Ronald Clipse, App/cross-resp V Commercial Driver Services, Inc., Resps/cross-apps

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2015 AUG25 x,1" 1 0. €..4
IN THE COURT OF APPEALS OF THE STATE OF WASHIN
S5
DIVISION II oY
RONALD CLIPSE, No. 45407 -6 -II
Appellant -Cross Respondent,
v
COMMERCIAL DRIVER SERVICES, INC.,
a Washington Corporation, and LEE BRUNK
and Jane Doe BRUNK, and the marital
community comprised thereof, PUBLISHED OPINION
ss
WORswICK, P. J. — Ronald Clipse obtained a judgment against Commercial Driver
Services, Inc. ( CDS) for firing him in violation of the " Washington Law Against
Discrimination"' ( WLAD) and for promissory estoppel. In his appeal, Clipse argues that the trial
court erred by ( 1) granting CDS' s motion for judgment as a matter of law and dismissing
Clipse' s claim for double damages under RCW 49. 52. 050 and . 070, and ( 2) striking Clipse' s late
motion for attorney fees and costs. CDS cross- appeals, arguing that the trial court erred by
denying CDS' s motion for judgment as a matter of law to dismiss Clipse' s WLAD and
promissory estoppel claims. We reject Clipse' s arguments.. And although we reverse the trial
court' s denial of CDS' s motion for judgment as a matter of law on Clipse' s promissory estoppel
claims, we affirm the denial of CDS' s motion on Clipse' s WLAD claims. Accordingly, we
affirm the judgment.
1
Chapter 49. 60 RCW.
No. 45407 -6 -II
FACTS
Ronald Clipse was a commercial truck driver. Lee Brunk owned and operated CDS, a
commercial driving school. On April 6, 2011, Brunk offered Clipse a job as a driving instructor,
Verbatim Report Proceedings ( VRP) ( Aug. 21, 2013) at 74..
saying, "[ W] elcome aboard." of
Clipse then quit his existing job in anticipation of beginning work at CDS. Clipse understood
what at -will employment was, and he understood.the CDS position to be an at -will job.
Just prior to Clipse' s scheduled start date of April 18, Brunk asked Clipse to undergo a
physical examination to determine whether Clipse could obtain a medical examiner' s certificate
qualifying him to drive a commercial vehicle. See RCW 46. 25. 057; 49 U.S. C. § 31149 ( 2012).
Clipse' s physical examination revealed that he was taking the narcotic drug methadone for
chronic pain from a torn rotator cuff. The examining physician gave Clipse a 30 day medical
provided further documentation
After Clipse P his doctors showing
fromI/
examiner' s certificate.
that he could safely drive while on his medication, the examining physician provided Clipse with
a one year medical examiner' s certificate.
When Brunk received the results of Clipse' s physical examination, he told Clipse to get
cleaned up." VRP ( Aug. 20, 2013) at 31. Brunk told Clipse that CDS could not employ him
because he was taking methadone. According to Clipse, Brunk said he thought Clipse might
relapse." VRP ( Aug. 21, 2013) at 84.
CDS described its reasons for not hiring Clipse in several different ways: it claimed that
Clipse had failed his physical examination, that CDS had a " no tolerance" drug policy, that CDS
required a one year medical examiner' s certificate, or alternatively that CDS required a two year
medical examiner' s certificate. Brunk said that it was CDS' s " standard practice" to require a two
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No. 45407 -6 -II
year medical examiner' s certificate, although CDS had no written policy to this effect. VRP
Aug. 20, 2013) at 14. The sole reference to drugs in CDS' s Employee Guidelines prohibited the
use or possession of alcohol or controlled substances" on CDS' s grounds, and prohibited
employees from reporting to work " while under the influence of alcohol or any unlawful
controlled substance." Ex. 12. The drug policy made no reference to prescription drugs.
Clipse understood that methadone had side effects: he knew the drug could slow a
driver' s reflexes and cause a driving hazard. At the time of trial, there was conflicting evidence
about whether Clipse was qualified to drive commercially. Federal law prohibited narcotics
users from driving commercially, but the law contained an exception for those whose doctors
had prescribed the narcotics and who had a doctor' s advisement that the drug use would not
affect the driver' s safety. Clipse' s doctor prescribed methadone to him and advised him that he
could safely drive while on the drug. But Federal Motor Carrier Safety Administration advisory
criteria provided that anyone taking methadone Was not medically qualified to drive.
Clipse sued CDS and Brunk, alleging discrimination and promissory estoppel, and
seeking double damages under RCW 49. 52.050 and . 070. He alleged that CDS discriminated
against him on the basis of a disability contrary to the WLAD. Clipse alleged that CDS
treat[ ed] him adversely" and failed to accommodate him because he was disabled or CDS
perceived him to be disabled, but the complaint did not specify what disability Clipse had or was
perceived to have had. CP' at 3.
CDS moved for summary judgment under CR 56, arguing that Clipse was not qualified
for the position. CDS also argued that Clipse failed to present a prima facie case of
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No. 45407- 641
discrimination under the WLAD, because he had not identified his disability to CDS. The trial
court denied this motion, and the case proceeded to a jury trial.
At trial, Brunk and Clipse testified to the facts discussed above.' At the close of
evidence, CDS moved for judgment as a matter of law on Clipse' s claim for double damages
under RCW 49. 52. 050 and . 070, and on his WLAD and estoppel claims. The court granted
CDS' s motion for judgment as a matter of law on double damages. But the trial court denied
CD S' s motion for judgment as a matter of law on the WLAD and promissory estoppel claims.
The jury answered " yes" to the questions: " Did defendants discriminate against plaintiff
in employment because of a disability?" and " Were defendants estopped by promissory estoppel
from denying plaintiff employment?" CP at 472- 73. The jury awarded Clipse $79, 300 for past
wages and $ 5, 700 for noneconomic damages. Clipse prepared the order of judgment. The
judgment, dated August 28, 2013, stated that it "[ r] eserved" attorney fees and costs. CP at 474.
On September 11, Clipse moved for attorney fees.
CDS moved to strike Clipse' s motion for fees and costs under CR 54( d)( 2) for being
untimely, claiming that Clipse had missed the September 9 deadline for filing his request for
attorney fees. Clipse then cross -moved under CR 6( b)( 2) to enlarge time to file his motion for
fees and costs. He argued alternatively that the time limit in CR 54( d)( 2) did not apply because
the order said fees and costs were " reserved." CP at 620. The trial court rejected Clipse' s
argument that " reserved" meant the time limit did not apply. The trial court ruled that Clipse had
The report of proceedings is incomplete; it contains testimony from Clipse and Brunk only. It
does not contain medical testimony, although the record and counsel' s statements at oral
argument suggest that doctors testified.
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No. 45407 -6 -II
not demonstrated that his late filing was the result of "excusable neglect" because Clipse did not
explain why he filed late. VRP Sept. 20, 2013 at 22. Thus, the trial court denied Clipse' s motion
to enlarge time and granted CDS' s motion to strike the request for fees and costs.
Clipse appeals, and CDS cross- appeals.
ANALYSIS
1. DOUBLE DAMAGES
Clipse argues that the trial court erred by granting CD S' s motion for judgment as a matter
of law on Clipse' s claim for double damages under RCW 49. 52. 050 and . 070. We disagree.
A. Standard ofReview
We review de novo the trial court' s decision on a motion for judgment as a matter of law.
Joy v. Dep' t ofLabor & Indus., 170 Wn. App. 614, 619, 285 P.3d 187 ( 2012). We view all
evidence and draw all inferences in the light most favorable to the nonmoving party and uphold
the trial court' s granting a judgment as a matter of law only where there is no evidence or
reasonable inference to sustain a verdict for the nonmoving party. Byrne v. Courtesy Ford, Inc.,
108 Wash. App. 683, 687, 32 P.3d 307 ( 2001).
We review statutory interpretation de novo. State, Dep' t ofEcology v. Campbell &
Gwinn, L. L. C., 146 Wash. 2d 1, 9, 43 P.3d 4 ( 2002). We use the plain language of the statute to
ascertain the legislature' s intent, giving effect to all words used. Campbell & Gwinn, 146 Wash. 2d
at 9- 10.
B. Double Damages Inapplicable
The WLAD prohibits employment discrimination based on a disability or other protected
class. RCW 49. 60. 030( 1) and . 180( 1). A worker subject to illegal discrimination under the
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No. 45407 -6 -II
WLAD may obtain actual damages, including back wages, resulting from the discrimination.
RCW 49. 60. 030( 2).
RCW 49. 52. 050( 2) prohibits an employer from paying an employee " a lower wage than
the wage such employer is obligated to pay such employee by any statute, ordinance, or
contract." RCW 49. 52. 070 creates civil liability, including double damages, costs, and attorney
fees, for violations of RCW 49. 52. 050. Therefore, an employer that willfully pays a lower wage
than it is obligated to pay is liable for double damages.
RCW 49. 52.050 does not impose liability on an employer unless it pays a wage less than
it is " obligated to pay" under a statute. The word " obligated" implies a preexisting duty to pay a
specific wage. Hemmings v. Tidyman' s Inc., 285 F.3d 1174, 1203 ( 9th Cir. 2002). By contrast,
any back wages a plaintiff receives under the WLAD for adverse employment actions do not
Hemmings, 285 F.3d at 1203. Thus, retrospective WLAD
accrue until the jury reaches a verdict.
damages are not wages the employer was obligated to pay, because there was no preexisting duty
to pay these specific wages. Hemmings, 285 F.3d at 1203. We apply the plain language of RCW
49. 52.050 and hold that retrospective jury damages in a WLAD suit are not wages employers are
obligated" by statute to pay, thus precluding an award for double damages. RCW 49. 52. 050;
Hemmings, 285 F.3d at 1203; Campbell & Gwinn, 146 Wash. 2d at 9- 10.
Our holding follows the Ninth Circuit Court of Appeal' s decision in Hemmings. 285
F.3d at 1203- 04. In Hemmings, the Ninth Circuit held that the plain language of the word
obligated" in RCW 49. 52. 050, as well as the purpose of that statute, demonstrated that
retrospective jury damages in a WLAD lawsuit were not subject to double damages. 285 F.3d at
1203- 04.
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No. 45407 -6 -II
Clipse cites Allstot v. Edwards, 114 Wn. App. 625, 60 P.3d 601 ( 2002), to support his
argument that he is entitled to double damages. In Allstot, Division Three of this court held that
double damages under RCW 49. 52. 050 and . 070 applied to back wages for wrongful termination
of a police officer under a statute providing for terminatingpolice officers. 114 Wash. App. at
631, 633- 35. But in Allstot, the police officer and the employer had stipulated to the payment of
back wages and retirement benefits. 114 Wn. App. at 631. The Allstot court held that the
stipulation created an obligation to pay specific wages that preexisted the jury' s verdict. 114
Wash. App. at 634- 35; see RCW 49. 52.050. Here, because CDS' s obligation to pay Clipse back
wages did not accrue until the jury reached a verdict on damages, the WLAD damages are not
subject to RCW 49. 52. 050. Hemmings, 285 F.3d at 1203- 04. Thus, we affirm the trial court' s
grant of judgment as a matter of law to CDS.
II. ATTORNEY FEES AND COSTS
Clipse next argues that the trial court erred by striking his motion for reasonable attorney
fees and costs and by denying his motion to enlarge time to move for fees and costs. Again, we
disagree.
A. Standard ofReview
We review the trial court' s decision to accept or reject untimely filed documents for an
abuse of discretion. Davies v. Holy Family Hosp., 144 Wash. App. 483, 499, 183 P.3d 283 ( 2008).
A trial court abuses its discretion when its decision is manifestly unreasonable or is based on
untenable grounds or reasons. O' Neill v. City ofShoreline, 183 Wash. App. 15, 21, 332 P.3d 1099
2014). A decision is manifestly unreasonable if the trial court takes a view that no reasonable
person would take. Salas v. Hi -Tech Erectors, 168 Wash. 2d 664, 669, 230 P.3d 583 ( 2010). And a
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No. 45407 -6 -II
trial court' s decision rests on untenable grounds or reasons if the trial court applies the wrong
legal standard or relies on unsupported facts. Salas, 168 Wash. 2d at 669.
B. No Abuse ofDiscretion
Clipse argues that the trial court abused its discretion by striking his motion for fees
because the motion was not late, and even if the motion was late, the trial court should have
enlarged his time to file. He argues that the late filing constituted " excusable neglect" under CR
6( b) because the order of judgment stated fees and costs were "[ r] eserved." Br. of Appellant at
29.
CR 54( d) requires the clerk of the court to enter statutory attorney fees and costs if the
prevailing party does not file for attorney fees and costs within 10 days of the judgment unless
otherwise provided by statute or court order. A court may enlarge time deadlines under CR 6( b)
either before or after a deadline has passed, but if the deadline has passed, the court may enlarge
lateness CR 6( b)( 2). Here,
the deadline only if the party' s was the result of excusable neglect.
because Clipse moved to enlarge time after the deadline had passed, the trial court was permitted
to enlarge time only if Clipse demonstrated excusable neglect.
1. Motion was Late
Clipse first argues that the motion was not late because, by saying fees and costs were
reserved," the order of judgment superseded the 10 day deadline under CR 54( d)( 2). We
disagree.
The word " reserved" in the trial court' s order does not appear to refer to a filing deadline;
instead, it refers to the fact that the trial court had not yet decided attorney fees and costs. The
No. 45407 -6 -II
ordinary meaning of "reserved" is that the court would decide attorney fees and costs at a later
date, not that Clipse had unlimited time in which to file his motion.
Second, Clipse argues that his subjective purpose in writing " reserved" in the proposed
order of judgment was to extend time. But he provides no authority for the proposition that his
subjective intent controls the effect of the court' s order.
Third, Clipse argues that the word " reserved" extended his time to file because the clerk
of the court did not enter statutory attorney fees under CR 54( d)( 1) as the .clerk must do when a
party does not timely move for fees and costs. Br. of Appellant at 31. Thus, Clipse argues, the
clerk must have understood the judgment' s " reserved" language to mean Clipse' s motion was
not due by the usual deadline under CR 54( d)( 2). But Clipse does not explain how the clerk' s
subjective understanding of a court order imbues the order with particular meaning. Clipse' s
arguments fail.
2. Trial Court Did Not Abuse Its Discretion
Clipse further argues that the trial court abused its discretion by denying his motion to
enlarge time, because the court failed to apply four discrete elements when considering whether
to enlarge time under CR 6. We disagree.
Clipse cites Hartman v. United Bank Card, Inc., 291 F. R.D. 591, 595 ( W.D. Wash.
2013), which discusses the Federal Rule of Civil Procedure ( FRCP) 6( b), not Washington' s CR
6. FRCP 6( b) does not apply to Clipse' s case. Instead, courts in Washington use their discretion
in applying CR 6, and may do so only after time has passed upon a showing of excusable
neglect. Davies, 144 Wash. App. at 499.
r.
No. 45407 -6 -II
Here, Clipse failed to show excusable neglect. He did not present any explanation for
why he failed to timely file the motion. Instead, he argued that the untimely filing was excusable
because the delay was only two days, and argued in the alternative that the motion was not filed
untimely because the judgment said fees and costs were " reserved." CP at 620.
The trial court did not abuse its discretion by denying. Clipse' s motion to enlarge time
under CR 6( b). The trial court' s decision was not legally or factually flawed, nor was it one that
no reasonable person would take. Salas, 168 Wash. 2d at 669. Thus,. the trial court did not abuse
its discretion by striking Clipse' s late motion for fees and costs.
III. CDS' S CROSS -APPEAL - JUDGMENT AS A MATTER OF LAW
CDS cross- appeals, arguing that the trial court erred by denying its, motion for judgment
as a matter of law on Clipse' s WLAD and promissory estoppel claims. 3 We agree in part and
disagree in part. Although the trial court erred in refusing to grant CDS judgment as a matter of
law on Clipse' s promissory estoppel claims, it did not err in denying CDS' s motion for judgment
as a matter of law on Clipse' s WLAD claim. We therefore affirm the jury' s verdict finding CDS
liable under the WLAD, and we affirm the jury' s damages award.
A. Standard ofReview
We review a trial court' s denial of a CR 50 motion for judgment as a matter of law de
novo, engaging in the same inquiry as the trial court. Davis v. Microsoft Corp., 149 Wash. 2d 521,
3 Although CDS appeals the trial court' s denial of both its motion for judgment as a matter of
law and its motion for summary judgment dismissal, its arguments focus exclusively on the
motion for judgment as a matter of law. Clipse argues that CDS has abandoned its appeal of the
summary judgment denial. We agree, and we do not consider the appeal of the summary
judgment denial. Edwards v. Le Duc, 157 Wash. App. 455, 459 n.5, 238 P.3d 1187 ( 2010).
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No. 45407 -6 -II
530- 31, 70 P.3d 126 ( 2003). 4 A trial court' s grant of a motion for judgment as a matter of law is
proper when, viewing the evidence in the light most favorable to the nonmoving party, there is
no substantial evidence or reasonable inference to sustain a verdict for the nonmoving party as a
matter of law. Davis, 149 Wash. 2d at 531. Substantial evidence is evidence "`` sufficient ... to
persuade a fair- minded, rational person of the truth of a declared premise."' Davis, 149 Wash. 2d at
531 ( quoting Helman v. Sacred Heart Hosp., 62 Wash. 2d 136, 147, 381 P.2d 605 ( 1963)).
We look to a statute' s plain language.to give effect to the legislature' s intent. Davis v.
Fred' s Appliance, Inc., 171 Wn. App. 348, 360, 287 P.3d 51 ( 2012). If the statute is
unambiguous, it is not open to judicial interpretation. Davis, 171 Wash. App. at 360. We avoid
inserting or removing statutory language." Five
disregarding an otherwise plain meaning and
Corners Family Farmers v. State, 173 Wash. 2d 296, 311, 268 P.3d 892 ( 2011). We construe the
WLAD liberally to effectuate its purpose of preventing discrimination. Martini v. Boeing Co.,
137 Wash. 2d 357, 364, 971 P.2d 45 ( 1999) ( citing RCW 49. 60. 020).
B. Judgment as a Matter ofLaw
1. Clipse Established a Prima Facie WLAD Case
CDS first argues that the trial court erred by denying its motion for judgment as a matter
of law on Clipse' s WLAD claim at the end of trial because Clipse did not prove that he ( 1) had a
qualifying disability under the WLAD, ( 2) was qualified for the position, and ( 3) was entitled to'
4 149 Wn.2d at
Although WLAD cases from before 2007, including Davis v. Microsoft Corp.,
532, use a definition of "disability" that has since been superseded by statute, the propositions
for which we cite them have not been altered.
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No. 45407 -6 -II
accommodation. We disagree because Clipse presented a prima facie case of these elements of
his WLAD claims. 5
a. Qualifying Actual or Perceived Disability
CDS first argues that Clipse failed to present evidence sufficient to withstand a motion
for judgment as a matter of law because he did not establish that he had or was perceived to have
a condition constituting a disability under the WLAD. We disagree.
The WLAD prohibits employment discrimination, including refusal to hire, based on a
sensory, mental, or physical disability. RCW 49. 60. 030( 1) and . 180( 1). The act defines
d] isability" as
the presence of a sensory, mental, or physical impairment that
i) Is medically cognizable or diagnosable; or
ii) Exists as a record or history; or
iii) Is perceived to exist whether or not it exists in fact.
RCW 49. 60. 040( 7)( a).
An " impairment" includes, but is not limited to, the following:
i) 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, genitor -urinary, hemic and lymphatic, skin,
and endocrine; or
5 Clipse argues that CDS failed to preserve its objection to the trial court' s denial ofjudgment as
a matter of law because it failed to request a new trial or judgment notwithstanding the verdict.
In support, he cites Washburn v. City ofFed. Way, 169 Wash. App. 588, 614, 283 P.3d 567 ( 2012),
affd on other grounds, 178 Wash. 2d 732, 310 P.3d 1275 ( 2013). But the Supreme Court reversed
the Court of Appeals on this issue, holding that Washington law contained no such requirement
to preserve a motion for judgment as a matter of law. Washburn, 178 Wash. 2d at 749- 50.
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No. 45407 -6 -II
ii) Any mental, developmental, traumatic, or psychological disorder,
including but not limited to cognitive limitation, organic brain syndrome, emotional
or mental illness, and specific learning disabilities.
RCW 49. 60. 040( 7)( c).
There are two types of disability discrimination claims: disparate treatment and failure to
accommodate. Riehl v. Foodmaker, Inc., 152 Wash. 2d 138, 145, 94 P.3d 930 ( 2004); Brownfield
v. City of Yakima, 178 Wn. App. 850, 873, 316 P.3d 520 ( 2013). In his complaint, Clipse
claimed both disparate treatment and failure to accommodate. 6 Clipse claimed two separate
theories of his disability: either ( 1) he was in fact disabled by his use of methadone, or (2) he was
not disabled, but was perceived as having an unspecified disability. The jury was instructed on
both theories.
Clipse' s first alternative theory of disability was that CDS disparately treated him and
failed to accommodate his actual disability stemming from the side effects of methadone.' To
6 Clipse acknowledges that he did not use the words ."disparate treatment" in his complaint, but
he argues that he sufficiently pleaded disparate treatment by alleging that CDS "`` refused to let
him work, therefore treating him adversely because of disability."' Reply Br. of Appellant at 30
n. 11. The jury was instructed on disparate treatment and CDS did not object. Thus, we hold that
Clipse presented a disparate treatment theory.
7 We note that courts in Washington have never decided whether taking a drug may constitute a
disability under the WLAD. Occasionally, courts have assumed without deciding that taking
drugs or being a drug addict is a disability. But none of these cases has arisen since the
legislature defined " disability" in 2007. See Phillips v. City ofSeattle, 111 Wash. 2d 903, 909, 766
P.2d 1099 ( 1989) ( holding that whether alcoholism is a disability is a question of fact, not law);
Brady v. Daily World, 105 Wash. 2d 770, 777, 718 P.2d 785 ( 1986) ( declining to decide whether
alcoholism was a disability under the WLAD); Hines v. Todd Pac. Shipyards Corp.; 127 Wn.
App. 356, 371, 112 P.3d 522 ( 2005) ( assuming without deciding that drug and alcohol
dependency could be a disability, but holding that the plaintiff did not make a prima facie
showing of a causal relationship between the dependency and discrimination); Phillips v. City of
Seattle, 51 Wash. App. 415, 419, 754 P.2d 116 ( 1988), affd 111 Wash. 2d 903, 766 P.2d 1099 ( 1989)
holding that even if alcoholism were a disability, it did not disable the plaintiff); Rhodes v. URM
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No. 45407 -6 -II
constitute a " disability" under the statute, taking methadone must constitute a " sensory, mental,
or physical impairment." RCW 49. 60. 040( 7). " Impairment" is defined as a non- exclusive list of
terms including any " physiological disorder, or condition, cosmetic disfigurement, or anatomical
loss" affecting the body' s systems, or any " mental, developmental, traumatic, or psychological
disorder." RCW 49. 60. 040( 7)( c). Thus, under the plain language of the statute, any mental or
physical condition may be a disability. RCW 49. 60. 040( 7). We apply this plain language and .
construe the statute liberally to effectuate its purpose of remedying disability discrimination.
Martini, 137 Wash. 2d at 364; Davis, 171 Wash. App. at 360. Thus, we hold that the side effects of a
prescription drug may constitute a disability, so long as those side effects meet the statutory
definition.
Stores, Inc., 95 Wn. App. assuming without deciding that drug
794, 800, 977 P.2d 651 ( 1999) (
abuse might be a disability, but that any discrimination was justified by an employee handbook
prohibiting drugs).
We also note that under the federal Americans with Disabilities Act (ADA), an employee
or job applicant currently taking illegal drugs is excluded from relief. 42 U.S. C. § 12114( a)
2009). But if a drug is prescribed by a doctor, it is not an illegal drug. 28 C. F. R. § 35. 104
2011) ( defining the "[ i] llegal use of drugs"). And under the ADA, side effects from medical
treatment may constitute a disability in limited circumstances. Sulima v. Tobyhanna Army
Depot, 602 F.3d 177, 187 ( 3d Cir..20 10) ("[ I]t is not enough to show just that the potentially
disabling medication or course of treatment was prescribed or recommended by a licensed
medical professional. Instead ... the medication or course of treatment must be required in the
prudent judgment of the medical profession,' and there must not be an available alternative that
is equally efficacious that lacks similarly disabling side effects. The concept of ``disability'
connotes an involuntary condition, and if one can alter or remove the `` impairment' through an
equally efficacious course of treatment, it should not be considered `` disabling."') ( citation
omitted) ( quoting Christian v. St. Anthony Med. Ctr., Inc., 117 F.3d 1051, 1052 ( 7th Cir. 1997)).
And addiction to opiates can be a disability under the ADA, so long as the addict is not taking
illegal drugs. Start, Inc. v. Baltimore County., Md., 295 F. Supp. 2d 569, 576 ( D. Md. 2003).
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No. 45407 -6 -II
Here, Clipse presented evidence at trial that taking methadone had impairing physical
side effects. Thus, he presented a prima facie claim that he actually had a disability: he showed
that his use of methadone may have been a physical impairment and thus a disability under the
WLAD. See RCW 49. 60. 040( 7). Using the Davis test, we view this evidence in the light most
favorable to Clipse to determine whether it is sufficient to sustain a jury verdict that Clipse was
actually disabled. See Davis, 149 Wash. 2d at 531. We hold that it is.
Clipse' s' second alternative theory was that CDS discharged him because it perceived him
to have an unspecified disability.' We note that case law about perceived disability claims in
Washington is very sparse. We also recognize the inherent difficulty a plaintiff faces in making
out a claim of perceived disability discrimination, which necessarily involves subjective ideas
and intents of the employer. But we apply the statute' s plain language, which defines a disability
as ( among other things) a mental, physical, or sensory impairment that is perceived to exist,
whether or not it exists. RCW 49.60. 070( 7). Thus, under the statute' s plain language, a plaintiff
may make out a prima facie claim of disability discrimination based on a perceived disability by
presenting evidence that an employer perceived a disability.
Clipse carried that burden here. He provided evidence that when Brunk learned Clipse
was taking methadone, Brunk said Clipse needed to get " cleaned up" and that Brunk was afraid
Clipse might " relapse." VRP ( Aug. 20, 2013) at 31; VRP (Aug. 21, 2013) at 84. The evidence
also showed that CDS provided changing and inconsistent justifications for its decision not to
8 We note that for purposes of a perceived disability claim, a plaintiff may rely only on a
disparate treatment theory. There can be no failure to accommodate a disability that does not
exist but is merely perceived. RCW 49. 60. 040( 7)( d).
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No. 45407 -6 -II
hire Clipse. This evidence, viewed in the light most favorable to Clipse, is sufficient to sustain a
jury verdict that CDS perceived that Clipse had a disability and discharged him because of it.
Thus, we hold that Clipse presented substantial evidence of the " disability" prong of his WLAD
claims. Davis, 149 Wash. 2d at 531.
b. Otherwise Qualified
CDS next argues that Clipse failed to present evidence that he was a qualified candidate
for the position. We disagree.
Clipse provided evidence that he was qualified to perform the job: he showed that he had
a medical examiner' s certificate and experience in commercial truck driving. He also presented
evidence that Brunk offered him the job, saying: "[ W] elcome aboard." VRP ( Aug. 21, 2013) at
74. These facts suggest that Clipse was qualified. There was conflicting evidence at trial about
whether Washington State Department of Transportation regulations truly disqualified any driver
from using methadone, and whether CDS in fact had a restrictive internal policy concerning
drugs. Thus, the evidence of this element of Clipse' s WLAD claim, when viewed in the light
most favorable to Clipse, is sufficient to sustain a jury verdict in his favor. See Davis, 149
Wash. 2d at 531. A fair-minded, rational person could be persuaded that Clipse was qualified for
the position at CDS despite his use of prescribed methadone. Davis; 149 Wash. 2d at 531.
c. Entitled to Accommodation
Finally, CDS argues that Clipse failed to present evidence that he was entitled to
accommodation. Again, we disagree.
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No. 45407 -6 -II
CDS argues that, because Clipse was not disabled, CDS did not fail to accommodate him.
But as we discuss above, Clipse presented evidence that he was actually disabled under the
WLAD. CDS also argues that it had no obligation to change its drug policies to accommodate
Clipse. But there was conflicting evidence at trial regarding whether CDS in fact had a drug
policy that prevented prescription drugs. Thus, there was sufficient evidence to sustain a jury
verdict that CDS had an obligation to accommodate Clipse.
Taking Clipse' s evidence as true and taking all inferences in his favor, we hold that he
provided substantial evidence supporting these elements of his WLAD claim. Davis, 149 Wash. 2d
at 531. Therefore, the trial court properly denied CDS' s motion for judgment as a matter of law
on Clipse' s WLAD claim.
2. No Prima Facie Promissory Estoppel Case
CDS argues that the trial court erred by denying its motion for judgment as a matter of
law to dismiss Clipse' s promissory estoppel claim at the end of trial. Because Clipse failed to
present any evidence that CDS promised him permanent employment, we agree.
The elements of promissory estoppel are "``( 1) [ a] promise which (2) the promisor should
reasonably expect to cause the promisee to change his position and ( 3) which does cause the
promisee to change his position (4) justifiably relying upon the promise, in such a manner that
5) injustice can be avoided only by enforcement of the promise."' Havens v. C & D Plastics, .
Inc., 124 Wash. 2d 158; 171- 72, 876 P.2d 435 ( 1994) ( quoting Klinke v. Famous Recipe Fried
Chicken, Inc., 94 Wash. 2d 255, 259 n. 2, 616 P.2d 644 ( 1980)). Where employment was
terminable at will, "the promise for promissory estoppel must be a ... clear and definite promise
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of permanent employment subject only to dismissal for just cause." Havens, 124 Wash. 2d at 173-
74.
Here, Clipse presented no evidence that CDS or Brunk promised him permanent
employment subject only to dismissal for just cause. See Havens, 124 Wash. 2d at 174. He
testified that he understood at -will employment and understood that the position at CDS was at
will. He did not testify to any statements by Brunk or CDS establishing a promise of permanent
employment; instead, he showed merely that CDS and Clipse both hoped the working
relationship would succeed. Such hopeful statements do not establish the necessary promise.
Havens, 124 Wash. App. at 174. Thus, Clipse failed to present sufficient evidence to persuade a
fair-minded, rational person that CDS made a clear and definite promise giving rise to
promissory estoppel. The trial court erred by denying CDS' s motion for judgment as a matter of
law on this issue.
Thus, we affirm the trial court' s denial of CDS' s motion for judgment as a matter of law
on Clipse' s WLAD claims. We affirm the jury' s special verdict finding CDS liable under the
WLAD. We hold that the trial court erred by denying CDS' s motion for judgment as a matter of
law on Clipse' s promissory estoppel claim, and thus, we reverse the jury' s special verdict finding
CDS liable for promissory estoppel.
3. Damages Verdict
Finally, we turn to the jury' s damage award. The jury found' CDS liable under both the
WLAD and promissory estoppel, but its damages award did not distinguish between the two
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theories. Therefore, we must address whether reversal of the promissory estoppel claim requires
us to reverse the damages verdict. We hold that it does not.
The WLAD permits the following damages:
Any person deeming himself or herself injured by any act in violation of this
chapter shall have a civil action in a court of competent jurisdiction to enjoin further
violations, or to recover the actual damages sustained by the person, or both,
together with the cost of suit including reasonable attorneys' fees or any other
appropriate remedy authorized by this chapter or the United States Civil Rights Act
of 1964 as amended, or the Federal Fair Housing Amendments Act of 1988 ( 42
U.S. C. Sec. 3601 et seq.).
RCW 49. 60. 030( 2). " Actual damages" can include " back pay, front pay, mental anguish, and
emotional distress." Blaney v. Int' l Ass' n of Machinists & Aerospace Workers, Dist. No, 160,
114 Wn. App. 80, 97, 55 P.3d 1208 ( 2002), aff'd in part on other grounds, 151 Wash. 2d 203, 87
P.3d 757 ( 2004). Noneconomic damages, such as mental anguish and emotional distress, are left
to the discretion of a properly instructed jury. Bunch v. King County. Dep' t of Youth Servs., 155
Wash. 2d 165, 180, 116 P.3d 381 ( 2005). CDS does not argue that the jury was improperly
instructed on damages, nor that the jury improperly computed damages.
The jury awarded Clipse $79,300 for back pay, apparently representing somewhat less
than the roughly $90, 000 he might have earned from his purported start date until trial. The jury
also awarded $5, 700 in noneconomic damages, which may represent mental anguish or
emotional distress. Because these damages are allowable under the WLAD and because the jury
found CDS liable under the WLAD, we affirm the damage award.
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ATTORNEY FEES
Clipse requests reasonable attorney fees under chapters 49. 52 and 49. 60 RCW, citing
only RAPS 14. 1 and 14. 2. We deny this request. First, only costs, not reasonable attorney fees,
are available under RAPs 14. 1 and 14. 2. Second, because we rule that Clipse cannot recover
double damages under RCW 49. 52. 050 and . 070, chapter 49. 52 RCW is inapplicable. Third,
Clipse fails to include a separate section for attorney fees in his brief as required by RAP 18. 1( b).
CDS also requests reasonable attorney fees and costs pursuant to RAPs 18. 1, 14. 1, 14. 2.
We deny these requests because there is no basis for them. RAP 18. 1 permits us to grant
attorney fees to a party entitled to them under applicable law. CDS argues that chapters 49. 60
and 46.25 RCW, and " equitable ground[ s]" are applicable law. Br. of Resp' t at 49. But CDS
does not cite any specific statutory section or case entitling them to attorney fees on appeal; it is
thus not entitled to attorney fees for failing to cite authority. Nilson Court Ltd. P' ship v. Tony
Maroni' s Inc., 134 Wash. 2d 692, 710 n. 4, 952 P.2d 590 ( 1998). Furthermore, independent
research into chapter 49. 60 RCW reveals that a plaintiff in a WLAD action, not a defendant
employer, is entitled to attorney fees. RCW 49. 60. 030( 2). And chapter 46. 25 RCW does not
appear to provide any basis for attorney fees. Thus, CDS is not entitled to attorney fees on
appeal.
CONCLUSION
In conclusion, we reverse the trial court' s denial of CDS' s motion for judgment as a
matter of law on Clipse' s promissory estoppel claim. We affirm the trial court' s orders granting
CDS judgment as a matter of law on Clipse' s claim for double damages under RCW 49. 52. 050
and .070 and striking Clipse' s late motion for fees and costs. And we affirm the trial court' s
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denial of CD S' s motion for judgment as a matter of law on Clipse' s WLAD claims.
Accordingly, we affirm the verdict finding CDS liable under the WLAD and we affirm the
damage award. We deny both, parties' requests for reasonable atto-ley fees and costs on appeal.
Worswick, P. J.
We concur:
Maxa, J.
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