Heyne v. Caruso

• Decision Date: 08 November 1995
• Docket Number: No. 94-15124,94-15124
• Citation: 69 F.3d 1475
• Parties: 69 Fair Empl.Prac.Cas. (BNA) 408, 64 USLW 2312, 43 Fed. R. Evid. Serv. 64, 95 Cal. Daily Op. Serv. 8618, 95 Daily Journal D.A.R. 14,885 Sheryl G. HEYNE, aka Sheryl G. Hill, Plaintiff-Appellant, v. Mario CARUSO, individually, and in his capacity as Trustee for The Mario Caruso & Anneliese Caruso Revocable Family Trust, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1475

69 F.3d 1475

69 Fair Empl.Prac.Cas. (BNA) 408, 64 USLW 2312,

43 Fed. R. Evid. Serv. 64,

95 Cal. Daily Op. Serv. 8618,

95 Daily Journal D.A.R. 14,885

Sheryl G. HEYNE, aka Sheryl G. Hill, Plaintiff-Appellant, v. Mario CARUSO, individually, and in his capacity as Trustee for The Mario Caruso & Anneliese Caruso Revocable Family Trust, Defendant-Appellee.

No. 94-15124.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 12, 1995.

Decided Nov. 8, 1995.

Richard Segerblom, Las Vegas, Nevada, for plaintiff-appellant.

Theresa M. Dowling, Las Vegas, Nevada, for defendant-appellee.

Appeal from the United States District Court for the District of Nevada.

Before: CHOY, CANBY, and FERNANDEZ, Circuit Judges.

CHOY, Circuit Judge:

Sheryl G. Heyne ("Heyne") appeals a jury verdict in favor of the defendant, Mario Caruso ("Caruso"), in her action alleging quid pro quo sexual harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e-2000e17. Heyne argues that the district court erred by excluding testimony of other female employees who allegedly were sexually harassed by Caruso. Heyne further claims that the district court erred by forbidding the introduction of a probable cause finding by the Nevada Equal Rights Commission ("NERC").

I

Heyne began working as a waitress at the Vale Motel Restaurant in Boulder City, Nevada on September 24, 1986. On November 12, 1986, Caruso, who owned and operated the restaurant as a trustee for the Mario Caruso & Anneliese Caruso Revocable Family Trust, discharged Heyne allegedly because she was late for work on two consecutive days. Heyne challenges Caruso's stated reason, asserting that during the three months that she worked at the Vale Motel Restaurant, Caruso subjected her to both verbal and physical sexual harassment and that he ultimately fired her because she refused his sexual advances.

Heyne worked the day shift and was sometimes asked to open the restaurant. On the days that she was required to open the restaurant, she was to report to work at 5:30 a.m. so that the restaurant could be opened for business by 6:00 a.m. On the morning of November 11, 1986, Heyne was late arriving at the restaurant, and the restaurant had to be opened by other employees. She was warned on that day that if she were late again, she would be terminated.

On the night of November 11, 1986, Heyne alleges that Caruso came to the trailer park where she lived, entered her mobile home, and propositioned her for sex. When Heyne told him that she wasn't interested, Caruso left. Caruso counters that he went to Heyne's home to remind her to come to work early the following day and denies propositioning her. On November 12, 1986, Heyne was again late for work, and Caruso fired her.

On February 17, 1987, Heyne filed a discrimination suit with the NERC and the Equal Employment Opportunity Commission ("EEOC"). After conducting an investigation, the NERC found probable cause and set the matter for public hearing. In its investigative report, the NERC listed six witnesses who claimed either to have witnessed or to have been subjected to sexual harassment by Caruso.

Heyne waived the NERC hearing and opted to file a complaint in the United States District Court for the District of Nevada on July 8, 1992. Heyne proceeded on a quid pro quo sexual harassment theory, alleging that Caruso terminated her employment because she had refused his sexual advances. Prior to trial, Caruso filed a motion in limine seeking to exclude evidence of his alleged sexual harassment of other female employees on the basis that such evidence was not probative of quid pro quo sexual harassment. Specifically, Caruso sought to exclude the testimony of Joann Kimball-Kenniston, Marty Guerney, Tanya Jenkins, Lisa Katchadoorian, and Bonnie Smith.

The district court granted Caruso's motion and prevented Heyne from offering testimony regarding Caruso's alleged harassment of other female employees. The district court reasoned that such testimony, while relevant to a hostile work environment claim, was more prejudicial than probative of a quid pro quo sexual harassment claim. However, the district court allowed testimony directly relevant to Caruso's alleged sexual harassment of Heyne.

At trial, Janice Lehman, who worked with Heyne, testified that she had witnessed Caruso touching Heyne inappropriately. Her testimony, however, was brought into question by Caruso who introduced photographic evidence which allegedly demonstrated that Lehman could not have observed Caruso's hand on Heyne's thigh from her vantage point. No other witnesses testified to observing Caruso sexually harass Heyne.

The district court also declined to allow the introduction in evidence of the NERC probable cause finding and refused to allow Heyne's counsel to mention the finding in either the opening argument or during the trial. The parties ultimately stipulated to a jury instruction which mentioned the NERC probable cause finding. The instruction explained that the finding was made prior to conducting a public hearing but that no hearing was held because Heyne withdrew her charges.

On November 30, 1993, following a two-day trial, the jury returned a verdict in favor of Caruso. Heyne timely appeals, and we have jurisdiction pursuant to 28 U.S.C. Sec. 1291.

II

Heyne contends that the district court erred when it refused to admit the testimony of other female employees who claimed to have been harassed by Caruso. We review the district court's evidentiary rulings for an abuse of discretion. Pau v. Yosemite Park & Curry Co., 928 F.2d 880, 887 (9th Cir.1991). To order a reversal on the basis of an erroneous evidentiary ruling, we must find not only that the district court abused its discretion but also that the error was prejudicial. Roberts v. College of the Desert, 870 F.2d 1411, 1418 (9th Cir.1988). Reversal of a jury verdict is not warranted unless the evidentiary error affects a party's substantial rights. Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1500 (9th Cir.1986).

III

Sexual harassment is a form of sex discrimination prohibited by Title VII. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 2404, 91 L.Ed.2d 49 (1986). The Supreme Court has developed a mechanism for allocating the burden of production in a Title VII trial. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973). First, the complainant in a Title VII trial must present a prima facie case of sexual harassment. Id. at 802, 93 S.Ct. at 1824. Once the complainant has made a prima facie showing, the burden shifts back to the employer to articulate a legitimate nondiscriminatory reason for the employee's termination. Id. If the employer supplies a legitimate reason, the employee must be given an opportunity to show that the employer's reason is merely a pretext for discrimination. Id. at 804, 93 S.Ct. at 1825.

In order to establish a prima facie case of quid pro quo sexual harassment, a complainant must show that an individual "explicitly or implicitly condition[ed] a job, a job benefit, or the absence of a job detriment, upon an employee's acceptance of sexual conduct." Nichols v. Frank, 42 F.3d 503, 511 (9th Cir.1994). ¹ More explicitly, the EEOC guidelines define quid pro quo sexual harassment as:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature ... when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, [or] (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual....

See 29 C.F.R. Sec. 1604.11(a)(1)-(a)(2) (1994).

Heyne made a prima facie showing of quid pro quo sexual harassment: She testified that she was propositioned for sex by the owner of the restaurant where she worked that she refused the proposition, and that she was fired the following day. Caruso, in turn, has stated a legitimate reason for her discharge--that Heyne was late in opening up the restaurant on two consecutive mornings.

According to the McDonnell Douglas burden-shifting mechanism, Heyne was to be given a fair opportunity to show that Caruso's stated reason was pretextual and that his real reason for firing her was that she had refused his sexual advances. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825. Heyne should have been given "a full and fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for [her] rejection were in fact a coverup for a ... discriminatory decision." Id. at 805, 93 S.Ct. at 1825.

Heyne sought to introduce testimony of other female employees, who allegedly were sexually harassed by Caruso, in order to demonstrate that Caruso's proffered reason for her dismissal was pretextual. Specifically, Heyne attempted to introduce the testimony of Kimball-Kenniston, Guerney, Jenkins, Katchadoorian, and Smith. ² Caruso opposed the introduction of these women's testimony, arguing that such testimony, while relevant to prove hostile work environment, was more prejudicial than probative for a quid pro quo sexual harassment claim. ³ Caruso argued that the district court should allow only testimony of persons who actually witnessed his alleged harassment of Heyne. The district court ruled in Caruso's favor, holding that other female employees could not testify regarding their own experiences of sexual harassment or discrimination by Caruso.

Federal Rule of Evidence 401 defines relevant evidence as:

[E]vidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Fed.R.Evid. 401. Evidence of other crimes, wrongs, or acts is admissible to prove motive or intent. See Fed.R.Evid. 404(b). Such...