A federal judge has decided a June 1, 2017 civil sexual harassment complaint against incumbent Clallam County Prosecuting Attorney Mark Nichols will proceed to trial as scheduled — after the Nov. 6 election.
Western federal District Court Judge Benjamin Settle on Oct. 25 rejected Nichols’ motion for a summary judgment in the civil case, deciding instead that a jury — not Settle himself — should decide the merits of the claim by Nichols’ former office manager, Tina Hendrickson.
In May, at Nichols’ and his attorney’s request, Settle postponed an Oct. 16 trial to Dec. 11 after Nichols, who is running for re-election against former county Treasurer Selinda Barkhuis, said he would be too busy campaigning for re-election.
Nichols’ lawyer, Seattle attorney Suzanne Kelly Michael, also said she had a trial-scheduling conflict.
Nichols Judgment by on Scribd
Nichols and Hendrickson agree that the two were longtime personal and family friends when Nichols hired her as his office supervisor at his invitation, in November 2014, shortly after he won election to his first term, according to court records.
Hendrickson said that five months later, beginning in April 2015, she began repeatedly rejecting his romantic and sexual advances and, in January 2017, denied her a pay raise because of that rejection, which Nichols denies.
Hendrickson said during that period Nichols touched her buttocks “a couple of dozen times, on a pretense of removing loose strings,” according to her interview with county Human Resources Manager Rich Sill, which Settle noted in his 19-page decision, an assertion that Nichols also denies.
“Sill reported Hendrickson told him she would tell Nichols she could fix it, and try to move away,” Settle said.
“The nature of his intentional persistence in romantic and sexual overtures and the clarity of her rejections would have put Nichols on notice that his repeated advances were unwelcome,” Settle said.
“The Court concludes that Hendrickson has demonstrated a genuine dispute of material fact on both elements of her claim, sexual harassment and intent.”
Hendrickson felt “relieved, cautiously optimistic,” she said on Oct. 26.
“Everything I’ve said is true. I feel like someone is finally looking at all of it and seeing what it is.”
Hendrickson’s lawyer, Terry Venneberg of Gig Harbor, said last week he is compiling pretrial motions and jury instructions in preparation for the trial.
“We have to prove that the conduct was severe and pervasive enough to create a hostile work environment, that there were comments and conduct of a sexual nature that were made, and that for the purposes of Settle’s ruling, we have to prove those comments and conduct were unwelcome,” he said.
“We think we have significant evidence to prove that.”
Nichols did not return calls for comment late last week.
Michael disputed Hendrickson’s claims on Oct. 26, including allegations of inappropriate touching.
She said Nichols was interested in a romantic relationship with Hendrickson but stopped pursuing it shortly after Hendrickson said she wasn’t interested — and said Hendrickson changed her story over time, making it more damaging to Nichols.
“A summary judgment is very hard to obtain,” Michael said. “We’re looking forward to trying this case.”
For Hendrickson to prevail at the civil trial, she must prove her claim of sexual harassment by a preponderance, or weight, of evidence, not by the higher standard of proof beyond a reasonable doubt that is the bar for criminal trials.
Nichols and Hendrickson had established a friendship after working together at the prosecuting attorney’s office beginning in 2003-2004 for about 10 years.
She worked in administration and he was an attorney. She left in 2012, returning to the office in 2014.
Upon learning in April 2015 that her husband was having an affair, Hendrickson would confide in Nichols, who knew about the affair but did not tell her until later that spring, according to Nichols’ motion.
Nichols said he began to develop romantic feelings for her and told her in June 2015 how he felt.
“(W)hen I talked with her about the fact that my feelings were changing and there might be a future interest, that’s something that came up as part of that discussion, is that I’ve always loved her … as a close confidant, a friend, like my own family, but my feelings had been changing, and there was some chance that, you know, I had feelings of being in love with her,” Nichols said, according to his motion.
“In response, Ms. Hendrickson admitted that she had ‘actually thought about it,’” according to Nichols’ motion.
“But the conversation did not progress much further as Ms. Hendrickson felt as though she was being disloyal to her husband,” it said.
The relationship progressed until Nichols disclosed he had known of the affair since late 2014 and not told her.
Hendrickson was upset Nichols had not told her.
“Ms. Hendrickson was unable to forgive Mr. Nichols, and their friendship never recovered,” according to Nichols’ motion.
Michael said last week that Nichols and Hendrickson talked “about the future of their relationship” for a few months in 2015 before they no longer discussed it.
But Hendrickson said in her sworn statement that after Nichols’ declaration of love, he started spending three to six hours a day in Hendrickson’s office, “regularly telling her he was deeply in love with her, that he fantasized about her sexually, and that ‘because he and his family were wealthy, she should divorce her husband, and that he would take care of her and her children,’” according to Settle’s ruling.
Hendrickson said Nichols repeated more than 10 times that he was in love with Hendrickson or wanted to have a relations with him after the initial incident in April 2015 despite her repeatedly telling him she wasn’t interested.
“Hendrickson explained that Nichols would often cry, which made her feel sorry for him, but did not change the fact that she did not have feelings for him,” Settle said, citing court records.
“On one occasion, he tried to kiss her, and she told him to knock it off and leave her alone.”
Hendrickson said Nichols would “require” that he hug her before either one left the office, saying it would involve “hugging her and making contact with her buttocks,” which Nichols denies.
She also said he would shut the door and blinds while in her office, which Nichols also denies, Michael said Friday.
Michael said Hendrickson and Nichols voluntarily hugged each other.
“She never once indicated anything was amiss and in fact continued to initiate the hugs,” Michael said.
“There will be eyewitnesses who will talk about her steps to be alone with Mr. Nichols, which would be very inconsistent with someone who says, ‘I don’t like being around him, he’s trying to harass me, and I was trying to avoid it.’”
On April 5, 2017, three months after other employees in the office received raises and she didn’t, Hendrickson made a complaint to Human Resources about Nichols.
Hendrickson also told Sill that “Nichols told her ‘people who complain about harassment are not hired in this county’ and on more than one occasion, Nichols reminded her that her job was by appointment,” Settle said.
A text of the ruling is available at https://tinyurl.com/PDN-NicholsRuling. Click “continue,” then click “view document.”
Paul Gottlieb is a Senior Staff Writer with the Olympic Peninsula News Group, which is composed of Sound Publishing newspapers Peninsula Daily News, Sequim Gazette and Forks Forum. He can be reached at 360-452-2345, ext. 55650, or at firstname.lastname@example.org.