Date: 10-28-2024

Case Style:

Thomas E. Bittner v. Symetra National Life Insurance Company, et al.

Case Number: 85708-8

Judge: Not Available

Court: Superior Court, King County, Washington

Plaintiff's Attorney:

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Defendant's Attorney: Not Available

Description:

Seattle, Washington civil rights lawyer represented the Plaintiff on claiming job discrimination.

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.

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?

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."

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
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.

* * * *


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.

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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?

4

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."

5

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.

* * *


The WLAD prohibits discrimination in employment on the basis of sex, age, disability, and other protected characteristics. RCW 49.60.030. To accomplish

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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).

Outcome: Affirmed in part, reversed in part, and remanded.

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Defendant's Experts:

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