Jones v. Industrial Electric-Seattle, Inc.

• Decision Date: 28 February 1989
• Docket Number: No. 11964-1-II,INC,ELECTRIC-SEATTL,11964-1-II
• Citation: 768 P.2d 520,53 Wn.App. 536
• Parties: , 7 IER Cases 1728 Michael Paul JONES, Appellant, v. INDUSTRIAL, and Robert E. Bayley Construction, Inc., Respondent.
• Court: Washington Court of Appeals

Page 536

53 Wn.App. 536

768 P.2d 520, 7 IER Cases 1728

Michael Paul JONES, Appellant, v. INDUSTRIAL ELECTRIC-SEATTLE, INC., and Robert E. Bayley

Construction, Inc., Respondent.

No. 11964-1-II.

Court of Appeals of Washington,

Division 2.

Feb. 28, 1989.

Michael E. Ferrell, Taylor & McConnell, Tumwater, for appellant.

John O. Burgess, Janice E. Shave, Short Cressman & Burgess, Seattle, for respondent.

WORSWICK, Judge.

Michael Paul Jones appeals a summary judgment dismissing as untimely his complaint for retaliatory discharge. The dispositive issue is whether RCW 49.17.160, a section of the Washington Industrial Safety and Health Act of 1973, affords the exclusive remedy for Jones's complaint. We affirm, holding that it does, and that Jones is bound by its time limitations.

Jones was terminated from employment on a construction project after making several complaints about unsafe working conditions. Believing that the discharge stemmed from the complaints, he filed a discrimination complaint with the Director of the Department of Labor and Industries pursuant to RCW 49.17.160(2). ¹ After a Department investigation, the Director notified Jones by letter that the Department would take no action. About two years after receiving the Director's letter, Jones filed this action in Superior Court. Although his complaint purported to plead the "tort of abusive/retaliatory discharge" and the "tort of outrage," it expressly invoked the court's jurisdiction under RCW 49.17.160. The motion for summary judgment of defendant Industrial Electric-Seattle, Inc., was granted because of Jones's failure to bring the action within 30 days of the Director's notice, as provided in RCW 49.17.160(2).

Jones concedes that his employment was at the employer's will, and that he would have no cause of action but for the legislative policy declared in RCW 49.17.160. He contends, nevertheless, that he is free to bring an action without regard to the time constraints of that section. He relies heavily on Thompson v. St. Regis Paper Co., 102 Wash.2d 219, 685 P.2d 1081 (1984). ² His reliance is misplaced.

So far as it applies here, Thompson created, as a narrow exception to the employment at will doctrine, a tort of wrongful discharge where the discharge contravenes a clear mandate of public policy. Thompson 102 Wash.2d at 202, 685 P.2d 1081. The opinion was cautiously worded, however, and the court did not purport to deal with a policy arising from a statute that also supplied a remedy for violation of the policy. In Grimwood v. University of Puget Sound, Inc., 110 Wash.2d 355, 367, 753 P.2d 517 (1988), the court, finding it unnecessary to do so, expressly declined to decide that question. Because it is squarely presented here, we deal with it now.

It is axiomatic that

... the courts may only ... legislate in fields left vacant by the legislature. A legislative enactment, intended to be comprehensive upon a subject, pre-empts that field, with the result that the court's constitutional function with regard to it is thereafter limited to an interpretation of what the legislature meant by the language used in the statute.

Windust v. Department of Labor & Indus., 52 Wash.2d 33, 36, 323 P.2d 241 (1958). RCW 49.17.160 both states a policy and affords a remedy. Whether the action contemplated by the statute is brought by the Department or by the employee, the court is empowered to order "all appropriate relief." A more comprehensive remedy could not be imagined, and there is no room for "judicial legislation." The statute is binding in all aspects. Jones's failure to observe the time limit for commencement of a private action doomed his claim. Accord Portillo v. G.T. Price Prods., Inc., 131 Cal.App.3d 285, 182 Cal.Rptr. 291 (1982); Bonham v. Dresser Indus., Inc., 569 F.2d 187 (3d Cir.1977), cert. denied, 439 U.S. 821, 99 S.Ct. 87, 58 L.Ed.2d 113 (1978). Compare Brown v. Transcon Lines, 284 Or. 597, 588 P.2d 1087 (1978) (incomplete remedy provided by statute did not abrogate pre-existing common law remedy). See also Brockmeyer v. Dun & Bradstreet, 113 Wis.2d 561, 335 N.W.2d 834, 842 n. 17 (1983).

Jones's additional contentions can be disposed of briefly. He attacks the statute on constitutional vagueness and equal protection grounds, but he did not raise those contentions in the Superior Court. He may not do so here. In civil cases, a constitutional challenge may not routinely be raised for the first time on appeal unless it relates to the court's jurisdiction. Aripa v. Department of Social & Health Servs., 91 Wash.2d 135, 141, 588 P.2d 185 (1978); Department of Labor & Indus. v. Wendt, 47 Wash.App. 427, 431, 735 P.2d 1334 (1987). These challenges do not; we will not consider them. ³

Finally, we find no basis in law or fact for Jones's assertion that the 30-day limitation period should be tolled for equitable reasons. The statute is clear on its face, notwithstanding Jones's apparent claim that he did not understand his rights. See Wood v. Gibbons, 38 Wash.App. 343, 685 P.2d 619, review denied, 103 Wash.2d 1009 (1984). Jones was not deceived or misled by anyone, nor was anything concealed from him. Stueckle v. Sceva Steel Bldgs., Inc., 1 Wash.App. 391, 461 P.2d 555 (1969).

PETRICH, A.C.J., and REED, J., concur.

1 RCW 49.17.160 provides, in its entirety:

Discrimination against employee filing complaint, instituting proceedings or testifying prohibited--Procedure--Remedy. (1) No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this chapter.

(2) Any employee...