supreme court determined it was contrary to the intent of the legislature regarding certain whistle blower statutes to give preclude and binding  to the administrative findings in a leader and a judicial proceeding under the statute however the labor has not been examined by the supreme court as to the issue preclusion and the binding effect of administrative finding it in question is per a why is it pertinent yes well i don't think it is really pertinent to this decision but but it is part and parcel of in fact they they didn't even approach the administrative findings it was just an issue or investigation by federal authorities and well not the administrative proceedings but the the findings of the federal authority  be a different question which is whether the california legislature had a similar or different intention with respect to preclusion well so i mean it's relevant in the sense that it looks at the same tell if you answered every question but i think trying to get at whether or not we need to be concerned about whether the california legislature intended in these in this with a different result in these whistleblower contacts in requiring exhaustion of judicial remedies in the face of the  architect of that that the whistleblower action wasn't precluded is that what you're trying to get yes absolutely that they it is that it presented too many roadblocks and as found described of instances where there's and there are mistreated proceedings that are quite exhaustive and have a lot of judicial characters to them and then and everything as you put it is against that to use your words litigant going forward in there and their actions are precluded this is a different kind of action because it's a whistleblower action at least i think that's what your brief argues that's your position and so what i'm trying to get at is there's there are sort of references to what i'm concerned about because i think what's what the legislature concerned about is that the whistleblower action should not be precluded should be allowed to go forward because there really isn't an opportunity to litigate it earlier but but so my question is that's an overgeneralization but i'm trying to get to where i want to go here  my question is are there are indications in the record from opposing counsel that that your client was able to make his whistleblower allegations and litigate them in the ministry to preceding do you want to respond to that yes  thought it did not come up during the administrative proceedings it did not it did no and what i'm saying is that it isn't a larger problem that the administrators proceeding there is one sentence one paragraph on this point which says in his opening statement and several times during the hearing the appellant accused the department accounting of terminating him as for charlie ation for filing a petition of complaint in two thousand and twelve and in organizing activity another words not for this not for the m case and then he says that that wasn't it but that the opinion never says anything about retaliation for the m case there is no county was doing in the background which is that i don't think this is a trick question i think that i think the point is that you didn't get the ruling on your retaliation claim isn't that your point well yes but but it isn't that the case with with with each one of these supreme court cases that it was an adverse ruling it was that it wasn't an adverse ruling us the point there was no rolling in this and the well i mean if you want to say there was one fine but i can't find it the only i see a ruling with regard to whether it was retaliating for filing a petition of complaint two thousand and twelve which was not this and for as alleged cian organizing our efforts which was not this so i have a minute and twenty seconds she want to reserve time i would just point out that that the supreme court would follow the same procedure that they did in the other cases and a provides for a civil suit for damages and without regard to what occurred and at the that's what  good morning may it please the court my name is susan coleman and i represent the county and this program in this harken in these proceedings in response to the court's question about whether the california supreme court would follow as well like that what's the standard by which we can determine not to follow a very recent in this case state court of appeal opinion what we have to believe with regard to the california court of the supreme would have a different result so why are you convinced that the supreme court were to have a different result looks and ok when you're talking about murray would you would you respond to the point that i was raising with opposing counsel which is what the court looked at is what did the legislative body that was in question have in mind again in that case it was congress in some other context entirely so i don't even understand how that bears on the question or whether the california legislature had a particular intent with respect to the whistleblower statute and how the court would rule about that so there seems apples and oranges to me as well in tazz well the main focus was on the language eight forty seven under the government code and that specifically says that if a person is dissatisfied they may go to civil litigation whereas two five doesn't have that same language and  say that we should infer that because it's a whistleblower statute it would go the route of tazz well ignores in johnson another call supreme court case  that dealt with feel a little ation but at the administration finding was binding because of the policies and here we have very strong policy reasons to  the regime as i understand it that you're arguing for is that you're supposed to take an administrative mandamus proceeding from the air from the administrative decision  standard the court is not going and there's not going to be a trial hearing in that court right so the net result is that what you have is not a judicial determination of whether there was retaliation and thirdly the focus in the administrators proceeding and some of the california cases to talk about this is are is really unjust cause i was there a basis for discharging him and that's what this whole opinion very lengthy opinion is about that he do this to do that to do that which is a different question from the one that he's trying to raise in a whistleblower case right so you have a mismatched proceeding and you're arguing that that the california legislature that the california court of appeal was wrong including that the california legislature didn't want that it wanted an all new proceeding on the whistleblower  well arguably someone who is associated employed by that you see is not an impartial person and here we had a ministry of law judge that was mutually selected by the parties there were fourteen days of hearings i was very exhaustive in the idea of repeating this is not something i think we take lightly but what i'm trying to figure out going back to judge graber is question whether there's was intent by the legislature that this should be precluded that a whistle or claim to be precluded and it seems to me that in the wrongful a mccullough wrong will terminate just the determination action  employment action i'm not so sure that there really was much litigation that it's really even within the scope of what was happening there and the shipment wasn't much of a distance the system didn't really focus on that well so so i'm concerned that you know that the legislature because the indications in the other case was that they did they want to make sure whistleblower cases get heard so what's your best well with regard to that that this issue was exhaustively discussed below  rodriguez people who yes they concluded that he did what they said he did but he didn't then conclude anything about that issue but in other words you can do something you can do something wrong and still be retaliated against because they wouldn't have brought the action against you if they weren't retaliating right but there were a lot of discussions about whether it was in fact protected activity where so presumably because he didn't think it was really there he asked questions at the hearing fine but if he didn't assign it at all so it is so i am not trying to make your life difficult but you know the concern about this president and both ways because we don't you know that there's that there's a real concern about judicial inefficiency as well right but it's not hard to imagine a circumstance where somebody gets terminated him and after an even an exhaustive procedure with a lot of traditional formality  determined that the employer had cause to terminate that person but that person had been should've been able to show that for the same very same infraction other folks weren't terminated and that this was in retaliation for example i actually a safety issue that that's a whistleblower allegations are about that's why they're so safeguarded yes your honor and there mr barr was not precluded from exhaustively raising any issue that he had with  germination with his reporting of the list and there were questions from the judge about well wasn't it known that if you typed in rodriguez wrong with the z instead of an ass that you would get you wouldn't get the same result in other words  wasn't protected activity to disclose this glitch in the system as he refers to it in his appellate brief and so he was he was able to you know if you get a ruling that he wasn't terminated in retaliation for these misdeeds and that's my word right i'll just use misdeeds where's the ruling here well we don't see it in the courts written order specific to this issue on case you reach the same result we can infer the county would have made the december susan to terminate him even if even if what even if there was some retaliatory intent in other words the same decision affirmative defense because there was good finding there was the judge did find that there was good cause to terminate him so a jury would be given that instruction where can we go back to the question of task well squarely decide it's a question right and you're asking us to disregard its halting in the face of the fact that are allied and several california supreme court cases in coming to its conclusion and why should we do  well the question is certified to the th circuit didn't discuss intent of the legislature or of congress it's also true that at least one but the decision did this california supreme court's decision myself i'm sorry just it seems i'm remarkable to me that it is not so therefore if test was trying to figure out what the california supreme court might think about this and it went to a more recent case about california law rather than an older case about federal law does that seem like an appropriate way to well it may be binding on eight thousand five hundred and forty seven dollars which it really got into the legislative intent on that statute but it it gave very short shrift to eleven o two dollars and that's the statute here it also looked at incorrectly considered the veil ability of damages whereas in both murray and johnson the court knew that there was damages available and still found precludes that effect and here in johnson if this case was sent back it would ignore the policy as expressed in johnson to minimize repetitive litigation avoid harassment the parties we would have likely a five day trial in federal court what a sport but you don't need to see it because this particular issue was decided but they still can't you still can't bring a lawsuit about you could also affirm on other grounds supported by the record and that is that there was no protected activity and that there was no causal relationship between any whistle blowing and any retaliation and there's no trial boy issue of fact as to those elements that he would have to prove we should now just side that even though the district even know he that this is this is not the right proceeding for that right the whole it was raised in the summary judgment briefing the judge decided on grounds that it was that there was collateral stoppel and it meets all the elements for that but it was raised in the m s j briefing that there was no tribal issue of fact as to that element though you don't have vegas that stands for the proposition that if a entity throws everything at you and can't prove those things and some of those things are just or just don't pass the smell test for example for example the main issue that he's fired because he gave a list of children who may have been who may have been abused to a police officer that's why he was fired he gave a list of abused children to a police officer one of the other reasons he was one of the numbers here is that he was fired for three other reasons well but they brought twenty two incompatible with terminations that can be a basis for determining pretext and that's what we have in this case they brought twenty allegations and they proved how many for and the ones that they proved even the one about giving the letter list of the kids to law enforcement cannot on its face be a determination for terminating someone so you're put i think sum up is that if there's a legitimate not discriminatory there's protected activity and that there's a question of fact h the the him with of initially nine allegations he goes out of town he's not even his i mean working he comes back in there's fifteen more allegations than parrott down and they go to a hearing in august when he has even worked and all of the allegations are over a just a two week period all of the actions that they claim he did that were should result in him being terminated all happened within a two week period none of that passes the smell test in light of the fact that he makes a tremendous it's not a glitch in the system it's a determination that there's the st place they're going to go to the person who made the determination that it was the county that placed the kids in this home and if they discredit him by saying not just that he's terminated but that he's a liar because all those allegations go to m