Clallam County Age Discrimination Case Settled for $1.6 Million

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.”

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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