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Warnek v. Abb Combustion Engineering3/4/1999
k and Ocampo had previously worked for ABB in a variety of locales across the United States, including Idaho, Colorado, North and South Dakota, and Washington. The federal district court found Warnek and Ocampo "have been hired by Defendant in the past to work on jobs in several midwestern and western states, including Washington." Order Granting Mot. For Certifications of Issues at 1-2. Thus, while it is evident Warnek and Ocampo were not full-time employees of ABB, they ostensibly had a recurring employment relationship with ABB.
In the case of their prospective employment in Longview, Washington, they were sent to that jobsite by their Union. In the normal course, they would have worked at the ABB Longview jobsite but for ABB's decision to reject them for some period of time. Any other workers sent by the Union to the site would have been employed. In effect, ABB discharged Warnek and Ocampo by refusing to allow them to work in Longview after the Union had assigned them to that jobsite.
Even if we read the term "employee" as narrowly as the majority suggests, the term arguably applies to former employees who are the subjects of retaliation. Support can be found for this position in the United States Supreme Court decision in Robinson v. Shell Oil Co., 519 U.S. 337, 117 S. Ct. 843, 136 L. Ed. 2d 808 (1997). There, Shell terminated Robinson. Robinson filed an Equal Employment Opportunity Commission charge under Title VII of the Civil Rights Act of 1964. While that charge was pending, Robinson applied for a job with another employer. Shell gave Robinson a very negative reference when the prospective employer contacted it. The United States Supreme Court held that the term "employee" under Title VII of the Civil Rights Act of 1964 was sufficiently ambiguous to extend the coverage of the law to former employees like Robinson. The Court held Robinson established a prima facie case under Title VII of the Civil Rights Act when Shell gave a negative reference on him, even though he was no longer technically a Shell employee. The United States Supreme Court indicated this was consistent with the broad policy of antiretaliation articulated in the Civil Rights Act.
Moreover, it is noteworthy RCW 51.48.025 does not confine its provisions to wrongful discharge. Instead, the statute extends its protection to "{a}ny employee who believes that he or she has been discharged or otherwise discriminated against by an employer in violation of this section{.}" (Emphasis added.) RCW 51.48.025(2). Thus, the public policy in Washington may well extend to discrimination beyond that which would be described as retaliatory discharge. See Johnson v. Safeway Stores, Inc., 67 Wn. App. 10, 833 P.2d 388 (1992) (employee who was denied an opportunity to file an industrial insurance claim due to threats and coercions by his manager stated a cause of action). We do not need to reach that issue here in light of the apparent ongoing relationship between Warnek and Ocampo.
The grave implication of the majority's holding is that all workers referred by a union to the same company on a recurring basis would have no recourse at common law if that company refused to employ them in retaliation for their having filed a worker compensation claim. The ambit of the public policy we announced in Wilmot surely embraces the thousands of Washington workers who are not traditional employees.
In summary, I would respond to the federal court's certified questions by holding Warnek and Ocampo failed to state a cause of action under the specific terms of RCW 51.48.025. However, they could state a case under the common law cause of action articulated in Wilmot where the test for a prima facie cas
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