Moore, Gregory W. v. J.B. Hunt Transport

In the

United States Court of Appeals

For the Seventh Circuit

No. 99-1853

GREGORY W. MOORE,

Plaintiff-Appellant,

v.

J.B. HUNT TRANSPORT, INC., d/b/a

J.B. HUNT DRIVER TRAINING CENTER,

Defendant-Appellee.

Appeal from the United States District Court

for the Central District of Illinois.

No. 96 C 2036--Harold A. Baker, Judge.

Submitted January 5, 2000--Decided July 19, 2000

Before POSNER, Chief Judge, and EASTERBROOK and

RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge. Gregory Moore brought

this action pursuant to the Americans with

Disabilities Act of 1990 ("ADA"), 42 U.S.C. sec.

12101 et seq. He claimed that his former

employer, J.B. Hunt Transport, Inc. ("Hunt"),

terminated his employment as a result of his

rheumatoid arthritis. The district court granted

summary judgment for Hunt, finding that Mr. Moore

was not disabled for purposes of the ADA. For the

reasons set forth in the following opinion, we

affirm the judgment of the district court.

I

BACKGROUND

A. Facts/1

1.

Mr. Moore has suffered from rheumatoid arthritis

with Heberden’s nodes since 1989. Rheumatoid

arthritis is an inflammatory disease of the

joints that causes the joints to swell and to

stiffen. It is a chronic condition, permanent in

nature. The impairments resulting from arthritis,

however, cover a wide range and vary from

individual to individual. Heberden’s nodes are

bumps that form on the joints of individuals who

have had arthritis for two or more years.

Individuals with advanced rheumatoid arthritis

also can be subject to "flare-ups," which result

in temporary incapacitation.

Mr. Moore controls the effects of his arthritis

with medication. He normally does not use a cane,

and his condition has not prevented him from

consistently walking distances up to a mile.

According to Mr. Moore, "[i]t just takes me a bit

longer to do what everyone else can do quicker."

R.31, Moore Dep. at 52. However, Mr. Moore’s

impairment is also episodic. He has one or two

flare-ups per year that last one or two days.

During those flare-ups, his joints swell and he

is not able to move. Mr. Moore has told Dr. David

Hamilton, his former treating physician and also

Hunt’s referral physician, that the only

discernable cause of his flare-ups is a quick

change in barometric pressure. Dr. Hamilton has

stated that Mr. Moore’s arthritis would

"probably" make it "a little bit" more difficult

to perform manual tasks; that you "might" catch

him on a good day; that it "might be" that he

could not get out of bed; that he "may not" be

able to bend his fingers as well; and that he

could "possibly" have difficulty walking. R.37,

Hamilton Dep. at 15-17.

2.

In October 1993, Mr. Moore was working in the

motor pool at an Air Force base when he applied

for a job at Hunt’s facility in Rantoul,

Illinois. The Director of Hunt’s Driver Training

Center, Carl Martin, with full knowledge of Mr.

Moore’s medical condition, hired Mr. Moore for

the position of driver training instructor in

November 1993.

Hunt has three classifications of driver

training instructor: range, road and classroom. A

range instructor stands outside the truck on an

internal driving range and teaches the student to

perform driving maneuvers such as backing,

turning and hooking. A road instructor rides as a

passenger in a cab while the student drives over

external streets and highways. Finally, a

classroom instructor teaches rules and procedures

in a classroom setting.

At the time he started with Hunt, Mr. Moore was

a combined road and range instructor. In February

1994, a notice was posted for anyone interested

in a classroom position. Mr. Moore and two other

employees responded to the posting and were given

an opportunity for a two-week trial period. After

two weeks, the candidates were evaluated, and a

candidate more qualified than Mr. Moore received

the position.

In August 1994, Mr. Moore informed his

supervisor, Rick King, that he needed to be

transferred from road instructor to range

instructor because the jolts and vibration caused

by the inexperienced drivers aggravated his

arthritis. Hunt transferred Mr. Moore to range

instructor as requested.

In October 1994, Hunt sent Mr. Moore to Dr.

Hamilton for his required annual Department of

Transportation physical./2 As a result of the

physical, Dr. Hamilton reported that Mr. Moore

should not be exposed to "excessive cold" or "wet

cold damp" environments. R.31, Moore Dep. Ex.A.

Dr. Hamilton also noted that Mr. Moore "needs

constant monitoring of [blood pressure]" and that

he "takes Darvocet W-100 for arthritis." Id.

After receiving Dr. Hamilton’s report, Hunt

sought clarification concerning Mr. Moore’s

limitations; Dr. Hamilton advised Hunt that Mr.

Moore should not be exposed to "excessive cold,

wet, damp conditions for prolonged times. That

means for anything over, say five minutes,

depending on the wind chill factor and absolute

temperatures." R.31, Moore Dep. Ex.3.

Hunt also sent Mr. Moore for a computerized

strength evaluation recommended by the National

Institute of Occupational Safety and Health

("NIOSH"). The NIOSH test reflects the strength

of various motions that a person is able to make

as compared to the general population. It also

provides weight restrictions for occasional

lifting, frequent lifting, and continuous

lifting. Mr. Moore’s NIOSH test results showed no

diminished strength when compared to the general

population of his size, age and weight; in

general, it reflected above average strength for

Mr. Moore in most areas, and below average in

none. The lifting restrictions for Mr. Moore were

average for the general population.

The Training Coordinator at Rantoul, Owen

DeWert, advised Martin that, based on Dr.

Hamilton’s report, Hunt did not have positions

that Mr. Moore could fulfill. DeWert, therefore,

recommended that Mr. Moore be terminated. Before

Mr. Moore was terminated, however, Greer

Woodruff, Director of Driver Recruiting for all

of Hunt’s facilities, was consulted. Woodruff

believed that Mr. Moore was not the best

candidate to fill classroom vacancies and that

the positions of road and range instructors were

foreclosed to Mr. Moore because of his prior

complaints and Dr. Hamilton’s limitations. Martin

therefore terminated Mr. Moore’s employment on

October 27, 1994.

Subsequent to his termination, Mr. Moore gained

employment as a charter coach bus driver. In that

position, Mr. Moore travels extensively and loads

and unloads luggage on a regular basis.

B. District Court Proceedings

Mr. Moore filed this action in the district

court; he claimed that Hunt had terminated his

employment as a result of his arthritis and,

therefore, in violation of the ADA. After

conducting discovery, Hunt moved for summary

judgment on the ground that Mr. Moore did not

fall within the statutory definition of

disability. Hunt argued that Mr. Moore was not

disabled in fact and that Hunt did not perceive

him as disabled.

In addressing whether Mr. Moore met one of the

definitions of disabled, the district court

reiterated that, to be disabled under the ADA, an

individual’s impairment must substantially limit

his ability to perform a major life activity. The

district court concluded that Mr. Moore’s "own

deposition testimony reveals that he is able to

[walk, sit and stand], but at a pace slower than

most people," which would not render him disabled

under the ADA. R.42 at 3-4. The court also

rejected Mr. Moore’s argument that his condition

must be assessed in the absence of his

medication, which was the sole reason he could

maintain his level of functioning. The court held

that Mr. Moore had not shown that his level of

functioning diminished in the absence of his

medication.

Similarly, the district court did not accept Mr.

Moore’s attempt to show he was disabled because

his arthritis limited his ability to work. The

court stated:

To prove that he is substantially limited in

working, the plaintiff must show that he is

significantly restricted in his ability to

perform either a class of jobs, or a broad range

of jobs in various classes, as compared to the

average person having comparable training,

skills, and abilities.

Id. Mr. Moore, stated the court, had not shown

that he was precluded from a large class of jobs

for which he had training, nor did Hunt perceive

him as precluded from a large number of jobs, as

opposed to unable to perform only the positions

of range and road instructor. Consequently, the

district court concluded that Mr. Moore was not

disabled for purposes of the ADA and entered

summary judgment in favor of Hunt. Mr. Moore now

appeals the district court’s adverse judgment.

II

DISCUSSION

A. Applicable Standards

We review de novo the district court’s grant of

summary judgment. See Silk v. City of Chicago,

194 F.3d 788, 798 (7th Cir. 1999). Summary

judgment is proper if the record as a whole shows

"that there is no genuine issue as to any

material fact and that the moving party is

entitled to judgment as a matter of law." Fed. R.

Civ. P. 56(c); see Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986). The burden is on the non-

moving party to come forward with "’specific

facts showing that there is a genuine issue for

trial’ by referring to the record evidence on

file." McClendon v. Indiana Sugars, Inc., 108

F.3d 789, 795-96 (7th Cir. 1997) (quoting Fed. R.

Civ. P. 56(e)). "A genuine issue for trial exists

only when a reasonable jury could find for the

party opposing the motion based on the record as

a whole." Pipitone v. United States, 180 F.3d

859, 861 (7th Cir. 1999) (citation omitted).

To establish disability discrimination, Mr.

Moore must show that (1) he is disabled within

the meaning of the ADA (2) he is qualified to

perform the essential functions of the job either

with or without reasonable accommodation and (3)

he suffered from an adverse employment action

because of his disability. See Byrne v. Board of

Educ., 979 F.2d 560, 563 (7th Cir. 1992). Mr.

Moore’s "threshold burden" is to establish that

he is disabled as that term is defined in the

ADA. Roth v. Lutheran Gen. Hosp., 57 F.3d 1446,

1454 (7th Cir. 1995).

The ADA designates three separate categories of

disability:

(A) a physical or mental impairment that

substantially limits one or more of the major

life activities of such individual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment.

42 U.S.C. sec. 12102(2); Roth, 57 F.3d at 1454.

If Mr. Moore’s condition does not rise to the

level of a disability as defined by the ADA, then

he cannot prevail on his claim even if Hunt

terminated him expressly because of his

condition. See Sinkler v. Midwest Property

Management Ltd. Partnership, 209 F.3d 678, 683

(7th Cir. 2000); Christian v. St. Anthony Med.

Ctr., Inc., 117 F.3d 1051, 1053 (7th Cir. 1997)

("The Act is not a general protection of

medically afflicted persons. . . . If the

employer discriminates against them on account of

their being (or being believed by him to be) ill,

even permanently ill, but not disabled, there is

no violation."), cert. denied, 523 U.S. 1022

(1998). Mr. Moore claims that he is actually

disabled under subsection (A) of sec. 12102(2)

because his arthritis is a physical impairment

that limits several major life activities. He

also claims that Hunt perceived his arthritis as

disabling under subsection (C) of sec. 12102(2).

We turn first to Mr. Moore’s claims of actual

disability.

B. Actual Disability

In assessing whether a particular condition

constitutes a disability for purposes of

subsection (A) of 42 U.S.C. sec. 12102(2), the

Supreme Court has instructed us to conduct a

three-step inquiry. See Bragdon v. Abbott, 524

U.S. 624, 631 (1998). First, we must determine

whether Mr. Moore’s condition is a physical or

mental impairment. See id. at 632. Second, we

must identify an affected life activity and

determine whether it constitutes a "major life

activity" for purposes of the ADA. See id. at

637-38. Finally, we must determine whether the

plaintiff’s impairment was a substantial limit on

the identified major life activity. See id. at

639. Hunt does not dispute that Mr. Moore’s

arthritis qualifies as an impairment for purposes

of the ADA./3 Therefore, we begin our inquiry by

asking whether Mr. Moore’s arthritis affects one

or more major life activities.

It is difficult to discern from Mr. Moore’s

brief exactly which major life activities, in

addition to working, he claims are affected by

his arthritis. In his deposition, Mr. Moore

identified bowling, camping, restoring cars, and

mowing the lawn as activities that he could no

longer participate in as a result of his

arthritis. Mr. Moore does not argue to this court

that these are "major life activities," nor would

such an argument be meritorious.

Mr. Moore’s deposition testimony also addresses

the impact of his arthritis on his ability to

walk, which the regulations specifically identify

as a major life activity. See 29 C.F.R. sec.

1630.2(i). Mr. Moore, however, fails to mention

walking as an affected major life activity in the

argument section of his appellate brief.

Consequently, Mr. Moore has waived this argument.

See Sanchez v. Henderson, 188 F.3d 740, 746 n.3

(7th Cir. 1999) (stating that failure to mention

theories in argument section of brief resulted in

waiver), cert. denied, 120 S. Ct. 1201 (2000).

Assuming, however, that Mr. Moore had raised

walking as an affected major life activity, he

still would have to clear the third hurdle of the

Bragdon test: whether his arthritis substantially

limits his ability to walk. The interpretive

regulations define "substantially limits" as

"[s]ignificantly restricted as to the condition,

manner or duration under which an individual can

perform a particular major life activity as

compared to the condition, manner, or duration

under which an average person in the general

population can perform the same major life

activity." 29 C.F.R. sec. 1630.2(j)(1)(ii).

In his deposition, Mr. Moore testified that he

walks distances of less than a mile

"consistently," that a mile walk "wouldn’t be any

problem as long as I’m paying attention to what

I’m doing," and that the arthritis affects more

the "rate and pace" of his activities as opposed

to his ability to perform them. R.36, Moore Dep.

at 49-52. We do not believe that these

limitations constitute "significant restrictions"

on Mr. Moore’s ability to walk when compared with

the ability of the average person, and our

conclusion finds support in the case law of our

sister circuits. See, e.g., Talk v. Delta

Airlines, Inc., 165 F.3d 1021, 1025 (5th Cir.

1999) (holding that "walk[ing] with a limp[,]

mov[ing] at a significantly slower pace than the

average person" and having difficulty walking in

extreme cold did not constitute a substantial

impairment as required by the ADA (internal

quotation marks omitted)); Kelly v. Drexel Univ.,

94 F.3d 102, 106 (3d Cir. 1996) (holding that an

individual who could not walk "more than a mile

or so," "certainly couldn’t jog," and had to

"pace [himself] slower" when going upstairs was

not substantially limited in the major life

activity of walking (internal quotation marks

omitted)).

Mr. Moore, however, relies on Dr. Hamilton’s

statement that he (Mr. Moore) is significantly

restricted in "the duration, manner or condition

under which [he] can perform a particular major

life activity as compared to the average person,"

R.37, Hamilton Dep. at 19, to establish that he

is disabled within the meaning of the ADA.

Federal Rule of Civil Procedure 56 requires Mr.

Moore to come forward with "specific facts

showing that there is a genuine issue for trial"

in order to defeat Hunt’s motion for summary

judgment. Fed. R. Civ. P. 56(e). Dr. Hamilton’s

statement does not provide "specific facts"; it

is "merely conclusory, restating the requirements

of the law," Doren v. Battle Creek Health Sys.,

187 F.3d 595, 598-99 (6th Cir. 1999). Therefore,

it cannot, without more, defeat Hunt’s motion for

summary judgment.

In addition, Dr. Hamilton’s other deposition

testimony does little to forward Mr. Moore’s

cause. We have often stressed the importance of

evaluating impairments on an individual basis.

See, e.g., Roth, 57 F.3d at 1454. "Some

impairments may be disabling for particular

individuals but not for others, depending upon

the stage of the disease or disorder, the

presence of other impairments that combine to

make the impairment disabling or any number of

other factors." Homeyer v. Stanley Tulchin

Assocs., Inc., 91 F.3d 959, 962 (7th Cir. 1996)

(citing 29 C.F.R. App. sec. 1630.2(j)). However,

Dr. Hamilton speaks predominately in terms of

hypotheticals, not Mr. Moore’s actual

experiences. General statements concerning

rheumatoid arthritis, and the possibility that

Mr. Moore might experience various debilitating

aspects of the condition, do not establish that

Mr. Moore’s arthritis rises to the level of a

disability.

Finally, Mr. Moore argues that his "flare-ups"

cause him to be completely debilitated while they

last and that, therefore, the flare-ups render

his condition a disability. Mr. Moore cites Vande

Zande v. Wisconsin Department of Administration,

44 F.3d 538 (7th Cir. 1995), in support of his

argument. We believe Mr. Moore misapprehends the

holding of Vande Zande. In that case, the

plaintiff was paralyzed from the waist down, and

her paralysis made her prone to develop pressure

ulcers. The question in that case was not whether

Vande Zande was disabled, but whether her

employer had a duty to reasonably accommodate her

when she developed these ulcers. In that

situation, we stated that "an intermittent

impairment that is a characteristic manifestation

of an admitted disability is, we believe, a part

of the underlying disability and hence a

condition that the employer must reasonably

accommodate." Id. at 544. Mr. Moore does not seek

accommodation for an intermittent impairment

resulting from an "admitted disability"; instead,

he attempts to use his intermittent flare-ups to

establish that his impairment is a disability.

Vande Zande, therefore, is not controlling.

Furthermore, we do not believe that Mr. Moore’s

infrequent flare-ups, one or two per year, render

his condition a disability./4

Mr. Moore devotes the most effort to his

argument that he is disabled because his

arthritis substantially impairs his ability to

work. Mr. Moore claims that Dr. Hamilton’s

restriction that he not be exposed to cold or

damp weather for extended periods of time

precludes him from a large number of jobs. Thus,

Mr. Moore asserts, he is substantially limited in

the major life activity of working.

In the context of working, "substantially

limits" means "significantly restricted in the

ability to perform a class of jobs or a broad

range of jobs in various classes as compared to

the average person having comparable training,

skills and abilities." 29 C.F.R. sec.

1630.2(j)(3)(i); Skorup v. Modern Door Corp., 153

F.3d 512, 514 (7th Cir. 1998). The inquiry is an

individualized one: whether this plaintiff’s

impairment constitutes a significant barrier to

his employment. Accord Forrisi v. Bowen, 794 F.2d

931, 933 (4th Cir. 1986). "Factors to consider

include ’the number and type of jobs from which

the impaired individual is disqualified, the

geographical area to which the individual has

reasonable access, and the individual’s job

expectations and training.’" Byrne, 979 F.2d at

564 (quoting Forrisi, 794 F.2d at 933). "[T]he

court must consider the effect of the impairment

on the employment prospects of that individual

with all of his or her relevant personal

characteristics." Mondzelewski v. Pathmark

Stores, Inc., 162 F.3d 778, 784 (3d Cir. 1998).

"The inability to perform a single, particular

job does not constitute a substantial limitation

in the major life activity of working." 29 C.F.R.

sec. 1630.2(j)(3)(i).

Mr. Moore asserts that the limitations imposed

by Dr. Hamilton, that he not be exposed to cold

or damp environments, preclude him from a wide

range of jobs including construction trades, farm

work, street maintenance, mail delivery, and

butchery. However, Mr. Moore has not proffered

any evidence that he is either qualified to

perform these jobs or would pursue employment in

these areas in the absence of his arthritic

condition. It may be true that his impairment

precludes him from holding these positions; it is

also true that they do not represent jobs open to

the "average person having comparable training,

skills and abilities" to Mr. Moore./5

Consequently, the medical restriction precluding

him from these employment opportunities does not

render his impairment a disability.

The only other positions which Mr. Moore states

are foreclosed to him are those of range and road

instructor at Hunt. However, as stated above, the

inability to perform a particular job does not

substantially limit the major life activity of

working. See Byrne, 979 F.2d at 565. To qualify

as substantially limiting his ability to work,

Mr. Moore’s condition must preclude him from a

class or range of jobs for which he possesses the

necessary training, skills and abilities. Mr.

Moore is trained to drive trucks and buses. The

restrictions placed on him by Dr. Hamilton do not

significantly restrict his employment in these

fields; indeed, he is currently employed as a

charter bus driver. Cf. Sinkler, 209 F.3d at 685-

86 (citing the plaintiff’s ability to procure new

employment as evidence "that a broad range of

jobs remain open to" her). Consequently, Mr.

Moore is not substantially limited in the major

life activity of working.

C. Perceived Disability

Finally, Mr. Moore argues that Hunt perceived

him as disabled as a result of his work

restrictions and that, therefore, he is disabled

under 42 U.S.C. sec. 12102(2)(C).

As set forth above, the definition of disability

under the ADA includes "being regarded as having"

a physical or mental impairment that

substantially limits a major life activity. 42

U.S.C. sec. 12102(2)(C). The Interpretive

Guidance to the regulations implementing sec.

12102(2)(C) explains the need for the "regarded

as" language:

[A]lthough an individual may have an impairment

that does not in fact substantially limit a major

life activity, the reaction of others may prove

just as disabling.

. . . .

[I]f an individual can show that an employer or

other covered entity made an employment decision

because of a perception of disability based on

"myth, fear or stereotype," the individual will

satisfy the "regarded as" part of the definition

of disability.

29 C.F.R. Pt. 1630, App. sec. 1630.2(l) at 352

(1999). The concern, therefore, is that employers

will act on a misunderstanding of an individual’s

impairment with the result that a qualified, non-

disabled person will be precluded from

employment.

In order for Mr. Moore to fall within the

language of sec. 12102(2)(C), "[i]t is not enough

for [Mr. Moore] to show that [Hunt] was aware of

[his] impairment; instead [Mr. Moore] must show

that [Hunt] knew of the impairment and believed

that [he] was substantially limited because of

it." Skorup, 153 F.3d at 515. With respect to the

major life activity of work, the standards

applicable to an actual disability also apply to

a perceived disability:

[Section] 12102(2)(A) looks for proof beyond the

plaintiff’s inability to satisfy the expectations

of a single employer; to be "substantial," a

limitation on the ability to work must be one

that affects the plaintiff’s ability to perform a

class or range of jobs before it qualifies as a

disabling limitation under the ADA. For purposes

of sec. 12102(2)(C), the employer’s perception of

the plaintiff’s inability to work must have a

comparable breadth.

Id. (citing Davidson v. Midelfort Clinic, Ltd.,

133 F.3d 499, 511 (7th Cir. 1998)). Consequently,

Mr. Moore must come forward with evidence that

Hunt believed his arthritis precluded him from a

class or range of jobs./6

In support of his position, Mr. Moore argues in

his brief that "[i]t is clear that J.B. Hunt knew

of his impairment and believed he was

substantially limited because of it and they felt

so strongly about this perception that they fired

him." Appellant’s Br. at 26. Essentially, Mr.

Moore asks this court to assume a perception of

disability based on his termination. We, however,

have already rejected such an appeal. In

Harrington v. Rice Lake Weighing Sys., Inc., 122

F.3d 456 (7th Cir. 1997), we stated:

Even if [the employer] had fired [the plaintiff]

because of his injury, he would not necessarily

have a claim under the ADA. "The Act is not a

general protection of medically afflicted

persons. . . . [I]f the employer discriminates

against them on account of their being (or being

believed by him to be) ill, even permanently ill,

but not disabled, there is no violation."

Id. at 460 (quoting Christian, 117 F.3d at 1053).

The fact that Mr. Moore was terminated as a

result of his condition, therefore, is not

sufficient to establish that Hunt perceived Mr.

Moore as disabled.

We agree with the district court that Mr. Moore

"points to no evidence that J.B. Hunt perceived

him as impaired in performing a broad range of

jobs in various classes, or substantially limited

regarding any other major life activity." R.42 at

5. Indeed, the record reflects that Hunt’s

actions were a response to specific restrictions

identified by Dr. Hamilton, and were not based on

myth, fear or stereotype. From the evidence Hunt

had in its possession at the time of Mr. Moore’s

termination, the assessment of Dr. Hamilton and

the NIOSH test results, Hunt "had no reason to

regard [Mr. Moore] as disabled and gave no

indication that it did." Harrington, 122 F.3d at

461. In light of Mr. Moore’s inability to

tolerate cold, damp conditions, Hunt simply

determined that Mr. Moore could no longer perform

the range instructor position. Because Hunt did

not perceive Mr. Moore as precluded from a wide

range of jobs, but only that of range instructor,

Mr. Moore is not disabled for purposes of the

ADA./7

Conclusion

For the foregoing reasons, we affirm the

judgment of the district court.

AFFIRMED

/1 Because the district court granted summary

judgment to Hunt, we take the facts alleged by

Mr. Moore to be true. See Adusumilli v. City of

Chicago, 164 F.3d 353, 357 (7th Cir. 1998)

(citing Burlington Indus., Inc. v. Ellerth, 524

U.S. 742 (1998)), cert. denied, 120 S. Ct. 450

(1999).

/2 Dr. Hamilton had been Mr. Moore’s treating

physician since 1990 and Mr. Moore had been a

private patient of Dr. Hamilton’s before any

referral by Hunt.

/3 Independent of Hunt’s concession, we believe

rheumatoid arthritis falls within the definition

of impairment in the regulations. The

interpreting regulations define "physical

impairment" as "[a]ny physiological disorder, or

condition, cosmetic disfigurement, or anatomical

loss affecting one or more of the following body

systems: . . . musculoskeletal . . . ." 29 C.F.R.

sec. 1630.2(h)(1). Because rheumatoid arthritis

is a physiological condition that affects the

musculoskeletal system, it clearly qualifies as

an impairment.

/4 Mr. Moore submits one other argument which can be

disposed of in short order. His condition, he

explains, is only controlled with medication.

Because the regulations require determination of

a disability without ameliorative devices, he

continues, his disability has to be determined

without reference to his medication. The district

court accepted the standard in the regulations,

but held that Mr. Moore had not met his burden of

establishing that his condition was worse in the

absence of medication.

Since the district court ruled, and

since Mr. Moore filed his brief, the Supreme

Court issued its decision in Sutton v. United

Airlines, Inc., 119 S. Ct. 2139 (1999), which

holds: "Looking at the Act as a whole, it is

apparent that if a person is taking measures to

correct for, or mitigate, a physical or mental

impairment, the effects of those measures--both

positive and negative--must be taken into account

when judging whether that person is

’substantially limited’ in a major life activity

and thus is ’disabled’ under the Act." Id. at

2146. Consequently, Mr. Moore’s argument that his

condition worsens in the absence of medication is

not relevant in determining whether his arthritis

rises to the level of a disability.

/5 Mr. Moore admits that "the correct inquiry is

whether plaintiff’s arthritis precludes him from

performing those classes of jobs for which he has

training." Appellant’s Br. at 25.

/6 Mr. Moore argues only that Hunt perceives him as

disabled with respect to the major life activity

of work and therefore our discussion focuses on

that activity.

/7 Mr. Moore also mentions two other reasons why

Hunt perceived him as disabled. First, Mr. Moore

posits that because his termination occurred just

prior to the time that Hunt would have to provide

him with health benefits, Hunt must have

terminated his employment to avoid that extra

cost. According to Mr. Moore, this seems to be

the "true explanation for [his] termination."

Appellant’s Br. at 19. Mr. Moore would like us to

equate an interest in avoiding insurance costs

with a perception of disability. However, he

fails to cite any authority for this proposition;

indeed, he fails to make any cogent argument to

this effect. Consequently, the argument is

waived. See Chambers v. American Trans Air, Inc.,

17 F.3d 998, 1005 (7th Cir. 1994) ("[W]e will not

reverse the entry of summary judgment based on

skeletal snippets of argument without citation to

authority.").

Second, Mr. Moore claims that Hunt’s

differing explanations for his termination leads

to a "reasonable inference" that Hunt "perceived

[him] as disabled and decided to get rid of him

by any means." Appellant’s Br. at 19. We believe

that this inaccurately characterizes the record.

Hunt has consistently cited the restrictions that

arose from Mr. Moore’s Department of

Transportation physical as the reasons for

terminating his employment. However, even if Hunt

had been less than forthcoming in identifying the

reason for Mr. Moore’s termination, this does not

assist Mr. Moore in establishing a disability,

only in proving a discriminatory motive once he

has established that he falls within the ADA’s

protection. For the reasons previously stated, he

has not met this initial burden.