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Moran v. Washington Fruit & Produce

February 12, 1991; As Corrected February 20, 1991.

MICHAEL R. MORAN, APPELLANT,
v.
WASHINGTON FRUIT & PRODUCE, RESPONDENT



Munson, J. Green, C.j., and Shields, J., concur.

Author: Munson

Michael R. Moran appeals the dismissal of his suit for unlawful discharge contending the administrative complaint process provided by the Industrial Insurance Act, specifically RCW 51.48.025(2), does not preclude an independent tort action. We affirm.

Mr. Moran was employed by Washington Fruit & Produce (WFP) for 10 years. In August 1983, WFP moved to a new warehouse. Mr. Moran's new office was inside the warehouse where propane powered forklifts passed by frequently. The office had no outside ventilation. He began to suffer severe headaches, dizziness, and weakness. WFP installed a filter and fan in the office in an attempt to correct the problem. The symptoms continued and Mr. Moran went to his physician on May 13, 1988. His physician determined his blood carboxyhemoglobin (carbon monoxide) level was 33. Anything above a level of 25 is life threatening. His physician advised him not to return to work because he would be in danger of having a stroke. Mr. Moran returned to work the next day and completed a 1-hour shift. Afterward, he told his supervisors he was going to file a workers' compensation claim. Mr. Moran asserts his supervisors told him to turn over his keys as his employment was terminated.

On June 6, 1988, Mr. Moran was released by his physician to return to work. On June 11, he met with WFP supervisors to discuss whether he still had a job or could have his job back. WFP imposed severe limitations on Mr. Moran if he returned. He then said, "If you want me to leave, I'll just leave." In response, a WFP supervisor said Mr. Moran would be paid for the rest of the pay period.*fn1 Mr. Moran later filed a claim in superior court for wrongful discharge. He also filed a claim for his condition with the Department of Labor and Industries. WFP did not oppose that filing.

WFP subsequently filed a motion for summary judgment dismissal; it was denied. Upon motion for reconsideration, the court reversed itself and granted summary judgment finding Mr. Moran had not exhausted his administrative remedies under RCW 51.48.025(2).

[1, 2] The Supreme Court recognizes "a cause of action in tort for wrongful discharge if the discharge of the employee contravenes a clear mandate of public policy." Thompson v. St. Regis Paper Co., 102 Wash. 2d 219, 232, 685 P.2d 1081 (1984). This is a narrow public policy exception. Grimwood v. University of Puget Sound, Inc., 110 Wash. 2d 355, 367, 753 P.2d 517 (1988). It does not extend to those instances in which a statute "both states a policy and affords a remedy." Jones v. Industrial Elec.-Seattle, Inc., 53 Wash. App. 536, 538-39, 768 P.2d 520 (1989). The Industrial Insurance Act, RCW Title 51, establishes a quid pro quo compromise between employees and employers in which the employee gives up common law actions and remedies and the employer pays some claims for which it would not be liable under the common law. Wolf v. Scott Wetzel Servs., Inc., 113 Wash. 2d 665, 668-69, 782 P.2d 203 (1989). The act accomplished this through an exclusive remedy provision, RCW 51.04.010.*fn2 Wolf, at 669. RCW 51.48.025*fn3

implements a public policy of protecting employees' rights to file claims for workers' compensation. Therefore, the procedure in RCW 51.48.025 is a remedy provision which creates an exclusive remedy. It sets forth the procedure to be followed when an employee believes his rights under the statute have been denied. Mr. Moran did not follow that procedure; he did not file a claim with the Director pursuant to RCW 51.48.025(2).

Although Mr. Moran contends the words "may file" in RCW 51.48.025(2) indicate the statutory procedure is permissive, Jones interpreted a statute*fn4 with substantially similar language, and held this language created a remedy which prevented the application of the public policy exception established in St. Regis. Jones involved an interpretation of the Washington Industrial Safety and Health Act of 1973, RCW 49.17.160. That act provides for filing a complaint with the Director within 30 days after a violation occurs; if the Director determines no violation has occurred, the employee has 30 days in which to file his own action in

superior court. It is the failure to file his own action which raised the issue in Jones. Here, no initial complaint was made to the Director. Mr. Moran cannot maintain an action based on the St. ...


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