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, No. 05-507 The Honorable Barbara Crabb, Chief Judge _________________________________________________________________ PETITION OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION FOR REHEARING EN BANC _________________________________________________________________ RONALD S. COOPER General Counsel CAROLYN L. WHEELER Acting Associate 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 TABLE OF CONTENTS TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT PURSUANT TO RULE 35(b)(1). . . . . . . . . . . . . . . . . . . . . 1 FACTUAL STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 THE MAJORITY DECISION AND THE DISSENT. . . . . . . . . . . . . . . . . . . . . 3 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 I. En Banc Review is Warranted Because the Majority's Dismissal of this ADA Case on the Ground that the Complaint Alleged HIV Discrimination and Summary Judgment Evidence Clarified that Stewart's HIV Status was AIDS Creates a False Dichotomy and is Inconsistent with Notice Pleading Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 II. En Banc Review is Warranted Because the Panel's Refusal to Consider Evidence that Stewart Is Substantially Limited in Major Life Activities by HIV/AIDS and Its Decision that Stewart was not Qualified Contravene Summary Judgment Standards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 III. Rehearing En Banc is Warranted Because the Majority's Alternative Holding that Log Cabin Lacked Knowledge that Stewart had AIDS is Contrary to Law. . . . . . 13 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES CASES Adams v. Rice, 531 F.3d 936 (D.C. Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . 14 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 10 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007). . . . . . . . . . . . . . . . . . . . 1, 8 Bragdon v. Abbott, 524 U.S. 624 (1998). . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12 Burks v. Wisconsin Dep't of Transp., 464 F.3d 744 (7th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . 1, 10 Early v. Bankers Life, 959 F.2d 75, 79 (7th Cir. 1992). . . . . . . . . . . . . . . . . . . . . 9, 12 EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 779 (7th Cir. 2007). . . . . . . . . . . . . . . . . . . . . 8,9 Limestone Dev. Corp. v. Village of Lemont, Ill., 520 F.3d 797 (7th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . 1, 8 Paz v. Wauconda Healthcare & Rehab. Centre, LLC, 464 F.3d 659 (7th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . 12 Pierce v. Illinois Dep't of Human Servs., 128 Fed. Appx. 534 (7th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . 9 Rapid Test Prods., Inc. v. Durham Sch. Servs., Inc., 460 F.3d 859 (7th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . 7 Roth v. Lutheran General Hosp., 57 F.3d 1446 (7th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . 15 Sanglap v. LaSalle Bank, 345 F.3d 515 (7th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . 1, 13 Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). . . . . . . . . . . . . . . . . . . . . . . . 7,9 Tamayo v. Blagojevich, 526 F.2d 1074 (7th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . 1, 8 STATUTES, REGULATIONS, AND RULES 42 U.S.C. § 12101(2)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . 13 29 C.F.R. pt. 1630, app., § 1630.2(j). . . . . . . . . . . . . . . . . . . . . 10 Fed. R. Civ. P. 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Fed. R. Civ. 8(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 STATEMENT PURSUANT TO F.R.A.P. 35(b)(1) The Equal Employment Opportunity Commission (EEOC) petitions for rehearing en banc. F.R.A.P. 35(b). This case merits en banc review to secure uniformity of this Court's decisions. F.R.A.P. 35(a)(1). First, the panel majority's decision to dismiss the EEOC's case because its complaint alleged that Stewart was HIV positive, while the evidence of substantial limitations clarified that her HIV status was AIDS, creates a counterfactual dichotomy between HIV and AIDS, and establishes a pleading standard that conflicts with prior decisions of the Supreme Court and this Court as well as federal pleading rules. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007); Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002); Tamayo v. Blagojevich, 526 F.2d 1074 (7th Cir. 2008); Limestone Dev. Corp. v. Village of Lemont, Ill., 520 F.3d 797 (7th Cir. 2008); Fed. R. Civ. P. 8. Second, the majority's holding that the EEOC "left an empty record on whether Stewart's HIV infection limited one of more of her major life activities," Op. at 2, and its alternative holding that Stewart was not a "qualified individual" under the ADA, id. at 14-15, flout traditional summary judgment standards. See Anderson v. Liberty Lobby Inc., 477 U.S. 242 (1986); Burks v. Wisconsin Dep't of Transp., 464 F.3d 744 (7th Cir. 2006). Finally, the majority's holding "[t]hat Log Cabin did not know Stewart had AIDS is an alternative basis to affirm," Op. at 12 n.4, conflicts with Circuit precedent. See Sanglap v. LaSalle Bank, 345 F.3d 515, 520 (7th Cir. 2003) (defendant need only know of symptoms raising an inference that individual was disabled). FACTUAL STATEMENT Korrin Krause Stewart was born with HIV. Br. at 2.<1> At age 14, Stewart learned of her HIV condition and that it had advanced to full-blown AIDS. Id. At age 18, Stewart met with Curtis Zastrow, an assistant manager for Lee's Log Cabin, and applied for a waitress position. Id. Stewart indicated that she had prior restaurant experience as a cashier and server, but no waitressing experience. Id. at 2-3. Because the job description and application indicated that waitresses must be able to lift 25-30 pounds during their shifts, Stewart noted on the application that she had a lifting restriction of 10 pounds that could not be accommodated. Id. at 3. Two weeks prior, 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. Id. Stewart asserted that she told Zastrow her lifting restriction was temporary, but he denied that. He claimed that he told Stewart her lifting restriction would disqualify her from employment, but she denied that. Further, record evidence revealed that the owner did not believe a lifting restriction "necessarily" eliminated someone from being a Log Cabin waitress. Id. at 3, 26. After a month had passed without a response to her application, Stewart met again with Zastrow. Br. at 3. He asked her if "she was the girl from Quality Foods." Id. In 2002, the EEOC had settled a lawsuit alleging that Quality Foods violated the ADA by terminating Stewart, then age 16, when it learned that she was HIV-positive. Id. at 3-4. The lawsuit received widespread media attention. Id. at 19 & n.4. Stewart confirmed that she had worked at Quality Foods and asked if she could amend her application to reflect her experience as a dishwasher. Id. at 4. When Stewart saw her application, it had "HIV+" written on it. Id. Dean Lee, the owner of the restaurant, reviewed Stewart's application and inquired about the "HIV+" notation on it. Br. at 4. Zastrow told Lee that he had written it after Stewart told him about her condition. Id. Stewart said she never told Zastrow that she was HIV-positive. Id. Lee 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. 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. 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." Br. at 5. Log Cabin filed a summary judgment motion, arguing that Stewart was not disabled or qualified for the job. Id. The district court granted defendant's motion for summary judgment, deciding that the EEOC had not proved Stewart had a disability. Id. at 5-6. THE MAJORITY DECISION AND THE DISSENT In a 2-1 decision, a panel of this Court affirmed summary judgment for Log Cabin on "slightly different grounds." Op. at 2. First, the majority held that because the EEOC belatedly attempted to reconfigure its claim, the district court properly refused to entertain any evidence about how AIDS impacted Stewart's life activities, leaving "an empty record on whether Stewart's HIV infection limited one or more of her major life activities." Id. In the event the AIDS evidence should have been allowed, the majority added that Log Cabin's lack of knowledge that Stewart had AIDS "is an alternative basis to affirm." Id. at 12 n.4. Finally, the majority decided that another alternative basis for affirmance was that "Stewart was not a 'qualified individual' under the ADA." Id. at 2, 15. It reasoned that "[t]he factual dispute over whether the lifting restriction was temporary or permanent was . . . immaterial." Id. at 14-15. In dissent, Judge Williams stated that she would reverse the district court's grant of summary judgment to Log Cabin because the distinction the district court raised between HIV and AIDS "improperly focus[es] on the name of Stewart's disability rather than its effects on her life activities." Op. at 16. She added that the distinction is also "erroneous and unreasonable" because "[a] person diagnosed with AIDS is also HIV positive." Id. Therefore, in her view, "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." Id. Judge Williams also rejected the majority's view that EEOC's complaint required an amendment. Op. at 17. In her opinion, EEOC's complaint complied with the federal notice pleading standard and provided a short and plain statement of the grievance. Id. at 18. She reasoned that "[a]ny facts consistent with the complaint's allegations could be proved later[.]" Id. Next, Judge Williams viewed as "illogical" and "inexplicable" the district court's restriction of EEOC's substantial limitation evidence to Stewart's AIDS condition and rejection of it as inconsistent with the allegation in EEOC's complaint. Op. at 18. She observed that the evidence submitted referred to Stewart's conditions as AIDS or HIV/AIDS and it is "undisputed that at all relevant times, Stewart was not only HIV positive . . . but she also had AIDS." Id. Hence, she reasoned that the impact of HIV/AIDS or AIDS on Stewart's life activities describes the impact that HIV has on Stewart's life activities, especially since the "effects of AIDS . . . are not severable from the effects of HIV." Id. at 18-19. She further opined that "whether one calls Stewart's disease 'HIV' or 'AIDS' or 'HIV/AIDS' misses the point of the ADA" because 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.'" Id. at 19 (quoting 29 C.F.R. pt. 1630, app., §1630.2(j)). Accordingly, she concluded that, because the EEOC presented evidence demonstrating that Stewart's disease substantially limited a major life activity, the district court (and the majority) erred in granting summary judgment. Id. at 19-20. With respect to the alternative bases for affirmance, Judge Williams rejected the majority view that summary judgment was proper because Log Cabin did not know Stewart had AIDS. She noted that the Seventh Circuit has "never held that an employer who acts improperly on the basis of a disability need know the extent to which the disability progressed to be held liable." Op. at 22. Moreover, she observed that this is not a case where the defendant had no knowledge of Stewart's disability because "[i]t is undisputed that Log Cabin knew [Stewart] was HIV positive" as evidenced by the designation on Stewart's job application. Id. Accordingly, she stated that the EEOC does not need to prove that Log Cabin knew Stewart's HIV infection had progressed to the final stage to prove liability. Id. at 23. Lastly, Judge Williams disagreed that summary judgment could be affirmed on the alternative ground that Stewart was not qualified. She noted that although Log Cabin asserted that lifting 25-30 pounds was an "absolute requirement" for its waitresses, the owner testified at his deposition that a lifting restriction would "not necessarily" disqualify an applicant from being employed as a waitress and that a material factual dispute existed as to whether Stewart's lifting restriction was only temporary, and thus would not have been an issue by the time she was hired. Id. ARGUMENT I. En Banc Review is Warranted Because the Majority's Dismissal of this ADA Case on the Ground that the Complaint Alleged HIV Discrimination and Summary Judgment Evidence Clarified that Stewart's HIV Status was AIDS Creates a False Dichotomy and is Inconsistent with Notice Pleading Standards Focusing on the fact that "the complaint alleged Log Cabin discriminated against Stewart because she was HIV-positive - not because she had AIDS," Op. at 4, the majority decided that summary judgment was proper because the "EEOC attempt[ed], extremely late in the litigation, to refashion its claim as one based on AIDS rather HIV." Id. at 7. This conclusion is erroneous because, as the dissent observed, id. at 15-16, the EEOC never changed its legal theory in this case. From the complaint to its summary judgment opposition to its surreply, the EEOC has maintained that Log Cabin discriminated against Stewart after learning she was HIV-positive. Br. at 5, 9, 11. Evidence regarding Stewart's AIDS status was simply proffered to establish coverage under the ADA and not a new cause of action. Op. at 20. In affirming summary judgment for Log Cabin, the panel majority stated that it "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." Op. at 8. Yet, the majority did draw this critical distinction, ruling that HIV and AIDS "are not synonymous" in determining "whether to entertain the EEOC's belated alteration of the factual basis of its claim." Id. However, there is no medical, scientific, or legal support for the distinction the majority has drawn, Br. at 14-17; Reply at 13; Op. at 16-17 & 21, and its rigid application of its conclusion that HIV and AIDS are different to justify dismissal of a case where the HIV-infected individual had AIDS at the time of the alleged discrimination is particularly perverse. As the dissent noted, "HIV and AIDS are not separate diseases." Op. at 17. "A person diagnosed with AIDS is also HIV positive" and "having AIDS is not inconsistent with being HIV positive." Id. at 16. Moreover, "persons with AIDS do not cease to be HIV positive; once someone is HIV positive or infected with HIV, she is always HIV positive." Id. at 17. The majority repeatedly admits "[t]his is . . . true," id. at 10-11 n.3, but inexplicably maintains that there is a distinction when an HIV-infected person has not advanced to AIDS - a situation not at issue in this case. Id. In that it is undisputed Stewart was both HIV-positive and had AIDS at the time Log Cabin refused to hire her, id. at 3, the majority's affirmance rests on a distinction between HIV and AIDS that is completely inconsistent with the facts of this case and medical science. In ruling that EEOC attempted to "reconfigure," "substitute," "shift," "switch," "refashion," or "reconstitute" its claim, Op. at 2, 5 & 7, the majority not only creates a false dichotomy between HIV and AIDS, it also misapprehends EEOC's intention and imposes a specificity requirement in ADA cases that is not countenanced by notice pleading standards. See Fed. R. Civ. P. 8(a). As the dissent noted, "[p]ursuant to the notice pleading standard, the EEOC's complaint, which merely initiated the litigation, provided a short and plain statement of the grievance: Log Cabin refused to hire Stewart 'because it learned she was HIV positive.'" Id. at 17-18. The dissent's view and EEOC's actions are completely supported by the decisions of the Supreme Court and this Court, which have held that at the complaint stage, the plaintiff need not plead legal theories nor allege all the facts necessary to establish the essential elements of a legal theory. See, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-14 (2002); Rapid Test Prods. Inc. v. Durham Sch. Servs., Inc., 460 F.3d 859, 860 (7th Cir. 2006). Moreover, despite the majority's reference to Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007), Op. at 9, nothing in that decision supports a different outcome. The Supreme Court made clear in Swierkiewicz that employment discrimination cases do not require a heightened pleading standard and confirmed that point in Twombly. 127 S. Ct. at 1974 (reaffirming Swierkiewicz). Instead, the Supreme Court requires "only enough facts to state a claim to relief that is plausible on its face," id., which the EEOC clearly provided here. The defendant, the district court, and the panel majority understood that Log Cabin was charged with HIV discrimination. Op. at 4, 9. Had Log Cabin conducted the expected discovery on Stewart's HIV condition, it would have learned that she had AIDS before it sought summary judgment. Twombly, 127 S. Ct. at 1965 (a sufficient complaint provides "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element"); Tamayo v. Blagojevich, 526 F.3d 1074, 1085 (7th Cir. 2008) (a complaint enables a defendant "to investigate and prepare a defense"); EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 779 (7th Cir. 2007) ("details are more efficiently learned through the flexible discovery process"). By demanding instead that the EEOC's complaint specifically allege AIDS discrimination in order to consider evidence that Stewart's HIV impairment-AIDS substantially limited her in major life activities, id. at 9-13, the majority disregarded this Circuit's admonition that "Bell Atlantic must not be overread." Limestone Dev. Corp. v. Village of Lemont, Ill., 520 F.3d 797, 803 (7th Cir. 2008). Further, it improperly interjected an erroneous "same condition" premise that would defeat any ADA case where the impairment at issue has different stages or labels. Applying the majority's standard, a case alleging hiring discrimination based on diabetes should be dismissed if the complaint referred to diabetes but subsequent filings revealed that the precise condition was Type I insulin-dependent diabetes rather than Type II diabetes, which often can be controlled by diet and exercise and may be less severe. That outcome, like the majority's decision here, mocks the principle that "[t]he 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). Accord Swierkiewicz, 534 U.S. at 515 ("[a] requirement of greater specificity for particular claims is a result that must be obtained by the process of amending the Federal Rules, and not by judicial interpretation"). As this Court has consistently held, a plaintiff is free to allege any facts consistent with the complaint "that if proved (a matter for trial) would entitle [it] to judgment." Early v. Bankers Life, 959 F.2d 75, 79 (7th Cir. 1992). "A defendant who wants to pin the plaintiff down has to present evidence, at which point Rule 56(e) comes into play and the plaintiff can't rest on his pleadings, let alone on hypothesized facts intended to show that his complaint can be construed as stating a claim." Id.; Br. at 10-12. Here, the EEOC properly offered facts in its opposition to summary judgment that confirmed Stewart is HIV-positive, that she has AIDS, and that her condition was substantially limiting because of the impact of the infection on various major life activities. To the extent these facts are true and consistent with the allegation in the complaint, the majority's dismissal of the case because the AIDS evidence was "too late," Op. at 12, and that it constituted a "major alteration of 'what the claim is' and the 'grounds upon which it rests,'" id. at 9, compels rehearing en banc. Concentra, 496 F.3d at 779 ("[t]he intent of the liberal notice pleading system is to ensure that claims are determined on their merits rather than through missteps in pleading"). II. En Banc Review is Warranted Because the Panel's Refusal to Consider Evidence that Stewart Is Substantially Limited in Major Life Activities by HIV/AIDS and Its Decision that Stewart was not Qualified Contravene Summary Judgment Standards Rehearing en banc also is appropriate because, in affirming summary judgment, the majority failed to view the evidence in the light most favorable to the EEOC. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Burks v. Wisconsin Dep't of Transp., 464 F.3d 744, 750 (7th Cir. 2006). The majority erred in considering evidence of Stewart's limitations and her qualifications to do the waitress job. The majority rejected evidence relating to Stewart's AIDS condition and concluded that the "EEOC presented no evidence about how being HIV-positive alone affected Stewart." Op. at 4. As the dissent explained, it is undisputed that Stewart had HIV and AIDS at the time of the alleged discrimination, thus "reliance on the difference between HIV and AIDS to disregard evidence regarding the effect that HIV has on Stewart's life is unreasonable." Id. at 20. The dissent reasoned, whether Stewart's disease is called "HIV," "AIDS" or "HIV/AIDS," the disability determination turns not 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.'" Id. at 19 (quoting 29 C.F.R. pt. 1630, app., § 1630.2(j)). Here, the record contained evidence that Stewart's impairment had progressed to AIDS and substantially limited several major life activities, evidence derived from Stewart's affidavit and thus based on an "individualized inquiry." Br. at 21-22. Stewart's affidavit provided details regarding the impact of her impairment on her major life activities, D.Ct. Op. at 5, and in fact used the term "HIV/AIDS" to describe limitations that predated and succeeded the alleged discrimination. Contrary to the majority's opinion, Stewart provided "information about her limitations and symptoms at the time she applied for the wait-staff position in 2004." Op. at 4. Both the district court and panel majority ignored that Stewart averred that "[a]s a result of my HIV/AIDS, I periodically suffer from a low platelet count" that "[d]uring an episode in early 2004," led to restrictions on lifting and physical activity and required her to "remain in the house with frequent bed rest." Stewart Decl. at 2¶7. Additionally, she stated she was subject to "episodic Cytomegalovirus infections," a "virus that can be very serious for persons with HIV/AIDS," which affected her liver and eyesight and for which she received treatment currently and "in the past." Id. at 2¶8-9. Lastly, she stated that "since my diagnosis of HIV/AIDS I have suffered from episodes of depression," that prevented her from attending high school on a full- time basis and that "[f]or most of my life," her condition affected her social relations with others. Id. at 3¶¶11-14. These statements have a temporal scope that clearly predates and encompasses Log Cabin's hiring decision. Furthermore, the evidence of the limitations on Stewart's major life activity of reproduction could reasonably be viewed as relating to the time of the alleged discrimination. Log Cabin should not get a pass, as the majority suggests, simply because the EEOC and Stewart highlighted how HIV/AIDS impacted Stewart's decision to have a baby, which occurred after the discrimination. Op. at 13 n.5. The Supreme Court stressed that the "ability" to bear children was a major life activity that was substantially limited in a woman infected with HIV (even while asymptomatic) because she could "infect[] her child during gestation and childbirth." Bragdon, 524 U.S. at 640. The fact that Stewart actually gave birth and must regularly test her child to determine whether the virus was transmitted does not negate the grave risks HIV creates in reproduction. Id. ("[i]t cannot be said as a matter of law that an 8% risk of transmitting a dread and fatal disease to one's child does not represent a substantial limitation on reproduction"). Moreover, because the ADA does not address "utter inabilities," and "[c]onception and childbirth are not impossible for an HIV victim," Stewart's having a baby does not vitiate the reasonable inference that her "unchallenged" desire to have children and awareness of the risks posed by HIV existed at the time of the alleged discrimination. Id. at 641. In light of the wealth of evidence of Stewart's limitations, any doubts about her condition and its effects should have been resolved against Log Cabin, and the majority should have reversed the district court's summary judgment decision. See Early, 959 F.2d at 79 ("any ambiguities in complaints in federal court should be interpreted in favor of plaintiffs, not defendants"). The majority's contrary conclusion is untenable because, as the dissent observed, it is impossible for a person with AIDS "to provide evidence of how HIV alone affects her major life activities." Op. at 24. Similarly, the majority ignored summary judgment standards when it decided that Stewart was not qualified for the job. Op. at 13-15. This Court has said that, "[a]t 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." Paz v. Wauconda Healthcare & Rehab. Centre, LLC, 464 F.3d 659, 664 (7th Cir. 2006). Yet, in deciding that Log Cabin had a "heavy-lifting requirement," Op. at 14, the majority inappropriately resolved a factual dispute when it ignored the owner's testimony that a lifting restriction would "not necessarily" disqualify an applicant for the waitressing position. Br. at 26; Dissent at 23. Further, the majority improperly made a credibility determination when it disbelieved Stewart's testimony that she told Log Cabin her lifting restriction was temporary, Br. at 27; Dissent at 23, and concluded that "[t]he factual dispute over whether the lifting restriction was temporary or permanent was . . . immaterial." Op. at 14-15. If the majority had properly resolved this conflict in favor of the EEOC, it would have determined that Stewart was qualified because "there would be no reason for Log Cabin to have to 'accommodate' her." Dissent at 23. III. Rehearing En Banc is Warranted Because the Majority's Alternative Holding that Log Cabin Lacked Knowledge that Stewart had AIDS is Contrary to Law Lastly, the majority's ruling that affirmance is appropriate because Log Cabin lacked knowledge that Stewart had AIDS directly conflicts with Circuit precedent. Op. at 12 n.4; Br. at 17-21. As the dissent pointed out, this Court has "never held that an employer who acts improperly on the basis of a disability need know the extent to which the disability has progressed." Dissent at 22. Conceding this point, the majority denies that its opinion requires otherwise. Op. at 12 n.4. Instead, it illogically reasons that, 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," id. at 12 n.4, it "hold[s] only that EEOC's belated attempt to substitute AIDS for HIV as a basis for this ADA claim came too late." Id. at 12 n.4. The majority's rationale is factually erroneous and legally infirm. As explained above, the EEOC did not "substitute" a claim of AIDS discrimination for the initial claim of discrimination based on HIV status, and its production of evidence of Stewart's limitations in response to a motion for summary judgment cannot be considered "too late." Second, for liability to attach, it is sufficient that Log Cabin knew Stewart was HIV-positive, Op. at 11 n.3, because the ADA prohibits an employer from discriminating against an employee with a substantially limiting impairment. 42 U.S.C. § 12101(2)(A). The statute does not require proof that the employer knew of the nature or extent of the disease or limitation. Sanglap v. LaSalle Bank, 345 F.3d 515, 520 (7th Cir. 2003) ("liability for disability discrimination does not require professional understanding of the plaintiff's condition[;] [i]t is enough to show that the defendant knew of symptoms raising an inference that the plaintiff was disabled"). So long as EEOC can prove Stewart was not hired because she is HIV-positive, Log Cabin can be held liable. This point was recently elucidated in Adams v. Rice, 531 F.3d 936 (D.C. Cir. 2008). In Adams, the State Department refused to hire a Foreign Service candidate who was diagnosed with stage-one breast cancer even though she passed the required entrance examinations, received a medical clearance, and was declared cancer-free following her mastectomy. Id. at 939. Although the district court found the State Department's disregard of the physician's diagnosis that she could work anywhere in the world with minimal accommodation "both callous and unreasonable," it concluded that the candidate failed to show she was disabled under the ADA and granted summary judgment. Id. at 940. On appeal, the State Department asserted, inter alia, that it could not be held liable for disability discrimination because the candidate did not reveal that the effects of her breast cancer (the mastectomy) precluded her from engaging in the life activity of sexual relations when the Department revoked her medical clearance. It argued that "an employer [must] know[] not only about the employee's alleged history of a physical or mental impairment, but also how that impairment substantially limited a major life activity." Id. at 950. The D.C. Circuit disagreed, holding that "an employer's knowledge of the precise limitation at issue is irrelevant; so long as the employee can show that her impairment . . . substantially limited a major life activity - the employer will be liable if it takes adverse action against her based on that impairment." Id. at 954. The court added that, in a hypothetical case, if a telephone receptionist has a malignant brain tumor removed and is cancer free but has a significant hearing loss, it also would constitute illegal discrimination if "the employer learns about the tumor - but has no idea about the hearing loss - and informs the employee he's not welcome back at work because he had cancer." Id. (emphasis in original). In short, "it makes no difference whether an employer has precise knowledge of an employee's substantial limitation; as in Bragdon, it is enough for the employer to know about the impairment." Id. Accordingly, Log Cabin's ignorance about Stewart having AIDS (and its allegedly more severe effects) is inconsequential and provides no basis for affirmance in this case. CONCLUSION The ADA is "important legislation that seek[s] to integrate disabled individuals into the economic and social mainstream, and to ensure that the truly disabled will not face discrimination because of stereotypes or their insurmountable impairments." Roth v. Lutheran General Hosp., 57 F.3d 1446, 1460 (7th Cir. 1995). The majority's decision fails to advance these tenets of the ADA. Instead, it promotes a false distinction between HIV and AIDS that logically cannot exist in an HIV-infected person who had AIDS at the time of the alleged discrimination and disserves a truly disabled person who desires to lead a normal life. Accordingly, because the majority decision conflicts with Seventh Circuit and Supreme Court precedent, the full Court is urged to grant en banc review. Respectfully submitted, RONALD S. COOPER Equal Employment Opportunity Commission General Counsel 1801 L Street, N.W. Rm. 7806 Washington, D.C. 20507 CAROLYN L. WHEELER (202) 663-4731 (w); (202) 663-7090 (fax) Acting Associate General Counsel paula.bruner@eeoc.gov ____________________________ PAULA R. BRUNER Attorney CERTIFICATE OF SERVICE This is to certify that on November 19, 2008, two copies of the Petition for Rehearing En Banc along with the certificate of service were mailed by overnight delivery, 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 November 19, 2008 *********************************************************************** <> <1> This Court's decision, the EEOC's appellate brief (Br.) and reply brief (Reply), are available electronically on this Court's website, http://www.ca7.uscourts.gov/briefs.htm. The briefs contain citations to the district court record to support all factual assertions. All materials filed in the district court are available electronically via the ECF link on the website of the U.S. District Court for the Western District of Wisconsin, https://ecf.wiwd.uscourts.gov. A copy of the panel opinion also is available at 2008 WL 4459236, 21 A.D. Cases 97.