                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 JOSE VALTIERRA,                                   No. 17-15282
                      Plaintiff-Appellant,
                                                     D.C. No.
                      v.                          2:15-cv-00865-
                                                      SMM
 MEDTRONIC INC., a Minnesota
 Company,
               Defendant-Appellee.                    OPINION


        Appeal from the United States District Court
                 for the District of Arizona
      Stephen M. McNamee, District Judge, Presiding

             Argued and Submitted June 14, 2019
                  San Francisco, California

                      Filed August 20, 2019

    Before: Mary M. Schroeder and Milan D. Smith, Jr.,
     Circuit Judges, and Jed S. Rakoff,* District Judge.

                  Opinion by Judge Schroeder




    *
      The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
2                   VALTIERRA V. MEDTRONIC

                            SUMMARY**


                  Employment Discrimination

    The panel affirmed the district court’s grant of summary
judgment in favor of the defendant in an employment
discrimination action under the Americans with Disabilities
Act.

    Plaintiff claimed he was terminated from his employment
on account of his morbid obesity, which the district court held
was not a physical impairment and could not constitute a
disability unless it was caused by an underlying physiological
condition. Therefore, plaintiff could not establish disability
discrimination.

    The panel affirmed on other grounds, holding that, even
if plaintiff’s obesity were an impairment under the ADA, or
he suffered from a disabling knee condition that the district
court could have considered, he could not show a causal
relationship between these impairments and his termination.


                             COUNSEL

Jessica Miller (argued) and Michael Zoldan, Zoldan Law
Group PLLC, Scottsdale, Arizona, for Plaintiff-Appellant.

Robert Shawn Oller (argued), Littler Mendelson P.C.,
Phoenix, Arizona, for Defendant-Appellee.

    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 VALTIERRA V. MEDTRONIC                       3

Barbara L. Sloan (argued), Attorney; Sydney A.R. Foster,
Assistant General Counsel; Jennifer S. Goldstein, Associate
General Counsel; James L. Lee, Deputy General Counsel;
Office of the General Counsel, United States Equal
Employment Opportunity Commision, Washington, D.C.; for
Amicus Curiae Equal Employment Opportunity Commission.

Bryan P. Neal (argued) and Stephen F. Fink, Thompson &
Knight LLP, Dallas, Texas, for Amicus Curiae BNSF
Railway Company.


                          OPINION

SCHROEDER, Circuit Judge:

    Plaintiff Jose Valtierra appeals the district court’s
judgment in favor of his former employer, Medtronic Inc., in
his action under the Americans with Disabilities Act
(“ADA”). Valtierra claimed that he was terminated on
account of his morbid obesity, which the district court held
was not a physical impairment under the relevant Equal
Employment Opportunity Commission (“EEOC”) regulations
and interpretative guidance. He contends on appeal that the
district court misinterpreted that guidance. Medtronic, in
addition to defending the district court’s interpretation of the
EEOC guidance, defends the grant of summary judgment on
the additional ground that the reason for plaintiff’s
termination was not his obesity, but his falsification of
Medtronic’s business records to reflect that he had completed
required tasks.

   The underlying facts are not disputed. Valtierra began
working for Medtronic in about 2004 as a facility
4                VALTIERRA V. MEDTRONIC

maintenance technician. The company makes specialized
medical devices used in the treatment and diagnosis of
various medical conditions such as diabetes and
cardiovascular disease. Valtierra’s job involved the repair
and maintenance of the company’s manufacturing equipment.
The company informed him of his job assignments through
a computer program that kept track of the work needed to
keep the equipment in good condition.

    Valtierra was seriously overweight from the time of his
hiring until his termination. When he was hired he weighed
over 300 pounds, and at the time of the events relevant to this
case in 2014, his weight had increased to more than
370 pounds. He requested and was given time off in late
2013 on account of joint pain associated with his weight and
returned to work in December 2013 without medical
restrictions. There is no dispute, however, that his weight
remained so considerable that he suffered from a condition
commonly known as morbid obesity.

    In May 2014, his supervisor noticed that he seemed to be
having difficulty walking and was using the elevator instead
of the stairs. Later, concerned about Valtierra’s ability to do
the job, the supervisor checked the computer system to see if
Valtierra’s assignments had been completed. Although
Valtierra had left for vacation the day before, the computer
indicated he had already completed twelve assignments that
should have taken a more significant amount of time to
complete.

    When confronted with these discrepancies, Valtierra
admitted that he had not performed all the work, but
explained that he had intended to complete the work when he
returned from vacation. He now further contends he should
                  VALTIERRA V. MEDTRONIC                        5

not have been assigned so many tasks to complete in so little
time, because the employer knew he required
accommodations for his weight. Medtronic terminated him
for falsifying the records.

    Valtierra then filed this action in the District Court for the
District of Arizona. The gravamen of his complaint, as
relevant to the issues before us, was that he suffered from a
disability within the meaning of the ADA and his termination
constituted unlawful discrimination in violation of that Act.
The district court granted summary judgment for Medtronic,
holding, in accord with the decisions of several federal
circuits, that obesity, no matter how great, cannot constitute
a disability under the applicable EEOC regulations unless the
obesity is caused by an underlying physiological condition.
Since Valtierra could not identify any such underlying
condition—perhaps, as the EEOC suggests, like most persons
who suffer from obesity—he could not claim discrimination
on account of a disability. The district court therefore
dismissed the action.

    At the time of the district court’s decision, three circuits
had reached a similar conclusion. See Morriss v. BNSF Ry.
Co., 817 F.3d 1104 (8th Cir. 2016); EEOC v. Watkins Motor
Lines, 463 F.3d 436 (6th Cir. 2006); Francis v. City of
Meriden, 129 F.3d 281 (2d Cir. 1997). Since then, the
Seventh Circuit has joined. Richardson v. Chicago Transit
Auth., 926 F.3d 881 (7th Cir. 2019). By contrast, the EEOC,
as amicus, supports the plaintiff’s argument that all of these
courts have incorrectly analyzed the EEOC’s regulations and
guidance.

   We therefore turn to the relevant statutory and regulatory
provisions, and the earlier federal appellate decisions that
6               VALTIERRA V. MEDTRONIC

concluded morbid obesity alone cannot be the basis for a
claim of disability discrimination. The ADA defines
“disability” as a “physical or mental impairment that
substantially limits one or more major life activities.”
42 U.S.C. § 12102(1)(A). Congress went on to provide some
examples. The “major life activities” that Congress has listed
include, among others, “walking, standing, lifting . . . and
working.” Id. § 12102(2)(A). The parties appear to agree
that if Valtierra has a physical “impairment” within the
meaning of subsection (1)(A), it sufficiently limits his
activities so as to render him disabled. The question then
becomes whether he has such an “impairment.”

    The EEOC has defined physical impairment in the
relevant regulation, promulgated in 1992, as follows:

       Any physiological disorder or condition,
       cosmetic disfigurement, or anatomical loss
       affecting one or more body systems, such as
       neurological, musculoskeletal, special sense
       organs, respiratory (including speech organs),
       cardiovascular, reproductive, digestive,
       genitourinary, immune, circulatory, hemic,
       lymphatic, skin, and endocrine[.]

29 C.F.R. § 1630.2(h)(1).

    The EEOC produced an appendix to the regulations,
termed “interpretive guidance,” encompassing more than
600 pages. The relevant passage discussing Section
1630.2(h) states:

       It is important to distinguish between
       conditions that are impairments and physical,
                 VALTIERRA V. MEDTRONIC                       7

       psychological, environmental, cultural and
       economic characteristics that are not
       impairments. The definition of the term
       “impairment” does not include physical
       characteristics such as eye color, hair color,
       lefthandedness or height, weight or muscle
       tone that are within “normal” range and are
       not the result of a physiological disorder. The
       definition, likewise, does not include
       characteristic predisposition to illness or
       disease. Other conditions, such as pregnancy,
       that are not the result of a physiological
       disorder are also not impairments. However,
       a pregnancy-related impairment that
       substantially limits a major life activity is a
       disability under the first prong of the
       definition.

29 C.F.R. pt. 1630, app., § 1630.2(h) (emphasis added).

    The EEOC argues morbid obesity is plainly physiological
in its effects, and that numerous federal agencies have
categorized it as a disease. The agency further contends that
Valtierra has raised at least a genuine issue of material fact
regarding whether his morbid obesity is an impairment,
because his medical records show that several of his bodily
systems have been adversely affected.

    In this case, however, we need not take a definitive stand
on the question of whether morbid obesity itself is an
“impairment” under the ADA. That is because, even
assuming that it is such an impairment, or that Valtierra
suffered from a disabling knee condition that the district court
could have considered, he would have to show some causal
8               VALTIERRA V. MEDTRONIC

relationship between these impairments and his termination.
See Hutton v. Elf Atochem N. Am., Inc., 273 F.3d 884, 891
(9th Cir. 2001) (a plaintiff must show he suffered adverse
employment action “because of” his disability to succeed on
an ADA discrimination claim). He is unable to do so.
Valtierra admits he closed twelve maintenance assignments
as having been completed when he had not done the work. In
addition, he had worked for Medtronic for more than ten
years and had always weighed in excess of 300 pounds.
There is no basis for concluding that he was terminated for
any reason other than Medtronic’s stated ground that he
falsified records to show he had completed work assignments.

    Valtierra nevertheless maintains there is a triable issue
concerning the reason for his termination. He suggests that
similarly situated employees were treated differently and the
falsified records may have been a pretext for discrimination
on the basis of his weight. The district court record does not
bear this out. Valtierra stated in his deposition that other
employees were late in completing assignments, but he did
not know whether any other employees closed out work
assignments without completing them. While the record does
suggest that two other employees admitted to such
misconduct, management was not informed of their actions
and never discovered that others had prematurely closed
tasks. Thus, Medtronic could not have treated Valtierra
differently because there is no evidence Medtronic ever knew
of similar misconduct on the part of others.

    The judgment of the district court is AFFIRMED.
