Ben VanHouten
What sort of headache can a single tenacious lawyer cause a monied cultural institution sensitive about its reputation? Kind of a low, throbbing, persistent one.
For almost two years, the Seattle Symphony Orchestra has been wrestling with the one-woman law firm of Brenda Little. She's a specialist in workplace law. And as anyone reading the local press (or the big Sunday New York Times story last month) is aware, there have been one or two disturbances to the workplace harmony at Benaroya Hall. Namely: anti-conductor conspiracies, vicious online attacks, accusations of "terrorism," competing press leaks, and other conduct unbecoming a concertmaster.
Little's dog in this fight is Peter Kaman, a longtime SSO violinist with a childlike demeanor who's afflicted with strong anxiety and compulsive tendencies. He also has years of pent-up fear and resentment towards SSO's musical director, Gerard Schwarz.
In a lawsuit, Kaman accuses SSO, and the maestro in particular, of harassment and discrimination. His complaint describes repeated efforts by Schwarz to sack him (union rules stood in the way), belittle him, and cut him off from other players—as well as a general record of glares and scowls. Schwarz once even elbowed him as they left the stage. Or so claims Kaman.
Each side has been responsible for numerous motions, replies, declarations, and the like—more than 200 (and counting) at press time. Superior Court Judge Catherine Shaffer has called the case "one of the most litigious" on her calendar. In the latest dustup, the judge actually held Little in contempt of court this week, after Little placed a confidential document—a notorious SSO musicians' survey from 2006, full of rancorous comments about Schwarz—into the public case file. The judge had previously ordered the document sealed.
If that doesn't bode well for Kaman's case, well, it wasn't looking very promising anyway. Two of his claims have already been thrown out by Shaffer on summary judgment. And next Friday, the last one is likely to be tossed as well, leaving the violinist and his lawyer with nothing to show for their struggle. It's sad to watch—not because justice isn't being served, but more likely because it is. Not every toxic human situation can be remedied in court. And this case seems like an especially sad example of what happens when you try to sue your way out of a complicated power imbalance.
Little's relationship with her client sometimes seems as much like that of an exasperated older sister as counsel. She is the daughter of the late John C. Little, a longtime Central District leader for whom a city park on Beacon Hill is named. She spent years as staff attorney for the Seattle School District, then took up Kaman's case soon after setting up a solo practice.
Charming and voluble, Little also has the cold eye and sharp talons of a legal eagle, telling me (twice) during a visit that if I were to write anything that made her look bad, she would sue. She's been working seven days a week, she says—without so much as an assistant—to keep pace with the symphony's team of lawyers from Davis Wright Tremaine. (DWT was Seattle Weekly's counsel for many years, before I became editor.)
For the most part, the system seems to have allowed her and Kaman a fair hearing. When the symphony got the case moved to federal court (where disability claims have a tougher time), a judge there agreed to send it back to state court, despite his expressed concern about deficiencies in Little's pleadings. A few months later, Little failed to show up at a hearing, causing the case to be dismissed; but a judge reinstated it, saying killing the suit was "too harsh a remedy."
Even so, the symphony's attorneys have made short work of Kaman's complaint. In crisply written filings they argued that Kaman has no proven disability; that if he is disabled, he never brought it to the attention of the symphony; and that whatever abuse he might have suffered at the hands of the conductor had nothing to do with his mental problems anyway. Indeed, they observed, the declarations from other SSO members suggest the maestro dishes it out pretty widely; Kaman was hardly being discriminated against.
Judge Shaffer agreed on pretty much all counts. At a hearing on Nov. 30, she dismissed most of Kaman's claims. If Kaman was abused by Schwarz, she suggested, it was probably because he was a vocal critic of the maestro. (And that, it seems, is not a "protected class" under the law.)
"This Court is not saying you have not experienced a very difficult time," she said to Kaman. "And the Court is not saying that what you have experienced was right. But that is not the issue before me. The issue before me is whether you have a cause of action. And under the rules I am bound by you do not."
Still, Kaman and Little caught a break. The judge found that there was a third claim in the musician's suit that the SSO lawyers had failed to address: "outrage," or the intentional infliction of emotional distress. And that's the thread by which the suit currently hangs. Next Friday the judge will hear SSO's motion to quash that complaint as well. It's a pretty safe bet she will.
"'Outrage' is tough to prove in Washington state," says Seattle employment attorney Steve Frank. "When people feel themselves to be injured, everything's an outrage. The courts don't like to open the floodgates."
Where does all this leave the violinist? Kaman can't speak on the record now. But he's plainly a guy looking more for vindication than money.
And he may yet get it.
"One can hardly expect to win" a fight with the conductor of a major symphony orchestra, the judge instructed him. But with all the terrible publicity that has recently attended the SSO, Kaman very well could.
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