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Warnek v. Abb Combustion Engineering3/4/1999
laimed (1) the Washington Industrial Insurance Act does not provide a statutory remedy; (2) there is no recognized claim for wrongful failure to hire absent a statutory directive; (3) there is a right to be hired only under the collective bargaining agreement and claims based upon the collective bargaining agreement are preempted; and (4) certification to the Washington Supreme Court is appropriate if the court does not grant summary Judgement.
On April 13, 1998 the United States District Court granted Defendant's request for certification of controlling state law issues to the Supreme Court of Washington. The motion for reconsideration was denied with leave to renew upon receipt of determination whether the Supreme Court of Washington accepted certification of the issues. We accepted certification on April 21, 1998. First Certified Question
The first question certified by the United States District Court is "Do either of the causes of action described by Wash. Rev. Code sec.51.48.025 and Wilmot v. Kaiser Alum. & Chem. Corp., 118 Wash. 2d 46 (1991) encompass a former employee who is not rehired because the former employee filed a workers' compensation grievance during the course of previous employment with the employer?" We answer the question "No."
A former employee not rehired because the employee filed a workers' compensation grievance during the course of previous employment with the employer may not initiate a lawsuit for employment discrimination based upon wrongful discharge under RCW 51.48.025 or the wrongful discharge cause of action articulated in Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 821 P.2d 18 (1991).
RCW 51.48.025 reads:
(1) No employer may discharge or in any manner discriminate against any employee because such employee has filed or communicated to the employer an intent to file a claim for compensation or exercises any rights provided under this title. However, nothing in this section prevents an employer from taking any action against a worker for other reasons including, but not limited to, the worker's failure to observe health or safety standards adopted by the employer, or the frequency or nature of the worker's job-related accidents.
(2) Any employee who believes that he or she has been discharged or otherwise discriminated against by an employer in violation of this section may file a complaint with the director alleging discrimination within ninety days of the date of the alleged violation. Upon receipt of such complaint, the director shall cause an investigation to be made as the director deems appropriate. Within ninety days of the receipt of a complaint filed under this section, the director shall notify the complainant of his or her determination. If upon such investigation, it is determined that this section has been violated, the director shall bring an action in the superior court of the county in which the violation is alleged to have occurred.
(3) If the director determines that this section has not been violated, the employee may institute the action on his or her own behalf.
(4) In any action brought under this section, the superior court shall have jurisdiction, for cause shown, to restrain violations of subsection (1) of this section and to order all appropriate relief including rehiring or reinstatement of the employee with back pay.
Under RCW 51.48.025(2) an aggrieved employee "may" file a complaint with the Director of Industrial Insurance "within ninety days of the date of the alleged violation." The Director then "shall cause an investigation to be made" as the Director considers appropriate. Within ninety days
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