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Warnek v. Abb Combustion Engineering3/4/1999
after receipt of the complaint the Director "shall notify the complainant of {the Director's} determination." If, upon investigation a violation of RCW 51.48.025(1) has occurred, the Director then "shall bring an action in the superior court of the county in which the violation is alleged to have occurred." Under RCW 51.48.025(3), "the employee may institute the action on. . . {the employee's} own behalf."
Under RCW 51.48.025 an employee may file a complaint for wrongful discharge if the employee has been discharged or otherwise discriminated against by an employer because the employee applied for workers' compensation benefits under the Washington Industrial Insurance Act, Title 51 RCW. Plaintiffs Warnek and Ocampo would interpret the statute as providing for complaints by ex-employees and former employees not rehired for employment because they filed for workers' compensation benefits during prior employment with the employer in another state. This interpretation is similar to the "bad faith" exception to the employment at will doctrine which this Court rejected because it did not properly balance the interest of an employer in running a business against the interest of an employee in maintaining employment. The statute by its plain language does not apply as Plaintiffs suggest, but expressly provides for complaints by employees who have been discharged or otherwise discriminated against during the course of their employment. This evidences a legislative intent not to provide protection under the statute to former employees who have not been rehired because they filed for workers' compensation benefits in the past. To reach a contrary Conclusion would go beyond the statute's clear and unambiguous language resulting in this Court inappropriately "read{ing} into a statute matters which are not there."
Neither Wilmot v. Kaiser Aluminum & Chem. Corp. nor the wrongful discharge requirements subsequently adopted in Gardner v. Loomis Armored, Inc. provide a cause of action for a former employee who is not rehired because the former employee filed a workers' compensation grievance during the course of prior employment with the employer in another state. The causes of action articulated in Wilmot and Gardner require that an actual employee be discharged from employment in order to establish an action for wrongful discharge. Plaintiffs under the limited facts in this case cannot meet that requirement. There is a distinction between discharge or other discrimination during the course of employment and not being rehired for new employment.
Plaintiffs also cannot establish that a clear mandate of public policy has been violated.
In denying Defendant's motion for summary Judgement, the United States District Court interpreted Johnson v. Safeway Stores, Inc. as "extending Wilmot to include former employee's claim that employer coerced employee into not filing workers compensation claim." Although that is correct to a degree, Johnson is more correctly characterized as holding that "an employee has a cause of action in tort if . . . {an} employer successfully prevents the filing of a workers' compensation claim by threats and intimidation." There is no evidence on the limited record before us that that has occurred in this case.
Second Certified Question
The second 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) extend to employment discrimination as to employment in the State of Washington where that discrimination is motivated by the filing of a workers' compensation claim pursuant
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