RONALD CLIPSE, Appellant-Cross Respondent, v. COMMERCIAL DRIVER SERVICES, INC., a Washington Corporation, and LEE BRUNK and Jane Doe BRUNK, and the marital community comprised thereof, Respondent-Cross Appellant.
No. 45407-6-II
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II
2015 AUG 25
PUBLISHED OPINION
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, saying, “[W]elcome aboard.” Verbatim Report of Proceedings (VRP) (Aug. 21, 2013) at 74. 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
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 twoyear 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
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 ofdiscrimination 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.2 At the close of evidence, CDS moved for judgment as a matter of law on Clipse‘s claim for double damages under
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
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
I. DOUBLE DAMAGES
Clipse argues that the trial court erred by granting CDS‘s motion for judgment as a matter of law on Clipse‘s claim for double damages under
A. Standard of Review
We review de novo the trial court‘s decision on a motion for judgment as a matter of law. Joy v. Dep‘t of Labor & 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 of Ecology 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.
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
Clipse cites Allstot v. Edwards, 114 Wn. App. 625, 60 P.3d 601 (2002), to support
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 of Review
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 of Shoreline, 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 atrial 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 of Discretion
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 the deadline only if the party‘s lateness was the result of excusable neglect. CR 6(b)(2). Here, 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. Theordinary 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
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.
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 of Review
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, 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
B. Judgment as a Matter of Law
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
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.
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.
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
(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.
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
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.7 To
constitute a “disability” under the statute, taking methadone must constitute a “sensory, mental, or physical impairment.”
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.
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
Clipse‘s second alternative theory was that CDS discharged him because it perceived him to have an unspecified disability.8 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
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
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.
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
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.2d 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
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.).
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.
ATTORNEY FEES
Clipse requests reasonable attorney fees under chapters
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
denial of CDS‘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 attorney fees and costs on appeal.
Worswick, P.J.
We concur:
Maxa, J.
Lee, J.