Tennison v. Circus Circus Enter.

• Decision Date: 26 March 2001
• Docket Number: No. 99-16385,99-16385
• Citation: 244 F.3d 684
• Parties: (9th Cir. 2001) JOANN TENNISON; CHERYL C. OLIVER,Plaintiffs-Appellants, v. CIRCUS CIRCUS ENTERPRISES, INC.;COLORADO BELLE CORP., Defendants-Appellees
• Court: U.S. Court of Appeals — Ninth Circuit

Page 684

244 F.3d 684 (9th Cir. 2001)

JOANN TENNISON; CHERYL C. OLIVER,Plaintiffs-Appellants, v. CIRCUS CIRCUS ENTERPRISES, INC.;COLORADO BELLE CORP., Defendants-Appellees.

No. 99-16385

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted December 15, 2000

Filed March 26, 2001

[Copyrighted Material Omitted]

John J. Tofano, Las Vegas, Nevada, for the plaintiffsappellants.

Cam Ferenbach, Lionel Sawyer & Collins, Las Vegas, Nevada, for the defendants-appellees.

Appeal from the United States District Court for the District of Nevada Howard D. McKibben, District Judge, Presiding. D.C. No.CV-96-00456-HDM

Before: Robert Boochever, Diarmuid F. O'Scannlain and A. Wallace Tashima, Circuit Judges.

BOOCHEVER, Circuit Judge:

Plaintiffs Cheryl C. Oliver ("Oliver") and Jo Ann Tennison ("Tennison") (collectively, "Plaintiffs") brought suit against Defendants Circus Circus Enterprises, Inc. and the Colorado Belle Corp. (collectively, "Management" or "Defendants") for sexual harassment under Title VII and intentional infliction of emotional distress. The district court granted summary judgment in favor of Defendants on Plaintiffs' intentional infliction of emotional distress claims. At trial, the jury found against Plaintiffs on their sexual harassment claims. Plaintiffs appeal the summary judgment ruling as well as several evidentiary rulings made in connection with the trial.

FACTS

Plaintiffs and co-workers Terri Fernandez ("Fernandez"), Christine Amato ("Amato") and Donna Meehan-Doss ("Doss"), as well as Mike Mejia ("Mejia"), the accused harasser,¹ worked as slot carousel attendants for Defendants. Slot carousel attendants assist casino customers by selling change, buying change and paying out jackpots. At trial, Oliver, Tennison, Fernandez, and Amato provided testimony to show that Mejia sexually harassed them during 1994 and 1995 and that Management failed to take adequate measures to remedy the problem.

A. Evidence of Sexual Harassment and Complaints before 1994

Tennison testified at her deposition that, on several occasions in 1988 and 1989, Mejia asked her out. Each time Tennison said, "No." She also testified that, between 1988 and 1991, Mejia touched her inappropriately by rubbing her arm, brushing up against her, and thrusting his pelvis against her buttocks. According to Tennison, she complained to Management on one or two occasions, but Management ignored her concerns. Between 1991 and 1994, Tennison indicated she was not harassed, except for one incident. The parties dispute whether Tennison testified at her deposition that she complained during this latter time period.

Co-workers Doss and Bilyeu also testified at deposition that Mejia sexually harassed them in 1988 and 1989 and that they complained to Management.

B. Evidence of Sexual Harassment and Complaints after August 1994

Tennison testified at trial that Mejia sexually harassed her in 1994 and 1995 by holding her waist, brushing up against her, rubbing her arm and blocking her way to force physical contact with him. These incidents, according to Tennison, occurred two to five times a night. Tennison also testified that Mejia kissed her on one occasion. In late February 1995, Tennison asked to be reassigned to another area in the casino away from Mejia. A few days later, Tennison submitted a written statement to Management complaining about Mejia's conduct.

Oliver testified that Mejia sexually harassed her during the same time period by regularly walking behind her and rubbing his hand across her buttocks. Each time she told Mejia to stop. Oliver also testified that Mejia pinched her buttocks in December 1994 or January 1995 and that she complained to her manager about the incident. Doss, a coworker, testified that she saw the incident and saw Oliver curse at Mejia, then run out of the room crying. In late February 1995, Oliver, like Tennison, submitted a written statement to Management complaining about Mejia's conduct.

Fernandez, also a co-worker, testified that Mejia sexually harassed her by hugging her from behind, rubbing her shoulders, kissing her on the cheek, brushing up behind her with his pelvis, and on one occasion, touching her breast. In addition, Fernandez testified that she saw Mejia touch other coworkers inappropriately. In late February 1995, she also submitted a written statement concerning Mejia's conduct.

Amato, another co-worker, testified that Mejia touched her breast on one occasion in mid-March 1995 and that she complained to Management. Amato also stated that one of the reasons she complained was that Management failed to respond to the concerns of Tennison, Oliver and Fernandez. Doss testified that she complained to Management several times about Mejia's conduct toward Tennison, Oliver and Fernandez.

Mejia denied the allegations, testifying that he never touched Tennison, Oliver, Fernandez or Amato in a sexual or otherwise inappropriate manner and that no one told him that his conduct was unwelcome.

C. Management's Response to Complaints

Management responded in early March 1995 by informing Mejia of the complaints and instructing him not to touch female co-workers or retaliate against those that complained. Tennison testified that Management waited almost three weeks before informing Plaintiffs of any investigation or action taken with respect to Mejia. It was only after Amato complained in mid-March that Management met with Plaintiffs. Tennison also testified that Management representatives indicated they believed the incidents were not severe.

In mid-March, Management placed Mejia on a 16-day investigative suspension with pay as well as a 3-day suspension without pay. Oliver and Fernandez requested not to work with Mejia upon his return from suspension. According to Tennison, Management responded by saying that, if they did not want to work with Mejia, they could sell change on the floor or go home. Tennison also testified that one Management representative rhetorically asked, "Do you think that Mejia should be punished for one mistake?" Management denied making the above comments. When Mejia's suspension ended, he was placed on a different shift, but returned to his old shift approximately one month later.

Mejia refrained from inappropriately touching Plaintiffs after he was disciplined in March 1995. Both Tennison and Oliver, however, testified that from May 1995 through August 1996 (when Mejia's employment was terminated), Mejia repeatedly glared at them, stood nearby to intimidate them, sat next to them in the employee dining room, and one time waited for them outside the restroom. Mejia denied engaging in any conduct designed to intimidate Plaintiffs or make them feel uncomfortable.

Oliver and Tennison testified that Management ignored their numerous complaints concerning Mejia's post-disciplinary conduct. Specifically, Plaintiffs testified that Management representatives responded by making comments, such as, "nothing can be done," "okay, honey, don't let yourself get too upset," or otherwise indicating that they did not want to be bothered. Plaintiffs testified that Management never requested a written statement and never contacted them regarding these later complaints. Management denied making the above comments and testified that its representatives immediately counseled Mejia to stop engaging in such behavior.

Tennison, Oliver and another co-worker, Bilyeu, testified at deposition that, on one or two occasions after Mejia returned from his suspension, they observed pictures of women in bikinis taped to the inside Mejia's locker.

Management terminated Mejia's employment in August 1996 after a customer complained about inappropriate sexual comments.

DISCUSSION

I. Exclusion of Evidence

Plaintiffs appeal the trial court's evidentiary rulings excluding: (1) testimony from Tennison regarding sexual harassment and complaints before 1994, (2) testimony from co-workers Doss and Bilyeu regarding sexual harassment and complaints before 1994, and (3) testimony from co-worker Bilyeu regarding pictures of women in bikinis posted inside Mejia's locker at work.

The district court based these evidentiary rulings on Rule 403 of the Federal Rules of Evidence.² Such rulings are reviewed for an abuse of discretion. Trevino v. Gates, 99 F.3d 911, 922 (9th Cir. 1996) ("The district court has considerable latitude in performing a Rule 403 balancing test and we will uphold its decision absent clear abuse of discretion."). To reverse a jury verdict for evidentiary error, Plaintiffs must also show the error was prejudicial. Heyne v. Caruso, 69 F.3d 1475, 1478 (9th Cir. 1995). A reviewing court should find prejudice only if it concludes that, more probably than not, the lower court's error tainted the verdict. Pau v. Yosemite Park and Curry Co., 928 F.2d 880, 888 (9th Cir. 1991).

A. Tennison's Testimony Regarding Sexual Harassment and Complaints before 1994

Plaintiffs argue that the trial court committed reversible error by granting Defendants' motion in limine excluding Tennison's testimony and other evidence regarding sexual harassment and complaints before 1994. The court had previously determined, in a motion for summary judgment, that these earlier events fell outside the statute of limitations and that the continuing violations doctrine did not apply. (Plaintiffs do not appeal this summary judgment ruling.)

Plaintiffs characterize the trial court's ruling on the motion in limine as final. The trial court, however, made clear the ruling was tentative. The order states, "The granting of this motion will not preclude plaintiffs from renewing their request to introduce some or all of this evidence outside the presence of the jury." Shortly before trial, the judge stated that if the Defendants "opened the door," he would allow Plaintiffs to use the evidence of earlier harassment in crossexamination or rebuttal. On the first day of trial, and again on the second, the court reiterated this...