FILED
NOT FOR PUBLICATION
MAR 28 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRACY JONASSEN, No. 14-35560
Plaintiff - Appellant, D.C. No. 2:11-cv-00034-RAJ
v.
MEMORANDUM*
PORT OF SEATTLE,
Defendants - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Argued and Submitted February 10, 2017
Seattle, Washington
Before: PAEZ and CALLAHAN, Circuit Judges, and SELNA, District Judge**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable James V. Selna, District Judge for the U.S. District
Court for the Central District of California, sitting by designation.
Tracy Jonassen (“Jonassen”) appeals the district court’s grant of summary
judgment against him. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
I. Background
Jonassen has been employed at the Port of Seattle (“Port”) since 2004.
Jonassen’s employment is governed by a Collective Bargaining Agreement
(“CBA”). The CBA provides that the Port may only discipline or terminate
employees for cause. But, if an employee disputes whether the Port had just cause,
an employee must challenge the Port’s action through the CBA grievance
procedures.
Jonassen began his career as an Industrial Waste Treatment Plant (“IWTP”)
operator at the Port’s Seattle-Tacoma International Airport. On November 20,
2007, while at the IWTP, Jonassen received a disciplinary notice because he
mistakenly discharged unclean water into a clean water lagoon. On December 26,
2007, after a hearing, the Port notified Jonassen that it would suspend him for five
days and permanently reassign him to the Boiler Room. Jonassen also faced
discipline for a similar incident on November 9, 2007. On January 4, 2008, the
parties settled both incidents. Jonassen agreed that he would not grieve his
reassignment for the October 25 incident; in exchange, the Port would reduce
Jonassen’s suspension to three days, and Jonassen would keep his seniority rights
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with respect to departments other than the IWTP. On January 7, 2008, the Port
memorialized the deal in a letter to Jonassen.
On January 7, 2011, Jonassen sued the Port for (1) retaliation in violation of
the False Claims Act and (2) breach of employee handbook. Jonassen claimed that
his reassignment to the Boiler Room was retaliation for whistleblower activity. He
further claimed that the Port had breached its employee handbook policies against
retaliation for whistleblowing activity. The district court initially granted the Port
summary judgment on both claims. This court affirmed with respect to the False
Claims Act cause of action, but reversed and remanded with respect to the state law
claim. Jonassen v. Port of Seattle, 550 F. App’x 384, 387 (9th Cir. 2013). On
remand, the Port filed a second motion for summary judgment.
The district court granted the motion because it found that § 301 of the
Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185, preempted
Jonassen’s claim. But, on appeal, both parties agree that the district court erred
because § 301 does not apply to political subdivisions—such as the Port. See 29
U.S.C. § 152(2) (the term “employer” does not include “any State or political
subdivision thereof”); Int’l Union of Operating Eng’rs v. Cnty. of Plumas, 559
F.3d 1041, 1044 (9th Cir. 2009).
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Nevertheless, the court affirms on alternative grounds. Columbia Pictures
Indus., Inc. v. Fung, 710 F.3d 1020, 1030 (9th Cir. 2013) (“[W]e ‘may affirm the
district court’s holding on any ground raised below and fairly supported by the
record.’”) (quoting Proctor v. Vishay Intertechnology Inc., 584 F.3d 1208, 1226
(9th Cir. 2009)).
II. Jonassen’s breach of a handbook claim fails because Jonassen cannot
show that the Port made a specific promise of specific treatment or that
Jonassen relied on such a promise.
First, Jonassen’s claim fails because he cannot establish the necessary
elements for breach of an employee handbook. Under Washington law, employees
may enforce promises made in employee handbooks or manuals, but only for
promises of “specific treatment in specific situations” that an employee relies on.
Thompson v. St. Regis Paper Co., 685 P.2d 1081, 1088 (Wash. 1984) (en banc)
(emphasis omitted). Here, the Port’s policies do not specify any concrete actions
that the Port had to take. For instance, EX-13 states that “[e]ngaging in retaliatory
action is grounds for disciplinary action.” Likewise, HR-22 states that “[r]etaliation
in violation of the policy may result in discipline[.]” These statements are
indefinite and do not require the Port to take concrete actions in response to
specific situations. See Korslund v. DynCorp Tri-Cities Servs., Inc., 125 P.3d 119,
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128 (Wash. 2005) (en banc) overruled on other grounds by Rose v. Anderson Hay
& Grain Co., 358 P.3d 1139, 1145–47 (Wash. 2015) (en banc).
The policies’ statements regarding investigations are also insufficient. HR-
22 merely says that one of the designated employees “will immediately conduct an
investigation[.]” While this promises that the Port will conduct some sort of
investigation, it does not specify a particular manner. And EX-13’s investigatory
provision only concerns the whistleblower’s report—not a subsequent retaliation
claim. Therefore, under this policy, Jonassen cannot claim that the Port breached
its promise to investigate any retaliation claims.
Moreover, Jonassen cannot show reliance because he only submitted an
unsigned declaration that the district court properly refused to consider. See
Canada v. Blain’s Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987) (“This court
has consistently held that documents which have not had a proper foundation laid
to authenticate them cannot support a motion for summary judgment.”) (citing
Hamilton v. Keystone Tankship Corp., 539 F.2d 684, 686 (9th Cir. 1976)).
In sum, Jonassen cannot show a promise of specific treatment or that he
relied on such a promise; therefore, his claim fails.
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III. Jonassen’s claim is also time-barred because he brought suit more than
three years after his reassignment became final and more than three
years after he settled his dispute.
Even if Jonassen could maintain his breach of handbook claim, the court
would still affirm because his claim is time-barred.
Here, Jonassen’s claim accrued on December 28, 2007—the date that
Jonassen acknowledged receipt of his reassignment to the Boiler Room.
Alternatively, Jonassen’s claim accrued on January 4, 2008—the date that the Port
and Jonassen settled their disputes. In either situation, Jonassen brought his claim
on January 7, 2011—outside the three-year statute of limitations. See DePhillips v.
Zolt Constr. Co., 959 P.2d 1104, 1111 (Wash. 1998) (en banc) (applicable statute
of limitations is three-years). Jonassen argues that his claim accrued on January 7,
2008, when he received the Port’s letter memorializing the settlement. But this
letter merely confirms the parties’ January 4, 2008 settlement. It does not change
the date at which Jonassen could have brought suit.
IV. Jonassen’s claim also fails because he failed to exhaust the CBA’s
mandatory grievance procedure.
Finally, even absent its first two rationales, the court would affirm because
Jonassen failed to exhaust the CBA’s grievance procedures. See Woodbury v. City
of Seattle, 292 P.3d 134, 136–37 (Wash. Ct. App. 2013) (demoted fire chief could
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not bring whistleblower retaliation claim because he failed to exhaust collective
bargaining agreement’s grievance procedures). Furthermore, Washington does not
recognize a claim “for disciplinary action less severe than termination.” Id. at 136.
Jonassen’s claim is only for retaliation, harassment, and discrimination. Therefore,
Jonassen cannot bring a claim against the Port outside of the CBA’s grievance
procedures.
AFFIRMED.
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FILED
Jonassen v. Port of Seattle, 14-35560
MAR 28 2017
PAEZ, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the judgment. In my view, the limitations and exhaustion issues
are not as clear-cut as the memorandum suggests. Nonetheless, even if I were to
assume that these defenses do not bar Jonassen’s handbook claim, Jonassen failed
to establish reliance, which is an essential element of his claim. I therefore would
affirm on that limited basis.