Plaintiff worked as a commercial truck driver. The employer required him to undergo an independent medical examination soon after he had accepted the job to obtain a commercial vehicle medical certificate. The plaintiff told the physician? that? he? took? methadone? for? chronic pain.? The? evidence? showed? that? the? plaintiff could drive safely and the physician issued him a medical certificate.

The employer refused to go through with the employment because he was taking methadone. Federal law allows people who are taking narcotics to drive commercial vehicles provided a doctor certifies them as safe. But non-binding federal advisory guidance prohibits commercial driving while taking methadone. Plaintiff prevailed at trial on his claim of termination on the basis of disability in violation of the WLAD and obtained $79,300 in back pay and $7,500 in non-economic damages. The trial court ruled the plaintiff was not entitled to double damages ?pursuant ?to? RCW ?49.52 ?on ?his ?back wages.? Division? II? affirmed? following? the reasoning ?of ?Hemmings ?v. ?Tidyman?s ?Inc., ?285 F.3d 1174 (9th Cir. 2002).

The ?court ?reasoned ?that ?RCW? 49.52 ?requires ?a ?pre-existing duty to pay a specific wage.? In a discrimination case, there is no obligation to pay wages until the jury reaches a verdict and orders payment. The court distinguished Allstot v. Edwards, 114 Wn. App. 625, 60 P.3d 601 (2002), on the basis that employer and employee had entered into a stipulation to the payment of back wages ?and? retirement ?that ?predated ?the ?jury?s verdict in favor of the employee.

The court affirmed the denial of the employer?s motion for judgment as a matter of law on the disability termination claim. The court held that under the WLAD ?any mental or physical impairment may qualify as a disability. Without reaching the question whether the WLAD covers illegal drug use, the court held using a drug prescribed by a doctor isn?t illegal drug use. The court also upheld? the? plaintiff?s ?claim ?of termination on the basis of perceived disability and failure to accommodate. The court noted that there cannot be a reasonable accommodation claim for a perceived disability.

The court held that the trial court should have granted the employer?s motion for judgment as a matter of law on the plaintiff?s promissory estoppel claim because there was no promise of permanent employment subject only to dismissal for cause. Despite this, the court affirmed the judgment in favor of the plaintiff because there was no reason to believe that the jury had awarded any of the damages? solely? because? of? the? erroneous promissory estoppel finding. Finally, the court held the trial court had properly denied the plaintiff?s motion for attorneys? fees as being untimely.?Clipse v. Commercial Driver Services, Inc., 189 Wn. App. 776, 358 P.3d 464 (8/25/2015) (Worswick, Maxa, Lee).