alcoholism they terminated him under the premise that he might relapse and drink and drive despite driving not being an essential function of his job there after two years later they entered into settlement negotiations they reached an agreement that they reduced to writing an exchange between the attorneys wherein he would be reinstated as a detective and city refused the deal they did the city ultimately breached it so the agreement was actually rea our allegations are he reached a nigger the lawyers reached an agreement it was reduced to writing it was presented to the city council which had the legal authority to approve or disapprove of the settlement correct not exactly so basically it was reduced to writing in december of two thousand and eleven an e mail correspondence between all parties and there was no mention at that time that the city council would be required to approve it it wasn't until a month and a half later that they said it was just a formality upon the city's municipal code that says it's within the purview of the mayor to reinstate people and to control employment the only authority that the council had pursuant to the municipal code was the authority to approve the settlement payment which was two hundred ninety thousand lot easier if the questions could be answered with a yes or no by doing that your client was picked up for dui yes correct and he entered into a diversion program correct correct and an element of the diversion program required  a alcohol indicator in a lot device on any automobile that he operated correct any personal automobile that he operated personal it does the statute is it your client's there that the city was required to install such a device on patrol cars so we could continue to work no your honor what was my client's there is that driving a patrol cars car is not an essential function of his job it was the city who brought up the installation of an interlock device on the vehicle and a potential waiver as a commendation once they  my questions yes yes but that's not a job if you look at the job description itself your honor it doesn't require sergeants to drive vehicles in the testimony from interims chief stevens states that there are ministry positions for no it's not your honor the mayor actually approve the settlement the mayor signed off on the son in the agreement as did the assistant attorney city attorney it was the city council who refused to sign off on it and they refused to bring came up on the calendar before the city council correct correct and your assumption based on what you've been told by posting counsel was the they simply reviewed the amount of the settlement that's correct actually wound up at the end of the day saying we don't want to settle at all actually the city attorney advised us that they perceive no issues and it would be signed off on that sounds consistent with what my question was is it york contention that the city council was the no it's our contention that the city had the authority not to approve the funding of the settlement but that they still had the ability to reinstate sergeant thomas to the police force or your position that they were the city council had no authority over that we have a strong mayor system the only authority the city council had was over the funding issue so because the mayor and the city attorney had already signed and their authority was for reinstatement he was reinstated at that time when they there after refused to allow him to proceed to work because the council had not approved the funding aspect that's where they breach the contract is  purported agreement and forcible agreement in other respects before the city council refuses to authorize i believe so yes your honor i believe that because the it he was not being reinstated exceeded their authority it was an ultra vires act and therefore it was an illegal act and the severability clause saves that portion of the agreement  i would also like to point out that the other side in their briefing has argued that interim chief steve excuse me interim chief steve and his testimony is not in the record and should not be considered by this court and i disagree with that based upon counsel's own admission during the argument if you look at as you are eighty you'll see that the district court specifically asked miss mack so what are you requesting and why and her response was i want to make clear that we are not asking to exclude him completely as a witness and we recognize he is a fact witness in this matter by virtue of his position and having participated so we certainly do not have an issue with him being a witness when you combine stevens testimony  tomas own testimony about the fact that surgeons were not required to drive as an essential function of their job but indeed there were many ways both in which to patrol the city including by foot by bicycle riding as a passenger in a vehicle thomas not able to perform the essential functions of his job if you look at the job description itself the only qualification or central function is that he patrol he was certainly capable of doing that without actually operating a motor vehicle when you look at whether or not there is indications that he was discriminated against all you have to look at is that in two thousand and nine two months before sergeant tillman went into his latter mil hearing carl thompson was indicted by the federal government for violent crimes he lost his policing powers he lost his badge he lost his weapon what did kirkpatrick do with him she put him in a purely administrative function and allowed him to control the daily bulletins and the policy in the procedure manual for the police department kept him employed for over two years in till he was convicted in two thousand and eleven you're arguing that someone else did something worse when they were treated  because it's disparate treatment your honor they're saying specifically that he they could not give him away for when you talk about the accommodations that the city raised on their own chief kirkpatrick so that she could not sign a waiver allowing t drive assuming it's an essential function which we dispute because he my drive intoxicated so then you look at other individuals in similar circumstances you look at individuals that do not have a disability who have engaged in criminal conduct and you have carl thompson federal indictment for violent crimes lost his policing powers lost the ability to perform essential functions pursuant to their own analysis but he was not fired he was moved to an administrative position you look at another detective and scott stevens testimony on the e r two seventy six to seventy seven and he testifies pursuant to his own knowledge there was a detective who had em as who was unable to continue driving what did the city do positions they didn't consider them a risk and when asked why the answer was they did not claim to be alcoholics this is direct evidence of discriminatory intent towards individuals who suffer from the disability of alcoholism then you go to the whole notion of the due process another claim in our case in due process an individual who has a property interest in his position which police officers do pursuant to washington law is entitle to a fair hearing before being deprived of their property interests in front of an unbiased decision maker again you have scott stevens testimony i believe is on our to seventy seven where he attended meetings that kirkpatrick made it clear his believe that there was nothing that sergeant thomas could do or say that would prevent him from being terminated or demoted these meetings occurred before the lateral hearing in the middle of december of two thousand and nine what happened sergeant tomo was terminated the issue of whether or not there is biases one for the jury is not a determination of fact to be made by the trial court and the court erred in doing so we also have several discovery inferences and weighing it in favor of the moving party which is the city is the can toma was actually the nonmoving party and in this case the judge looked at one document and one document alone and that was the document that was the twelve thirty two thousand and nine terminations matter where in chief kirkpatrick said for the purposes of this situation i'm assuming you're disabled and rendering his decision that the chief did not consider or regard thomas disabled the judge focused on that in doing so he disregarded the evidence that when questioned why were there officers with duis not considered a risk the chief kirkpatrick answered because they didn't claim to be alcoholics it disregards the fact that she said in the when you learn more about your disease one of the treatment statements is that alcoholism is cunning it disregards the fact that on twelve seventeen after the lateral hearing she sent an e mail at the chain of command and in the e mail she said we made an offer of accommodation a two year unpaid layoff on the condition that he rehabilitates all of this evidence is evidence that should have been taken in the light most favorable to sergeant toma and would have allowed him to proceed to the  question as to whether or not he was regarded as disabled and whether or not adverse action was taken against him because of that perception others of the rest for rebuttal like  to defeat summary judgment the record reflects the district court judges diligently examined all the evidence provided tell me at every opportunity to set forth forth a prima facia case for his claim to be failed to do so summary judgment was they had a deal more assured that the deal would be approved by the city council was even signed off on by the mayor and city council in excess of its authority to disapprove the well what's your response i disagree your honor why don't we that is the contention on the response is that there was not a valid agreement unless and until both the city council and following up with next that is the more important issue it's right there on the face of the document that is required further on in that agreement is a signature line for both the city the human rights commission  did you understand it would not be effective until the h r c approved it his answer was yes so he understood that for them to claim now that there was some binding agreement promissory estoppel is simply not supported by the facts now after the city and mr thomas not presented evidence to raise a question of fact as to whether that agreement was ever consummated that's one where he agreed to abandon his his human rights commission kline turning to  has not provided sufficient evidence to raise a question of fact as to whether he's even disabled under the eighty eight or the eighty eight now he claims that he was regarded as disable if that's the problem that they want to provide a seat under that's great with the city because that means necessarily there was no failure to accommodate under the a b a and that's evidenced by this court's very recent opinion and taylor v remount where you affirmed the two thousand and fourteen opinion of the district court stating that as a matter of law there is no to do the no duty to accommodate and they regarded as a case turning to the issue of s and other ways to prove disability he can either show that he was substantially limited in one or more of major life activities or had a record of such impairment there insufficient evidence here while counsel is correct that pre eighty eight case eighty eight cases do not necessarily inform upon the current iteration of  statute where it does specifically state there is a lesser standard for substantially impairs it's still important to note that it says substantially impairs because that means it's something more than just minor minor league impairs it's got there's got to be some type of actual evidence out there absolutely but there has to be an impairment on a substantial impairment on a major life activity the record here is devoid of any actual evidence on that the most we have toma claiming that alcohol affected areas of his life such as he had trouble sleeping ok that's potentially a major impact but the conclusion restatement that oh i had horrendous sleep doesn't show any impact on the nature of extent of the sleep game's claims and impact and as larkin vs my fact and school district case seven seventy three federal supplement second five  indicates that pages five twenty five to twenty six simply asserting that something impairs without providing additional evidence of the actual impairment and how extensive the impairment is is not sufficient to raise a question of fact the colonial assessment e r one twenty two to one thirty seven it mentions that alcoholism impacted his job but again it's a conclusion he stayed with it doesn't say looking at the wash logons discrimination claims again paulism is not a person a disability more importantly to prove a failure to accommodate claim under washing logons discrimination toma has to show that a physical abnormality or other impairment limited his ability to perform his job and that the city upon notice failed to affirmatively dot measures that were available to the employer and medically necessary to accommodate the abnormality council has cited to bank city york to say that that is no longer the standard to imply that it doesn't have to be a medically necessary combination that is simply incorrect in two thousand fifteen crees vs washington spokane print or spoke primary care l a c one ninety washington appellate ninety eight specifically set forth that test this in your brief it is not in my brief it's actually that counsel submitted as a supplemental authority to this court and the standard to set forth right there that is the applicable standard there is no dispute that in the admission interlock device has nothing to do with treatment for alcoholism it's not medically necessary therefore there can be no failure to accommodate under the washing logons discrimination also counsel has reiterated today that it's apparently mr thomas position that driving is not an essential function then what exactly was the accommodation that he was required to have in this case if waiving the aidid is only necessary for an  true the record reflects that mr stevens testified or declared that there were available positions generally there's no specific identification of any open job at the time that mr toma was terminated and no where in the evidence has there been presented to me indication whatsoever that that's the case further even if mr toma was somewhat terminated related to his alcohol misconduct that's not discrimination there are sufficient number of cases throughout the country that say that alcohol related misconduct can be disciplined they're set forth in our brief include brown v lucky storying two four six f third one one and two they include a case that counsel cited dark in their reply brief durfy curry county four fifty one f third ten seventy eight where it says one of the exceptions is the a v s explicit spliffs an authorization for discharge on the basis of alcoholism in an illegal drug use and it is distinguishing between the normal perception that conduct related to a disability is not a separate basis for terminations it's actually considered the part of the disability well that's not the case with alcoholism next turning to mr thomas retaliation in disparate treatment claims first the disparate treatment pointing to a gentleman who was kept on the force when he was accused of a violent crime that is not a d but during the full result ok for the city council to pause based on an accusation until it went further but not in this situation it wasn't just an not petitioned for deferred prosecution and had an ignition interlock device requirement it would have been a different case as evidenced by barrington and amy ross in the ross as it set forth in  difference retaliation there's zero evidence of retaliation in this case in order to show retaliation i think we know what you have to prove that your position is they didn't know and that's one sixty two one hundred three in course of discussing the offer he requested time to consider the offer you are one ninety two he was initially given till december eighteenth to make that decision again the year one ninety two he subsequently was given  december twenty first two thousand and nine at three o'clock he was not terminated on december eighteenth like counsel has argued in their briefing and that's three thirty two in the air three four eight three three four nine when t rejected the cities offer he was finally terminated on december first two thousand and nine and that's your three forty there's no indication that he was also distinguishing factor the only right he had exercise he'd exercise prior to the layoff in the terminations it was filing these h r c complained which he'd already done so by the time the layoff status was offered by the time he rejected in but by the time it was premised on settling the h r c claim that was a settlement of a claim it was not waiving the right there is zero evidence of retaliation there is also a zero evidence that  contrary to thomas argument that chief kirkpatrick considered mr toma to be an alcoholic fact e r three twenty six states the fact that you may be an alcoholic these are all statements by ms kirkpatrick later year three thirty one she stated important part you and your representatives requested recombination accommodation for your alleged disability of alcoholism i have assumed that you do suffer from alcoholism and then going back to the statement where  argued that sheaffer patrick admitted that well the difference between tome and the other dui people is that they did not admit to be alcoholics the full statement goes on to say that he was actually there's a lot to rebut here so bear with me if i jump around from topic to topic but in talking about scott stevens testimony regarding other available administrative positions if you look at your two seventy six paragraph  quote is i specifically recall and am aware the fact that there were always administrative positions open for officers who are available to perform them there's no equivocation there that is a direct stat positions open they were available for officers who could perform them let's go back to the settlement agreement there was a written subtle mcgreevy pereira so was there a written settlement agreement multiple ones yet thing was the written settlement agreement that was presented to the city council yes did it provide for a signature by the city council yes and by the human rights commission yes why did she tell us that in your opening argument it's your honor i didn't not tell you recorded on december eleventh of twenty eleven the agreement that was presented to the city council i did represent to you that they were seeking city council approval i wasn't intending to hide the fact that there was a signature line for them i was arguing that because the city council only has authority for funding the settlement that's what the signature line was for not for the reinstatement portion of it and what does that mean but this agreement is contingent this agreement that's just the preamble and if you look at the parole evidence contingent upon but our interpretation of it is that this is contingent upon their approval for the funding the city attorney had represented to us to the client that this was just a formality they did not anticipate any issues and that's in writing and it's in the record this is where our belief came from that the issues that were being resolved with this agreement was the issue of funding by the city council the issue of reinstatement by the mayor those are the sole authorities that they have pursuant to the min our position the preamble was just setting forth this part of it is contingent it i'm not trying to be argumentative here i'm trying to just represent that when all of those came down agreement and i intention and i understand that and i understand that that's the language but when we were given the document we were given it with the understanding that it was just a formality that the only basis for their involvement was the formality and it was the mayor in the city council yeah and the human rights commission i would have to look at the record for the latter part at least by the city council member correct and he understood he understood that at that time yes but he also understood that there was an agreement that had been reached in december and he relied upon that in his conduct going forward all of this came about due to various delays in getting the agreement drafted and getting it signed there was no understanding by our client that this was not going to go through he believed that it was a done deal and that he was being reinstated to that was his belief correct not recited within the four corners of the agreement not the final document no thank you so then i want to go back to the issue of retaliation one of the things that opposing counsel glossed over in reciting the facts is the sequence of events so on december ninth our our client received his lot of mail notices intent to terminate on december eleventh he filed a complaint with the human rights commission on december seventeenth he had his ladder mill hearing it was during the latter mill hearing that chief kirkpatrick at the end represented an offer to accommodate pursuant to her grace when she said he would be placed in an unpaid unpaid layoff and he would be reinstated after two years it was then that she said it had not been reduced to writing and she represented to him that he could have time that evening treeview it hillary make for who is the attorney for the guild to ask that it be reduced to writing and be presented to them once it was they asked until the next day to reviewing consider the options sergeant thomas then had hillary mcclure email and ask for additional time till monday and the email occurred on the seventeenth and he wanted to know if he could seek advice of his civil attorneys in that matter because they were asking him to give up all of his claims not just the h r as he claims but his legal claims as well in response to that on twelve seventeen on your four forty four i'm sorry i have the wrong document here are three forty eight one fifty four pm kirkpatrick responded here's my compromise effective today tama is not an employee of the police department it was within hours of requesting additional time to discuss this matter with his civil attorneys and that's what we are three forty nine in the agreement that you presented to sergeant thomas for his consideration one of the conditions is that he not file legal challenges he wants to be able to discuss this with his attorney within hours kirkpatrick responded here's my compromise effective immediately he is not reflected today tom is not an employee of the police department that constitutes unlawful termination she put him in the position where he had to make a hobson's choice pursue his civil legal claims or face terminations the actual processing didn't occur to him monday that is true when r process the terminations paperwork but he was removed from the police department that friday after he requested additional time to discuss the civil claims with the civil attorney