Heyne

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. §§ 2000e-2000el7. 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…

concurring and dissenting:

I concur in Part IV of the majority opinion, but I dissent from Part III.

This case turns on the credibility of Heyne’s assertions that she was fired for refusing sexual advances rather than for wrongfully failing to come to work on time. She was the one who was supposed to open the restaurant, and for two days in a row she was not there to do it. The first day she had been told that she would be fired next time, yet she still did not appear the next day. The evidence of prior sexual advances by Caruso was, on the other hand, entirely devoid of any hint that he ever took action against his female employees when he was rejected. At oral argument, Heyne’s counsel conceded that there was no evidence that he did so.

Evidence of Caruso’s bad actions and poor attitude has some relevance to this case because a circumstantial reasoning process could lead to the conclusion (reached by the majority) that a person with that poor an attitude about women might fire someone for refusing his advances. That may come par-lously close to mere character evidence, but it is a bit more than that. Nevertheless, given the unique evidentiary posture of this quid pro quo…