Discrimination. . . 13 C.Summary Judgment Should Be Reversed Because There Is Undisputed Evidence that Stewart Was Substantially Limited by the HIV Infection at the Time Log Cabin Refused To Hire Her. . . . . . . . . . . 15 D.Summary Judgment Cannot Be Affirmed on the Alternative Ground that Stewart Was Not a Qualified Individual. . . . . . . . . . 19 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 20 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Albertsons, Inc. v. Kirkingburg, 527 U.S. 555 (1999). . . . . . . . . . . . . . . . . . . . . . . . . . 5 Albiero v. City of Kankakee, 122 F.3d 417 (7th Cir. 1997). . . . . . .10 Black v. Roadway Express, Inc., 297 F.3d 445 (6th Cir. 2002) . . . . . . . . . . . . . . . . . . . . .16 Bragdon v. Abbott, 524 U.S. 624 (1998). . . . . . . . . . . . . . . . . . . . . . . . .6,18 EEOC v. Sears, Roebuck & Co., 417 F.3d 789 (7th Cir. 2005). . . . . . . . . . . . . . . . . . . . .17 Fiscus v. Wal-Mart Stores, Inc., 385 F.3d 378 (3d Cir. 2004). . . . . . . . . . . . . . . . . . . . . .18 Grayson v. O'Neill, 308 F.3d 808 (7th Cir. 2002) . . . . . . . . . . . . . . . . . .9-10, 11 Hedberg v. Indiana Bell Tel. Co., Inc., 47 F.3d 928 (7th Cir. 1995). . . . . . . . . . . . . . . . . . . . . .15 Holiday v. City of Chattanooga, 206 F.3d 637 (6th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . 6 Katz v. City Metal Co., Inc., 87 F.3d 26 (1st Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . 7 Marinelli v. City of Erie, 216 F.3d 354 (3d Cir. 2000). . . . . . . . . . . . . . . . . . . . . 7,8 Sanglap v. LaSalle Bank, 345 F.3d 515 (7th Cir. 2003) . . . . . . . . . . . . . . . . . . . 14-15 Speer v. Rand McNally & Co., 123 F.3 658 (7th Cir. 1997). . . . . . . . . . . . . . . . . . . . . .12 Taylor v. Pathmark Stores, Inc., 177 F.3d 180 (3d Cir. 1999). . . . . . . . . . . . . . . . . . . . . 5,6 Toyota Motor Mfg. Ky., Inc. v. Williams, 534 U.S. 184 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . 4 Walker v. Thompson, 28F.3d 1005 (7th Cir. 2002). . . . . . . . . . . . . . . . . . . . 10-12 REGULATIONS AND RULES 29 C.F.R. Pt. 1630, App. § 1630.2(j) . . . . . . . . . . . . . . . . . 5 Fed R. Civ. P. 15(b) . . . . . . . . . . . . . . . . . . . . . . . . .10 INTRODUCTION The Commission appealed in this case because, despite having found that Korrin Krause Stewart had AIDS and was substantially limited in several major life activities, including reproduction, the district court granted summary judgment for Log Cabin. The court based its decision on the fact the Commission's complaint used the phrase HIV+, rather than AIDS, in explaining the discriminatory action it challenged in this suit. The court thought the Commission's proffer response to Log Cabin's motion for summary judgment—of evidence that Stewart's infection had progressed to full-blown AIDS and that she was limited by her illness in a variety of major life activities—essentially constituted the belated assertion of a new claim it saw as a "gross departure" from the original allegation. R.39, Op. at 7. Thus, the court refused to entertain the action. The court alternatively held that even if it were to allow the claim to go forward, the Commission's case would fail because the Commission had produced no evidence that Log Cabin knew that Stewart had AIDS. Id. Finally, the court held that the "only claim properly before the court," of discrimination on the basis of HIV, id., failed because, in the court's view, there was "no evidence regarding the impact of HIV on any of Stewart's major life activities." Id. at 8. In its opening brief, the Commission explained that the district court's decision reflected a profound misunderstanding of the nature of HIV infection and AIDS and a mistaken emphasis on nomenclature at the expense of conducting the required statutory analysis of whether Stewart's HIV impairment was substantially limiting. EEOC Br. at 14-17. The Commission argued that summary judgment was inappropriate because the Commission's evidence at least raised a triable question whether Log Cabin had sufficient knowledge of Stewart's impairment to be held liable for discrimination under the ADA for its decision not to hire her, id. at 17-21, and undisputed evidence established that Stewart was substantially limited in a number of major life activities, id. at 21-25. Finally, the Commission argued that summary judgment could not be affirmed on the alternative ground that Stewart was not qualified for the waitress position for which she applied because there were genuine issues of fact requiring a jury determination of that issue. Id. at 25-27. In response, Log Cabin concedes that Stewart has AIDS and does not dispute the district court's findings that she is "severely restrict[ed]" in "normal day-to-day activities" and "faces serious limitations in the areas of self-care, relating to others and reproduction." Log Cabin Br. at 12 (quoting district court findings at R.39, p. 5 and stating, "Lee's does not dispute these facts as found by the court."). Despite these concessions, Log Cabin defends the court's entry of summary judgment based on several faulty assertions—that being infected with HIV does not constitute a covered disability under the ADA, that it needed to do no discovery to determine whether its assumptions about HIV were correct in this case, and that its strategic decisions were justified by the EEOC's failure to identify a treating physician who might be called as a witness. There is no merit to Log Cabin's argument that these assertions entitle it to prevail as a matter of law despite uncontroverted evidence of Stewart's disability and triable questions of fact about Log Cabin's knowledge of her disability and her qualifications to do the job. Log Cabin Br. at 15-26. ARGUMENT The central question on appeal—whether the district court erred in granting summary judgment on this record—is not illuminated by a litany of complaints about the EEOC's choice of words in its complaint or its decision not to use medical experts as witnesses. Nevertheless, because Log Cabin spends considerable time in its brief reiterating these concerns, the Commission will address them before turning to the substantive issues. A. Summary Judgment Cannot Be Upheld on the Ground that Log Cabin Failed To Discover that Stewart Had a Substantially Limiting Impairment Until the Commission Filed its Brief in Opposition to Summary Judgment. Log Cabin frequently and erroneously contends that the EEOC alleged that Stewart's disability was HIV until it asserted that Stewart had AIDS in its summary judgment opposition. Log Cabin Br. at 16, 21, 22, 25, 33. Contrary to Log Cabin's and the district court's view, the Commission did not allege that Stewart's disability was having the HIV infection; rather, the Commission alleged the factual predicate for its claim of disability discrimination—that Log Cabin did not hire Stewart after learning she was HIV-positive. See R.2, Complaint at 1 (alleging that defendant "failed to hire Korrin Krause . . . after learning she was . . . [HIV] positive"); R.5. Joint PPTC Report at 1 (identifying the issue as "[w]hether Defendant discriminated against Krause because of her HIV status"). These statements accurately identify Stewart's impairment and convey the nature of the Commission's claim of disability discrimination. As the Commission argued in its opening brief, Federal Rule of Civil Procedure 8 requires no more. EEOC Br. at 10-12. Thus, the Court should reject Log Cabin's contention that the EEOC's reference to HIV instead of AIDS misled it about Stewart's disability, when, in fact, it relied on its own incorrect interpretation of the Commission's pleading. Additionally, Log Cabin's claim that it failed to conduct any discovery about Stewart's medical condition merely because the EEOC mentioned HIV in its complaint and did not name Stewart's treating physician during discovery, Log Cabin Br. at 21-23, is specious. Log Cabin admits understanding that there is a distinction between pre-AIDS HIV and post-AIDS HIV. Id. at 19-21. The law requires an individualized assessment of any alleged impairment, which can affect people differently. Toyota Motor Mfg. Ky., Inc. v. Williams, 534 U.S. 184, 199 (2002) ("[a]n individualized assessment of the effect of an impairment particularly necessary in determining whether the impairment is a disability under the ADA when the impairment is one whose symptoms vary widely from person to person"); Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, 566 (1999) (holding that the ADA imposes a statutory obligation to determine the existence of disabilities on a case-by-case basis, based upon the actual effect of the impairment on the life of the individual in question); 29 C.F.R. Pt. 1630, App. § 1630.2(j) (noting in the context of the ADA's employment discrimination regulations that "[s]ome impairments may be disabling for particular individuals but not for others" and thus "[t]he 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"). HIV infection has a varying impact on individuals, and Log Cabin concedes that it is aware of the diverse effects of the virus. Log Cabin Br. at 21. Hence, once the EEOC alleged that Stewart was discriminated against because she was infected with HIV, it was Log Cabin's responsibility to prepare its defense by confirming the existence and determining the severity of Stewart's HIV condition during discovery, regardless of whether the condition was labeled AIDS or not. See, e.g., Taylor v. Pathmark Stores, Inc., 177 F.3d 180, 192 (3d Cir. 1999) (noting that, "under the ADA, it is the employer's burden to educate itself about the varying nature of impairment and to make individualized determinations about affected employees"). The law is clear that a medical condition, or impairment, does not rise to the level of being a disability unless it substantially impairs a major life activity. Bragdon v. Abbott, 524 U.S. 624, 637 (1998) ("The statute is not operative, and the definition not satisfied, unless the impairment affects a major life activity."). Thus, the Commission's reference to a claimed violation of the ADA predicated on a refusal to hire someone with HIV necessarily meant that the Commission contended that Stewart's HIV infection substantially limited her in performing major life activities. It was incumbent on Log Cabin to discover how the virus affected Stewart, regardless of the label attached to it. Moreover, such investigative steps would have been expected of Log Cabin whether Stewart was in the asymptomatic stages of the HIV infection (as Log Cabin erroneously assumed) or her infection had advanced to full- blown AIDS (as was the case). Indeed, as federal courts have observed: "A belief that anyone with . . . HIV infection is substantially limited in a major life activity is a conclusion about the effects of the impairment and only secondarily about the particular employee. An employer with such a belief is failing to make an individualized determination, as the ADA requires, and thus acts at its peril." Holiday v. City of Chattanooga, 206 F.3d 637, 644 (6th Cir. 2000) (quoting Taylor, 177 F.3d at 193 (emphasis added)). The teaching of the Holiday and Taylor courts is that employers also act at their peril if they assume on the basis of a diagnostic label that a particular individual is not substantially limited. Thus, Log Cabin's attempt to cast blame on the EEOC because it would have prepared its case, including discovery and the naming of experts, "differently if [Log Cabin] or its counsel had any inclination that Stewart had AIDS," Log Cabin Br. at 21, or if the EEOC had proffered the treating physician's name and affidavit prior to the filing of its opposition should be rejected. In deciding to be "content to proceed without further deposition or discovery" merely "[g]iven the allegation that Stewart was HIV positive," and resting on its general knowledge that Magic Johnson is HIV-positive but does not have AIDS, Log Cabin Br. at 22, Log Cabin acted to its own detriment. Again, the issue in this case is whether Stewart is substantially limited by the impairment of the HIV infection, and that question is not answered by labeling her condition HIV-positive or AIDS. Log Cabin insists it would have prepared its case differently if the Commission had designated medical experts or treating physicians during discovery. First, although the Commission subsequently proffered the affidavit of Stewart's pediatrician, Dr. Groshan, it is important to emphasize that there is no requirement in the law or rules of evidence that ADA claims be proven through medical testimony. See, e.g., Marinelli v. City of Erie, 216 F.3d 354, 360 (3d Cir. 2000) ("‘[t]here is certainly no general rule that medical testimony is always necessary to establish disability'" (quoting Katz v. City Metal Co., Inc., 87 F.3d 26, 32 (1st Cir. 1996))). Courts have emphasized that where the effects of an impairment are within the comprehension of a jury lacking medical or scientific knowledge, medical testimony is not required. Marinelli, 216 F.3d at 360-61 (citing cases). Thus, the Commission's decision not to identify medical experts or treating physicians during discovery cannot excuse Log Cabin's utter failure to make inquiry into the nature and extent of Stewart's limitations. Second, the fact that the Commission belatedly proffered an affidavit by Stewart's pediatrician is not relevant to this appeal. In its reply brief in district court, Log Cabin sought to strike the doctor's affidavit as untimely. R.32, Log Cabin's Reply Br. at 3. But the district court implicitly denied that request (and certainly failed to grant it), and Log Cabin does not assert on appeal that the court's decision was an abuse of discretion. Moreover, contrary to Log Cabin's view, Log Cabin Br. at 10, it is unclear from the opinion whether the district court actually relied on Dr. Groshan's affidavit. When the court stated its factual findings about Stewart's limitations, it did not specify whether it was relying simply on Stewart's declaration or also on her doctor's affidavit. R.39, Op. at 5 (summarizing effects of HIV/AIDS without citation to the record). The doctor's affidavit merely corroborated Stewart's declaration that she had AIDS since 1999, that her medication causes "substantial side effects" such as "nausea, vomiting, diarrhea and weight loss," and that her condition and the fatigue associated with it severely restricted her daily activities. Compare R.29, Dr. Groshan Aff. at 1-2 with R.28, Stewart Aff. at 1-3. Assuming that the court considered evidence contained in the doctor's affidavit, Log Cabin has not preserved any argument that this was error, particularly since it affirmatively stated that it does not dispute the district court's findings. Log Cabin Br. at 12. Log Cabin faults the Commission for arguing on appeal that its complaint satisfied Rule 8 standards, EEOC Br. at 10-15, pointing out that these standards are not applicable in a case decided on summary judgment, rather than a motion to dismiss. Log Cabin Br. at 24. However, the district court raised the question of the sufficiency of the complaint. It dismissed the Commission's case because of its view that the complaint's allegation that Stewart was not hired after Log Cabin learned that she was HIV-positive was somehow insufficient as a predicate for the introduction of evidence that Stewart was substantially limited and that at the time of the employment decision her infection had progressed to AIDS. R.39, Op. at 6-7. The court considered the assertion that Stewart has AIDS to be a "gross departure" from the claim in the complaint and refused to permit this so-called amendment of the Commission's pleadings. Id. Given the court's rationale for its summary judgment decision, it was entirely reasonable for the Commission to argue that its complaint was legally sufficient under Rule 8 standards. Log Cabin also defends the district court's decision not to allow the Commission to "amend" its complaint, relying on Grayson v. O'Neill, 308 F.3d 808, 817 (7th Cir. 2002), for the proposition that a plaintiff "may not amend his complaint through arguments in his brief in opposition to a motion for summary judgment." Log Cabin Br. at 25 (quoting Grayson). This reliance on Grayson is misplaced. The Commission contended that if there was any ambiguity about Stewart's disability in the complaint, the district court should have treated the EEOC's brief in opposition to Log Cabin's summary judgment motion as an appropriate amendment of the complaint because it clarified that Stewart's HIV-positive status was full-blown AIDS. EEOC Br. at 13-14. It is a settled principle that a litigant can forestall dismissal by supplementing a complaint with factual assertions in an affidavit or brief, Albiero v. City of Kankakee, 122 F.3d 417, 419 (7th Cir. 1997), so long as the additional facts are consistent with the facts in the original complaint, Walker v. Thompson, 288 F.3d 1005, 1008 (7th Cir. 2002). Although these cases may not seem to be exactly on point because the Commission's claim was not dismissed on the complaint, but after a summary judgment motion, given the rationale of the district court's decision, these cases are instructive. Liberal amendment of pleadings is generally allowed. Moreover, once litigation moves past the pleadings phase, amendment of the pleadings to conform to the proof is the norm. Fed. R. Civ. P. 15(b). Therefore, to the extent the district court thought the problem was that the pleadings had not sufficiently identified the relevant disability, it should have permitted this "amendment." As the Commission argued in its opening brief, the interconnection between HIV infection and AIDS dictates the conclusion that proof of limitations from AIDS is wholly consistent with the initial allegation that Stewart was rejected after the defendant learned she was HIV-positive. See Walker, 288 F.3d at 1008 (amendment permitted if facts consistent with those in the original complaint). Grayson does not require a different result. In Grayson, the plaintiff filed a complaint alleging race discrimination and retaliation based on his opposition to race discrimination against a colleague. Grayson, 308 F.3d at 817. On appeal from summary judgment, the plaintiff argued that one of his retaliation claims had been improperly disposed of as time barred and this Court rejected the claim as waived where he raised it "for the first time on appeal." Id. The Court explained that Grayson had alleged a different retaliation claim, but had not presented to the district court the claim asserted on appeal. The Court noted that Grayson had mentioned this retaliation claim in his opposition to summary judgment, despite its omission from his complaint, and the Court reiterated that this type of effort to amend a complaint is improper. Id. Grayson was attempting to bootstrap an entirely separate claim, or cause of action, based on different events that occurred at a different time from those mentioned in his original complaint, so his effort was necessarily rejected under the principle that supplementation of pleadings is only permissible if the newly offered facts are consistent with the original pleading. See, Walker, 288 F.3d at 1008. In this case however, given the ineluctable connection between HIV and AIDS, the Commission's clarification of Stewart's HIV status as being AIDS in its brief in opposition to the motion for summary judgment did not introduce a new claim or theory. Cf. Speer v. Rand McNally & Co., 123 F.3d 658, 665 (7th Cir. 1997) (refusing to permit plaintiff to amend her sexual harassment complaint to add a quid pro quo theory through a single-page argument in her brief in opposition to a motion for summary judgment). Therefore, Grayson does not mandate the district court's refusal to consider the evidence supporting the Commission's claim of disability discrimination. Log Cabin also argues for affirmance of summary judgment by asserting that "the EEOC and the Amici want the law to be that a diagnosis of HIV is a per se disability." Log Cabin Br. at 21, 33. This suggestion is indefensible. In no way has the Commission or the Amici advanced the argument that HIV is a per se disability. To the contrary, the Commission specifically acknowledged that the Supreme Court "declined to decide whether HIV is a per se disability," and observed that whether an individual's HIV condition is a disability must be determined on a case-by-case basis. EEOC Br. at 22; see also Amici Br. at 15. Ironically, it is Log Cabin who seems to have adopted a "per se" rule—that having the HIV infection is never a disability. Finally, there is no merit to Log Cabin's assertion that "the EEOC unreasonably claimed that somehow everyone knows or should know that if someone is HIV positive they have AIDS." Log Cabin Br. at 18. The Commission merely suggested that the connection between HIV and AIDS is sufficiently well known that professing "shock that someone described as HIV+ actually has AIDS is unbelievable." R. 38, EEOC's Surreply Brief in Opposition to Summary Judgment. As the Commission stated in its opening brief, it is scientifically established that HIV causes AIDS, that HIV is a progressive disease, and that no real distinction exists between HIV and AIDS once a person has AIDS. EEOC Br. at 14-16. Therefore, the Commission's identification of Stewart's HIV status as AIDS in its summary judgment opposition in this case was not a gross departure from the allegations in the complaint, and the court should not have dismissed the Commission's case on this ground. See EEOC Br. at 14-17. A. Summary Judgment Should Be Reversed Because There Is a Triable Question Whether Log Cabin Was Sufficiently Aware of Stewart's Condition To Be Held Liable for Disability Discrimination. This Court should reject Log Cabin's assertion that there is no evidence it had actual or constructive notice that Stewart had AIDS. Log Cabin Br. at 26-34. Viewing the evidence and drawing all inferences in the light most favorable to the Commission, the appropriate standard of review at the summary judgment stage, a reasonable jury could conclude that Log Cabin knew or should have known that Stewart's HIV infection could have been a disability, whether or not it knew she had AIDS. Log Cabin argues that the district court properly ruled that Log Cabin had no knowledge that Stewart had AIDS because the EEOC admits that having HIV does not always equate with having AIDS, id. at 27, the articles referenced in the Commission's brief only mention Stewart's HIV infection, id. at 28-29, the city of Wausau has a larger population than the EEOC described, id. at 29-31, and the store owner testified that he understood the distinction between HIV and AIDS. Id. at 30. Notably, Log Cabin fails to address the most compelling evidence supporting the Commission's argument that Log Cabin had sufficient knowledge to support liability for disability discrimination—that Log Cabin knew Stewart was HIV- positive. R.13, Lee Aff. at 2. The evidence shows that Log Cabin had written "HIV+" on the face of Stewart's application, so there is simply no dispute that it knew of her condition and thought it relevant to her application for employment. The knowledge an employer must have to satisfy the plaintiff's statutory burden of demonstrating that it discriminated because of the individual's disability is not precise knowledge of an individual's medical diagnosis or of the extent of her limitations. As this Court explained in Sanglap v. LaSalle Bank, 345 F.3d 515, 520 (7th Cir. 2003), the ADA does not require an employer to have a "professional understanding" of an individual's medical condition to be liable for disability discrimination. To the contrary, an employer's knowledge of symptoms related to a disability is sufficient to support an inference of knowledge of the disability. Id. (ruling that a bank's knowledge that an employee had seizures could lead to an inference that the employee had epilepsy or another disabling condition); Hedberg v. Indiana Bell Tel. Co., Inc., 47 F.3d 928, 934 (7th Cir. 1995) ("some symptoms are so obviously manifestations of an underlying disability that it would be reasonable to infer that an employer actually knew of the disability"). In this case, although infection with HIV does not mean that an individual has AIDS, the issue is whether the knowledge the employer had was sufficient to trigger knowledge of a possible covered disability, and Log Cabin's knowledge that Stewart had HIV is clearly sufficient to meet that burden. Thus, summary judgment was inappropriate on this basis. C. Summary Judgment Should Be Reversed Because There Is Undisputed Evidence that Stewart Was Substantially Limited by the HIV Infection at the Time Log Cabin Refused To Hire Her. The district court found that Stewart was "severely restrict[ed]" in "normal day- to-day activities" and "faces serious limitations in the areas of self-care, relating to others and reproduction." R.39, p.5. Log Cabin does not dispute that finding. Log Cabin Br. at 12. Having conceded (for purposes of this appeal) that Stewart was substantially limited by having AIDS, Log Cabin's argument on appeal is, first, that these limitations flow from AIDS, not the HIV infection, and second, that there was no evidence that Stewart's HIV status substantially limited her in any major life activity at the time of the challenged employment decision. Log Cabin Br. at 35-38. These arguments are untenable. On the first point, the Commission has demonstrated that infection with HIV and its development into AIDS cannot be separated once an individual has AIDS. EEOC Br. at 14-17. Since it is undisputed that Stewart had AIDS at the time she applied to work at Log Cabin, any limitations she had from AIDS are also causally connected to her having the HIV virus. As to the purported lack of evidence of limitations, it is clear that there was sufficient evidence to preclude summary judgment. To begin with, despite Log Cabin's intimation to the contrary, id. at 35, Stewart's declaration and the affidavit of her treating physician, addressing the substantial limitations of her HIV/AIDS condition, provide appropriate evidence to establish she has a disability or to create a triable issue of fact. See Black v. Roadway Express, Inc., 297 F.3d 445, 450 (6th Cir. 2002) (treating plaintiff's and her orthopedic surgeon's affidavits as evidence of her substantial limitation, but finding plaintiff with knee injury was not disabled). To the extent that the affidavit was signed in June 2006, R.28, Stewart Aff. at 6, and it does not assign a date or temporal scope to every limitation described, Log Cabin Br. at 35, a reasonable jury could conclude that, if she has suffered from chronic fatigue for "several years," R.28, Stewart Aff. at 1, that time frame encompassed March 2004, when she sought employment with Log Cabin. Cf. EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 802 (7th Cir. 2005) (noting upon second reversal of summary judgment that evidence of limitations on walking two years after the time of the challenged employment decision could be probative of limitations at the time). More importantly, given that Stewart's diagnosis of HIV and AIDS were nearly contemporaneous and she has been infected since birth, the district court's finding, which included no temporal restriction, that having AIDS severely restricted Stewart in a number of major life activities, would support the conclusion that Stewart was disabled in March 2004 and, at a minimum, preclude summary judgment on this basis. See R.39, Op. at 5. Finally, this Court should reject Log Cabin's contention that Stewart was not substantially limited in reproduction merely because she expressed no fears about procreation as a result of her HIV status in 2004. Log Cabin Br. at 36. Nor should this Court attach any significance to the fact that Stewart had a child after she applied for the job. Id. The ADA "addresses substantial limitations on major life activities, not utter inabilities. Conception and childbirth are not impossible for an [individual with HIV] but, without doubt, are dangerous to the public health. This meets the definition of a substantial limitation." Bragdon, 524 U.S. at 641. See also Fiscus v. Wal-Mart Stores, Inc., 385 F.3d 378, 384 (3d Cir. 2004) ("a substantial limitation of a major life activity does not mean impossibility or even great physical difficulty;" in determining whether a person is substantially limited, "[w]hat matters is a broad practical assessment of whether an individual's ability to pursue the major life activity is limited by the physical impairment or condition from which he or she suffers"). Although Stewart may have desired to have children in 2004 (and subsequently did in 2006), her desire or "decision to reproduce carries economic and legal consequences as well. There are added costs for antiretroviral therapy, supplemental insurance, and long-term health care for the child who must be examined and, tragic to think, treated for the infection." Bragdon, 524 U.S. at 641. Given these circumstances, a reasonable jury could conclude that HIV's impact on Stewart's desire to reproduce presented a significant restriction in comparison to the average person in the general population. Cf. Id. at 637 (holding that asymptomatic HIV could be a physical impairment that substantially limits the major life activity of reproduction because its effects are immediate on reproductive decisions). Therefore, this Court should reverse the district court's entry of summary judgment because there is considerable unrebutted evidence that Stewart is substantially limited in one or more major life activities. D. Summary Judgment Cannot Be Affirmed on the Alternative Ground that Stewart Was Not a Qualified Individual. Log Cabin's argument for affirmance on the ground that Stewart was not qualified flouts the principles of summary judgment. Log Cabin Br. at 38-44. As the Commission noted in its opening brief, there is conflicting evidence in the record regarding whether Stewart was qualified to perform the waitressing job. While Stewart indisputably had a lifting restriction and no waitressing experience, the record reveals that there are disputed facts as to whether heavy lifting and prior experience were actually prerequisites for the waitressing job. EEOC Br. at 25-26. Further, given the temporary nature of Stewart's lifting restriction, R.28, Stewart Aff. at 4, a reasonable jury could decide that Stewart was capable of performing the job. In addition, Log Cabin's contention that Stewart has identified other conditions that could affect her ability to work as a waitress, such as her inability to perform simple housework, be in crowds or places where she may contact a contagious disease, and her need for frequent rest, Log Cabin Br. at 43-44, is countered by other evidence in the record. In applying for the job, Stewart averred that she has worked as a cashier, dishwasher, and server, and that she left one of her cashier positions because she was not working enough hours. R.9, Def. Ex. A, Stewart's Job Application at 2. Further, Dean Lee, the store owner, did not think Stewart, who was a frequent customer of the restaurant, had any restrictions that would impede her job performance other than the 10-pound lifting restriction she disclosed on her application. Log Cabin Br. at 30 (citing Lee Affidavit). These facts merely create additional genuine issues in dispute as to whether Stewart was qualified. Accordingly, it would be improper to affirm summary judgment on this basis. CONCLUSION As the Commission stated in its opening brief, the district court failed to comprehend fully the connection between HIV and AIDS. This error affected the court's evaluation and analysis of the evidence and informed the conclusions it drew. On appeal, Log Cabin concedes that Stewart has AIDS and is significantly restricted in several major life activities, but argues that summary judgment should be affirmed because it was caught off guard by proof of Stewart's disability. The Commission maintains that, drawing all inferences in favor of the Commission, there is sufficient evidence in the record from which a reasonable jury could find that Stewart is an individual with a disability, and resolution of conflicting evidence on whether she was qualified to do the job requires a trial. Accordingly, the Commission urges this Court to apply settled standards for review of summary judgment, reverse the district court's judgment, and remand this case for further proceedings. Respectfully submitted, RONALD S. COOPER General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ________________________________ PAULA R. BRUNER Attorney Equal Employment Opportunity Commission 1801 L Street, N.W. Rm. 7806 Washington, D.C. 20507 (202) 663-4731 (w); (202) 663-7090 (fax) paula.bruner@eeoc.gov February 6, 2007 CERTIFICATE OF COMPLIANCE Pursuant to Fed. R. App. Proc. 32(a)(7(C), the undersigned certifies that the brief complied with the type-volume limitations. 1. Exclusive of the exempted portions in Fed. R. App. Proc. 32(a)(7)(B)(iii), the brief contains 4,923 words. 2. The brief was prepared in proportionally spaced typeface using Microsoft Word 2003, Times Roman, 14 point for the text and Times Roman, 12 point for the footnotes. 3. At the Court's request, the undersigned has uploaded an electronic PDF version of the brief to the Court's website. 4. The undersigned understands a material misrepresentation in completing this certificate, or circumvention of the type-volume limits in Fed. R. App. Proc. 32(a)(7(C) may result in the court's striking the brief and imposing sanctions against the person signing the brief. Paula R. Bruner CERTIFICATE OF SERVICE This is to certify that on February 6, 2007, two copies of the foregoing brief along with the certificate of service were mailed first class, postage prepaid, to the following counsel of record: Terry L. Moore, Esq. Herrick & Hart, S.C. 116 West Grand Avenue P.O. Box 167 Eau Claire, Wisconsin 54702-0167 John A. Knight, Esq. American Civil Liberties Union Foundation 180 N. Michigan Avenue, Suite 2300 Chicago, Illinois 60601 PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Rm. 7806 Washington, D.C. 20507 (202) 663-4731 February 6, 2007