NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TOMMY RAY VINSON, a married man, 

Plaintiff-Appellant, 

 v. 

GENERAL MOTORS COMPANY, a 

Delaware corporation; GENERAL 

MOTORS, LLC, a Delaware Corporation, 

Defendants-Appellees.

No. 22-15907 

D.C. No. 2:20-cv-01077-SMB 

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

Susan M. Brnovich, District Judge, Presiding

Submitted February 5, 2024

**

Before: O’SCANNLAIN, FERNANDEZ, SILVERMAN, Circuit Judges.

Vinson appeals pro se from district court orders denying his motion to 

extend discovery and granting General Motors’ (“GM”) motion for summary 

judgment. Because the facts are known to the parties, we repeat them only as 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

FEB 5 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

necessary to explain our decision. 

I

A court may modify its discovery schedule “only for good cause.” Fed. R. 

Civ. P. 16(b)(4). To show good cause, a movant must have diligently pursued 

discovery. Panatronic USA v. AT&T Corp., 287 F.3d 840, 846 (9th Cir. 2002). 

Vinson has not shown that he diligently pursued discovery before the deadline. 

Thus, the district court did not abuse its discretion in denying his motion to extend 

discovery deadlines. 

II

Summary judgment is appropriate when there is no genuine dispute of 

material fact and the movant is entitled to judgment as a matter of law. Fed. R. 

Civ. P. 56(a). A litigant asserting a disparate impact claim under the Age 

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., “must 

demonstrate a statistical disparity affecting members of the protected group,” 

Stockwell v. City & County of San Francisco, 749 F.3d 1107, 1115 (9th Cir. 2014). 

GM presented evidence that employees over 40 made up a disproportionately 

lower percentage of those discharged when compared to the workforce preceding 

the layoffs. Vinson has not cited record evidence that genuinely disputes GM’s 

evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Hexcel 

Corp. v. Ineos Polymers, Inc., 681 F.3d 1055, 1063 (9th Cir. 2012). The district 
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court did not err by granting summary judgment to GM on Vinson’s ADEA claim. 

III

A plaintiff asserting a claim under the Americans with Disabilities Act

(“ADA”), 42 U.S.C. § 12101 et seq., must show that he is disabled. Smith v. Clark 

Cnty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013). Vinson has cited no record 

evidence that his diagnosis “substantially limit[ed] one or more major life 

activities.” 42 U.S.C. § 12102(1)(A). GM presented evidence that Vinson could 

carry out all pre-disease activities without restriction. See 29 C.F.R. §

1630.2(j)(1)(iv); Bragdon v. Abbott, 524 U.S. 624, 657 (1998) (Rehnquist, C.J., 

concurring in part and dissenting in part). The district court did not err in granting 

summary judgment to GM on Vinson’s ADA claims. 

IV

We deny GM’s request for attorneys’ fees because GM failed to file its 

request in a separate motion. Fed. R. App. P. 38; Higgins v. Vortex Fishing Sys., 

Inc., 379 F.3d 701, 709 (9th Cir. 2004).

AFFIRMED. GM’s motion for fees on appeal is DENIED.