Ponce v. General Motors Corp.

143 F. App'x 755

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 26, 2005
• Docket: No. 04-35040
• Status: Published

Opinion

MEMORANDUM

***

We need not decide whether the district court abused its discretion in denying Ponce’s motion for leave to amend his complaint because the denial did not prejudice Ponce.¹ The complaint pleaded that Ponce “is a person with a disability” under Oregon law, and Oregon law defines “disabled person” to include a person who is “regarded as” having the requisite impairment.²

Summary judgment was proper because Ponce did not establish a genuine issue of material fact as to whether he was “regarded as” disabled. His evidence did not show that his claimed need to wear dark glasses substantially limited a major life activity, as the Oregon statute requires.³ Under EEOC v. United Parcel Service,⁴ General Motors can be found to have regarded Ponce as disabled for the major life activity of seeing only if it mistakenly believed that his actual non-limiting impairment substantially limits one or more major life activities.⁵ There is no evidence in the record from which a jury could conclude that this was so.⁶

There was also no evidence that General Motors’ belief that it was dangerous for Ponce to work certain jobs while wearing dark tinted glasses was mistaken.⁷ The doctor employed by the company advised that the dark glasses could be a safety hazard, and the safety compliance officer for the state occupational safety and health division wrote the employer that it had committed a violation because employees were seen in the warehouse wearing tinted lenses, which constituted “an unsafe and unacceptable work practice.”

There was no cognizable evidence to support applying the exception for intentional injuries⁸ to the exclusive remedy provision⁹ of Oregon’s workers’ compensation statute. Respondeat superior does not apply because the exception requires that the employer itself, not just the supervisor, had the intent to produce the injury.¹⁰ There is no evidence that General Motors, not just Ponce’s supervisor, intended to injure Ponce,¹¹ or that General Motors wished to injure Ponce.¹²

Summary judgment was proper on Ponce’s claim of intentional infliction of emotional distress because Ponce has not satisfied the elements of that tort under Oregon law.¹³ Issues raised in a brief but not supported by argument are deemed abandoned.¹⁴ Ponce has not pleaded any of the elements of the tort, and fails to cite any authorities or show how anything in the record supports his allegation.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . See Cal. Sansome Co. v. U.S. Gypsum, 55 F.3d 1402, 1408 n. 11 (9th Cir.1995); EEOC v. Boeing Co., 843 F.2d 1213, 1221-22 (9th Cir.1988).

2 . See Or.Rev.Stat. § 659A.100(l)(a); see also Snead v. Metro. Property & Cas. Ins. Co., 237 F.3d 1080, 1087-88 (9th Cir.2001).

3 . See Or.Rev.Stat. § 659A.100(l)(a).

4 . EEOC v. United Parcel Serv., Inc., 306 F.3d 794 (9th Cir.2002).

5 . See id. at 803; see also Sutton v. United Air Lines, Inc., 527 U.S. 471, 489, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999).

6 . See EEOC v. United Parcel Serv., 306 F.3d at 803; see also Thompson v. Holy Family Hosp., 121 F.3d 537, 539-41 (9th Cir.1997).

7 . See EEOC v. United Parcel Serv., 306 F.3d at 804-05.

8 . See Or.Rev.Stat. § 656.156(2).

9 . See Or.Rev.Stat. § 656.018; Bakker v. Baza'r, Inc., 275 Or. 245, 551 P.2d 1269, 1275 (1976).

10 . See Hanson v. Versarail Sys., Inc., 175 Or. App. 92, 28 P.3d 626, 627-28 (2001).

¹¹

12 . See Rangel v. Denton Plastics, Inc., 148 Or.App. 328, 939 P.2d 644, 647 (1997).

13 . See McGanty v. Staudenraus, 321 Or. 532, 901 P.2d 841, 849 (1995).

14 . See Fed. R.App. P. 28(a)(9)(A); Humble v. Boeing Co., 305 F.3d 1004, 1012 (9th Cir.2002).