7th Cir.: Change of ADA claim from HIV to AIDS violates pleading standard

The en banc Seventh Circuit upheld 6-4 summary judgment for an employer in an Americans with Disabilities Act (ADA) case, holding that it was proper to disregard evidence regarding the effect of AIDS on a job applicant because the complaint only mentioned HIV, not AIDS.

The court ruled that this was a change in the basic nature of the claim, and that permitting such a change at the summary judgment stage would violate federal notice-pleading standards. EEOC v. Lee’s Log Cabin, 554 F.3d 1102 (7th Cir. Feb. 2, 2009) (No. 06-3278).

 

          The Equal Employment Opportunity Commission sued on behalf of Korrin Stewart, alleging she was denied a wait-staff job on the basis of HIV status. When the restaurant sought summary judgment, the EEOC introduced affidavits showing that she was disabled because of AIDS. The panel held 2-1 last October that it was proper to disregard this evidence, because it marked a change in the factual premise of the EEOC’s claim, in violation of the principle of notice pleading. 546 F.3d 438 Disregarding this evidence “left an empty record” on whether Stewart’s HIV constituted a disability, the court reasoned, and summary judgment was therefore appropriate.  The en banc court has now denied review, over a lengthy four-judge dissent. The court did, however, add a footnote stating 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.”

 

The EEOC and the dissenters argued that HIV and AIDS are merely stages of the same disease, and the stage of Stewart’s illness was a mere detail it was not required to plead. See Bell Atlantic v. Twombly, 550 U.S. 544 (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”). But the panel majority reasoned that HIV and AIDS “are not synonymous for the limited purpose relevant to the determination at issue here - whether to entertain the EEOC's belated alteration of the factual basis of its claim.”

 

There are a few problems with this decision. First, as the dissenters note, it appears to have “imposed a higher pleading requirement for litigants with multi-stage disabilities.” Indeed, it twists the distinction in Twombly between the general facts that must be plead (“what the …claim is and the grounds upon which it rests”), and the sort of “specifics” that need not be plead. Twombly demands only that given the facts in the complaint, it be “plausible” that the plaintiff is entitled to relief. It is clearly plausible that an HIV-positive applicant has a disability under the ADA, and the EEOC’s evidence showed precisely that Stewart’s HIV rendered her disabled. As the panel dissent noted, “The EEOC did not allege in its complaint that Stewart was fired because she had a cold and then provide evidence that she had cancer.”

 

Second, the panel opinion wrongly suggests that the employer must have had known the extent of Stewart’s disability for her to have a claim. But as the dissenters point out, the extent of a disability is only relevant to whether an individual qualified as having a “disability”; the employer need only be generally aware of the disability and discriminate because of it. The majority’s approach would make ADA claims nigh impossible for many individuals with complex disabilities.

 

          To the extent the decision mangles the ADA, it will hopefully be mitigated or obliterated by the ADA Amendments Act of 2009, Pub. L. No. 110-325. Though the Act does not apply retroactively, its whole purpose is to shift the focus of litigation away from the “disability” and toward job qualifications, and specifically to make clear that HIV generally qualifies.