May 22, 2012, by Bruce Hanify Three former Clallam County employees and the daughter of one former employee have accepted a $1.6 million settlement in an age discrimination suit for damages they suffered as employees of the Clallam County Prosecuting Attorney’s Office in Port Angeles, WA. Deborah Kelly is the elected prosecutor of Clallam County.
The former employees included deputy prosecutor Carol Case, legal assistant Kathy Nielsen, and administrative assistant Elaine Sundt. Hollie Hutton, daughter of former employee Robin Porter, who was fired in February, 2007 and died within a year of her termination, appeared on behalf of her mother in the lawsuit.
In an 80-page pleading to the superior court, attorneys Stephanie Bloomfield and James Beck of Tacoma law firm Gordon Thomas Honeywell alleged a disturbing pattern of age discrimination that resulted in the firing of Carol Case, Elaine Sundt and Robin Porter. Administrative assistant Nielsen, who suffered severe physical and emotional distress brought on by workplace harassment, resigned under extreme duress. While only four individuals joined in the lawsuit, there appeared to be an office policy of subjecting older employees to a calculated pattern of Machiavellian harassment, according to allegations contained within the legal pleading.
The allegations in the pleading, while not proven in a trial, apparently were sufficiently credible to induce the county to settle the lawsuit.
In a press release issued by Gordon Thomas Honeywell, it was revealed that elected prosecutor Deb Kelly admitted that her office suffered a turnover rate between 210 and 215%. However, Kelly blamed the settlement on the legal system:
“This settlement was made by the excess insurance company strictly for economic reasons,” Kelly said in a statement released Saturday.
“The county had no option for going forward on its own, short of hiring its own attorneys and spending hundreds of thousands of taxpayer dollars.
“If Washington were a loser-pays state, this lawsuit would never have been filed.”
Going Younger The Clallam County Prosecutor’s campaign against her older workers commenced when she appointed 30-something deputy prosecutor Mark Nichols to the position of chief deputy, which one former employee allegedly characterized as “putting a five-year-old in charge of dynamite.” Kelly stated in a deposition that it did not matter to her that Nichols, two to three years out of law school when she made him king, did not meet the job requirements of having “extensive experience in municipal law.” Some might argue that his experience with principles of leadership shared a similar depth.
Upon Nichols’ appointment to that administrative post, a campaign of “going younger” was waged against those unfortunate enough to have the capacity to exercise independent judgment. The campaign consisted first of harassing and intimidating older workers, then replacing them with younger workers — with the apparent intention of chilling dissent. Both Kelly and Nichols were surprisingly candid in their aim to replace those they regarded as obsolete. Nichols told one employee:
“Look, Carol [Case] is an older generation, or is older and she just doesn’t understand young people. Over the past year we’ve been trying to get younger people in the office.”
“Keystone Nazis” One anonymous source shared with this writer that former members of the office secretly referred to the tactics Nichols and Kelly engaged in as befitting “Keystone Nazis.” Examples of their hostile workplace conduct allegedly consisted of:
While prosecutor Kelly used her county computer to shop eBay, employee Porter was fired for “internet use” within days of receiving a workplace evaluation that praised her work and dedication. A number of questionable disciplinary issues were leveled against Porter, who complained of being singled out and treated unfairly. Several employees agreed that Nichols was out to “get” her. Porter’s firing established the pattern of creating conditions that couldn’t be met, so that the employee could then be fired.
After Porter was fired, Nichols then turned the tools of his Inquisition toward Nielsen. While Nielsen had been receiving glowing workplace evaluations, she was now being accused of insubordination for consulting with her supervising attorney about office problems. In one particularly chilling incident, two younger employees were invited to one of Nielsen’s disciplinary meetings, where they taunted her.
Insubordination On January 16, 2008, Robin Porter died. Employee Sundt committed the sin of sitting at Porter’s memorial with three female employees who were out of favor with Kelly, including Carol Case. Nichols commenced a campaign of isolating and ridiculing Ms. Sundt. In fact, at one disciplinary meeting, prosecutor Kelly accused Sundt of “disloyalty” for sitting with forbidden members of the office at Porter’s funeral.
At one point, Sundt consulted an attorney about her situation, who mailed the prosecutor’s office alleging age and gender discrimination. Within minutes of being informed by Kelly of the letter, Nichols asked Kelly out for coffee, then emailed Sundt with a list of questions about who she was spending time with at the office, and who she was talking to. In retaliation for consulting with a lawyer about workplace hostility, Sundt was placed on administrative leave. (Sundt suffered a heart attack while being deposed for this case.)
62-year-old attorney Carol Case was sent to a “fitness for duty exam” — normally reserved for emergency personnel only, never for attorneys — for the crime of defending herself against false accusations. Case was declared fit for duty, which didn’t fit in with the Going Younger protocols. Amazingly, Case survived a sustained campaign of emotional and mental torment. Eventually she was fired. That was exactly the wrong thing to do. Case fought back. And won. Let it be said that this blogger believes she is the perfect replacement for Mark Nichols.
Employees who dared to confront Nichols about the double standard of subjecting older employees to surveillance, taunting, and being “set up” to be fired — while giving a pass to younger employees — were certain to understand that their job was at risk. What is startling about this case is the number of past and former employees who testified about the hostile workplace conditions. Several current employees demonstrated remarkable courage given the risks they faced.
As stated, none of these claims were fully tested in court, but the plaintiffs had plenty of evidence to support their cause — and Clallam County settled, which likely means they faced an even larger loss had they gone to trial.
In their press release, Gordon Thomas Honeywell wrote:
“The substantial amount of money paid out to these women should serve as a reminder that no one is above the law, even an elected prosecutor” stated James Beck. “Once Kelly and Nichols were made aware of the discrimination claims, instead of putting a stop to it and treating people fairly, they chose to retaliate. These four women brought this lawsuit to take back their good names, and with the hope that it might prevent Kelly and Nichols from engaging in similar conduct in the future.”
# # # #
May 23, 2012 The Sequim Gazette reported today:
Kelly said the issues in the office were never about age discrimination, disability or retaliation but rather a power struggle.
She said she and Nichols take complaints of harassment and discrimination very seriously.
Patterson said he absolutely believed Kelly and Nichols did the right things.
“They were holding people accountable that were not held accountable previously,” he said. Clallam County Settles $1.6 Million Age Discrimination Suit
FULL DISCLOSURE: I was employed as a deputy prosecutor at Clallam County from November, 2005 to September, 2006, but chose to leave because I found the working unnecessarily tense. I am proud to say that I worked for one of the great prosecuting attorneys of this state, Jeff Sullivan. Sullivan was an old school lawyer: principle before personality. While I might have wanted to continue prosecuting in my hometown (I was born in Port Angeles, and graduated from Forks High School), it was obvious to me that the office was headed to some sort of conflagration. Having read through Honeywell’s pleading, it is very clear that I made the right decision. I was appalled by what I read in that document. It was far worse than I thought — in part because I left before it got any juicier.
Robin Porter was my secretary and a friend of mine. She was a lovely person, with a vibrant sense of humor, and was quite tormented by the intimidation she experienced in that environment. When I learned that she died, I felt very strongly that she died of a broken heart — related to getting fired. I still believe that. Can’t prove it, but I believe it. Let me say there are karmic obligations beyond the financial for those who enjoy tormenting fellow beings.
Elaine, Carol, Kathy, Congratulations. Holly, I loved your mother as a friend. I’m proud of you. This Bud’s on me.
OF INTEREST: Three drug cases investigated by the Olympic Peninsula Narcotics Enforcement Team were dismissed after Superior Court Judge Ken Williams found the Prosecutor’s Office violated court rules by not disclosing the identity of its key witness to the defense. Drug Cases Dismissed
ALL RIGHTS RESERVED BRUCE HANIFY 2012
Bruce: I was an insurance defense lawyer for many years. I assure you that no carrier or carriers would pay $1.6 million on frivolous claims. Clearly, the County did not get summary judgment, which means there was ample evidence upon which to send this case to a jury. That was not mentioned by the tortfeasors or their counsel, apparently.
Ms. Kelly says the case was solely settled for economic reasons. There is some truth in that. The economic reasons are the piles of insurance company dollars that would have been lost far above the settlement, had this matter gone to trial.
Good summary, Bruce!
Thank you for this thoughtful piece. My mother needlessly suffered under the harassment campaign of Deb Kelly & Mark Nicols. While giving her deposition for this case a few years ago, my Mom had a heart attack (literally, it happened on camera while being questioned). When she was being loaded onto the stretcher for hospital transport, Deb Kelly walked right by and said not a word. I was there. I can say a lot of things about Deb Kelly and Mark Nichols, but I think this event speaks volumes about her character and how she treated her employees. By the way, the only thing in Mom’s personnel file when she was placed on administrative leave was her “Clallam County Employee of the Year” award letter. After four long years, our family is just relieved this is over.
Wow.
dear bruce:
i read your piece with no small interest. you are to be commended for writing it.
i’ve known you for years, and know your attachment to the olympic peninsula, which is almost mystical. and, having succeeded to your position at the clallam county prosecutor’s office, i am fully aware of the circumstances you describe and the people involved in this.
your description of the work environment at clallam county under kelly and nichols is, as hard as it might be to comprehend, very restrained and even handed, … and very accurate. “keystone cops,” indeed. neither of them should be running a law office charged with the public trust, … , they simply are not up to the task either professionally, e.g., lacking knowledge of the law, nor are they fit to “command” others from the standpoint of proper office administration.
you did not mention one thing about robin porter and elaine sundt that bears mentioning, and that is both were extremely well suited for work in a law office, both were well above merely competent being very good workers, and very skilled at office procedures and the administrative functions of a law office. both did their best to make a very bad work environment better.
i quit the office a little after a year’s work. i simply could not stand working under the “supervision” of people who simply did not know the law.
it is a complete mystery to me why the voters of clallam county return deb kelly to office. for her to make the remarks she made about the settlement of this case, as though it were a nuisance suit and as though she had nothing to do with creating the conditions that cost clallam county $1.6 million, is just ridiculous. attorney ralph anderson makes a very telling observation, and that is insurance companies do not just give away money … they settle cases because in their evaluation of the factual and legal situation surrounding them, they believe that they are compelled to do so in order to avoid the very grave risk of having to pay even more money out to a jury, and to defense counsel: even “in-house” counsel are subject to this calculation.
this is not the first case deb kelly has lost via malfeasance, and misfeasance, and in my estimation, it will not be the last if the voters of clallam county are stupid enough to return her to office.
the people & persons who brought this case against the county deserved to win. and, clallam county very richly deserved to loose, given the actions of the prosecutor and her henchman in chief. (no, he didn’t know much civil law. not much at all.)
john jay
milton freewater, oregon usa
p.s. the real shame of all of this is that clallam county, and the sheriff’s office, has many many very good employees, most of them very skilled at what they do, and very dedicated to the tasks at hand. i thought several of the sheriff’s deputies & investigators with whom i worked very skilled indeed. but, even there, kelly’s hand had a reach, and she protected and coddled favorites who were of a habit of messing up cases.
i can only imagine how this made skilled officers and investigators feel, having to work with such people.
a bad situation.
Those of us who were lucky enough to have come of age on the Peninsula before 1980 lived in an almost idyllic world. People were known by their family names; you looked out for the girls in other families; you were expected to keep your word. AMERICA was a better society then.
I have lived long enough to see people like Mark Nichols rise to positions of authority on the basis of .… . being young? What does this mean?
All I can say is, it’s high time for America to find her bearings in her roots, in tradition, in pride, and in integrity. Gaming doesn’t cut it.
And in this case, gaming cost the taxpayers more than just money.
bruce:
i’ll make one other comment, and then leave off for a little bit.–
ask any personal injury lawyer, and he will tell you that it is very hard to cause older people significant economic harm. the simple irreducible fact is, older folks do not have enough working years left for economic harm to compound.
the fact that these litigants got such a significant amount of money meant that the clallam county risk pool lawyers made the assessment that the harm suffered by these folks went way beyond mere economic harm, and their assessment was a jury would find that deb kelly’s & mark nichols conduct was so egregious as to have also caused significant emotional and psychological harm, so far out of the pale of decent conduct as to expose the risk pool to a very serious hit at trial.
in this context, (and i have supplied the correct context, … , ask any p.i. guy if what i’ve said holds up), kelly’s comment about the nature of the settlement implying money was willy nilly “given away” by the risk pool lawyers will surely cause those who represented her some consternation.
it is one thing to represent someone who fouls up. it is quite another to know that you quite likely have represented someone who will learn exactly nothing from the experience, and is quite likely to expose the risk pool to this sort of damage time and again.
is there no one who will run against her?
john jay
milton freewater, oregon usa
p.s. ask ralph anderson about his assessment of this situation. i’d be interested in what he says.
p.s. btw, the lawyers for the risk pool just don’t “give away” money to litigants.
you can bet you bottom bippy that for an award like this, the lawyers conferred with senior adjusters at the risk pool and a fairly flinty/glinty/hard eyed appraisal was made of the risk at trial.
and, it is quite likely that the risk pool has “reinsurers,” e.g., a layer of insurance protection they have purchased to protect against the likelihood of suffering a hit like this, and that senior adjusters for the reinsurers were likely involved in discussing the reasonable cost likely to be expected at trial, and the resultant reasonable cost of settling the case to avoid such risk.
insurance companies, and risk pool managers, don’t “give” this kind of money away. it is wrested from them, on a showing that they find compelling, that their clients have done serious damage to others, and that there is no legally defensible position to excuse such conduct before a jury.
kelly’s comments are, therefore, not well taken.
John is right. They ran throught the primary carrier’s coverage and were into the excess carrier. The attorneys’ fees for the defense must have been astronomical, as well. You read the situation well: the carriers evaluated their chances and decided there was a substantial risk that the verdict would exceed the settlement by a good bit.
I understand that the Plaintiffs did a mock jury, with the video deps of the main players. Rumor has it that the panel of 22 hated Kelly and Nichols, and would have awarded a boatload of damages to all four plaintiffs. That makes sense, since Kelly and Nichols would likely not do well under a good cross. The plaintiffs had a fine law firm and top flight attorney on the case, and I was far less impressed with the defense minion who took my deposition. He objected to my responsive answers to his questions when he did not like the answers. Very amateurish and mindlessly contentious. Apparently Hayden and others were even more critical of the defense guy than I was, and that is going some.
Good result for the plaintiffs. My heart breaks to hear what a cess pool that office was. I now understand better while all the professionals like you, Bruce, Drew Lauer, Will Payne, Lauren Erickson, and the like were driven out. Like Gresham’s Law, the bad money drives out the good. Further your affiant sayeth not.
I would have enjoyed a trial, however.
Methinks a trial would have turned the torch on the Inquisitors at no small cost to purveyors of sanctimony.
you are 100% right on that. Ms. Kelly is big on consequences for others, but not so much for her transgressions.
I enjoy your writing, Bruce. Between you and John Jay, I am educated when I read your posts. Keep it up.
I grew up 2 miles from where they hanged Nathan Hale. We had a print of Martin Luther telling the Holy Roman Emperor (and the Pope) he would not change his opinion even on threat of excommunication. Getting pushed around is not for me.
It’s hard to trust the writings of somebody that doesn’t even know the simple facts of the case. First, Kathy Nielsen was not a deputy prosecutor, she was a legal assistant. Robin Porter was also a legal assistant. Of the four plaintiffs, only one of them was an attorney, Carol Case, the others were all staff. Second, Nielsen did not resign “under extreme duress”. She resigned during a disciplinary hearing which was the result of an altercation she had with her supervising attorney where her behavior was aggressive, hostile and rude. Nielsen even admits that she behaved inappropriately during this altercation. Her resignation letter stated that she was giving two weeks’ notice and in her deposition, Nielsen explained that she would be willing to stay to clean things up and train her replacement. Somebody who is resigning “under extreme duress” would not voluntarily give 2 weeks’ notice and offer to train their replacement.
Third, you are misinformed when you state that “The allegations in the pleading, while not proven in a trial, apparently were sufficiently credible to induce the county to settle the lawsuit.” The County had no choice but to settle due to the business decision made by its insurance carrier. This decision had nothing to do with the merits of the case. Had the County decided to proceed to trial, it would have cost tax payers directly in that the County would have had to hire its own attorneys. For the benefit of saving tax payer dollars, the County decided to go along with the insurance company’s business decision. As it stands, the tax payers are only out $100,000, which would have been much more had the County hired its own attorneys to try the case.
Fourth, the turnover during Kelly’s term was not due to age discrimination, nor is turnover a sign that age discrimination exists. Only three employees resigned because of a conflict with management. The majority (14) of employees left because they found different jobs. Eight were terminated for various job performance reasons and/or misconduct and seven moved out of the area. Four employees quit due to medical issues. Also, the majority of the employees who left during Kelly’s tenure were not staff, they were attorneys. In fact, many of the staff have been employed by the prosecutor’s office since the 1980’s.
Kelly appointed Nichols as chief deputy because she recognized that she was not an effective manager. She needed somebody that could take on the task of effectively and efficiently managing a group of employees who were used to a freewheeling, unprofessional culture that did not require accountability to the taxpayers or to the elected prosecutor. It was a culture where employees were allowed to use profanity, call each other names, treat each other inappropriately, and basically not perform their jobs correctly, thus wasting taxpayer dollars. Kelly took serious issue with this and recognized the need for change. Only when she began to affect change did she face resistance. Nichols was able to step to the plate and assist Kelly with changing the office culture to one that was much more accountable and responsible. Part of this change was weeding out the poor performers and employees that fostered this inappropriate culture. Even though Nichols did not have as many years of experience as others within the office, he was the only one that possessed the skill and ability to properly manage long-term employees who were stuck in their ways. Nichols was loyal and willing to face hard issues. Moreover, Nichols was highly recommended by the former chief deputy. The County Commissioners also agreed that Nichols would be the best fit for the job.
There was no “campaign of ‘going younger’”. The only “campaign” was that of cleaning up the office and bringing it to standards in professionalism, productivity and accountability. The plaintiffs were the epitome of unprofessional behavior, unproductivity and therefore, unaccountable in their actions both towards the elected as well as the taxpayers. In fact, Case’s behavior was more often than not hostile towards her co-workers and unprofessional towards people outside of the office. She even went so far as walking out of a courtroom in the middle of oral argument. A judge often complained that she would behave disrespectfully in court by rolling her eyes and muttering under her breath. Law enforcement complained about how she treated their staff in a condescending and rude manner. Defense counsel didn’t particularly enjoy working with Case either. Porter, Nielsen and Sundt also fostered a hostile environment towards co-workers as well. Nielsen even went so far as calling her supervising attorney a lonely old woman who was a waste of the State’s money. Porter wasted tax payer dollars by frequently using the internet and County email system for personal use. Sundt fostered a hostile environment by failing to properly discipline the employees she was charged with managing when they acted in inappropriate ways towards others. Sundt also was not accountable to the taxpayers. She failed to maintain the budget properly and even overdrew on it and frequently failed to pay invoices in a timely fashion or not at all. She also did not maintain records properly which are key to having an efficient and effective prosecutor’s office. Sundt was not placed on administrative leave in retaliation to receiving the letter from her attorney. She was placed on administrative leave for failing to pay a very overdue invoice and for failing to properly handle an employee misconduct issue the previous week following several discussions with management that Sundt needed to improve in the area of overall office management. Sundt, along with Nielsen, had been progressively disciplined, informally and formally, and yet, both failed to remedy their behaviors. Porter was also progressively disciplined, yet she continued to have a pattern of extreme absences and continued to misuse County resources.
Case was placed on administrative leave and required to undergo a fitness for duty evaluation after a string of events where she behaved inappropriately. One event led to a staff member having to leave the office early because she was so upset by Case’s actions towards her. Upon Case’s return to the office following administrative leave, Case seemed to target this staff member. Case’s inappropriate and harassing behavior continued towards this staff member for months, despite being counseled time and time again to cease. Case also targeted other employees and made others feel extremely uncomfortable in her actions. Finally, it became apparent that Case was not capable of behaving appropriately towards others and Kelly had no other choice but to terminate her. Case fostered a hostile environment that Kelly was trying to eliminate and Case left her with no other option but termination. Kelly admits that Case was an excellent and very capable attorney, but that her behavior was simply intolerable and toxic to the office.
Mr. Hanify, I would also like to point out that you even admitted in your deposition that you never witnessed anything that would support any kind of allegation as it relates to age discrimination. You even admitted that one of the reasons why you left was because Case’s behavior was making your life uncomfortable and that you had your own style of prosecuting and were not going to follow the mold that Kelly wanted you to follow. You also stated that you felt the office had no professional camaraderie of any kind, which is exactly what Kelly was trying to change and improve.
In regards to Porter’s death, she did not die of a “broken heart”. She died of a very aggressive form of brain tumor which had a very quick onset, and unfortunately, was not curable. She died within days of diagnosis and her employment with Clallam County did not cause this brain tumor.
Your input is appreciated.