May 2, 2023 Tacoma WA

Today The Washington State Division II Court of Appeals rejected Judge Karena Kirkendoll’s October 2021 dismissal of Dr. Marshall’s lawsuit against UW Tacoma for race discrimination and creating a hostile work environment owing to race.  Their 50-page opinion provides a detailed walk through of a mountain of facts supporting Dr. Marshall’s claims.  The Court’s opinion also recounts  decisions by the UW management that supports white privilege and institutional discrimination at UW Tacoma including testimony by experts, witnesses, and internal reports finding discrimination.

Click here to see Court of Appeals opinion

UW-Tacoma Assistant Professor Gillian Marshall, a black woman, has been denied tenure by the white faculty in the Social Work and Criminal Justice unit (it’s now a school) at UW-Tacoma. The denial was allegedly based on the SWCJ faculty’s claim that her scholarship was adequate but not outstanding, and her teaching was poor. UW-Tacoma management rubber stamped their decision, most recently including Dean Keva Miller, who on September 16, 2021, denied Dr. Marshall a merit salary increase on the same basis.

• Click here to see 2022 Chronicle of Higher Ed article on Dr. Marshall
• Click here to see external reviews by outside scholars of Dr. Marshall’s work
• Click here to see Dean Miller letter denying merit pay to Dr. Marshall

As to evidence of racism at UW-Tacoma, see a 2016 report and a 2017 climate survey that were sent to Chancellor Mark Pagano, and the declarations of Dr. Chris Knaus, Investigator Kimi Ginn, and two declarations from Dr. Melissa Lavitt.  Also, there is a declaration from Expert witness Leah Hollis, EdD regarding bullying in academia. 

• Click here to see 2016 report on racism at UW-Tacoma
• Click here to declaration of Dr. Chris Knaus
• Click here to see 2017 UW-Tacoma Faculty of Color Climate Survey in draft
• Click here to see Investigator Kimi Ginn’s declaration
• Click here to see Dr. Melissa Lavitt’s 2020 declaration
• Click here to see Dr. Melissa Lavitt’s 2021 declaration
• Click here to see Dr. Leah Hollis’ expert opinion on bullying

The Tenure Process

As to the process and procedures applied to those seeking tenure and promotion, Attorney/UW Professor Mike Townsend provided a good lay person explanation as to what should happen.  His testimony is summarized here.

Plaintiff’s witness on the ins and outs of the Faculty Code is attorney and professor Mike Townsend, who as Secretary of the Faculty Senate, provides advice to the faculty and to the administration, and acts as sort of a librarian chronicling past actions to help guide faculty and the administration with decision-making today. See Townsend Dep. at 1-14. He doesn’t represent individuals or the University in his job. Id. at 33-34.

Dr. Townsend states that the Faculty Code is treated as binding on faculty and administration. Id. at 14:4-18. When pointed to ¶ 24-32 of the Code, which provides that “In accord with the University’s expressed commitment to excellence and equity, any contributions in scholarship and research, teaching, and service that address diversity and equal opportunity shall be included and considered among the professional and scholarly qualifications for appointment and promotion outlined below.” He noted that this is an important section of the Code.  Id. at 18:6-20:20.

Dr. Marshall’s NIH research grant addressed issues of diversity.

Dr. Townsend also confirmed that appointment to the rank of associate professor requires a record of substantial success in teaching and/or research and that both teaching and research are required, “except that in unusual cases an outstanding record in one of these activities may be considered sufficient.” Id. at 23:3-18. See also, 09/24/21 Purdy SJ Dec., Ex. B at ¶ 24-34 (see below).

• Click here to see excerpts from deposition of Attorney/UW Professor Mike Townsend

Research

As to the quality of Dr. Marshall’s research, see the redacted opinions of four distinguished independent external evaluators (typically, and in this case, only the SWCJ voting faculty and management who are voting on tenure and promotion get to see these external evaluations so there is a risk that the content of the opinions will be misstated in public documents.

• Click here to see July 10, 2020, letter from Marcie Lazzari to external reviewer stating that UW will keep the external evaluator’s opinion confidential unless ordered to produce to the plaintiff by a court
• Click here to see Court Order requiring UW to produce four external reviews of Dr. Marshall’s scholarship redacting the names

On September 8, 2020, External Reviewer No. 1 says it all: “The quality of her work is outstanding.” Id. at #12955. No. 1 also noted that she publishes at a high rate in “impactful journals, and states, “With unwavering certainty, Dr. Marshall will continue to be recognized for her research through publications and grants. She far exceeds other scholars who are broadly in aging and health at the same point in their careers.” Id. at #12959. No. 1 goes on to write:

What makes Dr. Marshall’s research trajectory even more impressive is the commitment that the National Institutes of Health (NIH) has invested in her and her work. Any award by NIH indicates that Dr. Marshall is recognized as an excellent researcher with an agenda that is and will continue to make a difference, and in her case, in the lives of older adults. To receive a K0l award followed by a Loan Repayment Award followed by an Administrative Supplement is no small feat. It is quite extraordinary. It takes focus, commitment, critical thinking and a solid research plan to even be considered let alone be awarded funding . . . it is widely recognized and accepted that the research and training associated with the grant takes priority over all other responsibilities as evidenced by her scholarship record.

In addition to her impressive funding record, Dr. Marshall has disseminated her research broadly at 13 conferences in her time at the University of Washington Tacoma which demonstrates her interdisciplinary focus, at gerontological, public health, and social work conferences. Id. at #12955-56.

External Reviewer No. 2 also writes a glowing evaluation of Dr. Marshall’s work noting that, “Dr. Marshall’s program of research is noteworthy for highlighting personal, interpersonal, and structural factors that collectively influence health and well-being. Her focus on older Black adults is especially appropriate given their heightened and lifelong exposures to environmental circumstances and psychosocial stressors (e.g., higher rates of poverty, discrimination, reduced access to care) that are significant risks for poor physical and mental health outcomes.” Id. at #12957. No. 2 also notes that,

Dr. Marshall’s research is distinctive from typical research on health disparities in that her work seeks to understand both proximal and distal factors associated with adverse health outcomes and identify the causal pathways that link behavioral, social, and structural determinants of health. Doing so, effectively re-conceptualizes health disparities as health inequities (i.e., avoidable and unjust inequalities) and underscores the systemic and structural features and circumstances that produce and maintain poor health and adverse health outcomes among socially disadvantaged groups.

Id. at #12958. No. 2 writes, “It is particularly noteworthy that she stands out as one of few scholars from a school of social work to be awarded a K Award. In addition, she has been accorded the distinction of being selected an Early Career Reviewer for the Social Sciences and Population Study Section of the National Institute on Aging.” Id. at #12958.

On August 17, 2020, External Reviewer No. 3 wrote, “Dr. Marshall’s [] quantity and quality of work place her in the top 10-15% of Assistant Professors in gerontology across the social and behavioral sciences. Her record is similar to those of Assistant Professors at research intensive universities who are promoted to Associate Professor with tenure.”

On August 16, 2020, External Reviewer No. 4 wrote, “Dr. Marshall has advanced scholarship on the intersection between aging, ethnicity, financial equity, and mental health, an area that is contemporary and much needed in gerontological research I know many young scholars who have applied for K01 awards, Dr. Marshall . . . is the only one I am aware of who successfully obtained this prestigious award.” Id. at #12964. No. 4 also writes, “She is the sole author of a paper published in Social Work, the most widely-disseminated journal in social work that reaches thousands of practitioners and academicians. She also is the first author of nine publications. Her scholarship has been broadly distributed in well-known journals that should target those who can benefit most from her research.” Id. at #12964-5.

• Click here to see evaluation by External Evaluator No. 1
• Click here to see evaluation by External Evaluator No. 2
• Click here to see evaluation by External Evaluator No. 3
• Click here to see evaluation by External Evaluator No. 4

Teaching

As to the quality of Dr. Marshall’s teaching, see the four reviews in her tenure and promotion file attesting to her teaching skill performed by UW-Tacoma qualified faculty.

• Click here to see 2017 peer review and declaration of Professor Julia Aguirre
• Click here to see 2018 and 2019 colleague review and declaration of Professor Beth Kalikoff
• Click here to see 2019 peer review of Professor Deidre Raynor

The following are some of the documents submitted to the Court by Dr. Marshall in pre-trial proceedings. 

• Click here to see plaintiff’s response to UW-Tacoma’s motion to dismiss the Case
• Click here to see declaration of former UW-Tacoma Professor Sarah Hampson
• Click here to see UW UCIRO discrimination Investigation and testimony of Investigator Beth Louie 
• Click here to see Promotion and Tenure documents considered by faculty and management
• Excerpts from Furman Dep.
• Excerpts from Emlet Dep.

The lawsuit produced evidence that white management uses “collegiality” and “fit,” which is often code to support discrimination.  The following is from plaintiff’s response  (at pages 17-18) to defendants’ motion for summary judgment above.

Good Fit And Collegiality–taken from plaintiff’s response (see above)

Being a “good fit” and “collegiality” are codes for discrimination and are direct evidence of discriminatory intent. “Coded language includes statements about collegiality and fit; these are usually applied within a context of questioning whether a potential hire or candidate for tenure/promotion is a good ‘fit’ within a department.” Knaus Dec. at ¶ 10; 101120 Lavitt Dec. at ¶ 39 (“fit” is often code for policies that perpetuate bias and reduce the likelihood of hiring diverse faculty). “The UW, and UW-Tacoma . . . have instituted implicit bias training for faculty that specifically cautions faculty and administrators from using such coded language in considering candidates, but the use of such remains commonplace.” Knaus Dec. at ¶ 10.

In October 2018, during a special meeting called by Dr. Young and the SWCJ faculty, excluding Dr. Marshall, to discuss the reappointment policies and practice following Jill Purdy’s overruling of SWCJ faculty’s recommendation to not grant reappointment to Dr. Marshall. Jill Purdy suggested to the white faculty present that the SWCJ faculty should “create policies with criteria to assess collegiality. 10/11/20 Lavitt Dec. at ¶¶37-39; 10/7/21 Lavitt 1^st Supp. Dec. at ¶¶ 2-3. Purdy admitted this to UCIRO Investigator Beth Louie that she told the white faculty it’s “important for the department to develop standards of collegiality so this doesn’t happen.”  Louie Dep. at 94-95:3.

SWCJ Tenured Faculty Rich Furman admitted to attending the October 2018 meeting [with Jill Purdy] but denied that Jill Purdy had talked about “collegiality” or “good fit.”  Furman Dep. at 10:5-13:17.  Similarly, SWCJ Full Professor Charles Emlet denied that Purdy had discussed “collegiality” or “good fit” with the SWCJ faculty. Emlet Dep. at 30:22-31:14 (no, not to my recollection).

Jill Purdy is not the only manager to make a statement showing her discriminatory predilections. In another discussion with Dr. Lavitt involving hiring more persons of color, Chancellor Pagano said to Vice Chancellor Lavitt, “why can’t we find a good one?”  Dr. Lavitt took that to mean a good person of color. 10/7/21 Lavitt 1^st Supp. Dec., ¶ 6.

As to Diane Young, Purdy also told Louie that she had “not seen or heard anything from Diane Young that is overtly racist.”  Louie Dep. at 84:17-24. The implication being that Diane Young’s racism is not out in the open.

UW-Tacoma

The following documents have been submitted by UW-Tacoma in pre-trial proceedings in an effort to have the case dismissed before trial. 

• Click here to see UW-Tacoma’s motion to dismiss
• Click here to see declaration of former Director of School of Social Work and Criminal Justice Diane Young
• Click here to see declaration of former Vice Chancellor Jill Purdy
• Click here to see declaration of former Chancellor Mark Pagano

A jury trial will be set in Pierce County Superior Court. 

December 20, 2022

Yakima, WA

Today, after a two and a half week trial, a Yakima County jury found that DSHS management at the Yakima Valley School, retaliated against Ms. Hyde beginning in 2015 because management believed that Ms. Hyde had filed a whistleblower claim against her supervisor for doing her tax business during work hours at work.  Under Washington law, a state employee is protected from whistleblower retaliation so long as the employer “perceives” that she is the whistleblower even if she is not. Ms. Hyde was not the whistleblower.

At trial, Ms. Hyde presented evidence that Superintendent Tammy Winegar was behind the negative treatment, which included negative performance evaluations, removal from her position and relocation to another building far from her co-workers with no assigned work. 

Ms. Hyde endured harassment on almost a daily basis until she could take it no more, and she quit in January 2019.  The jury awarded her lost wages of $101,260, lost retirement of $580,683, and emotional harm damages of $1,240,000. 

Jack Sheridan, Hyde’s attorney, stated, “Dawne suffered for years at work owing to the retaliation and the reality that no one in management would raise a finger to stop it, but at trial, the jury listened and understood and now she is vindicated.” 

Click here to see special jury verdict form

Click here to see judgment on jury verdict

Click here to see HYDE Complaint

Click here to see positive performance evaluation signed by Winegar before whistleblower anonymous filing

Click here to see State Auditor’s report

Click here to see letter pulling Hyde from job signed by Winegar after whistleblower anonymous filing is closed

Click here to see Judge Tutsch’s final jury instructions in Hyde v. State

Click here to see Yakima Herald article

Many Black plaintiffs suing in the civil forum for damages owing to negligence or discrimination, or malpractice find that their access to the justice is problematic.  Nationwide, Black civil plaintiffs just don’t get the same justice as white plaintiffs, especially if the defendant is white.  Our Supreme Court has addressed this disparity in criminal cases regarding Black defendants, but now the Supreme Court has broadened those protections to protect Black plaintiffs in civil cases so they may have the same access to justice as white plaintiffs.

On October 20, 2022, our Supreme Court issued its opinion in Henderson v. Thompson, 200 Wash. 2d 417, 421, 518 P.3d 1011, 1016 (2022), which is perhaps the most important Supreme Court decision in a decade for civil plaintiffs, because it addresses racism in the courtroom in a civil case: “[w]hether explicit or implicit, purposeful or unconscious, racial bias has no place in a system of justice. If racial bias is a factor in the decision of a judge or jury, that decision does not achieve substantial justice, and it must be reversed.” Id. 

In Henderson, the plaintiff was Black and the defendant was white. At the request of the the plaintiff, the Supreme Court overturned a jury verdict for plaintiff that was diminished by racism in the courtroom: the plaintiff received a small verdict in a civil case even though the evidence supported a larger verdict, and “because [of] defense counsel’s comments during cross-examination and closing arguments that  drew on racial stereotypes, along with the jury’s astonishingly small award and the request to remove Henderson from the courtroom, [which] support the conclusion that appeals to racial bias affected the verdict. Id. at 434. In addition, the trial judge was removed from presiding over the second trial upon remand based on their conduct. Id. at 440. 

Henderson speaks to judges and lawyers guiding them on  how to address, post-trial, racism that occurred in the courtroom during trial. “Henderson moved for a new trial or additur on the ground that the repeated appeals to racial bias affected the verdict, yet the trial court did not even grant an evidentiary hearing on that motion.” Id. at 422.

Relying on State v. Berhe, 193 Wash.2d 647, 665, 444 P.3d 1172 (2019), a criminal case, the Supreme Court announced procedures for the trial courts to use post-trial when race could have affected the jury’s verdict. They are: 

• First, the plaintiff, post-trial, must present a prima facie case showing that an objective observer (one who is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have influenced jury verdicts in Washington State) could view race as a factor in the verdict.
• Second the trial court must hold a hearing on a new trial motion when the proponent makes a prima facie showing that this objective observer could view race as a factor in the verdict, regardless of whether intentional misconduct has been shown or the court believes there is another explanation.
• Third, at that hearing, the party seeking to preserve the verdict bears the burden to prove that race was not a factor.
• Fourth, if that burden is not met, the court must conclude that substantial justice has not been done and order a new trial. CR 59(a)(9).

Id. at 422–23 (quotation marks omitted).

Henderson also admonishes lawyers and judges to “actively work to prevent racism before it occurs.” Id. at 446.

There is hope for change.

Click here to see Henderson

Click here to see (State v. Bagby) a new criminal case addressing racism by prosecutor

In 2020, in an open letter to judges and lawyers, our Supreme Court faced racism in the courtroom and asked attorneys and judges to do better.

We must recognize that systemic racial injustice against black Americans is not an omnipresent specter that will inevitably persist. It is the collective product of each of our individual actions—every action, every day. It is only by carefully reflecting on our actions, taking individual responsibility for them, and constantly striving for better that we can address the shameful legacy we inherit. We call on every member of our legal community to reflect on this moment and ask ourselves how we may work together to eradicate racism.

The Court pointed a finger at attorneys and judges.

 The legal community must recognize that we all bear responsibility for this on-going injustice, and that we are capable of taking steps to address it, if only we have the courage and the will. The injustice still plaguing our country has its roots in the individual and collective actions of many, and it cannot be addressed without the individual and collective actions of us all.

As judges, we must recognize the role we have played in devaluing black lives.

In knowing that unrelenting racism exists today the Supreme Court is asking the judges and attorneys everywhere to do better.

In a straight line from this letter, the Supreme Court recently recognized in criminal cases addressing the issue of whether a police encounter with a person of color was in fact a seizure.  The Court noted:

an objective observer is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in disproportionate police contacts, investigative seizures, and uses of force against Black, Indigenous, and other People of Color (BIPOC) in Washington.

State v. Sum, No. 99730-6, 2022 WL 2071560, at *1 (Wash. June 9, 2022).

The Court faced head-on the reality of mistreatment in the courts. “Historically, many of this court’s opinions concerning the civil rights and lived experiences of BIPOC have been deplorable.” Id. at *5.

The Court recognized that race and ethnicity are always relevant in addressing seizure issues: “we hold that an allegedly seized person’s race and ethnicity are relevant to the question of whether they were seized by law enforcement for purposes of article I, section 7.”  Id.

The evolution of the judicial mind, must continue along that straight line and allow for introspection as to whether this forum will overcome that long history of discrimination in the courts or fail again.  Judges and attorneys must recognize that in every judicial decision race discrimination and the potential for unfair treatment of a Black and other litigant of color exists in every courthouse and affirm that this evil specter will not be allowed in this judicial process.

Click here to see State Supreme Court open letter

Click here to see State v. Sum

On September 1, 2022, the Honorable Ken Schubert signed a judgment against the State of Washington ending a whistleblower retaliation lawsuit filed in King County.  Trooper Caton was a witness in Trooper Ryan Santhuff’s whistleblower lawsuit, and he testified at the Santhuff trial and was driven out of the Aviation group as a result.  Had the State not offered a judgment, the case was set to go to trial on September 6, 2022. Trooper Caton continues to work as a trooper in the Washington State Patrol.

Click here to see Caton complaint;

Click here to see offer of judgment;

Click here to see Caton acceptance of CR 68 offer;

Click here to see Caton Signed Judgment for $714,000.

Today, Petitioner Abdikarim Karrani filed a petition with the U.S. Supreme Court seeking review of his removal from a JetBlue flight after a white flight attendant pushed Mr. Karrani and then said he pushed her. 

After the plane landed, the pilot did no meaningful investigation even though other passengers said the flight attendant was lying, and even though a police officer, who interviewed Mr. Karrani, the flight crew, and other passengers testified he saw no evidence of assault.  The police officer removed Mr. Karrani at the request of the pilot and the flight attendant, because the flight attendant was afraid of Mr. Karrani. 

In another case in Los Angeles, the same flight attendant falsely claimed that a Black American woman pushed her.   The passenger was removed because the flight attendant said she would not fly unless the passenger was removed.   

Here are some of the holding by U.S. circuit courts in America:

• An air carrier’s decisions to refuse transport are not subject to liability unless the decision is arbitrary or capricious (the law does not say this; judges made this up as a barrier to discrimination claims).
• Review of a decision to refuse transport is restricted to what information was actually known by the decisionmaker at the time of the decision. The test is not what the Captain reasonably should have known (the law does not say this; judges made this up as a barrier to discrimination claims).
• The Captain (or other decisionmaker) is entitled to accept at face value the representations made to him by other air carrier employees. Thus, even mistaken decisions are protected as long as they are not arbitrary or capricious (the law does not say this; judges made this up as a barrier to discrimination claims).
• The biases of a non-decisionmaker may not be attributed to the decisionmakers (the law does not say this; judges made this up as a barrier to discrimination claims).
• The jury must be instructed that the Captain has the power to refuse transport because transport of a passenger “might be inimical to safety” unless that decision was arbitrary or capricious (this is the language of the law, but it has nothing to do with claims of discrimination).

The circuit courts say that the pilots don’t have to investigate before removing a passenger—they just have to hear a lie from a crewmember—and even if a crew member is a bigot the court won’t look at the crewmember’s bias in the decision-making process.  Jack Sheridan said, “The Supreme Court needs to review this, because as it stands, Black Americans lose their civil rights once they board a plane, and they are unprotected against removal based on false statements by biased and racist crew members.”

Click here to see Karrani Petition

Click here to see Appendix to petition

January 29, 2021

Olympia, WA

Today SLF Attorney Andra Kranzler filed a “friend of the court” brief on behalf of the Loren Miller Bar Association in support of Appellant Janelle Henderson, a Black American woman with Tourette’s Syndrome, who prevailed at trial, but her victory was tainted by discrimination in the courtroom before, during and after trial.  The Supreme Court took direct review of her appeal.  Some of the facts raised on appeal by Ms. Henderson include:

• The defense injected racially biased tropes in closing arguments;
• The all white jury awarded an inadequate verdict in light of the evidence;
• The jury asked and got the trial judge to remove Ms. Henderson from the courtroom before they exited;
• Rulings by the trial court showed bias in the courtroom.

The Loren Miller Bar Association (“LMBA”) is a Washington statewide nonprofit organization and affiliate chapter of the National Bar Association. Its 500 current and past members are primarily African American judges, attorneys, law professors, and law students. From its inception, LMBA has adopted a vigorous platform of confronting institutionalized racism and the myriad of social and economic disparities affecting the African-American community. LMBA is submitting this amicus curiae brief to support Ms. Henderson’s position that the judiciary has a critical role in preventing racial bias from affecting jury verdicts and in providing litigants relief when it does. This issue is paramount for LMBA, as attorneys have a duty to ensure civil litigation, inside and outside the courtroom, is free from prejudice and bias in any form.

The friend of the court brief outlines the unfair playing field in Washington courts experienced by persons of color affected by:

• Stereotypes that are ingrained and often unconscious, implicit biases that endure despite our best efforts to eliminate them;
• Bias by jurors;
• Bias by opposing counsel and colleagues:
• Bias by parties and witnesses;
• Bias by judges noting that the majority of judges are white and often blind to their own biases.

The brief asks the Supreme Court to exercise its inherent supervisory powers to mitigate the harm from implicit racial bias and systemic inequalities in all cases by:

• Mandating jury instructions on implicit bias;
• Addressing the makeup of the jury pools to ensure that they are diverse.

Click here to see Henderson Friend of the Court Brief

Click here to see Henderson Statement of Grounds for Direct Review

December 17, 2020

Bellingham, WA

Today, Antonia Allen, the former Director of the Office of Internal Auditor (OIA) at WWU filed a lawsuit in Whatcom County Superior Court seeking damages flowing from her termination on November 30, 2019, which she alleges was in retaliation for investigating and reporting to her  management (including WWU President Sabah Randhawa) and to federal and state authorities that WWU staff and faculty members in the Woodring College of Education offered and granted false academic credentials to students with the intent to bolster their credit loads for financial aid purposes–essentially, faculty were giving students credit for attending classes they did not in fact attend so they could obtain federal financial aid money.  Ms. Allen concluded that those acts constituted financial aid fraud against the United States and she reported that conclusion to management.

Jack Sheridan, her attorney, said, “as Director of WWU OIA, Ms. Allen’s job was to be the conscience of the university, which often made her the messenger bringing bad news to management. This is one of those cases where her management (figuratively) shot the messenger rather than face the problem.” Her lawsuit alleges that her management criticized her for going to the federal government and for asserting that the ghost courses amounted to “financial aid fraud.”  According to Sheridan, “by reporting this misconduct to the Department of Education’s Office of the Inspector General, she was protecting WWU from fines and penalties, which may have been levied by the federal government, had she not reported those improprieties.”

Her lawsuit also alleges that Ms. Allen uncovered ethics violations in which faculty were using state property and resources for personal gain.  She reported this improper governmental action to the WWU management (including WWU President Sabah Randhawa), and management’s response was to seek an exception to the ethics law.  This ethics issue began in 2018 and was still not resolved at the time of Ms. Allen’s termination in November 2019. Ms. Allen’s complaint alleges that this was another reason for her wrongful termination.  A jury trial is expected to be set for late 2021 or early 2022. 

Click here to see Allen Complaint

Click here to see copy of Seattle Times article

Click here to see Seattle Times editorial

Click here to see Inside Higher Ed article

September 28, 2020

Kent, WA

Today, after a four-week trial, a King County jury found that the Washington State Patrol (“WSP”) retaliated against WSP Detective Ryan Santhuff for reporting sexual harassment involving Lieutenant Jim Nobach and Nobach’s office manager in February 2016.  Then and now, Nobach has been in charge of the Aviation Section of the WSP.  At any given time the Aviation Section has about seven pilots and seven planes, and they conduct missions including traffic enforcement, surveillance, and transporting WSP and State executives, including the governor.   Santhuff joined Aviation as a pilot in January 2014. 

Jack Sheridan, Santhuff’s attorney, stated, “until March 2016, Ryan was succeeding by all measures and on his way to becoming a command pilot, which means he could fly any of the WSP airplanes in any weather and carry any passengers.” That all changed after Santhuff reported Nobach’s misconduct. 

Santhuff testified at trial that in a meeting with Nobach in Nobach’s office, while both were seated at a table talking, Nobach’s office manager entered the room, and after exchanging some small talk with Nobach, the office manager said, “I know what you really want,” and walked behind Nobach and rubbed her breasts back and forth against the back of Nobach’s head.  Santhuff promptly exited the room and several days later reported the misconduct to his chain of command.  On March 30, 2016, Nobach and his office manager were disciplined in the form of written counselling called an 095.  According to Sheridan, “Two days later, beginning on April 1, 2016, Nobach began a campaign of retaliating against Santhuff that involved criticizing his flying, making false claims against Santhuff involving safety issues, and disciplining him with an 095 in September.  According to Sheridan, Nobach’s chain of command, although notified by Santhuff of the ongoing retaliation, did nothing to protect Santhuff, and Captain Johnny Alexander, in two different meetings with Santhuff, told him that he needed to stop complaining if he wanted to stay in Aviation. Alexander claimed for the first time at trial that Santhuff and his sergeant (who forwarded Santhuff’s harassment claim up the chain of command) confessed in 2016 to being a part of the hostile work environment–these new allegations are not in any written record and both Santhuff and his sergeant denied the allegations under oath.   Santhuff left Aviation in October after neither his chain of command nor Internal Affairs acted to protect him.  Santhuff is now working as a WSP detective.

The jury found that:

• The WSP retaliated against Ryan Santhuff in violation of the Washington Law Against Discrimination; and
• The WSP engaged in Whistleblower retaliation in violation of the Washington State Whistleblower Law (RCW 42.40)

During trial, Lt. Nobach was found in contempt of court for violating the judge’s order that witnesses be excluded from the courtroom.  Sheridan said, “it’s typical to exclude witnesses who have not testified from the courtroom so they cannot adjust their testimony to better fit with the testimony of witnesses testifying before them.”  Owing to precautions related to the coronavirus, spectators were permitted to watch the trial via Zoom.  Nobach encouraged one of his sergeants and his office manager to watch Santhuff’s testimony in violation of the judge’s order, which they did, and then testified with the benefit of having seen hours of Santhuff’s testimony.    

Click here to see Court’s contempt order to Nobach

Click here to see signed jury verdict form

Click here to see judgment and jury verdict

Click here to see Court’s Jury instructions

Click here to see Alexander September 2019 Deposition

Click here to see Matheson September 2019 Deposition

Click here to see Nobach July 2020 Deposition

Click here to see Saunders October 2019 Deposition

Click here to see trial transcript Day 1 opening statements Matheson Alexander

Click here to see trial transcript Day 2 Alexander

Click here to see trial transcript Day 3 Saunders Speckmaier

Click here to see trial transcript Day 4 Santhuff

Click here to see trial transcript Day 5 Santhuff Torelli Kaiser

Click here to see trial transcript Day 6 Randy Drake Santhuff_Redacted

Click here to see Santhuff Trial Brief

Remainder of Trial Not Transcribed

In American cities, business property has been torched and stores have been looted following marches against the murder of George Floyd by a police officer who kneeled on his neck for nine minutes while three other officers looked on and did nothing.  A few days before, Amy Cooper, a white woman, called the police falsely claiming that a Black man (Christian Cooper) was threatening her in Central Park.  Only the video taken by Mr. Cooper saved the day, but this is every Black man’s fear—it harkens back to the days of lynching. Today, Black Americans are in real danger of being murdered by police and being falsely accused of wrongs without evidence. In response, thousands have marched peacefully, but some have attacked business property.

Years ago, on a trip to the store with my son when he was young he asked me why we don’t have to be afraid that oncoming cars will cross the double-yellow line and crash into us.  I explained that we have an unspoken agreement between all drivers that I won’t cross the line and hurt you and you won’t cross the line and hurt me.  This is a social contract, and social contracts like this exist with and without laws. 

The fundamental social contract of Americans is in the Declaration of Independence.  

We hold these truths to be self-evident, that all [of us] are created equal, that [we] are endowed by [our] Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted . . .  deriving their just powers from the consent of the governed.

If you are Black in America, for you this social contract has been broken.   It’s obviously broken. Perhaps it’s always been broken.  According the Equal Justice Initiative, “more than 4,000 Black Americans were lynched across twenty states between 1877 and 1950.”  These lynchings by mobs were executions without trial and were done with the silent approval of elected officials and the police all in violation of our most important social contract.

Today, there is another kind of lynching in America in which the police use bullets or a knee on the neck instead of a rope. These are also executions without trial and they also are being done with the silent approval of elected officials and the police. Almost every week we see videos of Black Americans being killed or abused by the police.  We hear some of our elected officials openly trying to justify these lawless killings.  How is it that our elected officials allow this to happen?

One might blame at some level income inequality between rich and poor as contributing to the problem.  According to Forbes, “the top 1% of Americans pocketed 85% of total income growth, according to a study . . . from the Economic Policy Institute. As of 2013, the average family income of the top 1% was 25 times the average income for the other 99%.” Economic inequality like this perhaps has caused the wealthy to lose touch with the People much like French aristocrats lost touch with the People before the French Revolution, and thus tolerate and even support this inhumane treatment of Black Americans. 

One might also blame our U.S. Supreme Court as contributing to the problem since the Court has recently ruled it will not intervene to stop partisan gerrymandering, so power and money can virtually rig elections by redrawing election boundaries to favor certain candidates.  And our Supreme Court has approved the infusion of unlimited money into elections by corporations (as though corporations were living and voting citizens) so that those with money and power have a louder voice than the People. Money and power in politics can skew the national will and produce elected officials who think they are unaccountable.  

Or one might also blame institutional racism as being at the core of this problem, which lives in all of us, and which silently casts Black Americans as second class citizens, and limits empathy and action when those atrocities occur.

We don’t need a definitive answer as to causation to observe that once a social contract is broken, consequences follow.  It has been the case in history that destruction of business property follows a perception that government has broken an important social contract, perhaps because it’s not unreasonable to perceive that those with money and power can influence government action and inaction.  One example in our history is the Boston Tea Party in which the Sons of Liberty, fighting taxation without representation by the British government, which was a breach of a social contract, dumped tea into Boston Harbor—tea owned by the British East India Company. It was government that was breaching the social contract, but the Sons of Liberty reeled against the money and power of the day, perhaps because money and power influenced British policy, and perhaps if property owned by the money and power of the day were attacked, the leadership might become sensitized to the plight of the colonies or at least decide that the cost of breaching the social contract was higher than the benefit.  

As to the wealthy in America, they enjoy Life, Liberty and the pursuit of Happiness, but Black Americans do not.  Here and now, business property owned by those with money and power, who can influence government policy, has been damaged as a part of the protest. Whether the damage to property is a proper means to the end being sought is for historians to judge, and whether it is a politically effective strategy is not the subject of this piece. One need not decide those issues to agree that there has been a breach of the most important social contract in America: The Declaration of Independence.  

A stable democracy is the best protection for the wealthy, because the People share equality and enjoy Life, Liberty and the pursuit of Happiness and need not take to the streets to protest violence against Black Americans. Those with money and power should ensure that the breach of this social contract is mended.  In that world, Black American families don’t fear the police, their children are safe, and they have hope.  

When the rich lack wisdom, they allow the People to live without political or economic justice, without fairness, and without hope, and the first to be affected will be people of color and the poor, but the affect without change will reach into the middle class.  In that world, unrest boils over.  

Our government has broken the social contract that all of us are created equal, that we are endowed by our Creator with certain unalienable Rights, that among those are Life, Liberty and the pursuit of Happiness.  It’s not too late for those with money and power to use their wealth to support candidates who will make government accountable in every state for the ongoing abuses and killings of Black Americans, and ensure Life, Liberty and the pursuit of Happiness for all.       

Jack Sheridan