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                                                                                              tIVIS101 II

                                                                                      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




                                                                 2
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




                                                             3
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.




                                                                   0
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 Wn. 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 Wn.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 Wn.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




                                                                   5
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 Wn.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.




                                                                0
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 Wn. 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


Wn. 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 Wn. 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 Wn. 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 Wn.2d 664, 669, 230 P. 3d 583 ( 2010). And a




                                                               7
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 Wn.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 Wn. 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 Wn.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 Wn.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 Wn. App. 455, 459 n.5, 238 P. 3d 1187 ( 2010).




                                                         10
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 Wn.2d       at   531.   Substantial   evidence         is   evidence "` sufficient ...   to


persuade a      fair- minded,   rational person of     the truth   of a   declared         premise."'   Davis, 149 Wn.2d at


531 ( quoting Helman v. Sacred Heart Hosp., 62 Wn.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 Wn. App. at 360. We avoid

                                                             inserting    or   removing statutory language."            Five
    disregarding   an otherwise plain      meaning     and



Corners Family Farmers           v.   State, 173 Wn. 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 Wn.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.




                                                              11
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 Wn. App. 588, 614, 283 P. 3d 567 ( 2012),
affd on other grounds,        178 Wn.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 Wn.2d at 749- 50.



                                                        12
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 Wn.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 Wn.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 Wn.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 Wn. App. 415, 419, 754 P. 2d 116 ( 1988), affd 111 Wn.2d 903, 766 P. 2d 1099 ( 1989)

 holding that even if alcoholism were a disability, it did not disable the plaintiff); Rhodes v. URM


                                                                   13
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 Wn.2d at 364; Davis, 171 Wn. 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).




                                                                   14
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 Wn.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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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 Wn.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

Wn.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 Wn.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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            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 Wn.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 Wn.2d 158; 171- 72, 876 P. 2d 435 ( 1994) (                  quoting Klinke v. Famous Recipe Fried

Chicken, Inc., 94 Wn.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 Wn.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 Wn.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 Wn. 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 Wn.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

Wn.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 Wn. 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



                                                               20
No. 45407 -6 -II


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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