Clipse v. Commercial Driver Servs., Inc.

• Decision Date: 25 August 2015
• Docket Number: No. 45407–6–II.,45407–6–II.
• Citation: 189 Wash.App. 776,358 P.3d 464
• Parties: 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.
• Court: Washington Court of Appeals

189 Wash.App. 776

358 P.3d 464

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.

Court of Appeals of Washington, Division 2.

Aug. 25, 2015.

Dan'l Wayne Bridges, McGaughey Bridges Dunlap PLLC, Seattle, WA, for Appellant–Cross Respondent.

Lori Marie Bemis, McGavick Graves, Tacoma, WA, Steven M. Bobman, Steven Bobman, University Place, WA, for Respondent–Cross Appellant.

Opinion

WORSWICK, P.J.

¶ 1 Ronald Clipse obtained a judgment against Commercial Driver Services, Inc. (CDS) for firing him in violation of the “Washington Law Against Discrimination”¹ (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.

FACTS

¶ 2 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.

¶ 3 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 examiner's certificate. After Clipse provided further documentation from his doctors showing that he could safely drive while on his medication, the examining physician provided Clipse with a one year medical examiner's certificate.

¶ 4 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.

¶ 5 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 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.

¶ 6 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.

¶ 7 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.

¶ 8 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 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.

¶ 9 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 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 CDS's motion for judgment as a matter of law on the WLAD and promissory estoppel claims.

¶ 10 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.

¶ 11 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 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.

¶ 12 Clipse appeals, and CDS cross-appeals.

ANALYSIS

I. Double Damages

¶ 13 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 RCW 49.52.050 and .070. We disagree.

A. Standard of Review

¶ 14 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 Wash.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).

¶ 15 We review statutory interpretation de novo. State, Dep't of Ecology 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, 43 P.3d 4.

B. Double Damages Inapplicable

¶ 16 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 WLAD may obtain actual damages, including back wages, resulting from the discrimination. RCW 49.60.030(2).

¶ 17 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.

¶ 18 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 accrue until the jury reaches a verdict. Hemmings, 285 F.3d at 1203. Thus, retrospective WLAD 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, 43 P.3d 4.

¶ 19 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 “o...