NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

BRADLEY N. THOMA , a single person,

Plaintiff

- Appellant ,

v. CITY OF SPOKANE , a municipal corporation in and for the State of Washington and ANNE E. KIRKPATRICK, a single person ,

Defendants

- Appellee s
. No. 14

- 35829
D.C. No. 2:12

- cv - 00156

- SMJ

MEMORANDUM *

Appeal from the United States District Court for the Eastern District of Washington Salvador Mendoza, Jr. , District Judge, Presiding Argued and Submitted May 17 , 2017 Seattle, Washington
Before: HAWKINS, GOULD, and PAEZ , Circuit Judges. Bradley N. Thoma appeals from the adverse grant of summary judgment on his state and federal claims arising out of his termination from the Spokane Police Department (“SPD”) as well as several discovery related orders. We review the grant of summary judgment de novo, Uni versal Health Servs., Inc. v. Thompson ,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

JUN 5 2017 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

363 F.3d 1013, 1019 (9th Cir. 2004), and discovery orders for abuse of discretion,

see Home Sav. Bank, F.S.B. v. Gill am , 952 F.2d 1152, 1157 (9th Cir. 1991). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. There was no err or in granting summary judgment to the defendants , the City of Spokane (the “City”) and former SPD Chief of Police, Anne Kirkpatrick (“Kirkpatrick”), on Thoma’s breach of contract and promissory estoppel claims.
The purported settl ement agreement specifically states that the agreement was

“ contingent on approval by the Spokane City Council and [would] become effective upon approval by the Washington S tate Human Rights Commission.” Thoma confirmed during his deposition that he under stood the agreement was c ontingent on further approval. The email correspondence between Thoma’s counsel, an Assistant City Attorney, the Human Rights Commission’s counsel, and the Spokane Police Guild’s counsel does not demonstrate any agreement to the c ontrary. And, it is undisputed that neither the City Council nor the Human Rights Commission approved the agreement. Thoma’s remaining arguments regarding severability are unavailing. Because the undisputed evidence demonstrates that the promise was

con tingent upon further approval that the City Council and Human Rights
Commission never granted , Thoma’s promissory estoppel claim likewise fails. See Lectus, Inc. v. Rainier Nat’l Bank , 647 P.2d 1001, 1003

– 04 ( Wash. 1982) (reliance3

on future conditional promise unreasonable); Corbit v. J.I. Case Co. , 424 P.2d 290,
300

– 01 ( Wash. 1967) (rejecting promissory estoppel theory based on conditional promise with unfulfilled condition ).
2. Nor was there err or in granting s ummary judgment on Thoma’s claims
under the Americans with Disabilities Act (“ADA”) ; Washington Law Against
Discrimination (“WLAD”) ; or Washington’s anti

- retaliation law, Wash. Rev. Code § 49.60.210

. The record evidence demonstrates that Thoma’s termination resulted from a condition impo sed as part of a deferred prosecution that interfered with his ability to perform the functions of his job

. Thoma failed to raise a genuine dispute
of material fact as to whether he was terminated “because of” a disability , see Collings v. Longview Fibre Co. , 63 F.3d 828, 833 (9th Cir. 1995); Anica v. Wal

Mart Stores, Inc. , 84 P.3d 1231, 1237

– 38 ( Wash. Ct. App. 2004); or his opposition to an emp loyment practice forbidden by the WLAD , se e Wash. Rev. Code § 49.60.210(1)

. 3. Summary judgment was also appropriate on Thoma’s due process
claim. Thoma concedes that he received the requisite pre

- termination notic e and opportunity to be heard. See Cleveland Bd. of Educ. v. Loudermill , 470 U.S. 532,
542

– 44 (1985). He solely contest s Kirkpatrick’s impartiality at his pre - termination hearing. Yet, “ t he failure to provide an impartial decisionmaker at the pretermination stage, of itself, does not create liability, so long as the decisionmaker4

at the post

- termination hearing is impartial.” Walker v. City of Berkeley , 95 1 F.2d 182, 184 (9th Cir. 1991). Thoma has not alleged that the City failed to offer a po st

termination hearing before an impartial decisionmaker.
4. Furthermore, s ummary judgment was warranted on Thoma’s wage withholding claim under Revised Code of Washington section 49.52. 0 70 predicated on back wages allegedly owed as damages for hi s ADA, WLAD, and due process claims. Back wages encompassed in a retrospective discrimination damages award “are not wages the employer was obligated to pay” for purpose s of a wage withholding claim. Clipse v. Commercial Driver Servs., Inc. , 358 P.3d 464, 469 ( Wash. Ct. App. 2015); accord Hemmings v. Tidyman’s Inc. , 285 F.3d 1174, 1203

– 04 (9th Cir. 2002). In any event, Thoma failed to withstand summary judgment on
his A DA, WLAD, and due process claims.
5. Because Thoma failed to withstand summary judgment on all
substantive claims , summary judgment on Thoma’s vicarious liability claim was
proper as well

. 6. Finally, the grant of a protective order denying leave to depose
Kir kpatrick for a second time was not an abuse of discretion

. See Fed. R. Civ. P. 30(a)(2)(A)(ii) (requiring leave of court to depose individual who has already been deposed in the case). The district court’s finding that Thoma brought about the situation w ith his own discovery strategy was not clearly erroneous, as Thoma5

argued that a second deposition was necessary based on documents timely produced in response to written discovery requests that he served only days before Kirkpatrick’s scheduled deposition. Thoma’s remaining arguments regarding his motion to compel discovery relating to the City and Kirkp atrick’s affirmative
defenses are moot b ecause he failed to make out a prima fac ie case for any of his
claims

. Thoma’s motion to strike (Docket Entry No. 35) is denied

. AFFIRMED.