                                                                                 [PUBLISH]


                   IN THE UNITED STATES COURT OF APPEALS
                                                                            FILED
                             FOR THE ELEVENTH CIRCUIT
                                                                   U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                          08/25/99
                                        No. 98-9362                   THOMAS K. KAHN
                                                                           CLERK


                            D. C. Docket No. 4:95-CV-029-RLV

ROBERT A. SUTTON,

                                                                  Plaintiff-Appellee,
                                            versus

PHILIP LADER, Administrator of the
Small Business Administration,

                                                                  Defendant-Appellant.



                       Appeal from the United States District Court
                          for the Northern District of Georgia

                                     (August 25, 1999)


Before CARNES, Circuit Judge, HILL, Senior Circuit Judge, and HOEVELER*,
District Judge.



*Honorable William M. Hoeveler, Senior U. S. District Judge for the Southern District of
Florida, sitting by designation.

HILL, Senior Circuit Judge:
      Robert A. Sutton sued the Administrator of the Small Business

Administration under the Rehabilitation Act, 29 U.S.C. §§ 704 – 794e alleging

disability discrimination. The district court entered judgment for plaintiff on his

claim for back pay and awarded him $15,394.10 in back pay and $109,752 in

attorneys’ fees. Defendant appeals both awards.

                                          I.

      On February 2, 1994, the Small Business Administration Disaster Assistance

Program (SBA) hired Robert A. Sutton to work as a disaster relief construction

analyst on a thirty-day appointment1 to Northridge, California, the site of a

powerful earthquake causing extensive damage. The job involved assessing the

earthquake damage and the needs of disaster victims. It is physically demanding –

requiring climbing and crawling inside collapsed buildings and other debris under

disaster conditions and exposure to chemicals, fumes and dust.2



      1
       Because disasters cannot be predicted, the SBA has special authority to hire
temporary disaster relief workers on thirty-day appointments. The SBA employed
more than 1,000 temporary employees to respond to the Northridge earthquake.
The temporary appointments are often renewed on thirty-day increments,
depending upon the program workload and each worker’s performance. As a
disaster relief effort winds down, the SBA reduces its staff of temporary workers as
quickly as possible to reduce its costs.
      2
        The Northridge earthquake disaster site had so much dust that many disaster
relief workers developed respiratory problems.
                                          2
      Sutton left for California on February 4, 1994. Unfortunately, he suffered a

heart attack that night. He was hospitalized and underwent an angioplasty the next

day. He was released from the hospital four days later, on February 10. Due to

these circumstances, Sutton was unable to begin his on-site training, or perform

any duties as a construction analyst.

      Five days later, on February 15, Sutton contacted his supervisor to discuss

his return to work. He was advised that he would need a medical release before the

SBA could permit him to return to the physically demanding duties of construction

analyst.

      The next day, February 16, Sutton had a second heart attack. He had bypass

surgery on February 18, and remained hospitalized for six more days. When his

SBA supervisor did not hear from him, he called to inquire and learned of the

second attack and the surgery. Sutton told him he was ready to return to work, and

his supervisor reiterated that a medical release to work specifically as a

construction analyst would be necessary.

      On February 28, 1994, ten days after his bypass surgery, Sutton provided the

SBA with a letter from a Dr. J. Nathan Rubin stating that Sutton would be totally

disabled from February 3 through March 10, 1994, and “partially disabled” from

March 19 to April 1, 1994. The letter stated that Sutton could not lift, carry, climb,


                                           3
climb ladders or work around dust. The letter further stated that Sutton could

kneel, bend, stoop, twist, and push and pull for only one hour a day, and that he

should not be exposed to chemicals, solvents, and fumes for more than one hour

each day. At trial, Sutton conceded that the doctor who wrote the letter was

unaware of the duties of a construction analyst.

      Shortly thereafter, Sutton visited the SBA offices in California to discuss his

employment. He was informed that since he could not perform the duties of a

construction analyst, the SBA would allow his temporary appointment to expire,

but would extend it one week to March 12 so that he could return to Atlanta at

SBA expense. He was told that if he wanted to be reappointed as a construction

analyst, he would have to provide the SBA with a letter that specifically permitted

him to perform those duties.

      On March 29, seventeen days after his return from California, Sutton

consulted a cardiologist, Dr. Martin, and secured a letter stating that Sutton could

return “to his professional duties.” This doctor later testified that Sutton did not

inform him of the nature of these “professional duties.” The doctor also testified

that his letter did not release Sutton to perform the duties of a construction analyst.




                                           4
      Nine days later, Sutton did inform the cardiologist of those duties and asked

him to write a new letter releasing Sutton to work as a construction analyst. The

doctor refused to do so without a stress test and full examination.

      On May 4, 1994, Sutton submitted a letter from a third cardiologist, Dr. Dale

Haggman, which effectively released him to perform the duties of a construction

analyst. On that date, however, the SBA was no longer hiring construction

analysts for the Northridge earthquake disaster, or any other disaster.3 The Atlanta

office did not hire construction analysts again until July when floods in south

Georgia caused by tropical storm Alberto necessitated additional construction

analysts. The SBA telephoned Sutton and offered him a new thirty-day

appointment as a construction analyst, but he declined because he had decided to

open a remodeling business in the Chattanooga area.

      Sutton sued the SBA in January of 1995under the Rehabilitation Act

claiming back pay for employment discrimination, front pay and overtime pay for

constructive discharge, and compensatory damages. During the four day trial in

late 1997, Sutton expressed surprise during his cross-examination regarding the

demand for front pay, and abandoned that claim. After the close of evidence, the



      3
       The Atlanta office stopped hiring construction analysts and sending them to
California in April. Sutton never applied for any other position.
                                          5
district court granted the SBA’s motion to dismiss the compensatory damages

claim for lack of evidence. The court, however, deferred ruling on the SBA’s

motion for judgment as a matter of law on the remaining back pay claim.4

      On August 28, 1998, the district court denied the motion and entered

judgment for Sutton, holding that the SBA did not allow him to return to work

because it perceived him to be disabled between March 7, 1994, and July 9, 1994,

when he was offered another position but refused it. The court awarded Sutton

back pay for this period of time in the amount of $15,394.10. The court also

granted Sutton’s motion for attorneys’ fees although it noted that his affidavit

made it impossible for the court to determine the amount of time devoted by his

attorneys to the sole issue on which he prevailed. The court also noted that the

staffing on the case was “clearly excessive” (six attorneys and six paralegals) and

that work on the constructive discharge claim could have been avoided if the

attorneys had “simply conferred with their client.” Despite these defects, the court

awarded $109,752 in fees as “a compromise.”




      4
        The jury was dismissed after the SBA advised the district court that Sutton
was not entitled to a jury trial on his sole remaining back pay claim. Later, it was
determined that this advice was in error, but the SBA was deemed to have waived
the jury by virtue of the advice, and the error was held harmless as to Sutton
because he prevailed on the claim.
                                          6
      We review the SBA’s appeal of the denial of its motion for judgment as a

matter of law de novo, applying the same legal standards as the district court.

Gordon v. E.L. Hamm & Assocs., Inc., 100 F.3d 907, 910 & 915 (11th Cir. 1996).

                                          II.

      The Rehabilitation Act (the Act) prohibits federal agencies from

discriminating in employment against otherwise qualified individuals with a

disability. 29 U.S.C. § 791. To establish a prima facie case of discrimination

under the Act, an individual must show that (1) he has a disability; (2) he is

otherwise qualified for the position; and (3) he was subjected to unlawful

discrimination as the result of his disability. E. L. Hamm & Assocs., 100 F.3d at

910;5 Severino v. North Fort Myers Fire Control Dist., 935 F.2d 1179, 1183 (11th

Cir. 1991).

          The Act defines “individual with a disability” as any person who:

      (I) has a physical or mental impairment which substantially limits one
      or more of such person’s major life activities, (ii) has a record of such
      impairment, or (iii) is regarded as having such an impairment.



      5
       The plaintiff in E.L. Hamm & Associates brought his claim under the
American with Disabilities Act (ADA). The standard for determining liability
under the Rehabilitation Act is the same as that under the ADA. 100 F.3d at 911
(using EEOC Rehabilitation Act regulations to determine ADA disability). See
also Allison v. Dept of Corrections, 94 F.3d 494, 497 (8th Cir. 1996); McDonald
v. Pennsylvania Dept of Public Welfare, 62 F.3d 92, 94-95 (3d Cir. 1995).
                                           7
29 U.S.C. § 706(8)(B). Sutton claims that the SBA “regarded” him as having a

physical impairment and discriminated against him by refusing to allow him to

return to his job as a construction analyst for that reason.

        A person is “regarded’ as having an impairment if he:

        has a physical or mental impairment that does not substantially limit
        major life activities but is treated by an employer as constituting such
        a limitation; has a physical or mental impairment that substantially
        limits major life activities only as a result of the attitude of an
        employer toward such impairment; or [has no physical or mental
        impairment] but is treated by an employer has having such an
        impairment.

29 C. F. R. § 1614.203(a)(5).

        In holding that the SBA wrongfully terminated Sutton, the district court said

only:

        It is undisputed that the SBA did not allow the plaintiff to return to
        work after his heart attacks; furthermore, from the evidence adduced
        at trial, it is clear that the SBA’s decision not to allow the plaintiff to
        return to work, even though he had obtained medical releases, was
        based upon the SBA’s perception that the plaintiff could not do the
        work because of his heart attacks.

        The district court apparently found that Sutton had no physical impairment,

but was treated by the SBA as though he did when it refused to allow him to return

to work prior to the expiration of his temporary appointment. We disagree.




                                              8
                                         III.

      In order for Sutton to prevail on a “perception” theory under the Act, he

must be able to show that the SBA refused to allow him to return to work because

it regarded him as having a physical impairment as that term is defined by the Act.

E. L. Hamm & Associates, 100 F.3d at 913. Not every physical impairment is a

disability under the Act. Hilburn v. Murata Electronics N. A., Inc., No. 98-9313,

slip. op at 3279 (11th Cir. July 20,1999) (citing Pritchard v Southern Co. Servs. 92

F.3d 11130, 1132 (11th Cir.), amended in part on reh’g by 102 F.3d 1118 (11th

Cir. 1996). Thus, in order for a plaintiff to prevail on a perception theory of

disability discrimination, he must be able to show that, as with a real impairment,

the perceived impairment is “substantially limiting” and significant. Id.; Standard

v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1327 (11th Cir. 1998). See also Ellison v.

Software Spectrum, Inc., 85 F.3d 187, 191 (5th Cir. 1996).6 In determining

whether a physical impairment substantially limits a major life activity, the


      6
         Sutton argues that the extent to which the SBA regarded him as impaired is
irrelevant under a perception theory of disability discrimination. This reading of
the Act is, of course, wrong as it would expand the Act to cover any impairment at
all, so long as the employer knew of it. Under this theory, “a person in a group
protected from adverse employment actions, i.e., anyone, could establish a prima
facie discrimination case merely by demonstrating some adverse action against the
individual and that the employer was aware that the employee’s characteristic
placed him or her in the group, e.g., race, age, or sex [or disabled].” Kelly v.
Drexel University, 94 F.3d 102, 109 (3rd Cir. 1996).
                                          9
regulations instruct us to consider (1) the nature and severity of the impairment; (2)

the duration or expected duration of the impairment; and (3) the permanent or long

term impact, or the expected permanent or long term impact of or resulting from

the impairment. 20 C.F.R. § 1630.2(j)(2) (emphasis supplied).

      The district court did not find that the SBA perceived Sutton to have a

substantially limiting and significant physical impairment. We do not remand for

such a finding, however, because we conclude that there is insufficient evidence in

this record upon which such a finding could be made.

      From the evidence, it is abundantly clear that the SBA perceived Sutton to

have only a temporary incapacity to perform the essential functions of his job as a

construction analyst. The evidence demonstrated that the SBA knew Sutton had

had heart surgery and that it regarded Sutton as temporarily unable to work during

his recovery. Sutton submitted a letter from his own doctor, Dr. Rubin, stating that

Sutton would be totally disabled until March 10, and partially disabled until April

1, 1994 (after the expiration of Sutton’s thirty-day appointment). Dr. Rubin

specifically stated that during this period of time Sutton could not lift, carry, climb,

climb ladders or work around dust. Dr. Rubin further stated that Sutton could

kneel, bend, stoop, twist, and push and pull for only one hour each day, and he




                                           10
should be exposed to chemicals, solvents, and fumes for less than one hour each

day.

       This evidence, however, is insufficient to demonstrate that the SBA regarded

Sutton as disabled. Kelly v. Drexel University, 94 F.3d 102, 109 (3rd Cir. 1996).

The mere fact that an employer is aware of an employee’s impairment is

insufficient to demonstrate that the employer regarded the employee as disabled.

An employee who is perceived by his employer as having only a temporary

incapacity to perform the essential functions of his job is not perceived as

“disabled” as defined by the Act. 29 C.F.R. Pt. 1630, App. § 1630.2(j)

(“temporary, non-chronic impairments of short duration, with little or no long term

or permanent impact, are usually not disabilities”); Huff v. UARCO, Inc., 122 F.3d

374 (7th Cir. 1977) (temporary condition not disability under the Act); Sanders v.

Arneson Products, Inc. 91 F.3d 1351, 1354 (9th Cir. 1996) (plaintiff’s four-month

temporary impairment was too brief to be a “disability”); Vande Zande v.

Wisconsin Dep’t of Administration, 44 F.3d 538, 544 (7th Cir. 1995) (“intermittent,

episodic impairments are not disabilities”); Evans v. City of Dallas, 861 F.2d 846,

852-53 (5th Cir. 1988) (knee injury not a disability).

       To establish that an employer regarded an employee as “disabled” and thus

covered by the Rehabilitation Act, a plaintiff must first introduce substantial


                                          11
evidence that the employer regarded him as having a permanent or long-term

impairment. E.L. Hamm & Associates, 100 F.3d at 912-13. A temporary inability

to work while recuperating from surgery is not such a permanent or long-term

impairment and does not constitute evidence of a disability covered by the Act.

Gutridge v. Clure, 153 F.3d 898, 901-02 (8th Cir. 1998) (citations omitted);

Heintzelman v. Runyon, 120 F.3d 143, 145 (8th Cir. 1997) (inability to work while

recovering from surgery not evidence of permanent impairment); Rogers v. Int’l

Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996) (surgery and recovery not

a disability); McDonald v. Pennsylvania, Dep’t of Public Welfare, 62 F.3d 92, 96-

97 (3d Cir. 1995) (recuperation after abdominal surgery not disability); Evans, 861

F.2d at 852-53 (knee injury that required surgery not disability).

      Nor does an employer’s perception that an employee cannot perform a

particular task safely establish that the employer regarded the employee as

disabled. Chandler v. City of Dallas, 2 F.3d 1385, 1393 (5th Cir. 1993). The

evidence was that the SBA prevented Sutton from returning to work until he

submitted a valid medical release out of concern for his safety. There was no

evidence that the SBA tried to prevent Sutton from returning to work after he

submitted the doctor’s letter that effectively released him to return to the specific




                                          12
duties of a construction analyst. In fact, the SBA offered him employment which

he refused.

      Furthermore, in order to establish a prima facie case, Sutton must have

demonstrated that he was “otherwise qualified” do his job during the relevant time

frame. In the employment context, an otherwise qualified person is one who can

perform ‘the essential functions’ of the job in question with or without reasonable

accommodation.” 29 C. F. R. § 1630.2(m); School Board of Nassau County v.

Arline, 480 U.S. 273, 275 (1987). The district court in this case, however, made no

finding that Sutton was able to “perform the essential functions” of the job of SBA

construction analyst during the relevant time frame. and we conclude that no such

finding can be made on the evidence in this record.

      The evidence at trial was that, during his thirty-day appointment, Sutton was

unable to perform the essential functions of his job. Although Sutton submitted

three documents to the SBA which purported to release him for work, only the last

of these effectively released him to return to the specific physical demands of the

position of construction analyst.

      The first document Sutton submitted was from Dr. Nathan Rubin. Dr. Rubin

certified that Sutton would be totally disabled until March 10, and partially

disabled until April 1, 1994 (after the expiration of Sutton’s thirty-day


                                          13
appointment). Dr. Rubin specifically stated that Sutton could not lift, carry, climb,

climb ladders or work around dust. Dr. Rubin further stated that Sutton could

kneel, bend, stoop, twist, and push and pull for only one hour each day, and he

should be exposed to chemicals, solvents, and fumes for less than one hour each

day. Sutton conceded at trial that this letter did not indicate in any way that Dr.

Rubin was aware of the duties of a construction analyst. The evidence at trial was

that no one could work as a construction analyst under the restrictions Dr. Rubin

placed on Sutton in this letter. This letter did not, therefore, effectively “release”

Sutton to return to work as a construction analyst and the SBA was under no

obligation to allow him to do so. In fact, it would have been callously indifferent

to his welfare had it done so.

      The second doctor’s letter Sutton submitted also did not effectively release

him for work. In this letter, Dr. Martin merely stated that Sutton could return “to

his professional duties.” In view of Dr. Rubin’s letter which imposed severe

limitations on Sutton’s ability to perform any physical activity, the SBA was fully

justified in requiring a letter which stated that Sutton was capable of returning to

the specific strenuous duties of a construction analyst. In fact, Dr. Martin later




                                          14
testified that he knew nothing of the duties of a construction analyst and his letter

did not release Sutton to return to such a job.7

      It was not until May 4 that Sutton finally submitted an effective release to

return to the position of construction analyst.8 However, by then the Northridge

earthquake disaster was resolved and the SBA was no longer hiring construction

analysts. The SBA is under no obligation to hire an employee for a non-existent

job. Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996) (“employers are not

required to create positions specifically for the handicapped employee”). When, in

July, another disaster prompted the SBA to begin hiring construction analysts

again, Sutton refused the position.

      There is no obligation under the Act to employ people who are not capable

of performing the duties of the employment to which they aspire. Carter v. Tisch,

822 F.2d 465, 467 (4th Cir. 1987) (Rehabilitation Act permits employer to release

a disabled or injured employee who cannot perform all of his duties); Southeastern



      7
       Dr. Martin testified that he thought Sutton had a “regular type of job, 40
hours a week, no excessive stresses, no exposure to any risk factors to endanger his
condition.”
      8
        Sutton argues on appeal that the SBA should have contacted the doctors
who wrote the prior letters. Sutton, however, objected at trial to the SBA’s attempt
to introduce evidence that one of its personnel officers had, in fact, spoken with Dr.
Rubin and to the contents of that discussion.
                                          15
Community College v. Davis, 442 U.S. 397 (1979) (Rehabilitation Act does not

require employer to change job requirements or ignore the fact that the plaintiff

could not perform them).

      Sutton counters this evidence with an argument that the SBA was under an

obligation to “accommodate” him by placing him in a supervisory position until he

was able to work as a construction analyst. Sutton, however, conceded at trial that

he never completed the training for the position of construction analyst, had never

worked as a construction analyst, and had never assessed any earthquake damage,

nor had any experience or background in disaster relief work. Under these

circumstances, the SBA was under no obligation to return Sutton to work in a

position for which he was not qualified.

      Finally, Sutton argues that the SBA could have allowed him to return to

work as a construction analyst but given him some sort of “light duty.” The

evidence was undisputed, however, that there are no “light duty” construction

analyst positions at the SBA. Nor is the SBA required to create such a position for

Sutton. Shiring, 90 F.3d at 831 (“employers are not required to create positions

specifically for the handicapped employee”); Fedro v. Reno, 21 F.3d 1391, 1395 &

n. 5 (7th Cir. 1994) (Rehabilitation Act does not “require an employer to create

alternative employment opportunities for a handicapped employee”) (emphasis in


                                           16
original); Davis, 442 U.S. at 406 (Rehabilitation Act does not require employer to

change job requirements).9

                                        IV.

      Sutton has failed to make a prima facie case of employment discrimination

under the Rehabilitation Act because there was insufficient evidence that the SBA

perceived him as a disabled person or that he was “otherwise qualified” for the

position of construction analyst during the relevant time frame. Accordingly, the

judgment of the district court is REVERSED, the award of attorneys’ fees is

VACATED and the case is REMANDED for the entry of judgment for the

defendant.




      9
       The district court’s approach to calculating attorneys’ fees is
unconventional at best, see generally American Civil Liberties Union v. Barnes,
168 F.3d 423 (11th Cir. 1999), but because of our resolution of the liability
question, the attorneys’ fees issues are moot.
                                        17
