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Warnek v. Abb Combustion Engineering3/4/1999
Oral Argument Date: 11/18/1998
Source of Appeal: Date first document (petition, etc) was filed at Supreme Court: 04/21/1998
Judges: Authored by Charles Z. Smith Concurring: Richard P. Guy James M. Dolliver Gerry L. Alexander Richard B. Sanders Dissenting: Barbara A. Madsen Charles W. Johnson Barbara Durham
En Banc
The United States District Court for the Eastern District of Washington, the Honorable Robert H. Whaley, certified two questions of law relating to refusal by Defendant ABB Combustion Engineering Services, Inc. to hire Plaintiffs in the State of Washington because they made claims for workers' compensation benefits during previous employment with Defendant in the State of Colorado. We accepted certification under chapter 2.60 RCW. Each question can be answered "yes" or "no." We answer "no" to both.
STATEMENT OF FACTS
Plaintiffs Lucille B. Warnek and Michael D. Ocampo are Washington residents and members of the International Brotherhood of Boilermakers (Union). They had been hired by Defendant, ABB Combustion Engineering Services, Inc., a/k/a ABB C-E Services, Inc., in the past under a collective bargaining agreement between Defendant and the Union. Defendant's jobs were located in several Midwestern and Western states, including Washington. In May 1997 Plaintiffs were employed by Defendant in the State of Colorado where they claimed to have suffered work-related injuries. They filed for workers' compensation benefits under Colorado's workers' compensation laws and were subsequently laid off from their jobs in Colorado by Defendant.
In July 1997, upon being cleared for full work duty by a physician, Plaintiffs were given job assignments by the Union to a construction job Defendant had won in Longview, Washington. Defendant rejected Plaintiffs for this assignment, asserting that their Colorado workers' compensation claims were fraudulent. Plaintiffs dispute this assertion. According to Defendant, Plaintiffs were placed on its "do not hire" list under terms of its collective bargaining agreement with the Union.
In August 1997 Plaintiffs filed an action in the United States District Court for the Eastern District of Washington under the diversity of citizenship provisions of 28 U.S.C. sec. 1332. Their complaint asserted that Defendant's conduct constituted discrimination and/or retaliation in violation of RCW 51.48.025(1) and (2).
In December 1997 Defendant filed a motion for summary Judgement in the United States District Court asserting that "(1) Plaintiffs had no right to be hired apart from any right granted in the collective bargaining agreement, which could not form the basis of their state law claim because of federal preemption; and (2) Plaintiffs' claims fall outside the scope of Washington's statutory cause of action for violations of Wash. Rev. Code sec.51.48.025 and the related common law tort cause of action described in Wilmot v. Kaiser Alum. & Chem. Corp., 118 Wash. 2d 46 (1991) and its progeny."
The United States District Court denied the motion, ruling that (1) Plaintiffs' claims were not preempted by federal law because, inter alia, the cause of action recognized in Wilmot extends to refusals to hire if the refusal is retaliation for the filing of a workers' compensation grievance; and (2) if the discriminatory act occurs in Washington, it is actionable under Washington law even if the workers' compensation claim is filed pursuant to another state's workers' compensation scheme.
In February 1998 Defendant filed in the District Court a motion for reconsideration and/or certification to the Supreme Court of Washington. The motion c
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