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Warnek v. Abb Combustion Engineering3/4/1999
bsequently, the Union sent Warnek and Ocampo to an ABB project in Longview, Washington. ABB refused to permit them to work, indicating in July 17, 1997 and July 23, 1997 letters, they were ineligible for "rehire" at least in part as a result of having filed fraudulent claims.
As previously noted, the majority is correct in holding Warnek and Ocampo have not stated a claim under the specific provisions of RCW 51.48.025. For a worker to state a cause of action under that statute, the alleged retaliation must have resulted from an employee's filing a claim for benefits under Title 51 RCW, Washington's Industrial Insurance Act. As Warnek and Ocampo did not file a claim for benefits under Title 51 RCW in this case, they have no action under RCW 51.48.025. However, that does not fully answer the federal court's certified questions.
In Wilmot (again in answer to a question from the United States District Court for the Eastern District of Washington), we specifically concluded RCW 51.48.025 is not an exclusive remedy. Independent of the statute, a worker may file a tort claim for wrongful discharge based on allegations the employer discharged the worker in retaliation for having filed or expressed an intent to file a worker compensation claim. Wilmot, 118 Wn.2d at 52. As we concluded:
Even without RCW 51.48.025, we would acknowledge existence of a clear mandate of public policy against retaliatory discharge of employees for pursuing workers' compensation benefits and allow a tort cause of action for wrongful discharge, as have a number of other jurisdictions.
Wilmot, 118 Wn.2d at 54. We described the common law cause of action as follows:
"The first step, therefore, is for plaintiff to make out a prima facie case for retaliatory discharge. To do this, plaintiff must show (1) that he or she exercised the statutory right to pursue workers' benefits under RCW Title 51 or communicated to the employer an intent to do so or exercised any other right under RCW Title 51; (2) that he or she was discharged; and (3) that there is a causal connection between the exercise of the legal right and the discharge, i.e., that the employer's motivation for the discharge was the employee's exercise of or intent to exercise the statutory rights." Wilmot, 118 Wn.2d at 68-69.
The majority believes the common law cause of action for retaliatory discharge is not established in this case because Warnek and Ocampo received benefits in Colorado, not Washington. The majority also notes they were not ABB employees at the time they were the subject of any retaliation so that this was not a case of retaliatory discharge but a retaliatory refusal to hire. The majority declines to apply the common law cause of action under Wilmot to retaliatory failure to hire. The majority is incorrect on both grounds.
Initially, the parties do not dispute that Warnek and Ocampo have presented at least a prima facie case of retaliation. ABB essentially admits as much. ABB has candidly admitted it did not allow them to work at Longview because of their disability claim in Colorado. ABB's District Manager said in a declaration in the federal district court, "Because of the situation that occurred in the State of Colorado, ABB determined that it did not wish to employ Ms. Warnek or Mr. Ocampo on other jobs." Decl. of Austin Ballou at 2. In other words, ABB terminated the recurring employment relationship with Warnek and Ocampo because they filed worker compensation claims in Colorado.
As to the majority's first issue, the policy expressed in RCW 51.48.025 and in Wilmot is not so narrowly confined to Washington industrial insurance ben
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