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.
