Wash. Court of Appeals published opinion — 857088.pdf

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quiet.” Fry and Costello both conveyed to Bittner that he “would be fired” if he

continued telling Symetra employees to seek legal advice because he “hurt the

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No. 85708-8-I

organization, cost the organization money, . . . required additional legal resources.”

When Ward was asked in his deposition whether it was “appropriate for Mr. Fry to

tell Mr. Bittner [to] stop telling employees to seek legal advice,” he responded,

“[G]iven that [Fry] knew that [Bittner] had done that, specifically Debbie Rotz, yes,

I think it was appropriate” because “it’s logical to me that a company would want

to avoid litigation as much as possible.” Symetra’s CR 30(b)(6) designee similarly

testified, “[I]nstead of telling employees to seek legal advice . . . we have this . . .

internal process that we really want to be able to go through.”

Viewing this evidence in the light most favorable to Bittner and drawing all

reasonable inferences therefrom in his favor, a reasonable juror could conclude

that Symetra’s retaliatory motive was a substantial factor in the adverse actions.

Additionally, these statements by Symetra constitute direct evidence of Symetra’s

retaliatory intent because they reveal that its employment decisions regarding

Bittner were motivated by a desire to retaliate against him for engaging in protected

activity. See Fulton, 169 Wn. App. at 148 n.17. Thus, Bittner has produced

sufficient direct evidence to survive summary judgment on his retaliation claim.

Symetra maintains we should apply the McDonnell Douglas framework

instead of the direct evidence test because Bittner “has presented no ‘direct