FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NAOMI WALTON,  No. 05-17308

Plaintiff-Appellant, D.C. No.

v. CV-03-01460-SI

U.S. MARSHALS SERVICE; MARC A. ORDER

FARMER, Chief, Judicial Protective AMENDING

Services-Judicial Security OPINION AND

Division; U.S. DEPARTMENT OF  DENYING

HEALTH AND HUMAN SERVICES; PETITION FOR

BENIGNO G. REYNA, Director, REHEARING AND

United States Marshals Service; PETITION FOR

ALBERTO R. GONZALES, Attorney REHEARING

General, EN BANC AND

Defendants-Appellees. AMENDED

OPINION 

Appeal from the United States District Court

for the Northern District of California

Susan Yvonne Illston, District Judge, Presiding

Argued and Submitted

November 16, 2006—Portland, Oregon

Filed February 9, 2007

Amended June 26, 2007

Before: Alfred T. Goodwin, Raymond C. Fisher, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

7643
COUNSEL

Edith J. Benay, San Francisco, California, for the plaintiffappellant. 

Eric Fleisig-Greene, United States Department of Justice,

Washington, DC, for the defendant-appellee.

ORDER

The opinion filed on February 9, 2007 and published at 476

F.3d 723 is hereby AMENDED as follows: 

On 476 F.3d at 731, following the heading reading “3.

Localizing Sound” replace: 

WALTON v. U.S. MARSHALS SERVICE 7647
<< Walton further alleges that the USMS regarded her as

disabled in the major life activity of localizing sound. We

decline to consider whether localizing sound could be an

additional major life activity because Walton failed to raise

this argument before the district court. See Head v. Glacier

Nw., Inc., 413 F.3d 1053, 1060 n.19 (9th Cir. 2005). >>

with: 

<< Walton also alleges that the USMS regarded her as disabled because it regarded her as substantially limited in the

activity of localizing sound.1 In order to show that such a limitation is a disability within the meaning of the Acts, Walton

must provide evidence that the ability to localize sound qualifies as a major life activity. See Coons, 383 F.3d at 885. We

find that she has not. 

“ ‘Major life activities’ . . . refers to those activities that are

of central importance to daily life.” Williams, 534 U.S. at 197;

see also Fraser v. Goodale, 342 F.3d 1032, 1039 (9th Cir.

2003) (quoting Bragdon v. Abbott, 524 U.S. 624, 638 (1998)).

To determine whether a proposed activity is a major life activity, we begin with the illustrative list in the implementing regulations which describes major life activities as “functions

such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” Bragdon, 524 U.S. at 638 (quoting 45 C.F.R.

§ 84.3(j)(2)(ii) (1997) and 28 C.F.R. § 41.31(b)(2) (1997)).

Because “[t]he plain meaning of the word ‘major’ denotes

comparative importance,” we then compare the proposed

1Walton raised this argument in a supplemental brief filed with the district court after the close of briefing on USMS’s motion for summary

judgment. The district court indicated that it received and considered Walton’s supplemental brief, but its order did not address Walton’s additional

argument. We consider it here. We observe that we may affirm the district

court’s grant of summary judgment on any ground supported by the

record. Miranda v. City of Cornelius, 429 F.3d 858, 860 n.1 (9th Cir.

2005). 

7648 WALTON v. U.S. MARSHALS SERVICE
activity with the major life activities enumerated in the regulations, noting that “the touchstone for determining an activity’s inclusion under the statutory rubric is its significance.”

Id. (quoting Abbott v. Bragdon, 107 F.3d 934, 939-40 (1st Cir.

1997)) (internal quotation marks omitted). 

The “comparative importance” standard requires that a proposed activity must be of comparable significance as an enumerated major life activity in order to qualify as a major life

activity. For example, in Bragdon, the Supreme Court held

that “reproduction [is] a major life activity, since reproduction

could not be regarded as any less important than working and

learning.” 524 U.S. at 639. See also Sinkler v. Midwest Prop.

Mgmt. Ltd. P’ship, 209 F.3d 678, 684-85 (7th Cir. 2000)

(“getting to and from work” is not of equal significance to

enumerated major life activities and thus is not a major life

activity; “rather . . . [it] is a sub-species of the activity of

‘working’ or of ‘driving’ ”). 

Walton provides no authority for her argument that the

ability to localize sound is a major life activity. Instead, she

claims that under our decision in Head v. Glacier Northwest

Inc., 413 F.3d 1053 (9th Cir. 2005), her experts’ reports discussing the impact of the inability to localize sound on an

individual’s hearing should be considered evidence of comparative importance. Walton misreads Head. Head does not

stand for the proposition that a proposed activity is a major

life activity simply because it is “in some instances” necessary to the performance of an established major life activity.

Such an expansive reading of “major life activity” would collapse into one the final two of the following three inquiries to

determine the existence of a disability under our case law:

“(1) we determine whether [the alleged impairment] is a physical impairment, (2) we identify the life activity on which

[plaintiff] relies, and we determine whether this activity is a

major life activity, and (3) we determine whether the impairment substantially limits the major life activity.” Fraser, 342

WALTON v. U.S. MARSHALS SERVICE 7649
F.3d at 1038. As the Second Circuit explained in Reeves v.

Johnson Controls World Services, Inc.:

An ADA plaintiff could considerably lessen the burden of making an individualized showing of a substantial limitation were he able to define the major

life activity as narrowly as possible, with an eye

toward conforming the definition to the particular

facts of his own case. . . . Narrowing and diluting the

definition of a major life activity, which in turn

might lessen the plaintiff’s burden of proving a substantial limitation, would undermine the role of the

statute’s “substantial limit[ation]” inquiry in ensuring that only impairments of some significance are

protected by the ADA. 

140 F.3d 144, 152 (2d Cir. 1988). Thus, consistent with controlling precedent, our observation in Head that a proposed

activity may be important because it “is necessary in many

instances to perform” an enumerated major life activity does

not obviate the need to meet the ultimate standard that a proposed activity must be “of comparative importance, and . . .

central to most people’s daily lives” in order to be considered

a major life activity. Head, 413 F.3d at 1062. 

Under the proper standard, the evidence in the record is

insufficient to support Walton’s assertion that the ability to

localize sound is itself a major life activity. For the reasons

discussed in the preceding section, we do not give any evidentiary weight to Dr. Sweetow’s report. Walton’s only other

expert report is that authored by Dr. Cook. In the light most

favorable to Walton, Dr. Cook’s report indicates that a complete inability to localize sound may severely impact how

hearing is used in daily life. Dr. Cook’s report does not, however, suggest that the ability to localize sound is comparable

to “caring for one’s self, performing manual tasks, walking,

seeing, hearing, speaking, breathing, learning, and working”

or that the ability to localize sound is itself central to an indi7650 WALTON v. U.S. MARSHALS SERVICE
vidual’s life. Thus, on this record, we are unable to conclude

that auditory localization is of comparative importance to the

enumerated major life activities, and Walton therefore cannot

sustain a claim that she was regarded as disabled because of

her inability to localize sound. >> 

With this amendment, the panel has voted to deny Appellant Naomi Walton’s petition for rehearing. Judges Fisher and

Smith have voted to deny the suggestion for rehearing en

banc, and Judge Goodwin has recommended denying the suggestion for rehearing en banc. 

The full court has been advised of the petition for rehearing

en banc, and no judge of the court has requested a vote on it.

Fed. R. App. P. 35. 

The petition for rehearing and petition for rehearing en

banc are DENIED. 

Pursuant to General Order 5.3(a), subsequent petitions for

rehearing or rehearing en banc may be filed concerning this

amendment.

IT IS SO ORDERED. 

OPINION

MILAN D. SMITH, JR., Circuit Judge: 

Naomi Walton sued the U.S. Marshals Service (“USMS”)

under the Rehabilitation Act of 1973 alleging that the USMS

unlawfully discharged her because of her hearing impairment.

She appeals from the district court’s grant of summary judgment in favor of the USMS, arguing that the district court

erred in ruling that she failed to demonstrate a genuine issue

of material fact concerning whether she was disabled within

WALTON v. U.S. MARSHALS SERVICE 7651
the meaning of the Acts.1

 We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

I. Background

Walton was employed by Akal Security, Inc. (“Akal”) as a

Court Security Officer (“CSO”) at the United States District

Court for the Northern District of California. Akal is a private

contractor that provides CSOs at federal courthouses within

the Ninth Circuit by contract with the USMS. The contract

requires that Akal employees for CSO positions meet certain

USMS physical requirements. Based on the USMS’s determination that Walton did not meet the USMS’s audiological

standards, the USMS medically disqualified her from employment as a CSO and Akal terminated her employment. 

In its agreement with Akal, the USMS requires CSOs to

undergo annual physical examinations. The USMS’s current

CSO audiological standards were developed based upon a

study by Dr. Richard Miller, Director of Law Enforcement

Medical Programs for the Office of Federal Occupational

Health. Dr. Miller’s study identified twenty-nine job functions

essential to the CSO position, one of which is the ability to

determine the location and source of sound. The Judicial Conference of the United States adopted the conclusions of Dr.

Miller’s study and directed the USMS to implement a number

of changes to the CSO medical standards. 

In November 2001, as a part of an annual physical examination required by her employment contract, Walton underwent audiological testing by an Akal-designated physician.

Dr. Louis Chelton, a medical review officer in the Office of

1Because “[t]he standards used to determine whether an act of discrimination violated the Rehabilitation Act are the same standards applied

under the Americans with Disabilities Act,” we refer to them jointly as

“the Acts.” Coons v. Sec’y of the U.S. Dep’t of the Treasury, 383 F.3d

879, 884 (9th Cir. 2004). 

7652 WALTON v. U.S. MARSHALS SERVICE
Federal Occupational Health, reviewed the results of Walton’s

test in order to assess her compliance with USMS standards.

Based on Walton’s test results, Dr. Chelton noted that Walton

has a disparity between her two ears’ ability to detect sound,

and that this disparity impacts her ability to localize sound. 

Consistent with USMS policy, Walton was given an opportunity to provide further test results or other information to

support her qualification before the USMS made a final recommendation concerning her medical eligibility. Walton took

this opportunity and underwent a second hearing test. Dr.

Chelton reviewed the additional results and reported on a

“Medical Review Form” that Walton was “[n]ot medically

qualified to perform the essential functions of the job.” The

form reads, in relevant part:

The following medical condition(s) poses a significant risk to the health and safety of yourself and/or

others in the performance of essential job functions.

Medical follow-up, if requested, and any reduction

of duties are listed below. Send medical information

to your employer.

You have a significant hearing impairment according

to the results of the tests provided by you from

Gould Medical Foundation. According to the test

results you have only one functioning ear. With only

one functioning ear, you are unable to localize the

direction of sound, an essential job function. Hearing

aids may malfunction or become dislodged in critical

situations. Your job requires the ability to detect

where sound is coming from. Your inability to do so

poses a significant risk to the health and safety of

yourself, other law enforcement officers, and the

public.

The USMS then notified Akal of Walton’s disqualification,

and Akal terminated Walton’s employment. 

WALTON v. U.S. MARSHALS SERVICE 7653
In her Third Amended Complaint, Walton alleged that the

USMS and various individuals and federal agencies terminated her employment in violation of the Rehabilitation Act,

29 U.S.C. § 701-796l, and, in the alternative, the Administrative Procedure Act, 5 U.S.C. § 701-706. The district court

held that the USMS was a proper defendant under the Rehabilitation Act2

 and granted the USMS’s motion for summary

judgment on Walton’s Rehabilitation Act claims, finding that

Walton did not make a prima facie showing that she was disabled under the meaning of the Acts. Walton filed a timely

appeal of the district court’s decision. 

II. Standard of Review

We review a district court’s grant of summary judgment on

a Rehabilitation Act claim de novo. Coons v. Sec’y of the U.S.

Dep’t of the Treasury, 383 F.3d 879, 884 (9th Cir. 2004).

“Viewing the evidence in the light most favorable to the nonmoving party, and drawing all reasonable inferences in her

favor, we must determine whether the district court correctly

applied the relevant substantive law and whether there are any

genuine issues of material fact.” Id. (quoting Brown v. Lucky

Stores, Inc., 246 F.3d 1182, 1187 (9th Cir. 2001)).

III. Discussion

To state a prima facie case under the Rehabilitation Act, a

plaintiff must demonstrate that (1) she is a person with a disability, (2) who is otherwise qualified for employment, and

(3) suffered discrimination because of her disability. See

Wong v. Regents of the Univ. of Cal., 410 F.3d 1052, 1058

(9th Cir. 2005). The Americans with Disabilities Act, whose

standards of substantive liability are incorporated in the Rehabilitation Act, defines “disability” as: (A) a physical or mental

impairment that substantially limits one or more of the major

2The district court’s decision that the USMS is a proper defendant in

this case is not before this court and we express no opinion on the issue.

7654 WALTON v. U.S. MARSHALS SERVICE
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. §12102(2); Coons, 383 F.3d at 884. 

A. “Regarded As” Disabled

[1] Walton does not allege that she is actually disabled;

rather she alleges that she is a person with a disability within

the meaning of the Acts because she was “regarded as” disabled. The Equal Employment Opportunity Commission’s

regulations state that an individual who is “regarded as” disabled:

(1) Has a physical or mental impairment that does

not substantially limit major life activities but is

treated by a covered entity as constituting such limitation; 

(2) Has a physical or mental impairment that substantially limits major life activities only as a result

of the attitudes of others toward such impairment; or

(3) Has none of the impairments defined in paragraph (h) (1) or (2) of this section3

 but is treated by

a covered entity as having a substantially limiting

impairment. 

3The regulations define “Physical or mental impairment” as: 

(1) Any physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following

body systems: neurological, musculoskeletal, special sense

organs, respiratory (including speech organs), cardiovascular,

reproductive, digestive, genito-urinary, hemic and lymphatic,

skin, and endocrine; or 

(2) Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and

specific learning disabilities. 

29 C.F.R. § 1630.2(h). 

WALTON v. U.S. MARSHALS SERVICE 7655
29 C.F.R. § 1630.2(l). Assuming without deciding that the

EEOC regulations are valid, the Supreme Court in Sutton v.

United Air Lines, Inc., 527 U.S. 471 (1999), held that an

employee may be “regarded as” disabled in one of two ways:

(1) a covered entity mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities, or 

(2) a covered entity mistakenly believes that an

actual, nonlimiting impairment substantially limits

one or more major life activities.

527 U.S. at 489. The Supreme Court in Sutton further

instructed that: “In both cases, it is necessary that a covered

entity entertain misperceptions about the individual —it must

believe either that one has a substantially limiting impairment

that one does not have or that one has a substantially limiting

impairment when, in fact, the impairment is not so limiting.”

Id.

[2] Following Sutton, this court requires that a plaintiff

alleging a “regarded as” claim provide evidence of the

employer’s “misperception,” or subjective belief that the

plaintiff is substantially impaired. See, e.g., EEOC v. United

Parcel Service, Inc., 306 F.3d 794, 805 (9th Cir. 2002). In

EEOC, we noted the importance of the “employer’s motivation[s]” and held that the district court “made no finding about

what UPS actually regarded as the restriction, real or unreal,

in claimants’ vision that substantially limits all of them in the

major life activity of seeing.” Id. (emphasis in original). Similarly, in Murphy v. United Parcel Service, Inc., 527 U.S. 516

(1999), the Supreme Court emphasized that a plaintiff must

show that her employer regards her as substantially limited in

a major life activity and not just unable to meet a particular

job performance standard. See id. at 524. 

[3] A plaintiff need not make this showing—that an

employer subjectively believed that the plaintiff is substan7656 WALTON v. U.S. MARSHALS SERVICE
tially limited in a major life activity as the result of an

impairment—through direct evidence. Johnson v. Paradise

Valley Unified Sch. Dist., 251 F.3d 1222, 1229 n.6 (9th Cir.

2001). However, because “a person cannot be regarded as

disabled unless the deficiency that the person is regarded as

having is a disability,” an employee who is only able to show

that her employer regarded her as impaired must also provide

evidence that the imputed impairment is objectively substantially limiting. See EEOC, 306 F.3d at 801 (emphasis in original). See also Thompson v. Holy Family, 121 F.3d 537, 540-

41 (9th Cir. 1997) (defendant’s belief that plaintiff was incapable of lifting 25 pounds is insufficient evidence that the

defendant regarded plaintiff as disabled because the court

“noted previously that a 25-pound restriction does not amount

to a substantial limitation on the ability to lift”). 

[4] Accordingly, we hold that in order to state a “regarded

as” claim a plaintiff must establish that the employer believes

that the plaintiff has some impairment, and provide evidence

that the employer subjectively believes that the plaintiff is

substantially limited in a major life activity. If the plaintiff

does not have direct evidence of the employer’s subjective

belief that the plaintiff is substantially limited in a major life

activity, the plaintiff must further provide evidence that the

impairment imputed to the plaintiff is, objectively, a substantially limiting impairment. See Thornton v. McClatchy Newspapers, Inc., 261 F.3d 789, 798 (9th Cir. 2001) (affirming

district court’s judgment for defendant on plaintiff’s “regarded as” claim because “there is no specific evidence that

[employer] viewed her as substantially limited” and “[employee’s] restrictions did not rise to the level of substantial

limitation”). 

Walton alleges that she was regarded as substantially limited in the major life activities of (1) hearing, (2) working, and

(3) localizing sound. Walton fails to raise a genuine issue of

material fact that the USMS regarded her as disabled with

respect to any of these activities. 

WALTON v. U.S. MARSHALS SERVICE 7657
1. The Major Life Activity of Hearing 

According to EEOC regulations, hearing is a major life

activity. 29 C.F.R. § 1630.2(i). The district court found that

Walton did not raise a genuine issue of material fact that the

USMS subjectively believed her hearing to be substantially

limited, or that the inability to localize sound is an objective

and substantial limitation on the major life activity of hearing.

We agree. 

a. Subjective Belief of Substantial Limitation 

[5] A substantial limitation on the major life activity of

hearing is a severe restriction on the use of an individual’s

hearing compared to how unimpaired individuals normally

use their hearing in daily life. See Toyota Motor Mfg., Ky, Inc.

v. Williams, 534 U.S. 184, 200-01 (2002) (stating the rule in

terms of the major life activity of performing manual tasks);

EEOC, 306 F.3d at 802 (same regarding the major life activity

of seeing). Walton primarily argues that Dr. Chelton’s report

disqualifying her from employment as a CSO raises a genuine

issue of material fact that the USMS believed she was substantially limited in the major life activity of hearing. 

[6] Walton’s argument that her disqualification under the

USMS’s hearing standards is itself sufficient evidence that the

USMS regarded her as disabled in a major life activity fails.

In EEOC, we held that an allegation that an employer which

requires its employees to meet certain vision standards does

not establish a claim that the employer regards one who fails

to meet the vision requirement as being substantially limited

in the major life activities of working or seeing. 306 F.3d at

804 (citing Sutton, 527 U.S. at 490). Standing alone, Walton’s

failure to meet the USMS hearing standards does not raise a

genuine issue of material fact that the USMS regarded her as

disabled. 

[7] The statements in Dr. Chelton’s report are also insufficient to constitute direct evidence of the USMS’s subjective

7658 WALTON v. U.S. MARSHALS SERVICE
belief that Walton was substantially limited in the major life

activity of hearing. Construed in the light most favorable to

Walton, Dr. Chelton’s statements that: “you are unable to

localize sound,” “you have only one functioning ear,” and

“[y]our inability to [localize sound] poses a significant risk to

the health and safety of yourself, other law enforcement officers and the public,” is evidence of his belief that Walton

could not safely perform her job. However, because Dr. Chelton’s letter does not express an opinion on whether the USMS

regarded Walton’s hearing impairment as substantially limiting in a major life activity, it does not follow that the USMS

regarded her as disabled. See EEOC, 306 F.3d at 806 (citing

Thompson, 121 F.3d at 541). 

b. Objective Substantial Limitations 

[8] Since Walton failed to provide direct evidence that

USMS regarded her as substantially limited in a major life

activity because of her hearing impairment, Walton must

show that the inability to localize sound is an impairment that

substantially limits the major life activity of hearing. Thompson, 121 F.3d at 541 (“[a]s with real impairments, . . . a perceived impairment must be substantially limiting and

significant”). Attempting to make this showing, Walton relies

on a report by her expert, Dr. Robert Sweetow, and on a

report by Dr. Lynn Cook, a consulting audiologist in the

development of the USMS hearing standards. 

[9] Walton argues that the following paragraph in Dr.

Sweetow’s expert report raises a genuine issue of material

fact that the inability to localize sound is an impairment that

substantially limits the major life activity of hearing:

Dr. Chelton states the plaintiff is “unable to localize

the direction of sound.” The ability to localize sound

is ”. . . essential to the condition or manner under

which an individuals [sic] can . . .” use the sense of

hearing. Thus being able to localize sound severely/

WALTON v. U.S. MARSHALS SERVICE 7659
significantly restricts one’s hearing as compared to

how unimpaired people normally hear in everyday

life. 

(Ellipses in original). This paragraph is insufficient to raise a

genuine issue of material fact. In this circuit, “[e]xpert opinion is admissible and may defeat summary judgment if it

appears the affiant is competent to give an expert opinion and

the factual basis for the opinion is stated in the affidavit, even

though the underlying factual details and reasoning upon

which the opinion is based are not.” Bulthuis v. Rexall Corp.,

789 F.2d 1315, 1318 (9th Cir. 1985) (per curiam). Dr. Sweetow does not state a factual basis for his opinion; the conclusion appears to be drawn from the second sentence, but the

second sentence references no facts and instead contains an

unattributed quote. Dr. Sweetow’s conclusory report fails to

raise a genuine issue of material fact that the inability to localize sound is an impairment that substantially limits the major

life activity of hearing. See also Broussard v. Univ. of Cal.,

at Berkeley, 192 F.3d 1252, 1258-59 (9th Cir. 1999) (finding

report by plaintiff’s vocational rehabilitation specialist that

“did not compare the jobs [plaintiff] could do before and after

the onset of her [disability],” and did not identify the “time

periods he was analyzing” to be “the type of conclusory allegation which this court found insufficient to withstand the

motion for summary judgment in Thompson”). 

Walton’s only other evidence that the inability to localize

sound is substantially limiting is a draft report prepared by Dr.

Lynn Cook for the United States Immigration and Naturalization Service. In a section titled “Why is Auditory Localization

Important?” Cook states that auditory localization is necessary for the performance of certain activities. Viewed in the

light most favorable to Walton, Dr. Cook’s report indicates

that, unlike a mere difficulty with localizing sound, a complete inability to localize sound may severely impact how

hearing is used in daily life by precluding activities such as

locating other people, pinpointing the direction of a sound of

7660 WALTON v. U.S. MARSHALS SERVICE
interest, and identifying if footsteps are retreating or

approaching. 

However, Dr. Cook’s report also discusses compensatory

measures, which “must be taken into account in judging

whether an individual possesses a disability.” Albertson’s,

Inc. v. Kirkingburg, 527 U.S. 555, 565 (1999) (citing Sutton,

527 U.S. at 482). In stating that “visual localization is generally just as accurate” as auditory localization, Dr. Cook’s

report opines that the compensatory measure of “visual localization” mitigates the effects of an inability to localize sound.

Since there is “no principled basis for distinguishing between

[mitigating] measures undertaken with artificial aids, like

medications and devices, and measures undertaken, whether

consciously or not, with the body’s own systems,” Albertson’s, 527 U.S. at 565-66, we view the inability to localize

sound as being mitigated by visual localization. 

[10] Dr. Cook’s report states the only disadvantages of

relying on visual localization apparent from the record and

Walton does not provide any further evidence on this issue.

Dr. Cook states that mitigating the effects of the inability to

localize sound with visual localization has only minor drawbacks: it “is not nearly as efficient (quick) as auditory localization” and it “assumes that the source of the sound can be

visualized, which is often not possible in low-light environments, when the source is visually obscured by other objects,

or when the source is not visually apparent (as in the bank of

radios above).” Walton relies solely on Dr. Cook’s report, and

presents no contrary evidence in the record that auditory

localization, as mitigated by visual localization, is an objectively severe restriction on the use of an individual’s hearing

compared to how unimpaired individuals normally use their

hearing in daily life. On this basis, no reasonable trier of fact

could find that the inability to localize sound, as characterized

here, is in fact substantially limiting. 

[11] Walton has not raised a genuine issue of material fact

that the impairment imputed to her is in fact substantially limWALTON v. U.S. MARSHALS SERVICE 7661
iting, and we therefore affirm the district court’s finding that

Walton was not regarded as disabled with respect to the major

life activity of hearing. 

2. Working 

[12] EEOC regulations specify that a person is “substantially limited” in the major life activity of working if she is

“significantly restricted in the 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.” 29 C.F.R. § 1630.2(j)(3)(i). An allegation that

the employer regards the impairment as precluding the

employee from a single, particular position is insufficient to

support a claim that the employer regards the employee as

having a substantially limiting impairment. See Murphy, 527

U.S. at 523. 

[13] Walton raises insufficient evidence to support her

argument that the USMS regarded her as substantially limited

in the major life activity of working. In Thornton, we held

that a plaintiff alleging substantial limitation in the major life

activity of working “must present specific evidence about relevant labor markets to defeat summary judgment” and “identify what requirements posed by the class of . . . jobs . . . were

problematic in light of the limitations imposed on her.” 261

F.3d at 795-96 (citation omitted) (ellipses in original). Walton

does not meet the evidentiary standard set out in Thornton

because she relies solely on Dr. Chelton’s letter, Dr. Sweetow’s expert report and Dr. Cook’s report on auditory localization, none of which expresses any opinion about relevant

labor markets or Walton’s particular training, knowledge,

skills or abilities. Accordingly, we affirm the district court’s

holding that Walton failed to raise a genuine issue of material

fact that she was substantially limited in the major life activity

of working. 

7662 WALTON v. U.S. MARSHALS SERVICE
3. Localizing Sound 

Walton also alleges that the USMS regarded her as disabled

because it regarded her as substantially limited in the activity

of localizing sound.4 In order to show that such a limitation

is a disability within the meaning of the Acts, Walton must

provide evidence that the ability to localize sound qualifies as

a major life activity. See Coons, 383 F.3d at 885. We find that

she has not. 

“ ‘Major life activities’ . . . refers to those activities that are

of central importance to daily life.” Williams, 534 U.S. at 197;

see also Fraser v. Goodale, 342 F.3d 1032, 1039 (9th Cir.

2003) (quoting Bragdon v. Abbott, 524 U.S. 624, 638 (1998)).

To determine whether a proposed activity is a major life activity, we begin with the illustrative list in the implementing regulations which describes major life activities as “functions

such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.” Bragdon, 524 U.S. at 638 (quoting 45 C.F.R.

§ 84.3(j)(2)(ii) (1997) and 28 C.F.R. § 41.31(b)(2) (1997)).

Because “[t]he plain meaning of the word ‘major’ denotes

comparative importance,” we then compare the proposed

activity with the major life activities enumerated in the regulations, noting that “the touchstone for determining an activity’s inclusion under the statutory rubric is its significance.”

Id. (quoting Abbott v. Bragdon, 107 F.3d 934, 939-40 (1st Cir.

1997)) (internal quotation marks omitted). 

4Walton raised this argument in a supplemental brief filed with the district court after the close of briefing on USMS’s motion for summary

judgment. The district court indicated that it received and considered Walton’s supplemental brief, but its order did not address Walton’s additional

argument. We consider it here. We observe that we may affirm the district

court’s grant of summary judgment on any ground supported by the

record. Miranda v. City of Cornelius, 429 F.3d 858, 860 n.1 (9th Cir.

2005). 

WALTON v. U.S. MARSHALS SERVICE 7663
The “comparative importance” standard requires that a proposed activity must be of comparable significance as an enumerated major life activity in order to qualify as a major life

activity. For example, in Bragdon, the Supreme Court held

that “reproduction [is] a major life activity, since reproduction

could not be regarded as any less important than working and

learning.” 524 U.S. at 639. See also Sinkler v. Midwest Prop.

Mgmt. Ltd. P’ship, 209 F.3d 678, 684-85 (7th Cir. 2000)

(“getting to and from work” is not of equal significance to

enumerated major life activities and thus is not a major life

activity; “rather . . . [it] is a sub-species of the activity of

‘working’ or of ‘driving’ ”). 

Walton provides no authority for her argument that the

ability to localize sound is a major life activity. Instead, she

claims that under our decision in Head v. Glacier Northwest

Inc., 413 F.3d 1053 (9th Cir. 2005), her experts’ reports discussing the impact of the inability to localize sound on an

individual’s hearing should be considered evidence of comparative importance. Walton misreads Head. Head does not

stand for the proposition that a proposed activity is a major

life activity simply because it is “in some instances” necessary to the performance of an established major life activity.

Such an expansive reading of “major life activity” would collapse into one the final two of the following three inquiries to

determine the existence of a disability under our case law:

“(1) we determine whether [the alleged impairment] is a physical impairment, (2) we identify the life activity on which

[plaintiff] relies, and we determine whether this activity is a

major life activity, and (3) we determine whether the impairment substantially limits the major life activity.” Fraser, 342

F.3d at 1038. As the Second Circuit explained in Reeves v.

Johnson Controls World Services, Inc.:

An ADA plaintiff could considerably lessen the burden of making an individualized showing of a substantial limitation were he able to define the major

life activity as narrowly as possible, with an eye

7664 WALTON v. U.S. MARSHALS SERVICE
toward conforming the definition to the particular

facts of his own case. . . . Narrowing and diluting the

definition of a major life activity, which in turn

might lessen the plaintiff’s burden of proving a substantial limitation, would undermine the role of the

statute’s “substantial limit[ation]” inquiry in ensuring that only impairments of some significance are

protected by the ADA. 

140 F.3d 144, 152 (2d Cir. 1988). Thus, consistent with controlling precedent, our observation in Head that a proposed

activity may be important because it “is necessary in many

instances to perform” an enumerated major life activity does

not obviate the need to meet the ultimate standard that a proposed activity must be “of comparative importance, and . . .

central to most people’s daily lives” in order to be considered

a major life activity. Head, 413 F.3d at 1062. 

[14] Under the proper standard, the evidence in the record

is insufficient to support Walton’s assertion that the ability to

localize sound is itself a major life activity. For the reasons

discussed in the preceding section, we do not give any evidentiary weight to Dr. Sweetow’s report. Walton’s only other

expert report is that authored by Dr. Cook. In the light most

favorable to Walton, Dr. Cook’s report indicates that a complete inability to localize sound may severely impact how

hearing is used in daily life. Dr. Cook’s report does not, however, suggest that the ability to localize sound is comparable

to “caring for one’s self, performing manual tasks, walking,

seeing, hearing, speaking, breathing, learning, and working”

or that the ability to localize sound is itself central to an individual’s life. Thus, on this record, we are unable to conclude

that auditory localization is of comparative importance to the

enumerated major life activities, and Walton therefore cannot

sustain a claim that she was regarded as disabled because of

her inability to localize sound. 

WALTON v. U.S. MARSHALS SERVICE 7665
B. Record of Impairment

[15] Walton also alleges that she is disabled on the basis of

having a record of impairment as defined in 42 U.S.C.

§ 12102(2)(B). Implementing regulations explain that having

a “record” of a disability means either having a history of, or

having been misclassified as having, a substantially limiting

impairment. 29 C.F.R. § 1630.2(k). See also Coons, 383 F.3d

at 886 (doctor’s letter describing stress-related physical ailments did not constitute such a record because none of the

treated impairments substantially limited any major life activity); Bailey v. Georgia-Pacific Corp., 306 F.3d 1162, 1169

(1st Cir. 2002) (plaintiff’s long and documented record of

alcoholism did not establish a disability because the record

did not show that plaintiff’s alcoholism “significantly interfered with a major life activity”). 

[16] Walton argues that Dr. Chelton’s two reports regarding her USMS test results constitute a medical record of having only one functioning ear and being unable to localize

sound. For the reasons stated above, Walton has failed to raise

a genuine issue of material fact that this impairment is a substantially limiting impairment; thus, any record of this impairment would not meet the requirements of 29 C.F.R.

§ 1630.2(k). 

C. Remaining Claims

[17] Because Walton is not a person with a disability as

defined by the Acts, Walton’s claims that the USMS discriminated against her based on disability fail as a matter of law.

See Coons, 383 F.3d at 886. We therefore affirm the district

court’s decision to grant summary judgment in favor of the

USMS on Walton’s remaining claims. 

IV. Conclusion 

We conclude that Walton cannot demonstrate she is disabled within the meaning of the Acts, and we affirm the dis7666 WALTON v. U.S. MARSHALS SERVICE
trict court’s grant of summary judgment to the USMS. 

AFFIRMED. 

WALTON v. U.S. MARSHALS SERVICE 7667