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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No. 85708-8-I

3. Causation

To satisfy the third element of his retaliation claims, Bittner must show that

retaliation was a “substantial factor” motivating the adverse action. Cornwell, 192

Wn.2d at 412. A substantial factor “must be a significant motivating factor, but

need not be the sole factor, or even a determining factor, in the decision.” City of

Seattle v. Am. Healthcare Servs., Inc., 13 Wn. App. 2d 838, 858, 468 P.3d 637

(2020). “When the record contains reasonable but competing inferences of both

discrimination and nondiscrimination, the trier of fact must determine the true

motivation.” Scrivener v. Clark Coll., 181 Wn.2d 439, 445, 334 P.3d 541 (citing

Rice v. Offshore Sys., Inc., 167 Wn. App. 77, 90, 272 P.3d 865 (2012)).

Here, Bittner produced on summary judgment the following evidence of

Symetra’s retaliatory intent. In September 2017, Ward e-mailed Fry asking

whether they should offer “coaching” to Bittner because he “has given some bad

advice to employees in the past who are feel[ing] disgruntled with Symetra, e.g.

you should seek legal advice” and “[m]y concern is that he will do the same with

[Doe].” In July 2018, shortly after Symetra concluded its investigation into Doe’s

claim, Ward instructed Fry in an e-mail to tell Bittner to stop “[a]dvising employees

to seek legal advice. . . . It’s not your place to tell any Symetra employee to seek

legal advice, e.g. D. Rotz.” Following that meeting, Fry wrote a letter to Bittner that

outlined performance areas that “need[] to improve” and instructed him to stop

“[a]dvising employees to seek legal advice” and to “[k]now when to listen and keep