                          In the

United States Court of Appeals
              For the Seventh Circuit


                     F EBRUARY 2, 2009


                          Before

          F RANK H. E ASTERBROOK, Chief Judge
          R ICHARD A. P OSNER, Circuit Judge
          JOEL M. F LAUM, Circuit Judge
          M ICHAEL S. K ANNE, Circuit Judge
          ILANA D IAMOND R OVNER, Circuit Judge
          D IANE P. W OOD , Circuit Judge
          T ERENCE T. E VANS, Circuit Judge
          A NN C LAIRE W ILLIAMS, Circuit Judge
          D IANE S. S YKES, Circuit Judge
          JOHN D ANIEL T INDER, Circuit Judge


No. 06-3278

E QUAL E MPLOYMENT O PPORTUNITY C OMMISSION,

                                         Plaintiff-Appellant,
                             v.


L EE’S L OG C ABIN , INCORPORATED ,
                                         Defendant-Appellee.
2                                                     No. 06-3278



           Appeal from the United States District Court
              for the Western District of Wisconsin.
           No. 05 C 507—Barbara B. Crabb, Chief Judge.




  The slip opinion issued on October 6, 2008, is A MENDED
to add the following language at the end of footnote 4
on page 12:
      We caution that nothing in this opinion should be
    read to suggest that the EEOC’s complaint failed to
    state a claim; we hold only that the district court was
    within its discretion to refuse to permit a change in
    the claim under the procedural circumstances of this
    case.
  Otherwise, on consideration of the petition for panel
rehearing and for rehearing en banc, a majority of judges
have voted to deny rehearing. Circuit Judges Rovner,
Wood, Evans, and Williams voted to grant en banc re-
hearing.
  It is therefore ordered that the petition for rehearing and
for rehearing en banc is D ENIED.





  Circuit Judge Williams has written an opinion, which
Judges Rovner, Wood, and Evans have joined, dissenting
from the denial of the petition.
No. 06-3278                                                3

   W ILLIAMS, Circuit Judge, joined by R OVNER, W OOD , and
E VANS, Circuit Judges, dissenting from the denial of rehear-
ing en banc. I do not think that the EEOC ever changed
its claim in this case. It alleged that a restaurant
improperly refused to hire a young woman “because it
learned she was HIV positive” and then submitted evi-
dence that she had “AIDS” to prove she was disabled
enough for ADA protection. The EEOC was punished for
doing so (its sanction was that critical evidence was
stricken, leaving a fictitious “evidentiary void”), because
the district court thought switching the disability from
HIV (in the complaint) to AIDS at the summary judgment
stage was a “gross departure from what [the EEOC]
alleged.” Notwithstanding the uncontroverted fact that
AIDS is just another name for the last stage of HIV, the
majority affirmed the district court’s ruling that the
EEOC “refashion[ed] its claim as one based on AIDS
rather than HIV.”
  In my view, our treatment of this case raises serious
questions about our approach to ADA cases involving
complex disabilities. Given the procedural circumstances
of this case, where the majority relies on a purported
disconnect between the complaint and the evidence
submitted at the summary judgment stage rather than
discovery violations, I think this case merits rehearing
en banc.
  To sum up the case very briefly: Korrin Stewart, who was
18 years old at the time, applied for a position as a
waitress at Log Cabin. A manager at the restaurant dis-
covered she was infected with HIV and wrote “HIV +” in
4                                                No. 06-3278

large capital letters across her application. The restaurant
did not hire Stewart. The EEOC filed a complaint alleging
that Log Cabin refused to hire Stewart “because it learned
she was HIV positive.” At the summary judgment stage,
the EEOC submitted evidence that Stewart’s condition
(which the affidavits refer to as “AIDS” or “HIV/AIDS”)
substantially limits one or more of her major life activi-
ties. The district court acknowledged that Stewart’s disease
caused serious limitations on a number of major life
activities, including self-care, eating, and reproduction. But
the district court struck the affidavits on the basis of its
judgment that a disability claim based on AIDS is a “gross
departure” from a claim based on “being HIV positive.”
The EEOC’s evidence only pertained to the “AIDS claim,”
reasoned the court, and could not be considered towards
the “HIV claim.” Because the court could find no evidence
that HIV (rather than AIDS) substantially impaired any of
Stewart’s major life activities, it granted summary judg-
ment to Log Cabin.
  The majority opinion affirmed the district court on two
grounds that are problematic to me and merit en banc
consideration. First, by holding that the EEOC failed to
give adequate notice to Log Cabin when its com-
plaint alleged that Stewart was HIV positive (rather
than specifying that her HIV had advanced to the AIDS
stage), the majority imposed a higher pleading require-
ment for litigants with multi-stage disabilities. Although
this case was not decided on a Rule 12(b)(6) motion, the
EEOC was not allowed to rely on evidence regarding
Stewart’s disability (AIDS) for the sole reason that its
complaint alleged only “HIV positive.” Second, the major-
No. 06-3278                                                 5

ity created a specific knowledge requirement in situations
involving employers who are aware of a disability but are
not aware of the actual extent of that disability.
  I begin with the latter problem. The majority would
require an employer to know the extent to which a job
applicant is disabled in order to be held liable for
making decisions based on that disability. Slip op. at 12,
n.4 (speculating that the reason the EEOC did not plead
AIDS in its complaint is that there was no evidence Log
Cabin was aware Stewart had AIDS, which provided
another basis to affirm summary judgment). There is no
dispute that Log Cabin knew Stewart was HIV posi-
tive—indeed someone at Log Cabin wrote it across her
job application in large black letters. But Log Cabin main-
tained (and reiterates in its answer) that it did not know
Stewart’s HIV had progressed to the AIDS stage and
argued that it could not be held liable under the ADA for
taking an adverse action against an individual when it
had no knowledge of her disability. By holding that Log
Cabin’s lack of knowledge regarding Stewart’s AIDS
diagnosis provided an alternative basis for summary
judgment, the majority created a specific knowledge
requirement that goes beyond our holding in Hedberg v.
Ind. Bell Tel. Co., Inc., 47 F.3d 928, 932 (7th Cir. 1995) and
conflicts with the D.C. Circuit’s holding in Adams v. Rice,
531 F.3d 936, 953-54 (D.C. Cir. 2008).
  Certainly an ADA plaintiff must demonstrate a causal
connection between an employer’s adverse action and its
knowledge of her disability. Hedberg, 47 F.3d at 932. In
Hedberg, however, the employer had no knowledge what-
6                                                   No. 06-3278

soever that the plaintiff was even ill when it decided to
discharge him. See id. (“At the most basic level, it is intu-
itively clear when viewing the ADA’s language in a
straightforward manner that an employer cannot fire
an employee ‘because of’ a disability unless it knows of
the disability. If it does not know of the disability, the
employer is firing the employee ‘because of ’ some other
reason.”).
  An important question is whether an employer must
know how far advanced a disability has progressed to
be liable under the ADA. The majority says yes, but I do
not think the ADA imposes such a requirement. Cf.
Sanglap v. LaSalle Bank, FSB, 345 F.3d 515, 520 (7th Cir.
2003) (“[L]iability 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.”). Recently, the D.C. Circuit considered this
very question at length in Adams v. Rice and held that “it
makes no difference whether an employer has precise
knowledge of an employee’s substantial limitation; as in
[Bragdon v. Abbott, 524 U.S. 624, 641-42 (1998)], it is
enough for the employer to know about the impairment.”
531 F.3d at 953.
  In my view, the majority’s requirement creates an
insurmountable hurdle for ADA plaintiffs with complex
disabilities. The ADA protects people with disabilities
from employers who do not understand the precise
nature of their disabilities. I think it is fair to say that most
employers who discriminate on the basis of a disability
No. 06-3278                                                7

are ill-informed about that disability. Why should an
employer’s ignorance about a disease (especially a com-
plicated one like HIV, which has many stages and different
names) shield that employer from liability? See, e.g., Adams,
531 F.3d at 954 (“creating a knowledge requirement in
situations involving pure discrimination would shield
the most ignorant, irrational, and prejudiced employ-
ers—precisely the kinds of employers Congress intended
the Act to reach.”).
   The majority’s holding that the EEOC’s complaint failed
to provide adequate notice to Log Cabin creates a new
burden as well. The majority faults the EEOC on two
counts regarding notice: the EEOC’s complaint “gave
notice that its ADA claim was grounded on discrimina-
tion because she was HIV positive, not because she had
AIDS,” slip op. at 9, and the EEOC did not state that
Stewart’s AIDS was the “actual basis for the discrimina-
tion alleged in the case,” id. at 10. The majority opinion
creates a requirement that an ADA plaintiff must plead
specific facts regarding her disability, including its stage
if the disease consists of multiple stages. A plaintiff who
fails to do so (as the EEOC did here by alleging that
Stewart was HIV positive and not specifying that she had
AIDS) risks losing her lawsuit at the summary judgment
stage. That is what happened here, where the EEOC was
punished for submitting evidence regarding AIDS when
its complaint alleged that Stewart had HIV. Even though
AIDS is merely a stage of HIV (Stewart’s disability can
be characterized as “being HIV positive” at all times
regardless of its exact stage), the majority held that the
EEOC had not provided sufficient notice to Log Cabin to
be able to rely on this evidence.
8                                                 No. 06-3278

  This, to me, is inconsistent with our case law regarding
general notice pleading standards. We have reiterated
that a complaint “need not set out either legal theories or
comprehensive factual narratives.” Rapid Test Products, Inc.
v. Durham School Services, Inc., 460 F.3d 859, 860 (7th Cir.
2006) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506
(2002)). Rather, all EEOC was required to do was plead its
grievance. That it did: it alleged that “Log Cabin refused
to hire Stewart because it learned that she was HIV posi-
tive.” The exact stage of HIV is a detail—and an irrelevant
one at that. The EEOC’s grievance is with Log Cabin’s
action, which is illegal if it was in fact based on her HIV.
See Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007)
(“we do not require heightened fact pleading of specifics,
but only enough facts to state a claim to relief that is
plausible on its face.”).
  Based on this purported lack of notice, the majority
upheld the district court’s decision to strike evidence
regarding Stewart’s disability (AIDS) as manifestly rea-
sonable because the EEOC refashioned its claim (by
submitting evidence regarding AIDS at the summary
judgment stage when its complaint referenced only
HIV). As I explained in my dissent, the majority’s premise
that a claim based on HIV is factually different from a
claim based on AIDS is inconsistent with scientific and
medical experience. The amicus briefs point out that there
is no scientifically or medically recognized “bright line
distinction” between HIV and AIDS, and the two terms
are often used interchangeably or simply referred to as
“HIV/AIDS.” The majority responds that “the physical
effects of AIDS are different—more severe—than those
associated with being HIV-positive.” Not according to the
No. 06-3278                                              9

Supreme Court, which noted in Bragdon that “During [the
AIDS] stage, the clinical conditions most often associated
with HIV, such as pneumocystis carninii pneumonia,
Kaposi’s sarcoma, and non-Hodgkins lymphoma, tend to
appear.” 524 U.S. at 636. And not according to medical
experience. The amici assert that the term “AIDS” is
scientifically meaningless because not all persons diag-
nosed with AIDS have the same symptoms and with the
advent of antiretroviral therapy, some patients are able
to reverse the disease’s progress but retain the AIDS
diagnosis anyway. The district court’s approach, as I
explained further in my dissent, conflicts with the
Supreme Court’s instruction in Bragdon that although “HIV
infection satisfies the statutory and regulatory definition
of a physical impairment at every stage of the disease,”
courts should make disability determinations based on
individualized circumstances. 524 U.S. at 637. It also is
inconsistent with the Court’s instruction in Sutton v.
United Air Lines that disabilities should be evaluated on
an individualized basis rather than on generalizations
derived from the name of a disease alone. 527 U.S. 471, 483
(1999).
  I think the majority’s holding creates problems for
victims of discrimination who suffer from HIV and other
complicated diseases with multiple stages. For these
reasons, as well as those in my dissenting opinion,
I respectfully dissent from the denial of the petition for
rehearing en banc.



                           2-2-09
