unique situation in this argument because the sole reason the district court judge threw this case out was concededly conceded this an error by the port of seattle and so therefore and was not required to exhaust the grievance procedure provided for under the collective bargaining agreement with the washington court of appeals decision and what very versus the city of seattle i mean does quite under and i mean i guess i pick up on if you're saying it would be curtains so you're conceding the relevance yet so why shouldn't we apply it well it is it is there any  they did exhaust air well i guess it's because of the history of the case we've been up here once before and then back down the court allowed an immediate second summary judgment motion and granted it and  court would do otherwise well i think there's a conflict in it to some extent in the the the way this supreme court has dealt with private employer causes of action and now how they're going with the local whistleblower protection act you have another case that says you don't have to exhaust the there is a case i did bring that i think has some relevance i you will if you don't mind address and rebuttals because i can pull up while he's arguing and i will pull that could go just on this point of exhaustion i understand your argument to be that in the district court this was not ordered that we had to make the motions in the body of our briefs not in footnotes and he ignored that ruling and just what the hope my question though was this issue of exhaustion was not briefed in the district wilson the wilson case you really don't want to say it was brief while i think you could say it was i don't necessarily see why why why do you say why can you say that yeah arguably it was briefed well wilson is a case that was addressed in woodbury i i were raised well so ok but we did not specifically brief the issue of the common law remedies being applied or not being applied to non terminations reductions and status at the job and this is what we have been doing i just didn't reach this issue which at the district court did not address this issue not in its order if the question is purely one of law what would be gained by remaining to the district judge to consider the first instance well i have to rely on the on time on this i mean we've been here this should have been raised four years ago and to give the port of seattle an opportunity to plead in an affirmative defense i think would be very untimely and prejudicial to us because we should have been pled in the first summary judgment four years ago it wasn't raised in their answer but we have case law that says you can raise affirmative defenses a summary judgment stage if it's been if it's thoroughly raised properly raise the other side has a full full chance to brief it we didn't have any chance to reply just to ask you whether or not you briefed it in the district court and you well arguably well i was trying to be fair to them but i would say no we didn't address it now you say no well it depends i read wellstone and i and i'm trying to be as fair as possible wilson does talk about the local was a border protection act but it don't need talks about it in terms of terminations not in terms of lower standards so that to the extent that you feel that that is addressed is recognized and then establishing reliance right ok now my recollection is he filed one affidavit with that was signed and then on the second motion for summary judgment that's enforceable but how do you meet the second part of reliance without an affidavit from him well we did it independently and we cited to it in our response a brief there's a whole section where we cited to decorate it to deposition testimony where it was it was established by independent evidence other than the decoration and so i guess i would say the decoration really was the core really did in my opinion utilize a decoration he just said he didn't because otherwise his inference is that he drew i think he did that ari he relied on our independent evidence because he did speak of oregon defined by the by the washington courts ok well i did cite two testimony in their response and i would have to t  have a few seconds left i didn't answer his question which i think is very pertinent if the court feels that a court whether it's this court or a lower court has the right to consider that and if you feel that it's binding and i do believe that there's issues that we could explore and perhaps show that it isn't binding for instance the  administrative proceeding the port of seattle doesn't even mention it so there are issues that could distinguish it i don't think all legal issues there there there appear it appears to be a tough hurdle for us but again we there's also no evidence that the port breached any of the promises that mr johnston alleges are contained in the policies and third as you as your honour's noted he was required to exhaust his claims under the c with respect to these hammack policies the law is clear on that he not only didn't exhaust he actually settled all claims arising out of the reassignment which is the only alleged retaliatory act that's still at issue in the case after the last appeal with respect to the the special impatiens issue it's clear the statue limitations on his claims three years under our c w four point one six point zero eight zero subsection three in the  case it's also clear that the undisputed evidence is that his reassignment was final on december twenty eighth two thousand and seven final in january january the seventh no your honor mr johnson concedes that it was final when he received the letter the twenty eight so it was mr johnson's union lawyer there was a second disciplinary action wasn't at all tied together if it was not the letter said that they were going to resolve everything that was part of a grievance process that extend the statue limitations that the the evidence is clear that as of december twenty eighth two thousand and seven he was reassigned to the boiler room the statue limitations is three years on that claim he didn't file a complaint until january seventh two thousand and eleven which is more than three years later so the january you tell me the january seventh letter doesn't deal with any of this the january seventh letter is the is a letter sent to mr johnson memorializing the earlier terms but mr says it's in that letter this is everything is fine and it is and it had been for well but the letter this is the letter confirms all that why doesn't the statute start running as of this date because the his reassignment was final is the twenty eight that's the that's the date his claim accrued when he received that december twenty eighth letter he could have gone to court the next or he could have gone to court assuming that there's no preemption he could have gone to court the next day and said i was reassigned it was improper and he was his cause of action would be improper that's the date that the claim accrued that the the the cases we cited the supreme court cases we cite i think one of them is called share on so with me so this is the proposal was to come this is the settlement business the proposal was to combine the disciplinary actions for both the event of october twenty fifth subject of discussion in the latter mail hearings of november everyone concedes that now as part of the grievance process maybe he could have come up with a settlement of that but the harm that he allegedly suffered was final as of december twenty eighth and with respect to the january seventh letter all it did was send him a confirming letter regarding the terms that have been reached on january fourth and that's and that's s c r i think two forty four so at the latest even if you want to wrap in the settlement of the second disciplinary action it became final no later than january fourth i also wanted to address the issue of the honour's absolutely correct there is no evidence in the record that he relied on these policies sections the the reference in his reply brief to the evidence that he thinks would support that is the declaration that he didn't sign and judge jones was absolutely correct in not considering the later press the pay to the extent that he considered it there not even the same document the signature page that mr that mr cloud purported to to send in to two or three weeks later isn't even from mr jonathan's declaration they have different page numbers they have different footers documenting that they're from different documents they're formatted differently it's evidence from depositions the sites that he has in his reply are to that declaration that's not signed the to the extent that he tries to rely on policies i mean we acknowledge that there are policies but he the existence of policies isn't enough to establish that he knew of those policies that he relied on those policies that those policies were the reliance in this context has a special meaning right he has to have been aware of the specific promise in the policy so not even that he knows that there is a anti harassment policy out there he has to be aware of the specific promise in that policy that he's relying on and it and that and yet he has to have relied on that promise to stay at work at the port and not go seek another job and there's absolutely zero evidence of that in the records of the court at a firm on that basis as well with respect to the exhaustion piece the while the elem or it does not apply subdivisions like the port the the labor law principles set forth in all of the circuits l m r a cases does apply washington applies those both in the the municipal entity where there is a municipal employer as well as where it's a private employer and the main case that mr johnston relies on for that wilson the city of monroe it demonstrates that there the court even though it's a municipal entity the city of monroe the court analyzes all of the prove the exhaustion issues under the elem are a precedent finding that a tort claim does not need to be aggrieved this one for a case that we cited out of the washington court of appeals analyzes those exact same cases as well as this court's precedent in determining that a handbook claim exactly like the type that mr johnson brings needs to go through the grievance process because if you have a c b s a that is the exclusive contract between the employer and the employment to the the employee group handbooks only effective to the extent that it's authorized through that c b s and so you need to grieve exhaust or remedies on the c b now that's not what barry woodbury if you want to bring it under washington law the local whistleblower protection act provides you a cause of action to go through an administrative process in olympia to adjudicate your whistleblower protection act so mr john said two routes here he could have a lead he could have proceed on this retaliation three through the through the grievance process the port he chose not to do that he actually settled that claim or he could have proceeded through the administrative law proceeding under our c w forty two point forty one  limb and he didn't do that either but i guess what is the proposition that it's there are things that you can do and his argument would be it just says you can do it but the argument of exhaustion is it's mandatory  what's what stands for the proposition that if you don't exhaust your out sure it is uniformly recognized that the fact that the c b a uses the word may does not give you have an alternate you know doesn't give you the election to either grieve or not grieve if you believe that you all grievances under related to your employment have to are that the that h r twenty two the anti harassment policy x thirteen the improper governmental action policy have investigation provisions but those don't apply to him first h r twenty two specifically says employees covered by c b s need to proceed through the c b a grievance procedures x thirteen which is the improper governmental action policy uses the word should which is clear and under washington law to clear that where it says should that's discretionary doesn't make you a promise one three washington seven nine five that's a division one case and we just think that there's issues of fact around the defenses that have been raised that  require this these decisions to be decided by the jury so for instance the statute of limitations question as to when that accrued is a jury question unless it's going to get a group well we filed i think it's still ongoing because i think it's the still being retaliated and under antonius it's it's one individual act he's basically been are under constant harassment for eight or nine years now and so he's still at the po is he is and so i think he's still we're still within it but they're relying on some date before january eighth well the letter the final letter came out january  instance we had a twelve page and i have twelve page limitation on my response to their most for summary judgment we already had an artificial limitation and again the court recall relied exclusively although it did address the other your ear over your one minute