Appeal from the United States District Court for the Western District of Wisconsin. No. 05 C 507-Barbara B. Crabb, Chief Judge.
The opinion of the court was delivered by: Sykes, Circuit Judge
Before KANNE, WILLIAMS, and SYKES, Circuit Judges.
The Equal Employment Opportunity Commission ("EEOC") filed suit against Lee's Log Cabin restaurant in Wausau, Wisconsin, claiming it violated the Americans with Disabilities Act ("ADA") when it refused to hire Korrin Krause Stewart for a wait-staff position because she was HIV-positive. After Log Cabin moved for summary judgment, the EEOC switched gears and claimed Log Cabin did not hire Stewart because she had AIDS. The district judge thought the shift in factual basis was consequential and came too late. A disability attributed to AIDS, the court held, is "not synonymous" with a disability attributed to being HIV-positive. Addressing the claim as originally configured, the court held the EEOC failed to make a threshold showing that Stewart was a "qualified individual with a disability" under the ADA because it had not produced evidence that being HIV-positive substantially limited one or more of Stewart's major life activities as required to satisfy the ADA's definition of "disability." The court entered summary judgment for Log Cabin, and the EEOC appealed.
We affirm, although on slightly different grounds. The district court was well within its discretion in refusing to entertain the EEOC's belated attempt to reconfigure its claim. We need not address whether HIV and AIDS are synonymous for all purposes under the ADA or whether being HIV-positive (as distinct from having AIDS) is a "disability" under the statute. The EEOC's failed attempt to substitute factual premises left an empty record on whether Stewart's HIV infection limited one or more of her major life activities, and for that reason summary judgment was appropriate. In addition, Stewart was not a "qualified individual" under the ADA because the job description for wait-staff positions at Log Cabin required the ability to lift 25-30 pounds multiple times during a shift, and she indicated on her application that she had a 10-pound lifting restriction that could not be accommodated.
Korrin Krause Stewart was born with human immuno-deficiency virus ("HIV") but was not diagnosed until she was fourteen years old. Shortly after diagnosis, she learned her HIV already had developed into acquired immuno-deficiency syndrome ("AIDS"). In March 2004, when she was 18, Stewart responded to a newspaper ad for a wait-staff position at Lee's Log Cabin, a restaurant in Wausau, Wisconsin. Stewart was aware from the job description that the restaurant's wait-staff had to lift between 25 and 30 pounds multiple times during a shift; she wrote on her application that she had a lifting restriction of 10 pounds. The next question on the application asked whether any accommodations could be made so that she could perform all of the required job duties, and Stewart indicated "no." Stewart maintains she verbally told Log Cabin's assistant manager, Curtis Zastrow, that her lifting restriction was temporary; Zastrow denies she said anything about the restriction being temporary.
A month went by and Stewart heard nothing from Log Cabin, so she returned to the restaurant. Zastrow told her the owner, Dean Lee, who was the decision-maker with respect to new hires, was out of town. Zastrow also asked Stewart if "she was the girl from Quality Foods." That question was prompted by a lawsuit Zastrow had read about in the local paper. In 2002 the EEOC reached a settlement on Stewart's behalf stemming from an allegation that her then employer, Quality Foods, fired her when it learned she was HIV positive. Stewart confirmed she had worked at Quality Foods and then asked to revise her Log Cabin application. Zastrow retrieved it, and Stewart noticed that "HIV" was written on the front of the application; Zastrow acknowledged he had made this notation. Lee eventually reviewed Stewart's application and discussed the HIV notation with Zastrow. Lee decided not to hire Stewart because she was unable to lift more than 10 pounds and lacked waitressing experience.*fn1 At the time Log Cabin employed two waitresses who had no prior waitressing experience before being hired, in addition to one waitress who could not lift heavy objects over her head.
The EEOC filed suit alleging Log Cabin violated the ADA, 42 U.S.C. § 12101 et seq., by failing to hire Stewart "because it learned that she was HIV positive." Stewart actually had AIDS, but there was no mention of that until the EEOC responded to Log Cabin's motion for summary judgment. At that point (about a month before trial) the EEOC filed affidavits from Stewart and her physician discussing how AIDS (or in some instances "HIV/AIDS") affected Stewart's life activities. Although the complaint alleged Log Cabin discriminated against Stewart because she was HIV-positive-not because she had AIDS-the EEOC presented no evidence about how being HIV-positive alone affected Stewart. Moreover, Stewart's affidavit did not provide any information about her limitations and symptoms at the time she applied for the wait-staff position in 2004, focusing instead on her symptoms as they existed at the time she signed the affidavit in 2006. Also, the EEOC submitted the affidavit from Stewart's physician even though the agency had failed to timely disclose its expert and/or treating physicians-a violation of the district court's pretrial order.
The district court faulted the EEOC for its eleventh-hour attempt to shift the factual basis of the claim. Switching the disability from HIV to AIDS was a "gross departure from what [the EEOC] alleged in the initial stages of this lawsuit and it comes too late," the court held. Because HIV and AIDS "are not synonymous" for purposes of the ADA, the judge disregarded the affidavits from Stewart and her physician. This left an evidentiary void; the judge held that because the EEOC "adduced no evidence regarding the effect of HIV on any of Stewart's major life activities," the agency had failed to make a threshold showing that Stewart's HIV-positive status met the statutory definition of "disability." Even if the AIDS claim were properly before the court, the judge held, there was no evidence that Log Cabin knew Stewart suffered from AIDS. See Hedberg v. Ind. Bell Tel. Co., Inc., 47 F.3d 928, 932 (7th Cir. 1995) ("[A]n employer cannot be liable under the ADA . . . when it indisputably had no knowledge of the disability."). Finally, the judge said it was "questionable" whether Stewart was a "qualified individual" under the ADA. The court entered summary judgment for Log Cabin and the EEOC appealed.
We review de novo a district court's grant of summary judgment, viewing the evidence in the light most favorable to the nonmoving party. Healy v. City of Chicago, 450 F.3d 732, 738 (7th Cir. 2006). Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). We may affirm a judgment on any ground supported in the record "so long as that ground was adequately addressed in the district court and the nonmoving party had an opportunity to contest the issue." Cardoso v. Robert Bosch Corp., 427 F.3d 429, 432 (7th Cir. 2005).
The ADA prohibits employment discrimination "against a qualified individual with a disability because of the disability." 42 U.S.C. § 12112(a); Furnish v. SVI Sys., Inc., 270 F.3d 445, 448 (7th Cir. 2001). To prevail on an ADA claim, the plaintiff must show "(1) he is 'disabled'; (2) he is qualified to perform the essential function of the job either with or without reasonable accommodation; and (3) he suffered an adverse ...