Thomas E. Bittner, V. Symetra Life Insurance Company ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
THOMAS E. BITTNER, No. 85708-8-1
Appellant, DIVISION ONE
v. PUBLISHED OPINION
SYMETRA NATIONAL LIFE INSURANCE
COMPANY, and JEREMY FREESTONE,
an individual,
Respondents.
FELDMAN, J. — Thomas Bittner sued his former employer, Symetra Life
Insurance Company (Symetra), and its Senior Vice President, Jeremy Freestone,
alleging several violations of the Washington Law Against Discrimination (WLAD),
including retaliation and disability discrimination, as well as various contractual and
wage claims. The trial court dismissed Bittner’s WLAD claims on summary
judgment, and a jury later returned a defense verdict on Bittner’s remaining claims
that proceeded to trial. Bittner appeals the trial court’s dismissal on summary
judgment of his WLAD claims, judgment on the jury verdict, and award of costs to
Symetra. We reverse the trial court’s dismissal of Bittner’s retaliation claims and
remand for further proceedings on those claims. We also vacate the trial court’s
cost award. In all other respects, we affirm.
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I
A. Factual background 1
In 2010, Symetra hired Bittner as a Regional Vice President (RVP) of Sales.
In this role, Bittner supervised a team of sales representatives who sold stop loss
insurance policies. From 2014 onward, Bittner’s sales team consistently exceeded
its annual sales quota. In 2015, Symetra promoted Bittner and expanded his sales
territory.
In October 2014, one of Bittner’s sales representatives, Deborah Rotz,
informed him that the company’s Vice President of Underwriting, David Manning,
had sexually harassed and verbally abused her. Bittner reported Manning’s
conduct to Symetra Human Resources (HR) and encouraged Rotz to do the same,
which she did. In response, an HR representative advised Rotz to “contact Dave
Manning or work it out herself,” and Manning, in turn, accused Rotz of acting
improperly during a sale. When Rotz told Bittner how Symetra had responded to
her complaint, Bitter told her, “[Y]ou need to get legal advice. This isn’t right.”
Symetra fired Rotz in February 2015, and she then sued Symetra alleging, among
other claims, that it unlawfully harassed and discriminated against her on the basis
of gender. Rotz and Symetra settled this lawsuit in 2016.
1 Because the principal issue in this appeal is whether the trial court erred in granting in part
Symetra’s motion for summary judgment, the facts herein are set forth in the light most favorable
to Bittner, the non-moving party, based on the evidence submitted on summary judgment. See
Blue Diamond Grp., Inc. v. KB Seattle 1, Inc., 163 Wn. App. 449, 453, 266 P.3d 881 (2011).
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A similar incident occurred with a Symetra Regional Sales Executive, Jane
Doe. 2 In 2014, Doe confided in Bittner that her manager, Chris Koettker, was
sexually harassing her. As he did with Rotz, Bittner reported the behavior to HR
and encouraged Doe to do the same, which she did. Symetra did not investigate
Doe’s complaints, and Symetra’s Executive Vice President, Michael Fry, told
Bittner to “take [his] nose out of other managers’ business and to mind the matters
in [his] own division.” When Doe expressed her frustration with Symetra’s failure
to respond meaningfully to her complaint, Bittner told her she should “seek legal
advice and find out what she can do.” Doe subsequently left Symetra and then
sent a demand letter to the company accusing it of subjecting her to sexual
harassment and discrimination. Symetra conducted an internal investigation of
Doe’s claims, resolved them via a settlement agreement with Doe, and fired
Koettker.
Bittner’s superiors disapproved of him telling other Symetra employees to
seek legal advice, and they told him so. In September 2017, a senior partner in
HR, Jeffrey Ward, e-mailed Fry:
I believe that [Doe] and Tom [Bittner] communicate with each other
and we know that Tom has given some bad advice to employees in
the past who are feel[ing] disgruntled with Symetra, e.g. you should
seek legal advice.
My concern is that he will do the same with [Doe]. Should we be
concerned about that? If so, would you like me to reach out to Tom?
Would you prefer to offer that coaching to him?
2 “Jane Doe” is a pseudonym.
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In July 2018, after Symetra settled with Doe, Ward again e-mailed Fry suggesting
that he instruct Bittner in an upcoming meeting:
Stop: . . . [a]dvising employees to seek legal advice. You represent
the company. It’s not your place to tell any Symetra employee to
seek legal advice, e.g. D. Rotz.
Ward also recommended that Fry tell Bittner:
Start: . . . [u]nderstanding the significant difference between
sympathy and empathy. . . . [Y]ou certainly shouldn’t advise
[employees] to seek legal advice. . . . [U]nless they are your direct
employee, you cannot advise them but rather guide them to working
with their management team and/or aligned HR.
Following the meeting, Fry wrote a letter to Bittner that “outline[d] additional areas
that we discussed today where your performance as a sales leader in the Benefits
Division needs to improve.” Under a section entitled “Behavior That Must Stop
Immediately,” Fry listed,
1. Behaving impulsively and adding your commentary when it may
not be warranted or advisable. Know when to listen and keep
quiet.
2. Advising employees to seek legal advice.
According to Bittner, Fry made it clear to him that “if I did this again, I would be
fired.” Bittner also recalls that his direct supervisor, Tom Costello, “told me pretty
much I was going to get fired if I did it again.”
The day after Fry’s July 2018 meeting with Bittner, Costello began
documenting a list of performance issues with Bittner that would later “factor[] into”
Symetra’s decision to terminate him. Bittner soon began noticing “intense scrutiny
over just everything I did.” Bittner recalled that “I couldn’t be doing enough. . . .
[O]nce I hit goals they wanted me to hit, they asked me to do something different.”
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In February 2019, Bittner’s new skip-level manager, Freestone, put Bittner on a
60-day performance improvement plan (PIP) and told him that his “position is in
jeopardy” if he did not meet certain expectations relating to managing his sales
team, monitoring his sales metrics, and building his professional relationships.
Around this same time, Bittner’s managers were pressuring him to fire the
oldest member of his sales team, Chuck Jaggers. Freestone told Bittner that the
company “wanted to get younger members on the team in order to get more
production out of the market.” In early October 2019, Freestone and Costello
instructed Bittner to put Jaggers on a PIP and urge Jaggers to retire. Symetra
executives also moved a younger employee from Costello’s team to Bittner’s team
and shifted customers away from Jaggers and to the younger employee. In
response, Bittner e-mailed Costello, “Not . . . sure what I am to do further with my
oldest rep who has hit his goals? . . . I will put him on notice if that is what you
want. I just don’t think it is right and would need to navigate properly to avoid any
view of discrimination against myself or Chuck.” Bittner told Jaggers privately that
he opposed Symetra’s efforts to “manag[e] him out” and that Jaggers should seek
legal advice because “if something happens to me, I hope you know your rights.”
Bittner also voiced his concerns during a phone call with Ward that Jaggers was
being subjected to age discrimination.
In early October 2019, Freestone, Costello, and Ward decided to terminate
Bittner’s employment with Symetra at a scheduled phone call on October 17. On
October 15, Bittner submitted, and Symetra approved, a request for a medical
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leave of absence under the Family and Medical Leave Act (FMLA). 3 When Bittner
did not attend the phone call the following morning, Ward initiated Bittner’s
termination paperwork, but he later “pulled the term[ination] back” when he learned
that Bittner had taken a leave of absence. While Bittner was on leave, Ward cut
off Bittner’s access to Symetra’s systems “because we were going to terminate his
employment,” and Symetra executives placed another employee, Sean Cooley, in
Bittner’s position on an interim basis.
On January 3, 2020, Symetra learned that Bittner’s doctor had cleared him
to return to work on February 14. But on January 13, shortly after Bittner’s FMLA
leave expired, Symetra informed Bittner that it was “exercising our right to fill your
position and/or restructure the role” and placed Cooley into Bittner’s position
permanently. Symetra classified Bittner as an “employee without position” and told
him he could apply for another position within Symetra. On February 18, 2020,
Bittner accepted a position at another company, and he began working there in
March. After learning Bittner had accepted this other position, Symetra considered
Bittner to have resigned from Symetra effective March 31, 2020.
B. Procedural history
Bittner sued Symetra and Freestone alleging (1) retaliation in violation of
the WLAD, (2) “failure to accommodate and enter into the interactive process in
violation of the WLAD,” (3) breach of express unilateral contract, (4) breach of
implied-in-fact contract, (5) willful withholding of wages in violation of RCW 49.48
3 29 U.S.C. § 2601.
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and RCW 49.52.070, (6) breach of unilateral contract, (7) unjust enrichment, and
(8) “disability discrimination in violation of the WLAD.” (Emphasis omitted).
Both parties moved for summary judgment. Bittner’s motion for partial
summary judgment asked the trial court to (a) rule as a matter of law “that
encouraging an employee to consult with a lawyer to better understand her right
to be free from workplace discrimination is . . . protected opposition activity under
RCW 49.60.210,” and (b) dismiss nine of Symetra’s affirmative defenses.
Symetra’s motion sought dismissal of all of Bittner’s claims. At a hearing on the
parties’ summary judgment motions, the trial court denied Bittner’s motion, granted
Symetra’s motion with respect to Bittner’s WLAD claims and dismissed them, and
denied Symetra’s motion with respect to Bittner’s remaining claims. After the
hearing, the trial court issued written orders memorializing its oral rulings. 4
The case proceeded to trial, and the jury did not find Symetra liable on any
claims. The trial court awarded costs to Symetra as the prevailing party. Bittner
appeals.
II
Bittner argues the trial court erroneously dismissed his retaliation claims on
summary judgment. We agree.
A. Statutory framework and standard of review
The WLAD prohibits discrimination in employment on the basis of sex, age,
disability, and other protected characteristics. RCW 49.60.030. To accomplish
4 The order granting in part Symetra’s motion for summary judgment also dismissed Freestone as
a defendant because the only claim asserted against him was Bittner’s retaliation claim.
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the act’s purpose of eliminating and preventing discrimination, the legislature has
directed Washington courts to liberally construe the WLAD’s provisions. RCW
49.60.010; RCW 49.60.020. “[A] plaintiff bringing a discrimination case in
Washington assumes the role of a private attorney general, vindicating a policy of
the highest priority.” Jin Zhu v. N. Cent. Educ. Serv. Dist.-ESD 171, 189 Wn.2d
607, 614, 404 P.3d 504 (2017) (quoting Marquis v. City of Spokane, 130 Wn.2d
97, 109, 922 P.2d 43 (1996)).
The WLAD also prohibits employers from retaliating against persons who
oppose discriminatory practices prohibited by the act. The act makes it unlawful
for an employer to “discharge, expel, or otherwise discriminate against any person
because he or she has opposed any practices forbidden by this chapter, or
because he or she has filed a charge, testified, or assisted in any proceeding under
this chapter.” RCW 49.60.210(1). “It is well recognized that WLAD . . . relies
heavily on private individuals for its enforcement. This reliance would be
unrealistic, to say the least, ‘if this court does not provide them some measure of
protection against retaliation.’” Jin Zhu, 189 Wn.2d at 622-23 (quoting Allison v.
Housing Auth., 118 Wn.2d 79, 94, 821 P.2d 34 (1991)). A WLAD retaliation claim
has three elements: “(1) the employee took a statutorily protected action, (2) the
employee suffered an adverse employment action, and (3) a causal link between
the employee’s protected activity and the adverse employment action.” Cornwell
v. Microsoft Corp., 192 Wn.2d 403, 411, 430 P.3d 229 (2018).
Courts have recognized two methods of proving these elements. The first
is the widely recognized three-step McDonnell Douglas burden-shifting framework.
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Mackey v. Home Depot USA, Inc., 12 Wn. App. 2d 557, 571, 459 P.3d 371 (2020). 5
“Because direct evidence of discriminatory intent is rare,” we employ the
McDonnell Douglas test where an employee can only produce “‘circumstantial,
indirect, and inferential evidence to establish discriminatory action.’” Id. (quoting
Mikkelsen v. Pub. Util. Dist. No. 1 of Kittias County, 189 Wn.2d 516, 526, 404 P.3d
464 (2017)). First, the employee must produce sufficient circumstantial evidence
to establish a prima facie case of retaliation. 6 Id. Second, if the employee makes
this showing, the burden shifts to the employer to articulate a legitimate,
nonretaliatory reason for the employment decision. Id. Third, if the employer
meets their burden, the employee must produce sufficient circumstantial evidence
showing that the employer’s stated reason for the decision was pretextual. Id.While this test allows the employee to survive a motion for summary judgment or
half-time motion based on circumstantial evidence, it also permits an employer to
prevail if the employee is unable to show pretext.
Alternatively, if an employee has direct evidence of their employer’s
retaliatory motivation, the direct evidence test applies. Hegwine v. Longview Fibre
Co., Inc., 162 Wn.2d 340, 359, 172 P.3d 688 (2007) (noting that a WLAD claim
5 The McDonnell Douglas burden-shifting framework originated in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and Washington courts have largely
adopted this framework for evaluating discrimination cases “where the plaintiff lacks direct evidence
of discriminatory animus,” see Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 180, 23 P.3d 440 (2001),
overruled on other grounds by Mikkelsen v. Pub. Util. Dist. No. 1 of Kittias County, 189 Wn.2d 516,
529-32, 404 P.3d 464 (2017).
6 Although Washington courts frequently refer to a plaintiff establishing the elements of a WLAD
claim as having established a “prima facie case,” that terminology is inapplicable where, as here,
an employee seeks to prove a WLAD claim under the direct evidence test instead of the McDonnell
Douglas framework. See Wright v. Southland Corp., 187 F.3d 1287, 1292 (11th Cir. 1999) (“The
phrase ‘prima facie case’” . . . has a meaning under the traditional framework very different from its
meaning under McDonnell Douglas—in the former case it means a case strong enough to go to a
jury.”).
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“supported by direct, as opposed to circumstantial, evidence . . . . is not to be
analyzed under the three-step protocol from McDonnell Douglas”) (internal citation
omitted). Direct evidence includes “discriminatory statements by a decision maker
and other ‘smoking gun’ evidence of discriminatory motive.” Fulton v. Dep’t of Soc.
and Health Servs., 169 Wn. App. 137, 148 n.17, 279 P.3d 500 (2012) (quoting Hill
v. BCTI Income Fund-I, 144 Wn.2d 172, 179, 23 P.3d 440 (2001)). Under the
direct evidence test, the employee must produce “direct evidence that the
defendant acted with a discriminatory motive and that the discriminatory motivation
was a ‘significant or substantial factor in an employment decision.’” Kastanis v.
Educ. Emps. Credit Union, 122 Wn.2d 483, 491-92, 859 P.2d 26 (1993) (quoting
Buckley v. Hosp. Corp. of Am., Inc., 758 F.2d 1525, 1529 (11th Cir. 1985)). If the
employee makes this showing, the employer must “show, by a preponderance of
the evidence, that the same decision would have been reached absent the
discriminatory factor.” Id. “In the face of such evidence, the case goes to the
jury.” 7 Id. While this test requires direct evidence, it allows an employee to avoid
the distinct burden of showing pretext.
7 While we are unaware of any Washington case that has applied the direct evidence test to a
retaliation claim, federal courts have done so. See e.g., Walton v. Harker, 33 F.4th 165, 171 (2022)
(“Employees may prove that their employer retaliated against them for engaging in protected
activity through one of two ways: (1) by direct evidence of retaliatory animus; or (2) through the
McDonnell Douglas burden shifting-framework.”) (internal citation omitted); Naguib v. Trimark Hotel
Corp., 903 F.3d 806, 811 (8th Cir. 2018) (“[R]etaliation claims may be proved by either direct
evidence or under the McDonnell Douglas burden-shifting framework); Sylvester v. SOS Children’s
Villages Ill., Inc., 453 F.3d 900, 902 (7th Cir. 2006) (distinguishing between the “indirect” method of
proving retaliation under the McDonnell Douglas test and the “direct” method of proving retaliation
using direct evidence). Although these federal cases are nonbinding, we are “free to adopt those
theories and rationale which best further the purposes and mandates” of the WLAD. Kumar v. Gate
Gourmet Inc., 180 Wn.2d 481, 491, 325 P.3d 193 (2014).
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Lastly, where, as here, this issue is decided on summary judgment, “[t]he
moving party bears the initial burden ‘to prove by uncontroverted facts that there
is no genuine issue of material fact.’” Welch v. Brand Insulations, Inc., 27 Wn.
App. 2d 110, 115, 531 P.3d 265 (2023) (quoting Jacobsen v. State, 89 Wn.2d 104,
108, 569 P.2d 1152 (1977)). If the moving party meets this burden, then the
burden shifts to the nonmoving party to produce “‘specific facts evidencing a
genuine issue of material fact for trial.’” Id. (quoting Schaaf v. Highfield, 127 Wn.2d
17, 21, 896 P.2d 665 (1995)). Summary judgment is proper where “there is no
genuine issue as to any material fact and . . . the moving party is entitled to
judgment as a matter of law.” CR 56(c). “This court reviews a motion for summary
judgment de novo, construing all facts and reasonable inferences from those facts
in the light most favorable to the nonmoving party.” Blue Diamond Grp., Inc. v. KB
Seattle 1, Inc., 163 Wn. App. 449, 453, 266 P.3d 881 (2011).
B. Proof of retaliation
With these principles in mind, we turn to Bittner’s retaliation claims. We
conclude that Bittner has produced sufficient evidence under the direct evidence
test to establish fact issues regarding the three elements of his retaliation claims
and to survive a motion for summary judgment on those claims.
1. Protected activity
Bittner argues he produced sufficient evidence to establish fact issues as to
whether he engaged in protected activity under the WLAD. We agree.
To determine whether Bittner’s conduct amounts to protected activity, we
must interpret the WLAD. When interpreting a statute, we begin with the statute’s
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plain language to give effect to the legislature’s intent. Jin Zhu, 189 Wn.2d at 613-
14. Given the WLAD’s important purpose of eliminating and preventing
discrimination, “even in a plain language analysis, the WLAD’s provisions must be
given ‘liberal construction.’” Id. (quoting Marquis, 130 Wn.2d at 109). We may
also discern a statute’s plain meaning by consulting the text of related statutes or
other provisions in the same act. Id. at 616.
We have previously acknowledged that the WLAD’s retaliation provision,
RCW 49.60.210(1), “extends broad protections to ‘any person’ engaging in
statutorily protected activity from retaliation.” Currier v. Northland Servs., Inc., 182
Wn. App. 733, 742, 332 P.3d 1006 (2014). The statute generally provides two
types of protection to employees. The first, known as the “opposition clause,”
protects employees who have “opposed any practices forbidden by [the WLAD].”
Lodis v. Corbis Holdings, Inc., 172 Wn. App. 835, 848, 292 P.3d 779 (2013)
(quoting RCW 49.60.210(1)). The second, known as the “participation clause,”
protects employees who have “file[d] a charge, testifie[d], or assist[ed] in any
proceeding under this chapter.” Id. (citing RCW 49.60.210(1)). The list of
prohibited retaliatory actions in RCW 46.60.210(1) is “explicitly not exclusive,” and
“specific statutory terms may reasonably inform courts as to the meaning of
broader statutory terms.” Jin Zhu, 189 Wn.2d at 618.
Construing the WLAD liberally, as we must, we conclude that Bittner has
established fact issues as to whether he engaged in protected activity. After Rotz
expressed to Bittner her dissatisfaction with how Symetra HR responded to her
complaint accusing Manning of harassment and discrimination, Bittner told her,
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“[Y]ou need to get legal advice. This isn’t right.” And when Doe expressed similar
sentiments about how Symetra failed to meaningfully address her complaint
accusing Koettker of sexual harassment and discrimination, Bittner likewise
suggested that she should “seek legal advice and find out what she can do.”
Bittner also reported his own concerns to HR about Rotz and Doe being subjected
to harassment and discrimination at Symetra. Lastly, when Bittner suspected that
Symetra’s executives were managing out Jaggers due to his age to get “younger
members on the team,” Bittner warned Jaggers that he should seek legal advice
because “if something happens to me, I hope you know your rights.” Bittner also
sent an e-mail to his superiors voicing his opposition to their directive to manage
out Jaggers in which he stated, “I just don’t think it is right and would need to
navigate properly to avoid any view of discrimination against myself or [Jaggers].”
On this record, both the opposition clause and the participation clause are
applicable. Bittner’s conduct can be viewed as opposition to discrimination
because he confronted discrimination against Rotz, Doe, and Jaggers and offered
resistance to it. See Lodis, 172 Wn. App. at 848 (noting that “oppose,” which is
not defined in the WLAD, means “‘to confront with . . . objections’ and ‘to offer
resistance to, contend against, or forcefully withstand.’” (quoting W EBSTER’S THIRD
NEW INTERNATIONAL DICTIONARY 1583 (2002)). Bittner reported to HR his concerns
about Rotz, Doe, and Jaggers being discriminated against, and he told his
superiors that he opposed age discrimination against Jaggers shortly before he
was initially terminated. Additionally, Bittner’s conduct can be viewed as having
assisted in a WLAD proceeding because he was encouraging employees to initiate
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legal action against Symetra, which Rotz and Doe ultimately did. 8 Viewing this
evidence in the light most favorable to Bittner, we conclude he has established fact
issues regarding the first element of his retaliation claims.
Notwithstanding the foregoing analysis, Symetra posits that Bittner’s
conduct was not protected activity because it “directly interfered with the
obligations Bittner owed to Symetra as an officer and senior manager.” But
interpreting the WLAD such that a high-level employee cannot oppose
discriminatory practices is antithetical to the act’s purpose of “deter[ring] and
eradicat[ing] discrimination in Washington—a public policy of the highest priority.”
See Lodis, 172 Wn. App. at 848. Indeed, we have previously acknowledged that
“HR, management, and legal employees” are “often the best situated to oppose an
employer’s discriminatory practices” and depriving them of protection from
retaliation “would create a disincentive for such employees to carry out their
ordinary job duties, which often includes ensuring company compliance with
employment and antidiscrimination laws.” Id. at 851.
8 Relatedly, federal courts have held that consulting with an attorney to remedy unlawful
discrimination is protected activity under the federal anti-retaliation statute codified in Title VII of
the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e-3. See, e.g., Martin v. Gen. Elec. Co., 891 F.
Supp. 1052, 1060 (E.D. Pa. 1995) (employee engaged in protected activity “when he sought legal
advice and had his attorney notify [employer] that he intended to seek redress for a possible age
discrimination claim”); see also EEOC Dec. No. 84-3 (1984) (“If . . . the [employer] discharged [the
employee] as a result of her complaining of the sexual harassment and consulting an attorney
about her legal rights, the [employer’s] action constitutes a violation” of Title VII). Similarly, Ward,
a senior partner in Symetra HR, acknowledged below that “every employee has a right . . . to seek
legal advice and representation. . . . We can’t stop an employee from doing that.” Symetra’s
counsel also acknowledged at oral argument that the WLAD prohibits an employer from retaliating
against an employee who seeks legal counsel in response to being subjected to discriminatory
practices forbidden by the WLAD. Wash. Ct. of Appeals oral argument, Bittner v. Symetra Life Ins.
Co., No. 85708-8-I (Sept. 19, 2024), at 14 min., 45 sec. to 18 min., 50 sec. (on file with court). The
same reasoning extends to Bittner, who advised other employees who have been subjected to
discrimination prohibited by the WLAD to seek legal counsel to remedy the discrimination.
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In support of its contrary position, Symetra cites to Gogel v. Kia Motors
Manufacturing of Georgia, Inc., 967 F.3d 1121 (11th Cir. 2020) (en banc), in which
the Eleventh Circuit held that an employee’s “recruitment of a subordinate to sue
the company” did not constitute protected oppositional conduct under Title VII
because it “so interfere[d] with the employee’s performance of her job that it
render[ed] her ineffective in the position for which she was employed.” Id. at 1139-
44 (citing Rosser v. Laborers’ Int’l Union of N. Am., Local No. 438, 616 F.2d 221(5th Cir. 1980)). This federal authority is unpersuasive because, as explained
above, our court has expressly disavowed such a standard that would require HR,
management, and legal employees to prioritize their duty to insulate the company
from legal liability over their desire to eliminate and prevent discrimination in the
workplace. See Lodis, 172 Wn. App. at 851. Additionally, Bittner merely
suggested to other employees that they seek legal advice—he did not recruit them
to do so—and this conduct did not so interfere with the performance of his job that
it rendered him ineffective as an RVP. On this record, Gogel is inapposite.
Symetra also claims that “[t]he record does not support Bittner’s claim that
he opposed discrimination on behalf of others” because “nothing beyond Bittner’s
assertions in this lawsuit supports that” claim. This argument misrepresents the
record and misunderstands Bittner’s burden of production to survive a motion for
summary judgment. “[O]n summary judgment a nonmoving party’s declaration
must be taken as true and can create a genuine issue of material fact even if it is
‘self-serving.’” Mackey, 12 Wn. App. 2d at 575; see also Haley v. Amazon.com
Servs., LLC, 25 Wn. App. 2d 207, 220, 522 P.3d 80 (2022) (“[C]lassifying a party’s
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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
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and Rotz to seek legal advice, they issued verbal and written reprimands to Bittner
in July 2018, placed him on a PIP in February 2019, and planned to terminate him
in October 2019. After Bittner expressed his opposition to his superiors’ efforts to
manage out Jaggers, Symetra initially terminated Bittner’s employment, cut off his
access to Symetra’s systems, and ultimately placed another employee in his
position in January 2020. A reasonable juror could find that these actions,
especially when taken together, were materially adverse.
Symetra claims no adverse action occurred because it did not terminate
Bittner’s employment but rather “filled his role,” which “had no adverse impact on
Bittner” because “he could not have performed in the role at that time, as he was
not medically cleared to work.” This argument fails because termination is not the
only form of adverse action; issuing a written reprimand, cutting off an employee’s
access to company systems, and removing an employee from their position—all
of which occurred here—may constitute adverse actions. See Boyd, 187 Wn. App.
at 14 (being “issued a written reprimand” may be an adverse action); Alonso v.
Qwest Commc’ns Co., LLC, 178 Wn. App. 734, 746-47, 315 P.3d 610 (2013)
(losing benefits associated with a position, such as a phone and computer, may
be an adverse action). Moreover, a reasonable juror could conclude that Bittner
was effectively terminated from his RVP position, even if Symetra did not do so
formally. Thus, we conclude Bittner has established fact issues regarding the
second element of his retaliation claims.
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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
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
evidence’ of discriminatory intent.” But rather than explain why Bittner’s evidence
is not “direct,” Symetra merely points to the “legitimate, nondiscriminatory reasons
for any adverse actions [Bittner] alleges were taken.”9 This argument is
9 These reasons include performance issues such as failing to share metrics, attend meetings,
pursue business opportunities, engage in one-on-one meetings with sales representatives, and
help sales representatives develop new producer contracts and address performance issues.
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No. 85708-8-I
fundamentally flawed because it misstates the applicability of the McDonnell
Douglas framework. Because the record contains direct evidence of Symetra’s
retaliatory motive, Bittner does not need to show that Symetra’s proffered
legitimate, non-retaliatory reasons for its actions are pretextual to survive summary
judgment. See Merritt v. Dillard Paper Co., 120 F.3d 1181, 1191 (11th Cir. 1997)
(“Because we hold that [the employee] has presented sufficient direct evidence to
survive summary judgment, we do not address his McDonnell Douglas argument
and whether he has presented evidence of pretext.”). 10 The jury must determine
Symetra’s true motivation.
Next, Symetra asserts four distinct arguments that, it claims, disprove any
causal connection between Bittner’s protected activity and any adverse action.
Symetra also presented evidence of Bittner’s unprofessional behavior in the workplace, including
his failure to prevent a subordinate from acting inappropriately at a work event in 2012, being
accused of making “unsupportive comments” regarding another female employee’s “breast
pumping needs,” sending a text message to Doe after she settled with Symetra that violated the
settlement agreement’s non-disparagement provision, playing “personal rave videos” at a work
event, and being accused by an employee of another company of approaching her at a work event,
placing his hand on her back, and saying, “Can you tell me your name so I don’t have to look at
your boobs.”
10 Even if we were to analyze Bittner’s retaliation claims under the McDonnell Douglas framework,
we would conclude that he has shown pretext. To show pretext, Bittner must produce “sufficient
evidence to create a genuine issue of material fact either (1) that the employer’s articulated reason
for its action is pretextual or (2) that although the employer’s stated reason is legitimate,
discrimination nevertheless was a substantial factor motivating the employer.” Scrivener, 181
Wn.2d at 441-42. Here, Ward e-mailed Fry about his “concern” that Bittner was offering “bad
advice” to “disgruntled” employees such as Doe to seek legal advice. Ward then instructed Fry to
tell Bittner that “[i]t’s not your place to tell any Symetra employee to seek legal advice, e.g. D. Rotz.”
Fry did so, and he later categorized this issue as an “area . . . where your performance as a sales
leader . . . needs to improve.” Costello and Fry effectively told Bittner that he “would be fired” if he
continued telling employees to seek legal advice. Immediately after these discussions with Bittner
in July 2018, his superiors began raising the critiques of his performance as an RVP that contributed
to Bittner being placed on a PIP in February 2019, initially terminated in October 2019, and
ultimately replaced in January 2020. Additionally, Bittner complained to his superiors about
perceived age discrimination against Jaggers just before he was initially terminated in October
2019. Viewing this evidence in the light most favorable to Bittner, a reasonable juror could conclude
that Symetra’s legitimate, nonretaliatory reasons for taking the adverse actions are pretextual or
that retaliation was a substantial factor motivating Symetra.
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No. 85708-8-I
First, it points to a lack of temporal proximity between Bittner telling Rotz and Doe
to seek legal advice in 2014 and when he was removed from his RVP role in 2020.
This argument ignores that Fry, Ward, and others instructed Bittner to stop telling
other employees to seek legal advice in July 2018, shortly after Symetra completed
its investigation into Doe’s claims and right before Bittner’s superiors began raising
the concerns about his performance that would ultimately contribute to the
company’s decision to remove him from his RVP position. Moreover, the cases
cited by Symetra on this point are inapposite because they involve employees who,
unlike Bittner, relied solely on circumstantial evidence to prove causation. 11
Second, Symetra notes that it rewarded Bittner after he engaged in
protected activity by promoting him in 2015 and honoring him with the President’s
Club award based on his team’s sales numbers from 2014 to 2019. This argument
fails because we have previously rejected employers’ reliance on “grant[ing] a
raise or promotion prior to implementing a termination as a means of decreasing
their exposure to a valid retaliation claim.” Lodis, 172 Wn. App. at 853.
Additionally, Symetra first learned that Bittner had urged other employees to seek
legal advice no earlier than 2016—after Bittner was promoted. The record also
indicates that RVPs receive the President’s Club award so long as their sales team
11 See Francom v. Costco Wholesale Corp., 98 Wn. App. 845, 862, 991 P.2d 1182 (2000) (where
an employee “must resort to circumstantial evidence to demonstrate retaliatory purpose,” temporal
proximity is “[o]ne factor supporting retaliatory motivation”) (emphasis added) (quoting Vasquez v.
State, 94 Wn. App. 976, 985, 974 P.2d 348 (1999)); Ellorin v. Applied Finishing Inc., 996 F. Supp.
2d 1070, 1090-91 (W.D. Wash. 2014) (where employee seeks to establish causation “only on the
basis of ‘temporal proximity . . . the temporal proximity must be very close.’”) (quoting Clark County
Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508, 149 L. Ed. 2d 509 (2001) (per curiam));
Macon v. United Parcel Serv., Inc., No. C12-260 RAJ, 2012 WL 5410289, at *6 (W.D. Wash. Nov.
5, 2012) (dismissing retaliation claim where employee “relie[d] entirely on temporal proximity to
establish causation”).
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No. 85708-8-I
meets its sales quota for a given year (which Bittner’s team did from 2014 to 2019),
not for other qualitative achievements by the RVP.
Third, Symetra contends there is a “lack of management continuity”
because Fry, the employee who reprimanded Bittner in July 2018 for engaging in
protected activity, “had no involvement in the October 2019 decision to terminate
Bittner’s employment.” This argument ignores that Ward, who was also involved
in the decision to terminate Bittner, instructed Fry before his July 2018 meeting
with Bittner to reprimand him for telling others to seek legal advice. Additionally,
Costello, who was also involved in the decision to terminate Bittner, “told [Bittner]
pretty much [he] was going to get fired” if he told another employee to seek legal
advice. This evidence, at the very least, establishes fact issues regarding
continuity between the persons who opposed Bittner’s protected activity and those
who subjected him to adverse actions.
Fourth, Symetra argues there is no causal connection between Bittner’s
opposition to age discrimination against Jaggers and any adverse action because
Bittner e-mailed his concerns about age discrimination to Costello on October 15,
2019, but Costello, Freestone, and Ward had already decided on October 10, 2019
to terminate Bittner’s employment. This argument is unconvincing because, even
assuming Symetra management planned to fire Bittner before he sent the e-mail,
they “pulled the term[ination] back” and did not fill Bittner’s position with another
employee until January 2020. Symetra’s position is internally contradictory; it
claims it already decided to terminate Bittner in October 2019, while also asserting
that it never terminated Bittner because he resigned in March 2020. By the time
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No. 85708-8-I
Bittner opposed age discrimination against Jaggers, Symetra knew he had
previously opposed discrimination against Doe and Rotz. See Wilmot v. Kaiser
Alum. & Chem. Corp., 118 Wn.2d 46, 69, 821 P.2d 18 (1991) (noting “[e]vidence
of an actual pattern of retaliatory conduct is, of course, very persuasive” evidence
of an employer’s improper motive) (quoting 1 L. Larson, § 6.05[5], at 6–51)). A
reasonable juror could conclude that Bittner’s opposition to age discrimination
against Jaggers was a substantial factor motivating the adverse actions.
In sum, Bittner has produced sufficient direct evidence that, when construed
in his favor, creates genuine issues of material fact regarding whether Symetra
retaliated against him for engaging in protected activity under the WLAD.
Therefore, the trial court erred in dismissing his WLAD retaliation claims on
summary judgment. 12
III
Bittner next argues the trial court erroneously dismissed his disability
discrimination claims on summary judgment. We disagree.
The WLAD prohibits an employer from discriminating against any person
because of “the presence of any sensory, mental, or physical disability.” RCW
49.60.180(3). “There are two types of disability discrimination claims: disparate
12 Bittner also argues, “Because the erroneous summary judgment ruling deprived Bittner of a fair
trial on his equitable claims, this Court should vacate the judgment in favor of Symetra on those
claims as well.” For support, Bittner cites two cases standing for the proposition that a trial court
may remand for a new trial on the issue of damages, but these cases involved errors that occurred
at trial with respect to jury instructions, as opposed to errors that occurred at the pre-trial summary
judgment stage of proceedings. See McCurdy v. Union Pac. R.R., 68 Wn.2d 457, 471, 413 P.2d
617 (1966); Nelson v. Fairfield, 40 Wn.2d 496, 501, 244 P.2d 244 (1952). Bittner’s reliance on
Income Invs. v. Shelton, 3 Wn.2d 599, 602, 101 P.2d 973 (1940), is also misplaced because that
case discusses the doctrine of unclean hands, which is not at issue in this appeal. Therefore, we
decline to vacate the judgment in favor of Symetra on Bittner’s equitable claims on this basis.
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No. 85708-8-I
treatment and failure to accommodate.” Clipse v. Commercial Driver Servs., Inc.,
189 Wn. App. 776, 792, 358 P.3d 464 (2015). “An employer who discharges,
reassigns, or harasses for a discriminatory reason faces a disparate treatment
claim; an employer who fails to accommodate the employee’s disability, faces an
accommodation claim.” Pulcino v. Fed. Express Corp., 141 Wn.2d 629, 640, 9
P.3d 787 (2000) (quoting Hill v. BCTI Income Fund-I, 97 Wn. App. 657, 667, 986
P.2d 137 (1999)) (overruled on other grounds by McClarty v. Totem Elec., 157
Wn.2d 214, 226, 137 P.3d 844 (2006)). While this case arguably presents both a
disparate treatment claim and a failure to accommodate claim, we decline to
address whether the trial court erroneously dismissed Bittner’s disparate treatment
claim because Bittner fails to sufficiently brief that issue as required by RAP
10.3(a)(6). 13
While Bittner argues we should analyze his failure to accommodate claim
under the direct evidence test, we decline to do so because he does not identify
any direct evidence of disability discrimination. As with other WLAD claims, we
analyze disability discrimination claims under the three-step McDonnell Douglas
burden shifting framework where, as here, the employee lacks direct evidence of
their employer’s discriminatory intent. See Am. Healthcare Servs., 13 Wn. App.
2d at 855-56. For purposes of appeal, Bittner does not dispute that Symetra
13 Bittner assigns error to the trial court’s dismissal of a singular “disability discrimination claim,”
without specifying whether this claim relates to failure to accommodate or disparate treatment. In
Bittner’s statement of the issues and argument in his opening brief, he solely discusses his failure
to accommodate claim and does not provide any argument regarding his disparate treatment claim.
“Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial
consideration.” Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998).
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No. 85708-8-I
satisfies the second McDonnell Douglas step. Instead, he focuses on the first and
third steps. We assume for purposes of our discussion that Bittner can establish
fact issues as to a prima facie claim of failure to accommodate (the first McDonnell
Douglas step) and that Symetra has articulated a legitimate, nonretaliatory reason
for the employment decision (the second McDonnell Douglas step). For Bittner to
satisfy his burden on summary judgment under the third McDonnell Douglas step,
he must produce “sufficient evidence to create a genuine issue of material fact
either (1) that the employer’s articulated reason is pretextual or (2) that although
the employer’s stated reason is legitimate, discrimination nevertheless was a
substantial factor motivating the employer.” Scrivener, 181 Wn.2d at 441-42.
Bittner claims he has produced such evidence for three reasons, but we reject
each of them.
First, Bittner argues that he “became temporarily disabled as a result of
Symetra’s threats and intimidation” and that he “needed leave because he
developed several medical conditions, including anxiety and depression, as a
result of the stress from Symetra’s discriminatory and retaliatory actions.” This
argument fails because, although the record contains evidence that Bittner had
been diagnosed with anxiety and depression by January 2020, Bittner has not cited
any evidence in the record showing that Symetra’s actions caused him to be
diagnosed with anxiety and depression. Nor has Bittner identified any evidence
showing that he informed Symetra that he was suffering from anxiety and
depression when he took his medical leave in October 2019. Instead, the record
shows that Bittner’s disability related to gastrointestinal issues stemming primarily
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No. 85708-8-I
from diverticulitis. Bittner solely referenced his gastrointestinal issues when
describing his disability in his complaint and summary judgment briefing below.
But no evidence indicates that Symetra’s actions caused Bittner’s gastrointestinal
issues. Thus, the record does not support Bittner’s contention that he became
disabled as a result of Symetra’s actions.
Second, Bittner contends Symetra replaced him due to performance issues
that Symetra knew were caused by his disability. In support of this contention,
Bittner points to an e-mail from December 2018 in which Fry criticized Bittner for
missing a meeting that Bittner claims to have missed due to diverticulitis. But the
text of the e-mail reveals that Fry’s concerns did not relate to Bittner’s diverticulitis
but instead to Bittner’s repeated failure to attend meetings without notice. In the
e-mail, Fry assured Bittner, “I am sorry that you were/are under the weather and
wish you a speedy recovery. I know that diverticulitis is not something to take
lightly.” Additionally, Bittner admitted in his deposition testimony that he missed
meetings for reasons other than diverticulitis.
Third, Bittner avers that Symetra’s act of replacing him while he was on
medical leave is itself evidence of a discriminatory animus. The record belies this
assertion. Symetra did not require Bittner to return to work before his doctor had
medically cleared him to do so, nor did Symetra force Bittner to perform duties that
exacerbated or interfered with his management of his gastrointestinal issues. To
the contrary, Symetra allowed Bittner to remain on leave and retain his employee
benefits, and Symetra’s leave consultant encouraged Bittner to apply for long-term
disability coverage through the company after his short-term disability expired.
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No. 85708-8-I
Even construing the evidence in the light most favorable to Bittner, it is apparent
that Symetra’s employment decisions were not motivated by Bittner’s health issues
but instead by his performance deficiencies and workplace behavioral issues (and
potentially retaliation, as discussed above). Because Bittner has failed to show
pretext or that disability discrimination was a substantial factor motivating
Symetra’s decision-making, he has not met his burden under the third McDonnell
Douglas step. 14 Therefore, the trial court correctly dismissed Bittner’s WLAD
failure to accommodate claim on summary judgment.
IV
Bittner argues we should vacate the trial court’s award of $30,904.23 in
costs to Symetra under RCW 4.84.010 following the jury trial because it is no
longer a prevailing party. Because we reverse the trial court’s summary judgment
ruling on Bittner’s WLAD retaliation claims and vacate the trial court’s final
judgment, we also vacate the trial court’s cost award as premature, as the
substantially prevailing party has not yet been determined. Nonetheless, we
exercise our discretion to address Bittner’s five arguments relating to certain costs
awarded to Symetra under RCW 4.84.010 because these issues are likely to recur
on remand regardless of which party prevails. 15
14 For these same reasons, even if we considered Bittner’s disparate treatment claim on the merits
instead of finding waiver, we would conclude with regard to this claim that Bittner fails to overcome
the third McDonnell Douglas step because he has not shown that Symetra’s reasons for its
employment decisions were pretextual. See Marin v. King County, 194 Wn. App. 795, 808-09, 378
P.3d 203 (2016) (quoting Kirby v. City of Tacoma, 124 Wn. App. 454, 467, 98 P.3d 827 (2004))
(pretext may be shown under the third McDonnell Douglas step if the employer’s reasons “(1) have
no basis in fact, (2) were not really motivating factors for the decision, or (3) were not motivating
factors in employment decisions for other employees in the same circumstances”).
15 Although we generally review cost awards for an abuse of discretion, we may choose to resolve
legal errors that may recur on remand. See In re Marriage of Rockwell, 157 Wn. App. 449, 454,
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No. 85708-8-I
First, Bittner argues the trial court erroneously awarded expert witness fees
to Symetra. We agree. “Costs have historically been very narrowly defined, and
RCW 4.84.010 limits cost recovery to a narrow range of expenses . . . .” Hume v.
Am. Disposal Co., 124 Wn.2d 656, 674, 880 P.2d 988 (1994). In Estep v. Hamilton,
148 Wn. App. 246, 201 P.3d 331 (2008), Division Three of our court noted that
“our Supreme Court has recognized there are no grounds for awarding expert
witness fees as costs” and ultimately held that “RCW 4.84.010 does not authorize
expert witness fees in an award of costs to the prevailing party.” Id. at 263 (citing
Wagner v. Foote, 128 Wn.2d 408, 417-18, 908 P.2d 884 (1996), and Fiorito v.
Goerig, 27 Wn.2d 615, 620, 179 P.2d 316 (1947)). Although the WLAD creates a
statutory basis for a prevailing plaintiff to recover expert witness fees, the act does
not entitle a prevailing defendant to recover such fees. See Xieng v. Peoples Nat.
Bank of Wash., 120 Wn.2d 512, 526-30, 844 P.2d 389 (1993) (noting that RCW
49.60.030(2) permits the “person deeming himself injured by any act in violation”
of the WLAD to recover costs of suit). Accordingly, the trial court erred in awarding
Symetra’s expert witness fees.
Second, Bittner argues the trial court erred by awarding costs to Symetra
under RCW 4.84.010(7) for the fees charged by videographers who videotaped
depositions. We agree. The plain language of RCW 4.84.010(7) indicates that
videographer fees are not recoverable because they do not relate to the
transcription of a deposition. See W EBSTER’S THIRD NEW INTERNATIONAL
238 P.3d 1184 (2010) (addressing whether, as a matter of law, prejudgment interest may properly
be awarded on remand “[b]ecause this issue is likely to recur on remand”).
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No. 85708-8-I
DICTIONARY 2426 (2002) (defining “transcribe” as “to make a written copy of”).
Accordingly, the trial court erred in awarding Symetra’s videographer fees under
RCW 4.84.010.
Third, Bittner argues the trial court erred in awarding costs pursuant to RCW
4.84.010(7) for the transcriptions of certain depositions on a gross rather than pro
rata basis. We agree. Under RCW 4.84.010(7), the prevailing party may recover
only the following costs relating to the transcription of depositions:
To the extent that the court . . . finds that it was necessary to achieve the
successful result, the reasonable expense of the transcription of depositions
used at trial . . . : PROVIDED, That the expenses of depositions shall be
allowed on a pro rata basis for those portions of the depositions introduced
into evidence or used for purposes of impeachment.
While the record supports a gross award of costs of transcribing certain
depositions (such as Bittner’s deposition, to which Symetra’s counsel extensively
referred at trial), the record also indicates that other transcripts were used sparingly
(such as Brandt’s deposition, of which Symetra included only three pages in a
motion in limine seeking to exclude him as a witness). Symetra also recovered
$330 associated with De Lima’s deposition, but the record contains no explanation
of or supporting invoice for this cost. On remand, the trial court should only award
transcription costs in accordance with RCW 4.84.010(7), which requires that such
expenses be (a) necessary to achieve the successful result, (b) reasonable, (c)
related to the transcription of depositions used at trial, and (d) allowed on a pro
rata basis for the portions of the depositions introduced into evidence or used for
purposes of impeachment.
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No. 85708-8-I
Fourth, Bittner argues the trial court erroneously awarded costs to Symetra
for “process server fees” under RCW 4.84.010(2) because that statute “does not
encompass service of subpoenas for depositions” but rather only “the procedure
by which a party to a lawsuit serves a complaint and summons.” We agree. Our
court has previously recognized that “[s]ervice of process refers to a formal delivery
of documents that is legally sufficient to charge the defendant with notice of a
pending action.” Larson v. Yoon, 187 Wn. App. 508, 515, 351 P.3d 167 (2015)
(quoting Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 700, 108
S. Ct. 2104, 100 L. Ed. 2d 722 (1988)). Thus, the trial court erred in awarding
Symetra process server fees incurred in serving subpoenas on witnesses in
foreign jurisdictions under RCW 4.84.010(2).
Fifth, Bittner argues the trial court erroneously awarded costs to Symetra
under RCW 4.84.010(1) for “filing fees in King County, Washington, as well as in
Illinois, Oregon, and California courts in order to issue subpoenas for out of state
witnesses.” We agree. In the instant case, Bittner is the only party who incurred
filing fees to initiate this proceeding. Filing fees to initiate other proceedings in
other jurisdictions are recoverable, if at all, in those other proceedings. The trial
court erred in awarding such costs herein.
V
Lastly, Bittner requests attorney fees pursuant to RAP 18.1 and asks that
we “note in [our] opinion that he may apply to recover his appellate fees from the
trial court on remand should he prevail.” While Bittner’s attorney fee request is
premature because he has not yet prevailed in this action, he is entitled to recover
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No. 85708-8-I
his reasonable attorney fees associated with the WLAD retaliation issues in this
appeal pursuant to RCW 49.60.030(2) should he prevail on his WLAD retaliation
claims on remand. See Kries v. WA-SPOK Primary Care, LLC, 190 Wn. App. 98,
144, 362 P.3d 974 (2015). The trial court may consider this issue and award
appropriate appellate fees if and when it is appropriate to do so.
Affirmed in part, reversed in part, and remanded.
WE CONCUR:
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