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