IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT _______________________________________________________________ No. 06-3278 _______________________________________________________________ EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff-Appellant, v. LEE'S LOG CABIN, INC., Defendant-Appellee. ________________________________________________________________ On Appeal from the United States District Court for the Western District of Wisconsin _________________________________________________________________ OPENING BRIEF OF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS PLAINTIFF-APPELLANT _________________________________________________________________ RONALD S. COOPER General Counsel VINCENT J. BLACKWOOD ` 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) TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . iv STATEMENT OF JURISDICTION. . . . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . .2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . .2 1 Statement of the Facts . . . . . . . . . . . . . . . . .2 2. District Court Decision. . . . . . . . . . . . . . . . .5 STATEMENT OF THE STANDARD OF REVIEW. . . . . . . . . . . . . . .6 SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . .7 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . .9 I. The District Court's Entry of Summary Judgment for the Defendant Because the Commission Did Not Initially Assert that the HIV-Positive Job Applicant Had AIDS and that the Defendant Knew She Did Was Reversible Error . 9 A. Under Supreme Court standards and the Federal Rules, the EEOC's complaint alleging that Log Cabin failed to hire Stewart after it learned she was HIV-positive provided adequate notice of the EEOC's disability discrimination claim . . . . . . . . . . . . . . . . . . . . . 10 B. HIV and AIDS are synonymous when a person has AIDS; therefore, Log Cabin either had actual or constructive knowledge of Stewart's AIDS condition. . . . . . . . . . . . . . . . . . . . . . . . . . . 14 II. The District Court's Decision Should Be Reversed Because, Whether Her Medical Condition Is HIV-positive or AIDS, Stewart Is Substantially Limited In The Major Life Activity Of Reproduction And Therefore Has A Disability21 III. Summary Judgment Cannot be Affirmed on the Alternative Ground that Stewart was not Qualified. . . . . . . . . . . . . . . . . . . 25 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 CERTIFICATE OF COMPLIANCE ADDENDUM a. District Court Decision b. EEOC Complaint c. Stewart's Job Application CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) . . . . . . . . . . . . . . . . . . . .7 Benak ex rel. Alliance Premier Growth Fund v. Alliance Capital Mgmt. L.P., 435 F.3d 396 (3d Cir. 2006) . . . . . . . . . . . . . . . 19 Bragdon v. Abbott, 524 U.S. 624 (1998). . . . . . . . . 14, 19, 20, 22, 24 Burks v. Wisconsin Dep't of Transp., 464 F.3d 744 (7th Cir. 2006). . . . . . . . . . . . . . . .6 Dadian v. Village of Wilmette, 269 F.3d 831, 837 (7th Cir. 2001) . . . . . . . . . . . . 23 Doe v. County of Centre, PA, 242 F.3d 437 (3d Cir. 2001) . . . . . . . . . . . . . 15, 18 EEOC v. Lee's Log Cabin, Inc., 436 F.Supp.2d 992 (W.D. Wis. 2006) . . . . . . . . . .1 Giebeler v. M & B Assocs., 343 F.3d 1143 (9th Cir. 2003). . . . . . . . . . . . 15 Hedberg v. Indiana Bell, 47 F.3d 928 (7th Cir. 1995) . . . . . . . . . . . . 17 Martinson v. Kinney Shoe Corp., 104 F.3d 683 (4th Cir. 1997). . . . . . . . . . . . . . . 18 May v. Sheahan, 1999 WL 543187 (N.D. Ill. July 21, 1999). . . . . . . . . 23 McHenry v. United States, 367 F.3d 1370 (Fed. Cir. 2004) . . . . . . . . . . . 15 NLRB v. Fresh'nd-Aire Company, 226 F.2d 737, 741 (7th Cir. 1955). . . . . . . . . 19 Park v. City of Chicago, 297 F.3d 606 (7th Cir. 2002). . . . . . . . . . . . . . . 12 Paz v. Wauconda Healthcare & Rehab. Centre, LLC, 464 F.3d 659 (7th Cir. 2006) . . . . . . . . . . . . 27 Pierce v. Illinois Dep't of Human Servs., 128 Fed. Appx. 534 (7th Cir. 2005). . . . . 10, 11, 12 Powell v. Schriver, 175 F.3d 107 (2d Cir. 1999). . . . . . . . . . . . 20 Pratts v. Chater, 94 F.3d 34 (2d Cir. 1996) . . . . . . . . . . . . . . . . 16 Rapid Test Prods., Inc. v. Durham Sch. Servs., Inc., 460 F.3d 859 (7th Cir. 2006) . . . . . . . . . . . . 11 Rasile v. Liberty Life Assur. Co. of Boston, 2004 WL 1207897 (S.D.N.Y. June 2, 2004) . . . . . . . . . 15 Raytheon Co. v. Fair Employment & Housing Comm'n, 212 Cal.App.3d 1242 (1989). . . . . . . . . . . . . . . . 15 Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133 (2000) . . . . . . . . . . . . . . . . . . . .7 Sanglap v. LaSalle Bank, 345 F.3d 515 (7th Cir. 2003) . . . . . . . . . . . . 17 Schor v. Abbott Laboratories, 457 F.3d 608 (7th Cir. 2006). . . . . . . . . . . . 20 Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). . . . . . . . . . . . . . . . . 10 Taylor v. Rice, 451 F.3d 898 (D.C. Cir. 2006) . . . . . . . . . . . . . . 20 Thomson v. Washington, 362 F.3d 969 (7th Cir. 2004) . . . . . . . . . . . . 11 Wright v. Giuliani, 230 F.3d 543 (2d Cir. 2000) . . . . . . . . . . . . . . . 15 STATUTES, REGULATIONS, AND RULES 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . .1 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . .1 Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(f)(3) . . . . . . . . . . . . . . . . .1 42 U.S.C. § 2000e-5(j). . . . . . . . . . . . . . . . . . .1 Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. . . . . . . . . . . . . . . . . .1 42 U.S.C. § 12101(b)(1) . . . . . . . . . . . . . . . . . 25 42 U.S.C. § 12111(8). . . . . . . . . . . . . . . . . . . 25 42 U.S.C. § 12117(a). . . . . . . . . . . . . . . . . . . .1 29 C.F.R. § 1630.2(n). . . . . . . . . . . . . . . . . . . . . 25 Fed. R. App. 4(1)(B) . . . . . . . . . . . . . . . . . . . . . .1 Fed. R. Civ. P. 8(a)(2). . . . . . . . . . . . . . . . . . . . 11 Fed. R. Civ. P. 8(c) . . . . . . . . . . . . . . . . . . . . . 11 Fed. R. Civ. P. 15(b). . . . . . . . . . . . . . . . . . . 12, 13 Fed. R. Evid. 201(b) . . . . . . . . . . . . . . . . . . . . . 19 SECONDARY AUTHORITY Marilynn Marchionne, Fears Over HIV cost girl her job; EEOC urges settlement, finds ‘reasonable cause,' Milwaukee J. Sent., Sept. 21, 200119, 21 Mark Treinen, IGA says it didn't fire girl with HIV, Wausau Daily Her., Sept. 6, 2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Mike Stobbe, HIV tests may soon become routine, Daily Breeze (Torrance, Cal.), Sept. 22, 2006, 2006 WLNR 16465932 . . . . . . . . . . . . . . 20 Nat'l Institute Of Allergy And Infectious Diseases, U.S. Dep. Of Health And Human Services, HIV INFECTION AND AIDS: AN OVERVIEW, available at http:// www.niaid.nih.gov/factsheets/hivinf.htm. . . . . . . . 15 Store Denies HIV-infected clerk was fired, says she was offered another job, Assoc. Press, Sept. 6, 2001 . . . . . . . . . . . . . . . . . 19 Teen with HIV alleges bias, Chicago Trib., Sept. 3, 2001 . . . 19 STATEMENT OF JURISDICTION The Equal Employment Opportunity Commission ("EEOC" or "Commission") filed this employment discrimination case in the district court, alleging that Lee's Log Cabin Restaurant ("Log Cabin") violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., when it refused to hire 18-year old Korrin Krause Stewart as a waitress after learning she was HIV positive. R.2, Complaint at 3. The district court properly exercised jurisdiction pursuant to 42 U.S.C. § 12117(a) (incorporating the procedures set forth in Section 706(f)(3), 42 U.S.C. § 2000e- 5(f)(3)) and 28 U.S.C. § 1331. On June 26, 2006, the district court entered a final order, R.40, granting summary judgment in favor of defendant Log Cabin, and terminated the case. R.39, Opinion ("Op.") at 2, 10.<1> The EEOC filed a timely notice of appeal on August 24, 2006. R.41, Notice of Appeal; Fed. R. App. 4(1)(B). This Court has jurisdiction pursuant to 28 U.S.C. § 1291 and 42 U.S.C. § 12117(a) (incorporating the procedures set forth in Section 706(j), 42 U.S.C. § 2000e-5(j)). STATEMENT OF THE ISSUES 1. Whether the EEOC's complaint alleging that Lee's Log Cabin failed to hire a job applicant because she was HIV-positive was sufficient under governing standards. 2. Whether the district court committed reversible error when it decided that the EEOC failed to prove an HIV-infected job applicant whose condition had progressed to AIDS was disabled. 3. Whether disputed facts about the job applicant's qualifications to perform the waitressing job preclude affirmance on the alternative ground that she was not a qualified individual with a disability. STATEMENT OF THE CASE 1. Statement of the Facts Korrin Krause Stewart was born with HIV because her mother was infected with the virus at the time of Stewart's birth. R.28, Stewart Aff. at 1¶2. Stewart did not learn of her condition until 1999, when at age 14 she was diagnosed with HIV. Id.; R.39, Op. at 5. One week later, she was informed that her HIV condition had already developed into full-blown AIDS. Id. In March 2004, in response to an ad in the Wausaw Daily Herald, 18-year old Stewart met with Curtis Zastrow, an assistant manager for Lee's Log Cabin, and completed an application for a waitress position. R.28, Stewart Aff. at 4¶20; R. 39, Op. at 3. Stewart indicated that she had prior restaurant experience as a bartender, cashier, dishwasher, and server, but no waitress experience. R.28, Stewart Aff. at 5¶31; R.39, Op. at 3. Because the job description and application indicated that waitresses must be able to lift 25-30 pounds during their shifts, R.39, Op. at 3, Stewart also stated on the application that she had a lifting restriction of 10 pounds that could not be accommodated. R.28, Stewart Aff. at 4¶¶21-22. Two weeks prior to her application for the job, Stewart's doctor had placed Stewart on a lifting restriction because she had anemia and a low platelet count. The doctor restricted her lifting until her platelet count increased. R.28, Stewart Aff. at 4¶23; R.29, Groshan Aff. at 2¶14. Stewart asserted that she told Zastrow her lifting restriction was temporary. R.28, Stewart Aff. at 4¶24; R.39, Op. at 3. Zastrow denied that Stewart told him it was a temporary restriction. R.39, Op. at 3. He further stated that he told Stewart her lifting restriction would disqualify her from employment, id.; R.12, Zastrow Aff. at 2¶8, although the record evidence demonstrates that Log Cabin had in its employ a waitress who was unable to meet the lifting requirements. R.39, Op. at 3. After a month had passed and Stewart had not received a response to her application, she returned to the restaurant and met again with Zastrow. R.39, Op. at 3. Zastrow told her that Dean Lee, the owner and the sole decisionmaker on hiring matters, was out of town. Id. He then asked her if "she was the girl from Quality Foods." Id. (internal quotation marks omitted). In 2002, the EEOC had settled a lawsuit against Quality Foods, in which the Commission alleged that Quality Foods violated the ADA by terminating Stewart, then age 16, when it learned that she was HIV-positive. Id. After confirming that she had worked at Quality Foods, R.28, Stewart Aff. at 4¶27, Stewart asked if she could amend her application to reflect her experience as a dishwasher. Id. at 5¶31. When Stewart saw her application, it had "HIV+" written on it. Id. at 5¶32. Dean Lee, the owner of the restaurant, reviewed Stewart's application. R.39, Op. at 4. When he inquired about the "HIV+" notation on it, Zastrow told Lee that he had written it after Stewart told him about her condition. Id.; R.12, Zastrow Aff. at 1¶5. Stewart said she never told Zastrow that she was HIV-positive. Id.; R.28, Stewart Aff. at 4¶29. Although he never interviewed Stewart to ascertain information about her condition, R.28, Stewart Aff. at 4¶36, Lee asserted that he did not think Stewart, a frequent customer in the restaurant, had any limitations other than the 10-pound lifting restriction she disclosed on her application. R.39, Op. at 4. He said he decided not to hire her because she lacked prior waitressing experience and because of her inability to lift more than 10 pounds. Id.; R.13, Lee Aff. at 3¶25. At the time of Stewart's application, however, Lee had in his employ two waitresses with no prior waitressing experience, id., and a waitress who could not perform any heavy lifting. Id. at 3. The EEOC filed suit, alleging that Log Cabin violated the ADA "when it failed to hire Korrin Krause [Stewart] for its wait staff because it learned that she was HIV positive." R.2, Complaint at 3. Log Cabin filed a summary judgment motion, arguing that Stewart was not disabled or qualified for the job. R.9, Def. Sum. Judg. Brief. 2. District Court Decision The district court granted defendant's motion for summary judgment because it decided that the EEOC had not proved Stewart had a disability. R.39, Op. at 9-10. To begin with, the court observed that the EEOC's complaint alleged that Log Cabin failed to hire Stewart "after learning" that she was HIV positive, citing R.2, Complaint at 1, and in its Rule 26(f) Report the Commission said the issue was whether Log Cabin discriminated against Stewart "because of her HIV status," citing R.25. R.39, Op. at 6. The court then stated that in its opposition to Log Cabin's summary judgment motion, the Commission "introduce[d] the novel argument that defendant discriminated against Stewart because she had AIDS." Id. Noting that "[h]aving AIDS and being HIV positive are not synonymous," id., the court concluded that the EEOC's argument that Stewart's disability is AIDS, rather than being HIV positive, is a "gross departure" from the allegations in the "initial stages of this lawsuit" that "comes too late." R.39, Op. at 7. The court also decided that it could not permit the EEOC to amend its pleadings "to allege an entirely new cause of action" when the trial "is only one month away." Id. Finally, the court ruled that even if it could entertain the EEOC's argument that Stewart had AIDS, the claim would still fail because the EEOC presented no evidence to show that Log Cabin knew she had AIDS. Id. Accordingly, the court concluded that the only claim before it was that "defendant had discriminated against Stewart because she had HIV." R.39, Op. at7. Based on that conclusion, the court decided that the EEOC had not presented any evidence "regarding the impact of HIV on any of Stewart's major life activities" because the facts offered into evidence addressed only the impact of AIDS on Stewart's activities. Id. at 8. In addition, the court ruled that the EEOC failed to prove that Stewart had a record of disability or was regarded as disabled. R. 39, Op. at 9. Finally, it noted that it was "questionable" whether the EEOC could prove that Stewart was a qualified individual with a disability since she was unable to lift more than 10 pounds. Id. at 10. STATEMENT OF THE STANDARD OF REVIEW This Court reviews the district court's grant of summary judgment de novo, examining the facts in a light most favorable to the non-moving party (here the EEOC) and drawing all reasonable inferences in its favor. Burks v. Wisconsin Dep't of Transp., 464 F.3d 744, 750 (7th Cir. 2006). In contrast, the Court is to resolve all doubts against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). This is because the making of credibility determinations and the weighing of the evidence "are jury functions, not those of a judge." Reeves v. Sanderson Plumbing Prods. Inc., 530 U.S. 133, 150, 151 (2000). SUMMARY OF THE ARGUMENT The only question before this Court is whether the district court erred in dismissing the EEOC's claim on the ground that it had not shown that Stewart, whose HIV infection had developed into AIDS, has a disability under the ADA. The district court believed the EEOC's complaint limited it to proving that Stewart's disability was being HIV positive and that the EEOC's proof failed to show that Stewart was substantially limited by her HIV status. The court was wrong on both counts. The EEOC's allegations that Log Cabin did not hire Stewart after it learned of her HIV positive condition or because of her HIV status were adequate to embrace a claim that Log Cabin discriminated against her because she had AIDS. The complaint was sufficient to meet the requirements of notice pleading and if it was not, the district court should have permitted an amendment to clarify that Stewart's HIV infection had progressed to AIDS. The district court also erred in concluding that, even if it entertained the claim that Log Cabin discriminated against Stewart because she had AIDS, the EEOC's claim would fail because the EEOC had not demonstrated that Log Cabin knew that Stewart had AIDS. In this case, because HIV and AIDS are synonymous when a person has AIDS, the evidence in the record is sufficient to demonstrate that Log Cabin had either actual or constructive knowledge of Stewart's AIDS condition. The court also erred in concluding that the EEOC had not demonstrated that Stewart's HIV infection itself was substantially limiting. The EEOC submitted evidence that clearly established Stewart's HIV status rises to the level of a disability under the ADA. Stewart's HIV infection has advanced to AIDS, which is the last stage of the disease before death. Stewart's HIV infection has substantially limited her reproductive ability. Accordingly, the entry of summary judgment in this case was inappropriate because the district court erred in disregarding both the close relationship between HIV and AIDS and the substantially limiting nature of the HIV infection itself in determining whether the EEOC established that Stewart has a disability within the meaning of the ADA. Finally, the district court's entry of summary judgment cannot be affirmed on the alternate ground that the EEOC failed to establish that Stewart was a qualified individual with a disability. Log Cabin argued that Stewart was not a qualified individual because she could not perform the essential lifting requirements of the job, and because she had no waitressing experience. There is disputed evidence about whether heavy lifting was actually an essential function of the job and about whether prior experience was required, precluding summary judgment on that basis. ARGUMENT I. The District Court's Entry of Summary Judgment for the Defendant Because the Commission Did Not Initially Assert that the HIV-Positive Job Applicant Had AIDS and that the Defendant Knew She Did Was Reversible Error The Commission's claim in this case is that Log Cabin refused to hire Stewart as a waitress because of her disability—AIDS. Undisputed facts in the record establish that Stewart is HIV-positive and had AIDS at the time she applied for a waitress position with Log Cabin. R.39, Op. at 3. It is also undisputed that Log Cabin's assistant manager wrote "HIV+" on her application without Stewart's permission or knowledge. Id. at 4. The Commission's complaint said that defendant "failed to hire Korrin Krause [Stewart] . . . after learning that she was . . . [HIV] positive." R.2, Complaint at 1. The Commission's statement of material facts and legal issues, identified the triable issue as "[w]hether Defendant discriminated against Krause because of her HIV status . . . ." R.5, Joint PPTC Report at 1. Log Cabin sought summary judgment on the ground that the complaint was deficient in establishing that Stewart had a disability, that she was qualified for the job, and other "required considerations under the ADA." R.9. The district court agreed with the proposition that references to Stewart's infection with HIV were insufficient to establish ADA coverage where the Commission's evidence demonstrated limitations flowing from AIDS rather than HIV. In reaching this conclusion, the court entirely disregarded the inextricable link between HIV and AIDS once a person has AIDS. The court's analysis is insupportable as a matter of fact, law, or logic. A. Under Supreme Court standards and the Federal Rules, the EEOC's complaint alleging that Log Cabin failed to hire Stewart after it learned she was HIV-positive provided adequate notice of the EEOC's disability discrimination claim. The defendant and district court's view that the EEOC's complaint did not provide sufficient notice of the Commission's claim of disability discrimination because it did not specify that Stewart's disability was AIDS, is unfounded and disingenuous given the nexus between HIV and AIDS, but it also cannot be reconciled with applicable requirements of notice pleading. "The burden on a plaintiff in stating a claim under the Federal Rules of Civil Procedure is light." Pierce v. Illinois Dep't of Human Servs., 128 Fed.Appx. 534, 536-37 (7th Cir. 2005). At the complaint stage, a plaintiff need not plead legal theories nor allege all the facts necessary to establish the essential elements of a legal theory. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511, 512-14 (2002) ("under a notice pleading system, it is not appropriate to require a plaintiff to plead facts establishing a prima facie case"). Instead, the plaintiff need only provide a short, plain statement of his or her grievance. Fed.R.Civ.P. 8(a)(2). Accordingly, this Court has reiterated that under Rule 8, "complaints need not set out either legal theories or comprehensive factual narratives" because "a complaint pleads claims, which is to say grievances." Rapid Test Prods. Inc. v. Durham Sch. Servs., Inc., 460 F.3d 859, 860 (7th Cir. 2006) (emphasis in the original). "[T]he complaint is sufficient so long as it puts defendants on notice of the claims and the grounds they rest upon, along with ‘some indication . . . of time and place.'" Pierce, 128 Fed.Appx. at 537 (quoting Thomson v. Washington, 362 F.3d 969, 970-71 (7th Cir. 2004)). Here, the EEOC's complaint clearly pleaded a grievance because it put Log Cabin on notice that the claim was grounded in disability discrimination in violation of the ADA, that the adverse action was failure to hire based on defendant's knowledge of Stewart's being HIV-positive, and that the misconduct occurred at Lee's Log Cabin restaurant in March 2004. Thus, the Commission's complaint satisfied the "short, plain statement" requirement of Rule 8 of the Federal Rules of Civil Procedure, Fed. R. Civ. P. 8(c), precluding the affirmance of summary judgment on this ground. Although the complaint did not explain the nature of Stewart's limitations flowing from her HIV infection, there is no requirement that it do so. The Commission quite properly provided that information in its response to the defendant's motion for summary judgment. As this Court has stated, "it is perfectly appropriate to supplement a complaint with additional factual assertions in an affidavit or brief in order to forestall dismissal, so long as those assertions are consistent with the allegations in the complaint" and show that the existing language states a claim. Pierce, 128 Fed.Appx. at 537-38. Only inconsistent or contradictory assertions are impermissible. Id. at 538. Nonetheless, the district court inexplicably viewed the Commission's brief as an attempt to "amend" the complaint and held that the assertion of "an entirely new cause of action" could not be permitted at this late date. R.39, Op. at 7. Although amendment was unnecessary, if the court or defendant were confused about the nature of the Commission's claim, this clarification should have been permitted, and the court's refusal to consider the claim in light of the evidence of Stewart's limitations was an abuse of discretion. See Park v. City of Chicago, 297 F.3d 606, 612 (7th Cir. 2002) (court's refusal to allow an amendment is reviewed for abuse of discretion). In this case, given the close nexus between HIV and AIDS, the arguments and evidence proffered by the EEOC were the same regardless of the characterization of Stewart's medical condition. Further, an amendment would not have prejudiced the defendant. See Fed. R. Civ. P. 15(b) (amendment of pleadings is permissible if "objecting party fails to satisfy the court that the admission of such evidence would prejudice the party").<2> Log Cabin's apparent confusion about the disability at issue was created by its failure to conduct any discovery about Stewart's medical condition, rather than by any perceived deficiency in the Commission's pleadings. Indeed, the first discovery step in a disability discrimination case is to determine the existence and severity of the alleged impairment and whether that impairment rises to the level of a disability. Moreover, the court's refusal to apply the rules permitting amendment of the complaint because the trial date was approaching was error. The Federal Rules permit amendments of the complaint even after a trial has commenced, see Fed. R. Civ. P. 15(b) ("[i]f evidence is objected to at trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended"). Further, as a technical matter, EEOC's complaint was amended when its brief in opposition to the summary judgment motion clarified the severity of Stewart's HIV condition, by stating that Stewart had AIDS. R.25, EEOC Br.; R. 39, Op. at 6. Therefore, given that amendments are permitted throughout all stages of litigation, and that, in accordance with the rules, the EEOC developed its claim in its brief by providing evidence of how Stewart's HIV infection limited her, the district court's ruling that the EEOC could not amend its complaint because of the imminence of the trial or that the allegation that Stewart had AIDS constituted "an entirely new cause of action," R.39, Op. at 7, must be reversed. B. HIV and AIDS are synonymous when a person has AIDS; therefore, Log Cabin either had actual or constructive knowledge of Stewart's AIDS condition. The district court's principal error was its belief that there is a distinction between being HIV-positive and having AIDS once a person has AIDS. In deciding that the Commission's brief in opposition to summary judgment had improperly introduced the "novel argument that defendant discriminated against Stewart because she had AIDS," the court observed that "[h]aving AIDS and being HIV positive are not synonymous." R.39, Op. at 6. While under some circumstances the district court's observation would be correct, this case is not one of them. It is well-established that AIDS is a manifestation of HIV. See generally Bragdon v. Abbott, 524 U.S. 624, 633-37 (1998) (describing the course of HIV and AIDS in detail, with references to medical texts and authorities). See also McHenry v. United States, 367 F.3d 1370, 1372 (Fed. Cir. 2004) (HIV infection is a precursor to AIDS); Giebeler v. M & B Assocs., 343 F.3d 1143, 1147 (9th Cir. 2003) (HIV is the virus that causes AIDS); Doe v. County of Centre, PA, 242 F.3d 437, 441 (3d Cir. 2001) ("AIDS . . .is the last stage of progression of the HIV virus"); Wright v. Giuliani, 230 F.3d 543, 545 (2d Cir. 2000) ("HIV, the virus that causes AIDS"); Raytheon Co. v. Fair Empl. & Hous. Comm'n, 212 Cal.App.3d 1242, 1252 (1989) (holding that having AIDS or being HIV-positive was a physical disability under the FEHA). Stated differently, AIDS is an HIV-related illness. The distinction between the two diseases rests on the extent to which the virus has affected the infected person's white blood cell count. To be precise, HIV infects and destroys specific white blood cells, known as T lymphocytes, that support the body's immune system. County of Centre, 242 F.3d at 441-42; Rasile v. Liberty Life Assur. Co., 2004 WL 1207897, *1 n.2 (S.D.N.Y. June 2, 2004) ("‘T-cells,' or T lymphocytes, are central components of the body's immune system. A lowered T-cell count indicates that the HIV virus has weakened the patient's immune system.") (quoting Nat'l Institute Of Allergy And Infectious Diseases, U.S. Dep. Of Health And Human Services, HIV INFECTION AND AIDS: AN OVERVIEW, available at http:// www.niaid.nih.gov/factsheets/hivinf.htm). The Center for Disease Control uses a T- cell count of 200 "to identify those people whose HIV infection has developed into AIDS." Pratts v. Chater, 94 F.3d 34, 36 (2d Cir. 1996). Given this direct correlation between HIV and AIDS, the terminology simply reflects different stages of a progressive disease. In other words, one cannot have AIDS without being HIV-positive. The HIV infection is the impairment that causes different limitations as the disease progresses. Once the virus has caused AIDS, it is just a matter of semantics whether the condition is referred to as HIV or AIDS. Therefore, whether called HIV or AIDS, the disability in this case is the same. The district court correctly realized that having HIV does not always equate with having AIDS, and that "[a] person can be infected with HIV for as long as eleven years before developing AIDS." R.39, Op. at 7. However, Stewart, who was born with HIV and diagnosed with AIDS at age 14, has surpassed the pre-AIDS stage. Since no virus other than HIV causes AIDS, the Commission's pleadings sufficiently conveyed what physical impairment Stewart had and its level of severity, whether referred to as HIV or AIDS. Furthermore, the interconnection between HIV and AIDS undermines the district court's finding that any reference to Stewart's medical condition as AIDS is a "gross departure" from the allegations in her complaint or an allegation of "an entirely new cause of action." R. 39, Op. at 7. In fact, the close temporal nexus of Stewart's diagnoses -- with only a week elapsing between learning she was HIV-positive and learning she had AIDS -- confirms that, in this case, HIV and AIDS are indeed "synonymous." Therefore, the district court erred in deciding that it could not entertain the EEOC's claim that Stewart had AIDS. Next, the district court erred in ruling that, even if it could entertain the AIDS claim, the claim would "fail at the outset because plaintiff has adduced no evidence that defendant knew that Stewart had AIDS." R.39, Op. at 7. The district court correctly realized that an employer cannot be liable for disability discrimination if it "indisputably had no knowledge of that disability," id. (citing Hedberg v. Indiana Bell, 47 F.3d 928, 932 (7th Cir. 1995)), but the court failed to consider evidence indicating that Log Cabin did have sufficient knowledge of Stewart's medical condition to support liability. First, Log Cabin's admission that it knew Stewart had HIV at the time of the hiring decision, R.13, Lee Aff. at 2¶¶13-18, is sufficient to support liability, whether her disability is denominated as HIV or AIDS. In Sanglap v. LaSalle Bank, 345 F.3d 515, 520 (7th Cir. 2003), this Court held that: "liability for disability discrimination does not require professional understanding of the plaintiff's condition. It is enough to show that the defendant knew of symptoms raising an inference that the plaintiff was disabled." If the EEOC proves Log Cabin decided not to hire Stewart based on its knowledge of her HIV status, Log Cabin's knowledge of Stewart's HIV condition is sufficient to establish a causal connection between her actual disability (AIDS) and the restaurant's failure to hire her, and thus to establish liability under Sanglap. AIDS is a known symptom of HIV and in this case both conditions are disabilities. See County of Centre, PA, 242 F.3d at 441 ("AIDS . . .is the last stage of progression of the HIV virus"); cf. Martinson v. Kinney Shoe Corp., 104 F.3d 683, 686 (4th Cir. 1997) (where employer conceded it terminated employee because he had seizures, court ruled "whether Kinney fired Martinson because he suffered from epilepsy or because of the "specific attributes" of his disease, i.e., his seizures, is immaterial-- both are disabilities and an employer may not use either to justify discharging an employee so long as that employee is qualified for the job"). Even if there were a requirement that an employer know an individual's full diagnosis (and the ADA does not require such knowledge), there is evidence that would permit a jury to infer that Log Cabin officials had such knowledge. First, the fact that Zastrow, the assistant store manager, asked Stewart if she was "the girl from Quality Foods" is telling. Stewart had not mentioned Quality Foods on her application,<3> but there had been extensive press coverage about Stewart, her ADA case against Quality Foods, and the fact that she had HIV from birth.<4> In addition, most news reports mentioned that Stewart's biological mother had HIV (not AIDS) and that she had died. See note 4. A reasonable jury could infer from these facts that the Log Cabin officials knew Stewart had been infected with HIV since birth, and given the progressive nature of the HIV disease, they had reason to suspect that Stewart might have AIDS. Indeed, "[t]he assault on the immune system [of an HIV- infected person] is immediate," Bragdon, 524 U.S. at 635, and the asymptomatic stage lasts from 7 to 11 years, id., a temporal range that resonated with the district court. R.39, Op. at 7 ("[a] person can be infected with HIV for as long as eleven years before developing AIDS"). Furthermore, Log Cabin knew Stewart was 18 years old when she applied for the waitress job because she noted it on her application. R.9, Def. Ex. A, Stewart's Job Application. Thus, a reasonable jury could conclude that Log Cabin knew (or had reason to suspect) Stewart's HIV condition had developed into AIDS, especially since "[t]he disease follows a predictable and . . . an unalterable course." Bragdon, 524 U.S. at 634. Even if Log Cabin did not have actual knowledge that Stewart had AIDS, a jury could have reasonably inferred that Log Cabin had constructive knowledge of Stewart's AIDS status because, despite available medical studies, members of the Wausau community drew little distinction between HIV and AIDS and treated Stewart as if she had AIDS.<5> Stewart averred that "[f]or most of my life, people have been afraid to be in close physical contact with me because they fear that even the slightest cut may expose them to my condition." R.28, Stewart Aff. at 3¶14. The treatment of Stewart as if she were deadly, combined with extensive publicity about her mother's infection and subsequent death, are facts from which a reasonable jury could conclude that Log Cabin's officials, who were based in Wausau,<6> believed Stewart's HIV condition was synonymous with AIDS. The district court gave no consideration to any of this evidence of Log Cabin officials' knowledge of Stewart's condition. Accordingly, this Court should reject the district court's determination that the Commission could not prove liability because no evidence established Log Cabin knew Stewart had AIDS. II. The District Court's Decision Should Be Reversed Because, Whether Stewart's Medical Condition Is HIV-positive or AIDS, She Is Substantially Limited in the Major Life Activity of Reproduction and Therefore Has a Disability Assuming this Court agrees with the Commission that its discrimination claim alleging that Stewart had AIDS should have been entertained by the district court, summary judgment must be reversed because even the district court conceded that Stewart is substantially limited in several major life activities by her AIDS condition. Indeed, the court stated that "[h]aving AIDS severely restricts [Stewart's] ability to participate in normal day-to-day activities." R.39, Op. at 5. Specifically, it noted that "Stewart is impaired in her ability to eat, digest and metabolize food" and "faces serious limitations in the areas of self-care, relating to others, and reproduction." Id. Hence, contrary to the district court's ruling, a reasonable jury would have concluded that having HIV/AIDS rendered Stewart disabled. Even if this Court agrees with the district court that there is a distinction to be drawn between HIV and AIDS in this case, and that the only claim properly before the district court was whether Stewart is disabled because she is HIV-positive, summary judgment was still unwarranted because Stewart's HIV condition substantially limited her ability to reproduce. In determining whether an individual's HIV status qualifies as a disability, courts examine the following factors: (1) whether the HIV infection is a physical impairment; (2) whether the restricted activity constitutes a major life activity; and (3) whether the impairment substantially limits a major life activity. See Bragdon, 524 U.S. at 631. The Supreme Court has established that HIV is a physical impairment within the meaning of the ADA. Id. at 633-37 (concluding that a person infected with the HIV virus has an immediate physical impairment because it has a "constant and detrimental effect on the infected person's hemic and lymphatic systems from the moment of infection"); id. at 637 (HIV infection satisfies the statutory and regulatory definition of a physical impairment during every stage of the disease."). However, because the Court declined to decide whether HIV is a per se disability, id. at 642, whether an individual's HIV condition substantially limits a major life activity is to be decided on a case-by-case basis. Dadian v. Village of Wilmette, 269 F.3d 831, 837 (7th Cir. 2001). Here, the Commission's pleadings alleged that Stewart was not hired because of her HIV status. Notably, "[w]hile individuals with HIV or AIDS are not per se substantially limited in the major life activity of reproduction, the major impact that HIV or AIDS has on any individual's reproduction implies that pleading HIV or AIDS is sufficient to allege a substantial limitation of reproduction." May v. Sheahan, 1999 WL 543187, *3 (N.D. Ill. July 21, 1999) (omitting internal citation). See also Bragdon, 524 U.S. at 641-42 (holding that "[a] person who is infected with the human immunodeficiency virus (HIV), but had not manifested its most serious symptoms . . . is ‘disabled' within the meaning of section 12102(2)(A) of the ADA" because the major life activity of procreation is substantially limited). Here, because Stewart was of child-bearing age, a reasonable jury could decide that Stewart's HIV status is a disability. Further, the HIV's actual impact on Stewart's ability to reproduce, viewed in the light most favorable to the Commission, is sufficient to establish that Stewart had a disability, even if only her HIV infection is considered. According to Stewart, she always wanted to have children, and became pregnant shortly after she married her husband, who is also HIV-positive. R.28, Stewart Aff. at 3¶¶15-16. Although she attempted to continue her medications to decrease the risk that her baby would be infected, she was unable to take any medications during the second trimester of her pregnancy because of her low platelet count. Id. at 3¶17. Consequently, after the birth of their child, Stewart and her husband underwent surgery to prevent future pregnancies because the risk of transmitting the infection to another baby was too high. Id. at 3¶¶18-19. The Supreme Court has recognized that HIV imposes a substantial limitation on reproduction because "an infected woman risks infecting her child during gestation and childbirth," and these risks of transmission "are dangerous to the public health." Bragdon, 524 U.S. at 640. Stewart, a newly married young woman, endured extreme risk when she chose to carry her baby to term, and has since taken surgical steps to prevent conception of the other children she would have had absent the disease. Therefore, a reasonable jury could conclude that for Stewart reproduction is a major life activity that was substantially limited by her HIV infection. See Bragdon, 524 U.S. at 641-42 (concluding that patient's HIV infection substantially limited a major life activity based on her unchallenged testimony "that her HIV infection controlled her decision not to have a child"). Accordingly, this Court should reverse the district court's finding that the EEOC has not shown that "having HIV substantially limited one or more of Stewart's major life activities." R.39, Op. at 9. III. Summary Judgment Cannot Be Affirmed on the Alternative Ground that Stewart Was Not a Qualified Individual with a Disability Finally, the district court's question about "whether plaintiff could prove that Stewart was a ‘qualified individual' in light of her inability to lift more than 10 pounds or suggest an accommodation," does not provide an alternative ground upon which to affirm summary judgment. The ADA prohibits discrimination against a qualified individual with a disability. 42 U.S.C. § 12101(b)(1). A "qualified individual with a disability" is an "individual who, with or without reasonable accommodation, can perform the essential functions of the employment position" in question. 42 U.S.C. § 12111(8). The EEOC has stated that a qualified individual with a disability "means an individual with a disability who satisfies the requisite skill, experience, education and other job-related requirements of the employment position . . . and who, with or without reasonable accommodation, can perform the essential functions." 29 C.F.R. § 1630.2(n). Log Cabin argued that Stewart was not a qualified individual for coverage purposes because she could not perform essential lifting functions and because she lacked the requisite experience for the job. Viewed in the light most favorable to the Commission, the evidence raises a triable issue of fact on both issues. Log Cabin asserted that Stewart was not qualified for the job because waitresses were required to carry heavy items weighing 25 pounds or more and Stewart had said she could not lift more than 10 pounds. R.13, Lee Aff. at 2¶¶8, 15; R.39, Op. at 3. However, the record reveals that it is a disputed fact whether heavy lifting was an essential function of the job. Although Log Cabin avers that "[a]ll waitresses or servers of Lee's Log Cabin were required to perform [lifting] tasks," R.13, Lee Aff. 2¶11, the record contains evidence that Log Cabin had hired a person to waitress who also had a heavy lifting restriction before Stewart applied. R.39, Op. at 3. Also, when asked in deposition whether "having a lifting restriction . . . eliminate[d] someone from being employed as a waitress at Lee's Log Cabin," Lee responded "[n]ot necessarily." Ex. A (Lee Dep. at 84) to R.31, Tomlinson Aff. The record also shows that it is a disputed fact whether Stewart actually was unable to meet the lifting requirement. She attests that she told Zastrow her lifting restriction was temporary, and Zastrow denies he was provided this information. R.39, Op. at 3. Similarly, the record reveals that it is a disputed fact as to whether waitressing experience was a requirement for the job. Log Cabin intimated that Stewart was not qualified because she had no prior waitressing experience. R.13, Lee Aff. 2¶16. However, the record reveals that the restaurant had previously hired two applicants with no waitressing experience, casting doubt on whether prior experience was a job qualification. R.39, Op. at 4. A jury also could conclude that Log Cabin abandoned the waitressing-experience requirement as a basis for its assertion that Stewart was not qualified, and instead relied solely on her lifting restriction. In the conclusion of the decisionmaker's affidavit, he failed to refer to Stewart's lack of experience. Rather, he reiterated that "I decided not to hire Ms. Krause because the job required that she be able to lift 20-25 pounds 20 times a day and she indicated that she could not lift more than 10 pounds and further indicated there was nothing we could do to accommodate that restriction." R.13, Lee Aff. at 3¶25. An evaluation of the evidence regarding Stewart's qualifications for the job rests on credibility determinations. If Stewart's version of the facts were believed by the jury, which is to be assumed at the summary judgment stage, the jury could also question Log Cabin's statements about the job requirements. Specifically, given the inconsistencies in Lee's testimony about the necessity of waitresses being able to lift heavy items, and his hiring of a waitress who had a lifting restriction as well as persons with no prior waitressing experience, a jury could believe that Log Cabin's claim that Stewart lacked qualifications was not supported by the evidence. Thus, the issues of Stewart's qualifications should go to a jury. Paz v. Wauconda Healthcare and Rehabilitation Centre, LLC, 464 F.3d 659, 664 (7th Cir. 2006) ("At summary judgment, ‘a court may not make credibility determinations, weigh the evidence, or decide which inferences to draw from the facts; these are jobs for a factfinder.'"). Accordingly, these disputed facts preclude affirming summary judgment for Log Cabin. CONCLUSION The district court's decision indicates that the court failed to comprehend fully the nature of and nexus between HIV and AIDS. This error completely affected the court's evaluation and analysis of the evidence and informed the conclusions drawn. In addition, the court engaged in a literal and technical assessment of the EEOC's complaint that not only totally disregarded the rules of liberal construction and notice pleading, but failed to promote the remedial goals of the ADA. In that the evidence in the record could permit a reasonable jury to conclude that Stewart had a disability, the Commission urges this Court to reverse the summary judgment entered in favor of Log Cabin and remand the case for trial on the EEOC's ADA claim. Respectfully submitted, RONALD S. COOPER General Counsel VINCENT J. BLACKWOOD 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 December 15, 2006 (202) 663-4731 (w); (202) 663-7090 (fax) 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 7,110 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 COMPLIANCE WITH APPENDIX REQUIREMENTS Pursuant to 7th Cir. R. 30(d), I certify that all of the materials required by parts (a) and (b) of this rule are included in the Appendix. The district court's opinion complies with Circuit Rule 30(a). The EEOC's complaint and Stewart's affidavit comply with Circuit Rule 30(b)(6). ____________________________ Paula R. Bruner CERTIFICATE OF COMPLIANCE WITH FILING REQUIREMENTS In accordance with 7th Cir. R. 31(e), I certify that digital versions of the materials in the Appendix are not available. A Westlaw version of the district court's opinion, however, can be obtained online. ____________________________ Paula R. Bruner December 15, 2006 CERTIFICATE OF SERVICE This is to certify that on December 15, 2006, two copies of the foregoing brief along with the certificate of service was 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 PAULA R. BRUNER Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION 1801 L Street, N.W. Rm. 7806 Washington, D.C. 20507 (202) 663-4731 December 15, 2006 ADDENDUM 1. District Court Decision 2. R.2, EEOC Complaint 3. R.9, Def. Ex. A, Stewart's Job Application DISTRICT COURT DECISION EEOC COMPLAINT STEWART'S JOB APPLICATION *********************************************************************** <> <1> The district court’s decision is published at 436 F.Supp.2d 992 (W.D. Wis. 2006). <2> Federal Rule of Civil Procedure 15(b) states: When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended and shall do so freely when the presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy the court that the admission of such evidence would prejudice the party in maintaining the party's action or defense upon the merits. <3> See Stewart’s Job Application, Ex. A to R.9, Def. Sum. Jud. Br. <4> There was extensive media coverage of the Quality Foods case in the Wausau, state, and national press about the EEOC’s lawsuit against Quality Foods and the settlement, which mentioned that Stewart was born HIV-infected, and that her biological mother had HIV and died. See, e.g., Marilynn Marchionne, Fears Over HIV cost girl her job; EEOC urges settlement, finds ‘reasonable cause,’ MILWAUKEE J. SENT., Sept. 21, 2001, at 1B (“her biological mother tested positive for HIV . . . and died in 1994”); Mark Treinen, IGA says it didn’t fire girl with HIV, WAUSAU DAILY HER., Sept. 6, 2001, at 1A (“Krause was born with the disease, and her birth mother has since died”); Store Denies HIV-infected clerk was fired, says she was offered another job, Assoc. Press, Sept. 6, 2001 (Krause’s “biological mother, who also had HIV, died in 1994”); Teen with HIV alleges bias, CHICAGO TRIB., Sept. 3, 2001 at 8. Although these press reports are not in the record, the Commission urges this Court to take judicial notice of them. Benak ex rel. Alliance Premier Growth Fund v. Alliance Capital Mgmt. L.P., 435 F.3d 396, 401 n. 15 (3d Cir.2006) (holding that district court did not err in taking judicial notice of newspaper articles because “[t]hey serve only to indicate what was in the public realm at the time, not whether the contents of those articles were in fact true”) (internal citation omitted). Indeed, the factual accounts of the news reports are undisputed, Fed. R. Evid. 201(b) (“[a] judicially noticed fact must be one not subject to reasonable dispute”), and the defendant’s restaurant is located in a small town, making its officials’ awareness of these reports probable. See NLRB v. Fresh'nd-Aire Company, 226 F.2d 737, 741 (7th Cir. 1955) (holding that, because “Respondent's factory was located in a small community, . . .we may take judicial notice that news would there travel by word of mouth in a rapid manner”). <5> Indeed, in the mid to late 1990’s, being HIV-infected, as with having AIDS, was life-threatening because anti-viral drugs were not available or affordable. See Taylor v. Rice, 451 F.3d 898, 902 n. 5 (D.C. Cir. 2006) (“Until 1996, an HIV infection was invariably fatal. At that time, however, the introduction of a new class of antiretroviral medications combined with other drugs, proved able to suppress HIV and to prevent deteriorating compromise of patients’ immune systems.”). Now, “[p]eople infected by the human immunodeficiency virus (HIV), . . . can slow the progress of the disease by taking protease inhibitors, which hamper HIV’s ability to copy itself into additional cells.” Schor v. Abbott Laboratories, 457 F.3d 608, 609 (7th Cir. 2006). Yet, physicians report that they are “still fighting the perception that HIV is a death sentence. ‘Most of the people I’ve counseled who are positive ... the first thought that comes to their mind is, “Oh my god, I’m dead, [Dr.] Spotkov said.”’” Mike Stobbe, HIV tests may soon become routine, DAILY BREEZE (Torrance, Cal.), Sept. 22, 2006, at A1, 2006 WLNR 16465932. In addition, because of “the unfortunately unfeeling attitude among many in this society toward those coping with the disease[,] [a]n individual revealing that she is HIV seropositive potentially exposes herself not to understanding or compassion but to discrimination and intolerance[.]” Powell v. Schriver, 175 F.3d 107, 111 (2d Cir. 1999). <6> Fears Over HIV cost girl her job, MILWAUKEE J. SENT., Sept. 21, 2001, at 1B (“[t]he Wausau suburb of Schofield is a small town – about 2,400 people”).