NOT FOR PUBLICATION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-Appellees. 

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, Universal 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, CLERK

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

see Home Sav. Bank, F.S.B. v. Gillam, 952 F.2d 1152, 1157 (9th Cir. 1991). We 

have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. There was no error 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 settlement agreement specifically states that the agreement was 

“contingent on approval by the Spokane City Council and [would] become effective 

upon approval by the Washington State Human Rights Commission.” Thoma

confirmed during his deposition that he understood the agreement was contingent 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 contrary. 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 

contingent 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) (reliance 
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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 error in granting summary 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 imposed 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. WalMart Stores, Inc., 84 P.3d 1231, 1237–38 (Wash. Ct. App. 2004); or his opposition 

to an employment practice forbidden by the WLAD, see 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 notice and 

opportunity to be heard. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 

542–44 (1985). He solely contests Kirkpatrick’s impartiality at his pre-termination 

hearing. Yet, “the failure to provide an impartial decisionmaker at the 

pretermination stage, of itself, does not create liability, so long as the decisionmaker 
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at the post-termination hearing is impartial.” Walker v. City of Berkeley, 951 F.2d 

182, 184 (9th Cir. 1991). Thoma has not alleged that the City failed to offer a posttermination hearing before an impartial decisionmaker.

4. Furthermore, summary judgment was warranted on Thoma’s wage 

withholding claim under Revised Code of Washington section 49.52.070 predicated 

on back wages allegedly owed as damages for his 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 purposes 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 ADA, 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

Kirkpatrick 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 with his own discovery strategy was not clearly erroneous, as Thoma 
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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 Kirkpatrick’s affirmative 

defenses are moot because he failed to make out a prima facie case for any of his 

claims.

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

AFFIRMED.