                                                                            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                           NOT FOR PUBLICATION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


                                          2
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).




                                           3
      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,




                                           4
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.




                                           5
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



                                           6
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.




                                          7
                                                                             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.
