Wash. Court of Appeals published opinion — 857088.pdf

Citation: Wash. Court of Appeals published opinion — 857088.pdf
Jurisdiction: Washington (state)
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Original Source: https://www.courts.wa.gov/opinions/pdf/857088.pdf ↗

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declaration as ‘self-serving’ is essentially meaningless. All evidence submitted by

a party should be self-serving.”). Here, Bittner stated in his sworn declaration and

deposition testimony that he told Doe and Rotz to seek legal advice, and the record

contains numerous examples of Symetra admitting that it knew Bittner had done

so. Bittner also provided similar statements regarding his opposition to age

discrimination against Jaggers, and he produced an e-mail in which he

documented these concerns to his superiors. Construed in the light most favorable

to Bittner, this evidence creates genuine fact issues as to whether he engaged in

protected conduct.

2. Adverse action

Turning to the second element of Bittner’s retaliation claim, an adverse

employment action is “a change in employment that is more than an inconvenience

or alteration of one’s job responsibilities,” and it includes a demotion, adverse

transfer, or hostile work environment. Boyd v. Dep’t of Soc. and Health Servs.,

187 Wn. App. 1, 13, 349 P.3d 864 (2015). To satisfy this element, the employee

must show that “a reasonable employee would have found the challenged action

materially adverse, meaning it would have ‘dissuaded a reasonable worker from

making or supporting a charge of discrimination.’” Id. (quoting Burlington N. &

Santa Fe R.R. Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 165 L. Ed. 2d 345

(2006)). “[W]hether a particular action would be viewed as adverse by a

reasonable employee is a question of fact appropriate for a jury.” Id.

Here, Bittner has produced sufficient evidence showing he was subjected

to an adverse action. After Bittner’s superiors discovered that he had advised Doe