Warnek v. ABB Combustion Engineering Services, Inc.

Smith, J. The United States District Court for the Eastern District of Washington, the Honorable Robert H. Whaley, certified two questions of law relating to refusal by Defendant ABB Combustion Engineering Services, Inc. to hire Plaintiffs in the State of Washington because they made claims for workers’ compensation benefits during previous employment with Defendant in the State of Colorado. We accepted certification under chapter 2.60 RCW. — 453 — Each question can be answered “yes” or “no.” We answer “no” to both. STATEMENT OF FACTS 1 Plaintiffs Lucille B. Warnek and Michael D. Ocampo are Washington residents and members of the International Brotherhood of Boilermakers (Union). They had been hired by Defendant, ABB Combustion Engineering Services, Inc., a/k/a ABB C-E Services, Inc., in the past under a collective bargaining agreement between Defendant and the Union. Defendant’s jobs were located in several Midwestern and Western states, including Washington. In May 1997 Plaintiffs were employed by Defendant in the State of Colorado where they claimed to have suffered work-related injuries. They filed for workers’ compensation benefits under Colorado’s workers’ compensation laws and were subsequently laid off from their jobs in Colorado by Defendant. In July 1997, upon being cleared for full work duty by a physician, Plaintiffs were given job assignments by the Union to a construction job Defendant had won in Long-view, Washington. Defendant rejected Plaintiffs for this assignment, asserting that their Colorado workers’ compensation claims were fraudulent. Plaintiffs dispute this assertion. According to Defendant, Plaintiffs were placed on its “do not hire” list under terms of its collective bargaining agreement with the Union. In August 1997 Plaintiffs filed an action in the United States District Court for the Eastern District of Washington under the diversity of citizenship provisions of 28 U.S.C. § 1332.2 Their complaint asserted that Defendant’s conduct — 454 — constituted discrimination and/or retaliation in violation of RCW 51.48.025(1) and (2).3 In December 1997 Defendant filed a motion for summary judgment in the United States District Court asserting that “(1) Plaintiffs had no right to be hired apart from any right granted in the collective bargaining agreement, which could not form the basis of their state law claim because of federal preemption; and (2) Plaintiffs’ claims fall outside the scope of Washington’s statutory cause of action for violations of Wash. Rev. Code § 51.48.025 and the related common-law tort cause of action described in Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wash. 2d 46 (1991) and its progeny.”4 The United States District Court denied the motion, ruling that (1) Plaintiffs’ claims were not preempted by federal law because, inter alia, the cause of action recognized in Wilmot extends to refusals to hire if the refusal is retaliation for the filing of a workers’ compensation grievance; and (2) if the discriminatory act occurs in Washington, it is actionable under Washington law even if the workers’ compensation claim is filed pursuant to another state’s workers’ compensation scheme.5 In February 1998 Defendant filed in the District Court a motion for reconsideration and/or certification to the Supreme Court of Washington. The motion claimed (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 — 455 — to the Washington Supreme Court is appropriate if the court does not grant summary judgment.6 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.7 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.8 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 § 51.48.025 and Wilmot v. Kaiser Alum. & Chem. Corp., 118 Wn.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?”9 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. — 456 — 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 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 — 457 — employee may institute the action on [the employee’s] own behalf.”10 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.11 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.12 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.13 To reach a contrary conclusion would go beyond the statute’s clear and unambiguous language14 resulting in this court — 458 — inappropriately “reading] into a statute matters which are not there.”15 Neither Wilmot v. Kaiser Aluminum & Chem. Corp.16 nor the wrongful discharge requirements subsequently adopted in Gardner v. Loomis Armored, Inc.17 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 Wilmot18 and Gardner19 require that an actual employee be discharged from employment in order to establish an action for wrongful discharge.20 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.21 In denying Defendant’s motion for summary judgment, — 459 — the United States District Court interpreted Johnson v. Safeway Stores, Inc.22 as “extending Wilmot to include former employee’s claim that employer coerced employee into not filing workers compensation claim.”23 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.”24 There is no evidence on the limited record before us that that has occurred in this case. Second Certified Question The second question certifiéd by the United States District Court is “Do either of the causes of action described by Wash. Rev. Code § 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 to another state’s workers’ compensation scheme?”25 We answer the question “No.” “Employment discrimination” may be manifest in many different ways,26 but in answering this question we limit its application to wrongful discharge. Plaintiffs have interpreted RCW 51.48.025 to indicate (1) the statute on its face does not specifically require a filing for benefits with the Washington State Department of — 460 — Labor and Industries in order to come within the protection of the statute;27 and (2) the language of the statute does not specifically limit “employer” to an employer in the state of Washington.28 Plaintiffs’ interpretation is not correct. RCW 51.48.025 makes no provision for complaints by employees claiming wrongful discharge based upon their filing for workers’ compensation benefits under the laws of another state as asserted by Plaintiffs, although it conceivably would allow complaints by employees claiming wrongful discharge or discrimination because they have filed for workers’ compensation benefits in the State of Washington. We are satisfied the wording of the statute evidences a legislative intent not to include in the protected class under RCW 51.48.025 employees who file for workers’ compensation benefits in another state.29 Plaintiffs are in error in their interpretation of “employer.” The word “employers” in RCW 51.48.025 refers only to employers in the State of Washington30 and does not include employers outside the state.31 Plaintiffs cite Marquis v. City of Spokane32 and Burnside v. Simpson Paper Co.33 to support their interpretation of RCW 51.48.025. Those cases are not authority under the facts of this case. The statutes involved in those cases, RCW 49.60.030 and RCW 49.60.010, are codified under — 461 — chapter 49.60, the “law against discrimination,”34 which, under RCW 49.60.020, provides that the chapter “shall be construed liberally for the accomplishment of . . . [its] purposes.” There is no similar provision in Title 51 RCW. In fact Title 51 RCW by its wording suggests a narrow construction,35 but this court has determined it should be liberally construed.36 Under the limited facts stated in these certified questions, an employee may not initiate a lawsuit under the wrongful discharge cause of action articulated in Wilmot. Wrongful discharge is generally allowed under four circumstances: “(1) where employees are fired for refusing to commit an illegal act; (2) where employees are fired for performing a public duty or obligation, such as serving jury duty; (3) where employees are fired for exercising a legal right or privilege, such as filing workers’ compensation claims; and (4) where employees are fired in retaliation for reporting employer misconduct, i.e., whistleblowing.”37 Even assuming Plaintiffs under the facts of this case have standing to sue under chapter 49.60 RCW, they would at best fall into category (3) (employees fired for exercising a legal right or privilege, such as filing workers’ compensation claims).38 They do not meet the wrongful discharge requirements articulated in Wilmot.39 Simply stated, Plaintiffs have not been “fired” or “discharged.” They are — 462 — merely former employees who were not rehired. Although Plaintiffs filed for workers’ compensation benefits in the State of Colorado during the course of their prior employment by Defendant in that state, they are not current employees who have been fired, nor have they otherwise exercised, or communicated an intent to exercise, a right covered under Title 51 RCW.40 Discharge during the course of employment and not being rehired for new employment are two distinctly different circumstances. Because Plaintiffs are not current employees, but are former employees 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.41 Plaintiffs answer to the contrary.42 Because the question of pre-emption was not included in the certified questions, we will not address it in this opinion. SUMMARY AND CONCLUSION 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 — 463 — 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. Guy, C.J., Alexander and Sanders, JJ., and Dolliver, J. Pro Tern., concur. Footnotes [1] The Statement of Facts is principally based upon the Order Granting Motion for Certification of Issues signed by the Honorable Robert H. Whaley on April 13, 1998 (Certified R. 28). The record does not contain the collective bargaining agreement between the Union and Defendant, but was referred to by counsel for both parties during oral argument. [2] Compl. for Damages and Jury Demand at 1 (Certified R. 1). [3] Compl. for Damages and Jury Demand at 3 (Certified R. 1). [4] Order Granting Mot. for Certification of Issues at 2 (Certified R. 28). [5] Id. [6] Mem. in Supp. of Def.’s Mot. for Recons, and/or Certification to the Washington Supreme Court (Certified R. 23). [7] Order Granting Mot. for Certification of Issues at 3 (Certified R. 28). [8] Id. [9] Order Granting Mot. for Certification of Issues at 3 (Certified R. 28). [10] There is nothing in the record submitted with the certified questions which indicates whether Plaintiff employees followed the procedure required by RCW 51.48.025 before proceeding on their own behalf. We do not express an opinion whether that procedure is required before Plaintiffs could institute their action in the United States District Court. [11] Opposing Br. of Pis. [12] Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 227, 685 P.2d 1081 (1984). [13] Dominick v. Christensen, 87 Wn.2d 25, 26, 548 P.2d 541 (1976) (“An expression of one thing in a statute excludes others not expressed.”). [14] Erection Co. v. Department of Labor & Indus., 121 Wn.2d 513, 518, 852 P.2d 288 (1993). [15] Rhoad v. McLean Trucking Co., 102 Wn.2d 422, 426, 686 P.2d 483 (1984). [16] 118 Wn.2d 46, 821 P.2d 18 (1991). [17] 128 Wn.2d 931, 913 P.2d 377 (1996). [18] Wilmot, 118 Wn.2d at 68 (“[P]laintiff must show (1) that [plaintiff] . . . 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 [plaintiff] . . . was discharged; and (3) that there is a causal connection between the exercise of the legal right and the discharge.”). [19] Gardner, 128 Wn.2d at 941 (“[Plaintiffs] must prove the existence of a clear public policy (the clarity element). . . . (2) . . . that discouraging the conduct in which they engaged would jeopardize the public policy (the jeopardy element). . . . (3) . . . that the public-policy-linked conduct caused the dismissal (the causation element). . . . [, and] (4) [t]he defendant must not be able to offer an overriding justification for the dismissal (the absence of justification element).”). [20] Wilmot, 118 Wn.2d at 68 (“Plaintiff must show ... (2) that [plaintiff] . . . was discharged.”). [21] Gardner, 128 Wn.2d at 945 (“Under the second element, the employee’s discharge must jeopardize . . . public policy. . . Wilmot, 118 Wn.2d at 67 (“[A]n employee who alleges wrongful discharge in violation of public policy ‘has the burden of proving [the employee’s] dismissal violates a clear mandate of public policy.’ ” (quoting Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 232-33, 685 P.2d 1081 (1984)). [22] 67 Wn. App. 10, 833 P.2d 388 (1992). [23] 0rder Den. Summ. J. and Mot. to Strike at 2 (Certified R. 21). [24] Johnson, 67 Wn. App. at 13. [25] Order Granting Mot. for Certification of Issues at 3 (Certified R. 28). [26] Wilmot, 118 Wn.2d 46 (wrongful discharge); Allison v. Housing Auth., 118 Wn.2d 79, 821 P.2d 34 (1991) (retaliatory lay off); Roberts v. ARCO, 88 Wn.2d 887, 568 P.2d 764 (1977) (transfer, demotion and termination); Xieng v. People’s Nat’l Bank, 120 Wn.2d 512, 844 P.2d 389 (1993) (failure to promote); Reese v. Sears, Roebuck & Co., 107 Wn.2d 563, 731 P.2d 497 (1987) (failure to accommodate disability); and In re Case E-368, 65 Wn.2d 22, 395 P.2d 503 (1964) (refusal to accept employment application). [27] Opposing Br. of Pis. at 5-6. [28] Id. at 6. [29] Dominick v. Christensen, 87 Wn.2d 25, 26, 548 P.2d. 541 (1976) [30] RCW 51.08.070 (“ ‘Employer’ means any person, body of persons, corporate or otherwise, and the legal representatives of a deceased employer, all while engaged in this state in any work covered by the provisions of this title [Title 51, Industrial Insurance Act]. . . .”). [31] RCW 51.08.010 (“Unless the context indicates otherwise, words used in this title shall have the meaning given in this chapter.” [Title 51, Industrial Insurance Act]). [32] 130 Wn.2d 97, 922 P.2d 43 (1996). [33] 66 Wn. App. 510, 832 P.2d 537 (1992), aff’d, 123 Wn.2d 93, 864 P.2d 937 (1994). [34] The purpose of the “law against discrimination” is to prevent, eliminate and provide a remedy for discrimination based on race, creed, color, national origin, families with children, sex, marital status, age or the presence of any sensory, mental or physical disability or the use of a trained dog guide or service animal by a disabled person. Employment discrimination is included. RCW 49.60.010. See RCW 49.60.180 for unfair employment practices of employers. Plaintiffs make no claim of discrimination under the law against discrimination nor do the facts of this case suggest an issue under that law. [35] RCW 51.04.010. [36] See Double D Hop Ranch v. Sanchez, 133 Wn.2d 793, 798, 947 P.2d 727, 952 P.2d 590 (1997). [37] Gardner, 128 Wn.2d at 936 (citing Dicomes v. State, 113 Wn.2d 612, 618, 782 P.2d 1002 (1989)). [38] Id. [39] 118 Wn.2d at 68. [40] Id. [41] Reply Br. of Def. at 12. [42] Opposing Br. of Pis. at 9.