                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 06-1863
JOHN WILLIAMS,
                                          Plaintiff-Appellant,
                              v.

EXCEL FOUNDRY & MACHINE, INC.,
                                          Defendant-Appellee.
                        ____________
          Appeal from the United States District Court
               for the Central District of Illinois.
           No. 04 C 1387–Joe Billy McDade, Judge.
                        ____________
     ARGUED JANUARY 4, 2007—DECIDED JUNE 1, 2007
                    ____________


 Before POSNER, RIPPLE, and WILLIAMS, Circuit Judges.
  WILLIAMS, Circuit Judge. John Williams brought suit
against his former employer, Excel Foundry & Machine,
Incorporated, claiming that Excel violated the Americans
with Disabilities Act by terminating him on account of his
disability. The district court granted Excel’s motion for
summary judgment, finding that Williams, who claimed
an inability to balance on one leg or to stand for long
periods, was not substantially limited in the major life
activity of standing, and therefore not disabled. For the
reasons detailed below, we agree and affirm.
2                                              No. 06-1863

                   I. BACKGROUND
   The following facts are recounted in the light most
favorable to Williams, who was hired to work in Excel’s
foundry in November 2001 in a job that required heavy
lifting. Nearly one year later, Williams, after falling from
a tree stand while hunting, fractured his spine in several
places. During the next two and a half months, Williams
remained off work while recovering from his injuries.
  In January 2003, Williams’s physician released him to
return to work on “light duty,” with instructions to avoid
frequent bending, stooping, and lifting of more than twenty
pounds. Although Williams was later permitted to lift up
to fifty pounds, he never fully recovered. He remained (and
remains) impaired in his ability to stand for long periods
and to balance himself. Although able to stand for thirty to
forty minutes while constantly moving, after longer
periods, he experienced a sharp, aching pain in his back
and left leg resembling the sensation of a pulled muscle.
That pain could be alleviated by sitting or lying down
for a brief period. Additionally, because of difficulty bal-
ancing on one leg, Williams had to hold onto something to
put on pants.
   Upon returning to work, Williams performed “light duty”
work in Excel’s Shipping and Receiving department,
including removing items from crates, cleaning them, and
stenciling them with part numbers. Williams was told
that he could take short breaks as needed, and he ac-
cepted that invitation, taking breaks every hour to sit or
lie down for a few minutes before returning to work. By
taking periodic breaks, Williams had no problem doing
his job, and during his first year in Shipping and Receiv-
ing, he consistently received average to excellent perfor-
mance ratings.
 Williams continued to work in Shipping and Receiving
until January 30, 2004, when Excel terminated his em-
No. 06-1863                                                 3

ployment, purportedly because he started a rumor that
Excel discharged an employee on recovery from a work-
related injury. Williams admits that he told another
employee that a co-worker had been terminated although
he knew that was not the case. However, he maintains
that the rumor was started a day earlier by another
employee, and that he was the only person terminated or
even disciplined on account of the rumor.
  On November 8, 2004, Williams filed suit against Excel,
claiming that he was disabled and that Excel terminated
him because of that alleged disability. The district court
granted Excel’s motion for summary judgment, concluding
that Williams was not disabled because his inability to
stand continuously for an hour did not represent a sub-
stantial limitation when compared to the average person’s
ability to stand. Williams now appeals.


                      II. ANALYSIS
  We review a district court’s grant of summary judg-
ment de novo, viewing all facts and the reasonable infer-
ences drawn therefrom in the light most favorable to the
nonmoving party. Anders v. Waste Mgmt. of Wis., Inc., 463
F.3d 670, 675 (7th Cir. 2006). Summary judgment is only
proper where “there is no genuine issue as to any mate-
rial fact and . . . the moving party is entitled to a judgment
as a matter of law.” Fed. R. Civ. P. 56(c); see Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986).
  The Americans with Disabilities Act (“ADA”) prohibits
discrimination against “a qualified individual with a
disability because of the disability of such individual in
regard to job application procedures, the hiring, advance-
ment, or discharge of employees, employee compensation,
job training, and other terms, conditions, and privileges
of employment.” 42 U.S.C. § 12112(a). Therefore, our
4                                                No. 06-1863

inquiry begins by assessing whether Williams has estab-
lished that he is disabled within the meaning of the ADA.
Burnett v. LFW Inc., 472 F.3d 471, 483 (7th Cir. 2006).
   An individual is disabled under the ADA if: (1) he has
an impairment that substantially limits one or more of
his major life activities; (2) he has a record of such an
impairment; or (3) his employer regards him as having
such an impairment. 42 U.S.C. § 12102(2). Williams
seeks only to satisfy the first definition of disability by
proclaiming his back injury an impairment and standing
a major life activity. Excel does not dispute that a frac-
tured back is an impairment or that the ability to stand is
a major life activity. See 29 C.F.R. § 1630.2(h)(1) (indicat-
ing that a physiological disorder that affects the
musculoskeletal system is an impairment); 29 C.F.R. pt.
1630, App., § 1630.2(i) (including “standing” in list of
major life activities); Scheerer v. Potter, 443 F.3d 916, 920
(7th Cir. 2006) (discussing standing as a major life activ-
ity); Burks v. Wis. DOT, 464 F.3d 744, 755 (7th Cir. 2006)
(same); see also Gretillat v. Care Initiatives, 481 F.3d 649,
653 (8th Cir. 2007) (“Walking and standing are major life
activities.”).1 The crux of the parties’ disagreement, then,
is whether Williams is sufficiently, meaning substantially,
limited in the ability to stand.
  A person is substantially limited within the meaning
of the ADA if he is: (1) unable to perform a major life
activity that the average person can; or (2) significantly


1
   Because neither party challenges the validity of the Equal
Employment Opportunity Commission’s regulations interpret-
ing the ADA, we “assume, arguendo, that the EEOC regulations
regarding disability determinations are valid.” See EEOC v.
Sears, Roebuck & Co., 233 F.3d 432, 438 n.3 (7th Cir. 2000)
(citing Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 523
(1999)).
No. 06-1863                                                 5

restricted as to the condition, manner or duration under
which he can perform a major life activity as compared to
the average person. 29 C.F.R. § 1630.2(j)(1); Kampmier v.
Emeritus Corp., 472 F.3d 930, 937 (7th Cir. 2007). Wil-
liams does not suggest that he is unable to stand, but
rather that his inability to stand for more than thirty
to forty minutes at a time without briefly sitting or lying
down to alleviate discomfort, and his inability to balance
on one leg, constitute significant restrictions on the
activity of standing.
  It is not apparent to us, however, that Williams’s
limitations amount to significant restrictions on the
condition, manner or duration of his ability to stand as
compared to the average person. Certainly common
conditions, like excess weight and back pain, impair an
individual’s ability to stand for long periods or on one leg.
But all persons impaired by virtue of common afflictions
cannot be disabled. See Mays v. Principi, 301 F.3d 866, 869
(7th Cir. 2002) (“The number of Americans restricted by
back problems to light work is legion. They are not dis-
abled.”); Baulos v. Roadway Express, 139 F.3d 1147, 1153
(7th Cir. 1998) (finding that truck drivers with sleep
disorders were not substantially limited in the major life
activity of working because “lack of sleep is a common
ailment suffered by a majority of truck drivers assigned
to sleeper duty”).
   The Equal Employment Opportunity Commission’s
regulations reinforce our determination that Williams’s
impairment is not substantial. Those regulations provide
that a person is substantially limited in the ability to walk
if he “can only walk for very brief periods of time . . . .” 29
C.F.R. pt. 1630, App., § 1630.2(j) (emphasis added). In
Taylor v. Pathmark Stores, Inc., the Third Circuit relied
upon the EEOC regulations in ruling on the disability
discrimination claim of an employee who walked with a
6                                               No. 06-1863

limp and required a ten-minute break during every hour of
walking or standing. 177 F.3d 180, 186 (3d Cir. 1999).
Finding that fifty minutes was not a “very brief ” period,
the court held that the employee, who could stand or
walk for fifty minutes at a time, was not significantly
restricted in his ability to walk or stand as compared to
the average person. Id. at 186-87.
   Because we also believe that thirty to forty minutes
is not a “very brief ” period, we find that Williams’s inabil-
ity to stand for longer periods does not constitute a
substantial limitation on the major life activity of stand-
ing. We join the company of several of our sister circuits in
reaching this conclusion. See, e.g., Dupre v. Charter
Behavioral Health Sys. of LaFayette, Inc., 242 F.3d 610,
614 (5th Cir. 2001) (finding no substantial limitation in
the plaintiff ’s ability to stand or sit although she could
do neither continuously for more than an hour); Taylor,
177 F.3d at 186 (finding that plaintiff who walked with
slight limp and required ten-minute breaks during each
hour of standing was not disabled); Colwell v. Suffolk
County Police Dep’t, 158 F.3d 635, 644 (2d Cir. 1998)
(reversing jury determination that police officers who could
not stand for “prolonged” periods were disabled); cf.
Oesterling v. Walters, 760 F.2d 859, 861 (8th Cir. 1985)
(finding that the district court did not clearly err in
concluding that plaintiff was not “handicapped” within the
meaning of the Rehabilitation Act by varicose veins,
because although her “varicosities . . . rapidly became
distended on standing, they drained well at rest”).
  Of particular note, the Second Circuit in Colwell v.
Suffolk County Police Department reversed a jury’s find-
ing of disability in favor of police officers who suffered
from impairments resembling that of Williams. 158 F.3d
at 639. Like Williams, one officer testified that he could
not stand in one spot for “any period of time” without
No. 06-1863                                                        7

experiencing excruciating pain. Id. The court found that
limitation insubstantial because the officer’s discomfort
was relieved by moving around. Id. at 644. Another officer
testified that he could not stand “for a long period of time”
and that when he did stand for long periods, he would
experience pain in his lower back and a shooting pain in
his leg. Id. at 640. That officer’s physician reaffirmed
that the officer could “maybe” stand “half an hour to an
hour at a time.” Id. Even so, the court found the evidence
insufficient to show that the officer was substantially
impaired in, among other things, the ability to stand as
compared with the average person. Id. at 644. We can find
no meaningful distinction between Williams’s impair-
ment, an inability to stand for more than thirty to forty
minutes without pain and discomfort, and those at issue
in Colwell.2


2
   It is not clear whether Williams is also claiming a substantial
limitation in his ability to lift. If he is, then, without more, his
inability to lift more than fifty pounds did not render him
disabled. See Williams v. Channel Master Satellite Sys., Inc., 101
F.3d 346, 349 (4th Cir. 1996) (per curiam) (holding “that a
twenty-five pound lifting limitation—particularly when compared
to an average person’s abilities—does not constitute a significant
restriction on one’s ability to lift”); Ray v. Glidden Co., 85 F.3d
227, 229 (5th Cir. 1996) (per curiam) (holding that the inability
to perform “heavy lifting” is not a substantial limitation in a
major life activity); cf. Mays, 301 F.3d at 869 (doubting that the
ability to lift more than ten pounds is a major life activity);
Contreras v. Suncast Corp., 237 F.3d 756, 763 (7th Cir. 2001)
(finding no substantial limitation in the ability to work of
someone with a 45-pound lifting restriction). Williams’s addi-
tional claim of having difficulty lifting objects off the floor is
simply too vague to facilitate a comparison of his abilities with
those of the average person, and therefore insufficient to
overcome summary judgment. Burks, 464 F.3d at 756 (“Such
                                                       (continued...)
8                                                     No. 06-1863

  Further, Williams’s inability to balance on one leg does
not alter our conclusion. It is simply far from obvious that
the average person needs to balance on one leg on a
routine basis so as to stand. Cf. Davidson v. Midelfort
Clinic, 133 F.3d 499, 507 (7th Cir. 1998) (“Even if we
accept Davidson’s argument that difficulty dictating
amounts to difficulty speaking, it is not at all clear that
Davidson’s limitations vis-a-vis dictation could reason-
ably be considered to be a substantial limitation on her
ability to speak. We venture to guess that many if not
most people find no need to dictate in the course of their
day-to-day lives.”). Even if the average person can balance
on one leg and Williams cannot, that incapacity has a
minimal, not substantial, impact on his ability to stand.
And, the record reflects exactly that: on the infrequent
and short-lived occasions when Williams might like to
balance on one leg, as when putting on pants, a slight
modification—holding onto a surface for support—allows
him to overcome his balancing problem.


                      III. CONCLUSION
  In view of the regulations defining “substantial limita-
tion” under the ADA, our common sense understanding of
the term, and the weight of authority, we conclude that
no reasonable jury could find that Williams is disabled
within the meaning of the ADA. Although Williams is


2
  (...continued)
vague claims of difficulty standing or sitting for ‘extended periods
of time’ were found not to create a material issue of fact by the
Eleventh Circuit because the impairments were ‘couched in
vague terms and unaccompanied by any evidence that the
described afflictions were any worse than is suffered by many
adults.’ ” (quoting Rossbach v. City of Miami, 371 F.3d 1354,
1358-59 (11th Cir. 2004))).
No. 06-1863                                              9

certainly impaired in his ability to stand, missing here is
any indication that his ability to stand is far below aver-
age. Therefore, we AFFIRM the judgment of the district
court.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                   USCA-02-C-0072—6-1-07
