Kelly Case Ends in Non-suit

Lifeline, Vol. XI, No. 1 (Spring, 2002)
Life Legal Defense Foundation
Reproduced with permission

In 1995, Karen sued Orange County for retaliation and wrongfully firing her from her job as a nurse at juvenile facilities because she refused to schedule abortions and provide offensive Planned Parenthood-style "safe-sex" instruction to children. The case was made more difficult by the fact that, when fired, Karen was still within the probationary period of a new employee; essentially, the County could fire her for no reason, although not for a discriminatory reason.

The trial began on April 2, when Judge Hatter informed the attorneys that each side would have only ten hours to present its case to the jury, including, but not limited to opening statements, direct examination of witnesses, cross-examination of opposing witnesses, and closing arguments. The parties had estimated that the trial would take at least three weeks, so the court's order slashed this time by about75%.While each side had the same allotment of time, this superficially equitable handicapping failed to take into account that only one party, Karen, had the burden of proof. And the result of that imbalance was made clear when the judge granted the County's motion for nonsuit on the grounds that Karen had failed to present enough evidence to support her case.

Karen testified that after she informed her supervisor that she could not perform duties which violated her religious beliefs, the supervisor, rather than making a reasonable accommodation as required by law, embarked on a course of harassment designed to break Karen down. This included subjecting Karen to the taunts of co-workers, repeatedly threatening to fire her if she continued to refuse, and finally transferring her to another shift at a different facility, thus imposing a severe strain on Karen that led to medical problems. At the second facility, Karen was not properly oriented for her different and increased job responsibilities, nor did she have the specialized training required for the position, thus reinforcing the point that the transfer was intended to cause Karen to fail and give in to her employers' demands or be terminated.

The jury also heard from a highly-qualified expert witness who testified that Karen's work was within the standard of care expected of nurses, and that, in the areas the County specifically criticized after Karen's forced transfer, her work performance was at a level to be expected based on her limited training for the new position.

Because of the severe time limits imposed by the judge, Karen's testimony was shortened, as was that of her witnesses. In spite of the time limits, the court refused to allow the use of deposition testimony of one of Karen's supervisors who recently became unavailable to testify at trial, but who had testified: "I don't care what her beliefs are, she was expected to do her job. "Thus, the most significant direct evidence of discriminatory animus was excluded at trial. Nonetheless, the six-man, one-woman jury appeared sympathetic to her plight, to the point that some were crying during her testimony. The judge, however, appeared to have the opposite reaction.

Finally, on April 10, when Tom Nigro rested his case with less than an hour remaining for both cross-examining the last defense witnesses and his closing argument, the County moved that the case be dismissed on the grounds that Karen had failed to meet her burden of showing that the County had fired her because of her religious beliefs.

The court held there was no question regarding the sincerity of Karen's religious beliefs, nor that Karen was a probationary employee who could be fired for no reason, but not for a discriminatory reason. However, the court found she had produced insufficient evidence that she was fired for a discriminatory reason.1

"I believe we put on a strong case in spite of the time limitation," said Liz Nigro. "We were disappointed with several of the court's evidentiary rulings, and shocked when he granted the County's motion for directed verdict, taking the case away from the jury. After litigating this case for five years, it would have been easier for us, and Karen, to accept a defeat from the jury." Karen, the Nigros, and LLDF attorneys are evaluating the prospects of an appeal.

Notes:

1 Ironically, in a similar case in Santa Ana, Karen Kelly v. Universal Care, the federal district court judge denied the defendant's motion for summary judgment, holding that Karen had provided sufficient evidence of discriminatory intent. This matter was recently settled under confidential terms.