appellant in this matter and as the court is aware last week it issued an order directing helsel to consider the case of so i would prefer to spend my time addressing that issue since if the court were fine that which was not addressed by the way in our now for three zero one preemption which is of course what the district court found and i'd like to explain that the defendants concede in their pleadings filed in the district court that there is no basis with three on one preemption until plaintiff filed his opposition to defend its motion for summary judgment they say he referenced the terms progressive discipline and just cause and that upon the mention of those terms in his opposition to the motion for summary judgment which had been filed in state court defendants then removed to federal court plaintiff brought a motion perini and the district court ruled on that issue twice kramer had been decided on by on august twenty seventh two thousand  the remained issues were bleak twice in october two thousand and one and december two thousand one no one c including the district court and it wasn't caught on appeal but your honour's did and they refer to them as being in the collective bargaining agreement but there's a fly in their own in the plaintiff's pleading you never signed to the collective bargaining agreement i guess it's cause it's called artful pleading he never started to anything but two sources i'm holding them up stewart enterprises on handbooks and i can take to the breaches in just a moment and his declaration for instance just cause is what he understood was a standard based upon his sixteen years experience working as a grave digger and a yard worker for stewart and a crisis so he stayed in his opposition not to the collective bargaining agreement which is in trigger on august thirty first two thousand and one i think the first realized on the just cause and progressive discipline provisions of the c d s in this opposition for the very first time plaintiff trio one preemptive premiums only claims founded directly on rights created by collective bargaining agreements and also claims that are substantially dependent on analysis of the collective bargaining agreement this court has been cited by the third circuit the tenth circuit it is now cases on the wall regarding preemption under section three zero one and this court says in kramer that in this avows all prior decisions respecting preemption now that's not the court's words that my words but it is right to the point and it articulate the new law tonight merely by injecting a federal question into an action that asserts what is plainly a state law claim transform the action into one arising under federal law kramer it's six ninety quoting the supreme court yes  cannot create a dispute as the meaning of the terms of a collective bargaining agreement by picking out terms in short this is kramer it's six ninety four this is a classic example of a defendant's attempt to inject a federal question into an action that asserts what is plainly a state law claim in order to transform the action into one arising under federal law the plaintiffs reason what kramer is clearly doing i suggest is mandating that state law claims be left alone unless the claim itself even though it's a state law calling can only be resolved by going to the heart here's a lady i mean i'm a meter reader looking to collect overtime but she was in a bargain unit and there was a collective bargaining agreement and this court said that covered the definition of overtime and it also covered what is called the regular rate so a state court is that there is no need to go through the collective bargaining agreement in order to know that those violations of her progressive discipline is spelled out in the hand yes yes not rely on her collective bargaining agreement to enforce the quote parallel independent and more extensive reasonable accommodation duties established by the w l a way this court in humble held that there was no preemption of the three or one the boeing company boeing contended that humble needed to refer to the collective bargaining agreement to interpret which jobs were open if her accommodation took the form of a transfer to a light duty position and this court said no first we have held a c b a provision does not trigger preemption is only put ten chile relevant to the state law claims without any guarantee that interpretation were direct reliance on the collective bargaining agreement agrees with its terms because mr not stewart is the one who injected specifically language concepts and requirements that arose under the collective bargaining agreement he injected those at the district court level mr again in his opposition at page twenty referenced again the idea that progressive discipline had not been applied to him and that therefore stewart had violated its own policies and that  discrimination no i don't think it would be relevant at all i think in that situation if he's arguing that pretext can be shown by your failure to follow what lawyers own policy that is what you usually do your policy being w wasn't he wasn't comparing himself to other people he was simply making the very bold faced argument that stuart policy requires that before stuart can terminate me it must give me progressive discipline he was not comparing himself to anybody else look at the employee handbook that doesn't answer the question that mr battista was raising in opposition to summary judgment he was raising the issue there as the company failed to follow that policy so we need to look and see what he's respond to that and refuse that we have to cover our bases he's not limiting it to just the employee handbook so we need to address at least in part what is going on in terms of the collective bargaining agreement to see whether there is  where the court found that simply because an employee plaintiff doesn't refer to a union contract doesn't mean that he has a contract claim holds true for this he's arguing i think that's another difference between this case and kramer he's arguing that these policies exist but stewart violated and therefore that pretext in order for us again to address that address that claim we need to look at what documents what policies he might be reprisal so that we can show that there was no pretext one difference with kramer is to incriminate your right it was a state law invasion of privacy claim and what happened there was consolidated frank ways the defendant was the first party to bring up the idea that there somehow provisions in the collective bargaining agreement that kind of somewhat addr touched on the same type of privacy concept an expectation of privacy times that is that the kramer plaintiffs were deserving that's not what happened here we didn't raise the real one preemption as a defense what happened here is we believe that question but in other words i don't think i think he abandoned it before it actually went to the arbitration process and my understanding under the three zero one body of law is that the district court still can entertain a case  kramer requiring an interpretation of provisions as opposed to in your reference to and i think here we have a very obvious need to interpret the competing provisions of the collective bargain agreement we have fo thirty two of the record i believe it stays true to his weekly i'm sorry page five of the motion for summary judgment order that is in the record includes a paragraph where the district court went through and did just that weighed those provisions of the d b a against one another and it absolutely had to go through that analysis there was no simple way to turn to the page to read aloud the sentence and have your answer this was which is very unlike cramer cramer to begin with didn't even half revisions that were on point there was no provision that governed what the employer had been doing with respect to the mirrors in the video  cameras and so therefore there was really nothing to interpret that's very unlike this case where again and the allegation is that they were didn't follow its policies because it didn't give progressive discipline what we need to look at the collective bargaining agreement what provision  although it wasn't the california fair employment and housing act it was an anti discrimination statute out of washington state and actually used this court held that even though the claim was one for se discrimination and retaliation under state law nonetheless those claims were created by section three a one the reason was as follows the court held that it is for health and resolving that case turned on the defendant's offer of a legitimate nondiscriminatory reason for the action that it took and it had to do with the defendant not registering the plaintiffs and the plaintiffs argued that they were not being registered for certain work  privileges was discriminatory and retaliatory and the court said we essentially cannot resolve this without looking to the collective bargaining agreement to see whether the employer and had the right t