by AMANDA WINTERS
Just days before trial, four women once employed by the Clallam County Prosecutor’s Office received a $1.6 million settlement in an age-discrimination and retaliation lawsuit against the county.
Attorney Stephanie Bloomfield said the four plaintiffs, all long-term employees in their 50s and 60s, experienced age discrimination and retaliation that culminated in the wrongful end of their employment. Carol Case, former deputy prosecutor; Elaine Sundt, former office administrator; Kathy Nielsen, former legal assistant; and Hollie Hutton, representing her mother Robin Porter, a former legal assistant who died in January 2008, filed the lawsuit in 2009 after filing a tort claim with their grievances against the county in September 2008. The case was set to go to trial May 21 in Jefferson County Superior Court.
In a news release issued by the law firm representing the plaintiffs, Gordon, Thomas, Honeywell, LLP, the attorneys said when an independent risk manager assessed the case and recognized the significant exposure the county faced, the insurer paid the substantial settlement so it would not be exposed to the risk of a larger verdict from the jury.
Clallam County Administrator Jim Jones said the county paid a $100,000 deductible to the Risk Pool insurance company, which is based in New York. The county’s premium, calculated by several factors, including the average claims paid over five years, will no doubt increase as a result of this large claim, he said.
In a news release, Clallam County Prosecuting Attorney Deb Kelly said the plaintiffs and their lawyers were seeking $7.5 million in the lawsuit and the insurance company settled for business reasons.
“We were fully prepared to take this to court so that we could finally tell our side of the story … while we disagree with the decision and feel confident we would have been vindicated, we understand the insurance company’s economic decision,” Kelly said in the statement.
Good reviews, raises
Bloomfield said all four employees, two of whom worked in the office for more than 20 years and the other two nearly a decade, never received a negative performance evaluation before they were fired.
In fact, literally days before Porter was placed on administrative leave, Bloomfield said, she received a performance evaluation of meeting or exceeding standards in all areas except attendance, and the evaluation noted she had a work plan in place to monitor use of sick leave. Nielsen, who started as a legal secretary in 1999 and was promoted by Kelly to legal assistant in 2006, received an evaluation indicating she was meeting all standards in February 2007. Four months later she was suspended, Bloomfield said.
Sundt, named Clallam County Employee of the Year in September 2002, also never received a negative employment evaluation, Bloomfield said.
The fourth plaintiff, former Deputy Prosecutor Carol Case, received two step pay raises from Kelly, one in January 2007 and one in January 2008, according to information provided by county attorney Michael Patterson of the Patterson, Buchanan, Forbes, Leitch and Kalzer law firm.
In a deposition, Kelly said she thought Case was a very competent attorney with an incredible work ethic.
Bloomfield said the underlying issues began in August 2005, when Kelly elevated Mark Nichols, then two years out of law school, to chief deputy prosecutor with authority over all personnel and administrative matters. The plaintiffs allege Nichols implemented unnecessary new policies such as no gossiping, no profanity and no “temper tantrums,” showed favoritism to younger employees, subjected older employees to hostile, condescending and demeaning conduct, and made ageist comments.
The plaintiffs claimed when issues arose between older and younger workers, Nichols wouldn’t let the older employees tell their side and would require them to jump through hoops and do extra work not required of their younger counterparts.
According to court documents, five attorneys between the ages of 49 and 59 left the office from September 2006 to January 2008. Several of those attorneys testified in depositions they heard the same sort of ageist and discriminatory comments by Kelly and Nichols that the plaintiffs did and they considered the office to be a hostile work environment.
Both Sundt and Case made complaints about workplace issues before their termination. Sundt’s attorney sent a letter concerning allegations of hostile work environment and age discrimination and the next business day Sundt was placed on administrative leave, Bloomfield said.
Kelly said all four plaintiffs engaged in misconduct that led to their terminations.
Kelly said Porter had poor attendance. In a letter notifying Porter of her intent to terminate Porter’s employment, Kelly said in a two-month period Porter took about 11 days off, half of which fell on a Monday or a Friday, and didn’t provide a sick note from a doctor when out for two days in April 2006.
Porter also allegedly had conflicts with a younger office worker, Tina Hendrickson, and used the Internet in excess of the county’s policy.
Nielsen’s personnel file included notes of her saying things to co-workers which were offensive. In one instance, the offended coworker, Nielsen and a supervisor met to discuss the issue and Nielsen apologized, according to documents.
Nielsen sometimes became agitated or argumentative and challenged her supervisors’ authority, Kelly said.
Sundt, an employee of the office for 26 years, allegedly fostered the idea Nichols and Kelly were engaging in favoritism toward the newer, younger employees, Kelly said.
According to Patterson, issues with Sundt’s performance include going over budget in 2007 due to a change in county policy she failed to account for, having poor organizational skills and preferring duties she was comfortable with.
Following Porter’s death in January 2008, Kelly attended the funeral and felt personally hurt and snubbed that her employees, including Sundt, did not sit with her and perceived it as disloyal, according to Patterson.
Sundt was accused of insubordination in March 2008 for not following two direct instructions given by Kelly and placed on administrative leave April 1, 2008.
According to a statement by Kelly, Case was terminated because she caused major disruption in the office due to her personal misconduct.
The alleged misconduct included mistreatment of then victim-witness coordinator Anna Shimko, then 28. Shimko, who was fired in 2011 after being charged with domestic violence, complained that Case treated her badly. Examples included the following: Case saying “sorry” in a condescending way after she left coffee in the microwave and Shimko removed it, Case saying “thank you” aggressively when Shimko gave her a file, Case saying “excuse me” in a condescending way, Case complaining of an odor sensitivity possibly from Shimko’s perfume and Case slamming her office door.
Kelly terminated Case’s employment by showing up at Case’s front door with a deputy sheriff and a notice of termination, according to documents.
Bloomfield said the plaintiffs accepted the $1.6 million settlement to avoid a potential delay in payment if the jury found the county guilty and the county appealed. It was important to them the county acknowledge its wrongful conduct and the size of this settlement attests to that, she said.
“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,” co-counsel James Beck said. “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.”
The attorneys said after Kelly elevated Nichols, the next three years in the Prosecutor’s Office had a turnover rate between 210 and 215 percent.
“The witnesses who testified in depositions (current and former employees) universally confirmed turnover under Kelly’s predecessors Chris Shea and David Bruneau in no way compared to what happened under Kelly and Nichols,” Bloomfield said.
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.