                           NOT FOR PUBLICATION                          FILED
                    UNITED STATES COURT OF APPEALS                       JUN 5 2017
                                                                     MOLLY C. DWYER, CLERK
                                                                      U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

 BRADLEY N. THOMA, a single person,             No. 14-35829

                 Plaintiff-Appellant,           D.C. No. 2:12-cv-00156-SMJ

   v.
                                                MEMORANDUM *
 CITY OF SPOKANE, a municipal
 corporation in and for the State of
 Washington and ANNE E.
 KIRKPATRICK, a single person,

                 Defendants-Appellees.

                   Appeal from the United States District Court
                       for the Eastern District of Washington
                  Salvador Mendoza, Jr., District Judge, Presiding

                       Argued and Submitted May 17, 2017
                              Seattle, Washington

Before:      HAWKINS, GOULD, and PAEZ, Circuit Judges.

        Bradley N. Thoma appeals from the adverse grant of summary judgment on

his state and federal claims arising out of his termination from the Spokane Police

Department (“SPD”) as well as several discovery related orders. We review the

grant of summary judgment de novo, Universal Health Servs., Inc. v. Thompson,


        *
          This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
363 F.3d 1013, 1019 (9th Cir. 2004), and discovery orders for abuse of discretion,

see Home Sav. Bank, F.S.B. v. Gillam, 952 F.2d 1152, 1157 (9th Cir. 1991). We

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      1.      There was no error in granting summary judgment to the defendants,

the City of Spokane (the “City”) and former SPD Chief of Police, Anne Kirkpatrick

(“Kirkpatrick”), on Thoma’s breach of contract and promissory estoppel claims.

The purported settlement agreement specifically states that the agreement was

“contingent on approval by the Spokane City Council and [would] become effective

upon approval by the Washington State Human Rights Commission.” Thoma

confirmed during his deposition that he understood the agreement was contingent on

further approval. The email correspondence between Thoma’s counsel, an Assistant

City Attorney, the Human Rights Commission’s counsel, and the Spokane Police

Guild’s counsel does not demonstrate any agreement to the contrary. And, it is

undisputed that neither the City Council nor the Human Rights Commission

approved the agreement. Thoma’s remaining arguments regarding severability are

unavailing.

      Because the undisputed evidence demonstrates that the promise was

contingent upon further approval that the City Council and Human Rights

Commission never granted, Thoma’s promissory estoppel claim likewise fails. See

Lectus, Inc. v. Rainier Nat’l Bank, 647 P.2d 1001, 1003–04 (Wash. 1982) (reliance


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on future conditional promise unreasonable); Corbit v. J.I. Case Co., 424 P.2d 290,

300–01 (Wash. 1967) (rejecting promissory estoppel theory based on conditional

promise with unfulfilled condition).

      2.     Nor was there error in granting summary judgment on Thoma’s claims

under the Americans with Disabilities Act (“ADA”); Washington Law Against

Discrimination (“WLAD”); or Washington’s anti-retaliation law, Wash. Rev. Code

§ 49.60.210. The record evidence demonstrates that Thoma’s termination resulted

from a condition imposed as part of a deferred prosecution that interfered with his

ability to perform the functions of his job. Thoma failed to raise a genuine dispute

of material fact as to whether he was terminated “because of” a disability, see

Collings v. Longview Fibre Co., 63 F.3d 828, 833 (9th Cir. 1995); Anica v. Wal-

Mart Stores, Inc., 84 P.3d 1231, 1237–38 (Wash. Ct. App. 2004); or his opposition

to an employment practice forbidden by the WLAD, see Wash. Rev. Code §

49.60.210(1).

      3.     Summary judgment was also appropriate on Thoma’s due process

claim. Thoma concedes that he received the requisite pre-termination notice and

opportunity to be heard. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,

542–44 (1985). He solely contests Kirkpatrick’s impartiality at his pre-termination

hearing.    Yet, “the failure to provide an impartial decisionmaker at the

pretermination stage, of itself, does not create liability, so long as the decisionmaker


                                           3
at the post-termination hearing is impartial.” Walker v. City of Berkeley, 951 F.2d

182, 184 (9th Cir. 1991). Thoma has not alleged that the City failed to offer a post-

termination hearing before an impartial decisionmaker.

      4.     Furthermore, summary judgment was warranted on Thoma’s wage

withholding claim under Revised Code of Washington section 49.52.070 predicated

on back wages allegedly owed as damages for his ADA, WLAD, and due process

claims. Back wages encompassed in a retrospective discrimination damages award

“are not wages the employer was obligated to pay” for purposes of a wage

withholding claim. Clipse v. Commercial Driver Servs., Inc., 358 P.3d 464, 469

(Wash. Ct. App. 2015); accord Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1203–

04 (9th Cir. 2002). In any event, Thoma failed to withstand summary judgment on

his ADA, WLAD, and due process claims.

      5.     Because Thoma failed to withstand summary judgment on all

substantive claims, summary judgment on Thoma’s vicarious liability claim was

proper as well.

      6.     Finally, the grant of a protective order denying leave to depose

Kirkpatrick for a second time was not an abuse of discretion. See Fed. R. Civ. P.

30(a)(2)(A)(ii) (requiring leave of court to depose individual who has already been

deposed in the case). The district court’s finding that Thoma brought about the

situation with his own discovery strategy was not clearly erroneous, as Thoma


                                         4
argued that a second deposition was necessary based on documents timely produced

in response to written discovery requests that he served only days before

Kirkpatrick’s scheduled deposition. Thoma’s remaining arguments regarding his

motion to compel discovery relating to the City and Kirkpatrick’s affirmative

defenses are moot because he failed to make out a prima facie case for any of his

claims.

      Thoma’s motion to strike (Docket Entry No. 35) is denied.

      AFFIRMED.




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