and in washington when an employer makes a promise you know a written employee handbook that contains a promise of specific treatment in specific situations the court will enforce that promise if the employee's able to have is that a we believe that the district court improperly interpreted the writing that's in front of this court and this court's in the same position as the district court was just as good in the position to interpret that written language spirit it has discretionary language in mandatory language in there that's the problem i understand the the problematic nature of the use of the word will however i think that you have to read that is discretionary with in some cases the bank may determine that immediate termination is warranted and there's no way to read that sentence without intervening and as there are cases when the bank will go forward with immediate termination and will not use progressive cause similar language has been interpreted as a specific problems by the washington courts of appeal i believe that where the where the courts have found a promise to be created the language has has not been as clear as in this case that it was discretionary it's it provides specific situations where and will occur it doesn't have the outlet as occurred here where it says in some cases immediate reversed the appellate court's decision that that you didn't need to show just to file a justifiable reliance on the written policy itself and in this case the testimony of the point if you're miss messenger lunch justifiably rely on the well she would need to testify that she continued her employment and show that she did she basically didn't seek other employment to show that she continued her employment based on nat particular written comments and in this case that's problematic because she received a written promise two weeks prior heard prior to her discharge well after she engaged in the conduct for which she was terminated and her testimony about the  that when we see clear error in the district court's decision is that the district court specifically found that it was immaterial that ms messenger received the current version of the handbook two weeks prior to being terminated because there is no question that it was in effect at the time she was terminated that's that is incorrect as a matter of law and of course none and secondly the court goes on to say and evidence was introduced that the pattern in practice the defendant in the treatment of their employees we did this the promise of progressive counseling and certain situations and that's incorrect as a matter of washington law that vastly expanded washington law and what that the impact of that would be every employee could allege that there was some unwritten practice by the employer that the eleven the court says die of pork maintains that employee must prove that he or she was aware of the specific promise to his alleged breached and that those specific promises induced him or her to remain on the job and not seek other employment we agree on page specifically on point where it talks about the internet that it said it says we reaffirmed earlier cases that it's that said that the employee must have been aware of the specific promise allegedly breached and that specific promise must have  be that it was basically the practice that created the promise not the written language and those two now in his in his years thing that the judge's ruling was that she relied on it before foreman and horse and that's not permissible you have to show that you relied on this specific written policy not the employer pricing this is two different issues the first issue i see is induced to remain on her job and to forgo other employment based on this policy she received two weeks before and is it your position that you can't use the practice is that the company to show then when the employer says well but that's not defective because we've affectively disclaimed it then and under washington law the court can go out and look at the employer's practices and exchange of evidence to determine whether or not it was the intent of the employer to fund and then then you move into the just a justifiable alliance assuming that the court finds as it did here that based on the practice and other evidence that the disclaimer was not effective then you move into the well again phone and i think elaborates the standard a little more and i think that you do you are required to show that you gave up in some way other opportunities not just that you remain on the job if you had no interest or you know it if you would have remained otherwise there wouldn't be any reliance you need to show that you did something in reliance on and soon leave you know if you didn't have any intention of leaving your job anyway but it would seem to me that it would not necessarily have to be you didn't take another job and you could have that pattern that one just simply stays with the company they'd like this company they'd like this job and now they are relying upon this policy as well as the printed material and the practice is that they have job security probably not require that employees show that they rejected other job offers but i think that the court would need to see that they remain on his job not because they like the paycheck and they like the agree that that could be a factor but i think they need to show that they alter it in order to show just file the lines you need to show you somehow altered your position but language so you're a line of climbing poem and so i say that that's an absolute requirement to show terminations i understand the argument as the companies decision not to courses and so forth but i do have some difficulty relating the sale of an insurance policy as an account friends action where you're dickering with your own account balance and so forth what's the problem with her selling an insurance policy in effect to herself well when she was not discharged for selling the policy to herself in that you know th the context of a contest and although it breaks my brows that you're selling a policy yourself when there's a contest going on to see how many people can sell there are as many policies that she wasn't fired for cheating in the contest she was fired because she didn't have another employee process the transaction for her and at the break it wasn't the kind of transaction that she could have fiddled with meant i understand if you're dealing with your count balance or something or payments on your loan but presumably there's an insurance company that's really on the other side of the transaction so just conceptually have some difficulty understanding why the sale of an insurance policy fits into a part of handbook policy about account transactions well it is required to if the court finds that there's a there's a promise not to terminate except for just cause which i don't believe is an inter faith a reasonable interpretation of the policy then the employer is required to show that if the employer that that she had violated the policy but that's not the standard the standard is did the employer reasonably believe that she violated the policy and the banks entitle to some deference into i own policy doesn't include everything out there that's not allowed but this was a branch manager she was in charge of everyone in the branch and these two very experienced brain bank measures it was a red flag whenever anybody does anything on their themselves their disposed to have somebody else sign off on it and that's the bank rule in or it's a financial institution it's a reasonable rule and even though it hasn't been set forth particular example in the in the policy issue it was crystal clear that these two managers very seasoned that this was a self dealing and you don't self deal with yourself as manager of the bank unless your honour's have any other questions that what the district court concluded was that it breached the enforceable specific promise of pre term a nation progressive discipline and the district court concluded that independent of that the plaintiff had not violated the account transaction policy it's kind of an interesting question because in a sense whether she violated the account transaction policy is irrelevant because the whole notion of progressive discipline presumes that the employee has done something wrong that requires policy at all and that's important your honor you asked me to address that issue and i'd like to i'd like to see a complete the discussion of that a little bit if we go back to the beginning of the handbook at issue the handbook as the district court found is something much more than guidelines the handbook says in the beginning that the employee signs off on it and in the employees are expected to comply with the policies and procedures set forth in the handbook the handbook doesn't say it's just guidelines the understand i have the right to terminate my employment any time and the company has the same right words that appear less than an inch away from your client's name churchmen and i like to address that question i'd like to complete my thought with respect to  says take this seriously and they've got to sign it what they signed says it's not a contract it can be changed and you can determine it right and i'm going to address that time and address that ok first of all with respect to judge marshall's question when we say that the that the handbook is an enforceable states and forcible policies the account transaction policy is fairly specific with respect to what constitutes an account transaction and as this judge again i apologised and as murphy points out there's nothing in the account transaction policy that in any the that implicates in any way the processing of an insurance policy there's simply the record is clear that there was no account open up any place with respect to the purchase of that insurance world pool which is an appellate court's decision which i think is an eighty one washington appellate in both cases the court the washington court has said that that language this is not a contract of employment in an employee handbook in employee well what's what what other way is there to approach it well i mean it i think i think that's probably the correct way to approach it in this case because there is a disclaimer language issue right so if i may i'd like to address that ok first of all was there an  enforceable promise me quite the answer to that is yes that's clear both from the record and from the language of the policy itself the policy says progressive counseling will be given if your performance doesn't meet up to expectations the language  necessary improvements it doesn't strike we're going to give you progressive counseling every time there's a concern you can say that because the next sentence makes very clear that they don't have to do that so i think that the use of the word will when the district court well first of all as i and i took in during the during the trial first of all this is a factual question i think we need to put it in context whether or not whether or not the bank made a specific and forcible promise of pre term a nation progressive discipline is a question of fact should be fact that issue any evidence that if you are given the terminology in question yeah the pattern and practice of the employer which the court has which the washington court has specifically held can and should be considered in determining whether the parties intended that the that the language in the handbook was an enforceable promise of specific treatment in specific situations the court in brown versus scott paper company and determining whether or not handbook language modified at will language in the in the in the employment relationship the supreme the state's supreme court in brown one forty three washington second three forty nine cited her versus huge isman and said that you look at the language and you look at the subsequent conduct of the but you're not looking at subsequent conduct in this case because the language didn't come out until two weeks before the term and that is a little disingenuous your honor and i want to address that issue that's a little disingenuous first of all the issue of the timing of that handbook was not raised at the trial the issue of the timing of the handbook was grazed in a post judgment motion filed by the defendant the case was tried on the hand what language that was admitted and the reason the case was tried on the handbook language and that was that it is because that was the specific can but that was in effect at the time of the terminations the evidence during the trial was that he was at the bank produced the handbook annually every year and the practice of the bank forever was to employ a practice of progressive discipline and we took the district manager staff through a fairly extensive examination of that there was never any hint in the trial of this case that there was no language in the handbook in the prior handbooks that was that did not the promise of progressive discipline there is no fact in the record to support that there's no testimony there's no evidence there's no nothing this case was trying on that handbook language precisely because that happened to be the the handbook that was in of it that was in effect at the time and books were distributed annually there was no evidence that there was change in that language and there was that and the record is replete with evidence that the bank had a pattern and practice  the face value is there any evidence that tells us what the earlier handbook said the only the client just finally relied upon my client justifiably relied on the handbook language that was in evidence that time and if you want to get to the question of justifiable reliance on says you can't rely on it if you don't know about it now where around did you rely on that in maintaining your employment us think answer yes i do it so that evidence is in the record if we're looking for sufficient evidence to support a finding of fact on justifiable reliance or any inducement because your claim is after determination that despite efforts to medicate and so forth she's damaged to the tune of one hundred fifty thousand dollars so it's not like she had other opportunities being dangled in front of her two weeks how was she induced by the handle to the haven away that was contrary or interests our courts have told us that we have to have an extended period of time demonstrate justifiable reliance what our courts discipline in the workplace and the and the employers district manager mr stats testified that it was the norm to practice progressive discipline in the workplace but after the practice  i think the evidence as just as determined by the trier of fact in this case was that there was handbook language in effect during the tenure of employment and the evidence on that issue was that there were handbooks issued annually and the and that and the handbook that issue had the progressed at the progress of discipline language in that there was no evidence offered by the employer to suggest that the handbook language was not in and in prior editions or prior yeah prior editions of was there evidence in the record of these prior handbooks and that the language in prior handbooks was consistent with the language in this one as you know your honor there was not in the claim was never raised the claim was never raised that summary judgment the claim was never read in pretrial raised in pretrial proceedings the claim was and it was never raised at summary judgment that that there was not a that there was not progressive discipline language in prior and books this came up as a get back to the question of how does the analysis go the first question is was there a specific and forcible promise that's a fact question and the court tells us that you look at the policy language and you look at the pattern of practice two cases have pointed out that the language  that the use of the word will is mandatory course one tells us that i'm reading from course one that star age of eleven it says however the alleged promises provides that some corrective action will be taken against management or other employees who harass intimidate and then they go on and they distinguish that language from the stewart case that had discretionary language that's why there  decisions when the trier of fact in this case made the determination that based on the language and the bank's pattern of practice there was a specific and forcible promise there's evidence in the record to support that finding and it with all due respect it's not for this court to reverse that factual finding and it is a question of fact because brown tells us to look to the language of the handbook and the practice reliance ok what level of and do some of we have to show is unclear but the evidence in the record is that which i just reviewed i asked this mester whether she relied on the language in maintaining her employment and the answer was yes she did and right at my fingertips in any event this is a to put the case in context all of the questions at issue here are factual whether or not there was a specific informant enforceable promise was factual whether there was a lie as is factual whether there was a breach of that promise is factual the district court made factual findings on all of those issues those factual findings are supported by the evidence in the record this is a sufficient c of the evidence case it's deposition she actually denied that this particular policy was the one she was thinking of and she thought there'd be another one in there was another one but she couldn't find at the time those notions asked of her during trial as well so for purposes of trial i submitted to the court all and which had also been produced in discovery all employees hand looks that have been in effect during the entire duration of ms messenger's employment i did not submit  the only one entered into evidence was the employee handbook that's at issue today and that's because the other hand folks didn't contain this same language also you cannot make that representation if there is nothing in the record to support your hon that was not my burden of proof i would have made any sense for me to interviews all handbooks in order to show that there was no other problems and not only did we have handbooks we had all sorts of policies that could of client you know could have contained alleged promises the specific treatment is the plaintiff's burden to show that there was a written promise of specific treatment in specific situations and the only handbook introduced into evidence was the one that she received two weeks ahead of time we have a written acknowledgment that's in the record but secondly maneuver that that fired but honestly your honor not at all it was it we went into this trial with a number of different policies being held out there as potential promise is in the end this is the one that it landed on the it's punished we're going to show it was plain plan is choice to choose which which policy she stated her claim on and in the end the court relied on the pattern and practice because of the absence of policy and we did bring a post post trial motion there was no no disputing again you know it's not like the other side did not know what the other and we just didn't enter them into the trial i mean in your post from the ocean when you made the argument that prior handbooks did not contain this language that you sent me that as the day that from human resources or anyone else to support th assertion i don't believe us men enough david from human resources and i thought anyone i may have included a declaration of my own i think you know if i believe that it was undisputed that that the prior handbooks which had been submitted to the court but not entered as a trial exhibit did not contain this language and again it's it was the plaintiff's burden to show that there was a handbook or no finding any prior policy contain this language there was there were findings about the practice of the bank and mr burns described mr stott's testimony about progressive discipline to in situations where the bank doesn't think that terminations warranted they engage in progressive discipline generally by opposing counsel to their testimony was tied to handbook provisions over over that he was questioned about the practice only for two weeks when the two weeks prior to her terminations he was questioned about the specific language of the policy and it's also a question about the specific practice the bank but that was not tied to any previous written policy or the