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Warnek v. Abb Combustion Engineering3/4/1999
yees who have been refused rehiring, they also do not satisfy the wrongful discharge requirements articulated in Gardner.
There are not sufficient facts before us on the certified questions to determine whether conceivably Gardner might provide a cause of action for wrongful discharge or discrimination based upon the filing by an employee for workers' compensation benefits under the laws of another state if the employee is "fired" or discharged in this state for that reason. But the limited facts before us in this case do not justify Discussion of that issue.
Pre-emption
Defendant argues in its brief that Plaintiffs' case is pre-empted by federal law. Plaintiffs answer to the contrary. Because the question of pre-emption was not included in the certified questions, we will not address it in this opinion.
SUMMARY AND CONCLUSION
The courts of the State of Washington are not preempted from issuing a ruling in a lawsuit for wrongful discharge, commenced under RCW 51.48.025 and the wrongful discharge cause of action articulated in Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 821 P.2d 18 (1996), when interpretation of neither the National Labor Relations Act nor the parties' collective bargaining agreement would necessarily be required in making a decision.
A former employee not rehired in the State of Washington because the employee filed a workers' compensation grievance during the course of previous employment with the employer in another state is not entitled to file a lawsuit for employment discrimination based upon wrongful discharge under RCW 51.48.025 or Wilmot.
An employee may not commence a lawsuit for employment discrimination based upon wrongful discharge under RCW 51.48.025 or Wilmot when discharge in the State of Washington is motivated by the filing by the employee of a workers' compensation claim under another state's workers' compensation scheme.
For the reasons stated in this opinion, we answer "no" to both questions certified from the United States District Court for the Eastern District of Washington.
MADSEN, J. (concurring/Dissenting) -- I agree with the majority that Warnek and Ocampo have failed to state a cause of action under RCW 51.48.025.
However, the circumstances of Warnek's and Ocampo's union employment situation are such that they have routinely though intermittently worked for the same employer. If the cause of action afforded under Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 821 P.2d 18 (1991) to employees against employers who retaliate for asserting workers' compensation rights does not apply here, as the majority concludes, then a significant class of employees are without remedy for such retaliation. Such a result is contrary to the strong public policy of protecting workers who exercise their rights under the quid pro quo of the workers' compensation scheme. Therefore, I agree with the Dissent that the existence of a long-term, recurring employment relationship is sufficient to bring plaintiffs within the class of employees entitled to maintain a cause of action under Wilmot, provided they can otherwise make out the prima facie case for the cause of action.
In this case, Warnek and Ocampo were sent to an ABB Colorado project where they were allegedly injured on the job. They filed worker compensation insurance claims in Colorado and were laid off by ABB after being medically cleared to return to work. ABB now contends these claims were fraudulent, but the record is silent as to whether ABB raised this issue in Colorado and as to the outcome of Warnek and Ocampo's claims in Colorado. Su
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