Schallock v. Heinze
Ariz. Super. Ct., Maricopa, CV 90-21962 (1990)
 

[In 1988, Colleen Schallock worked for the Arizona Prosecuting Attorneys Advisory Council, or "APAAC,'' as a summer law clerk. Her boss was Allen Heinze. In 1990 Ms. Schallock, then a 26-year-old attorney, sued Mr. Heinze and APAAC for sexual harassment. Ms. Schallock alleges that Mr. Heinze used abusive language, performed offensive gestures, and made sexual advances toward her at the office. She charges that this behavior culminated in his raping her at an APAAC weekend conference. Ms. Schallock did not mention the harassment or rape to anyone at the time, and returned to law school in Washington, D.C. Two years later, she came forward with her complaint, bringing her case to the attention of the county prosecutora friend of Mr. Heinze, according to Ms. Schallockwho declined to prosecute Heinze. Ms. Schallock then brought her civil suit, seeking $9 million in damages. Ms. Schallock also sued APAAC for negligence in failing to supervise the workplace.

The key issues in the case are:

Were Allen Heinze's actions unwelcome, as Ms. Schallock's attorney Todd Schlier claims, and if they were, who should be held responsible?

On the other hand, did Colleen Schallock invite and welcome Heinze's behavior, as Steven Guttell, Heinze's lawyer, asserts?

Why did Ms. Schallock wait so long before bringing her charges, as Scott Cook, attorney for APAAC, asks?

An edited version of the transcript follows, beginning with Mr. Schlier's opening statement on behalf of Ms. Schallock.]

TS: We will prove that Mr. Heinze engaged in revolting sexual conduct in the workplace with Ms. Schallock and other female employees. I will prove to you that Mr. Heinze sexually assaulted Ms. Schallock. I will prove to you that APAAC as an employer is equally responsible for Ms. Schallock's injuries. As an agency of the state of Arizona, APAAC hired Mr. Heinze when it knew or should have known of his past sexual improprieties as a state employee.

Attorney Steven Guttell opens on behalf of the defendant, Allen Heinze.

SG: At the end of this trial, you will be asked to decide whether Ms. Schallock had sexual intercourse with Mr. Heinze voluntarily or not. You will be asked to decide why she invited him to her hotel room and what she expected to occur when she went into that room. Ms. Schallock will report that Mr. Heinze said three or four times, "I want to make love to you.'' Ms. Schallock then voluntarily invites Mr. Heinze to her hotel room and there they have sexual intercourse. In considering this evidence, you must look clearly at what is going on here, and render a verdict in favor of Allen Heinze.

Scott Cook, attorney for the defendant, APAAC, also opened.

SC: The testimony will establish that during Mr. Heinze's administration there was rough language in the workplace. There was also joking of a sexual nature between employees at different times, though not necessarily anything that the council was aware of. On occasions, there were pats, hugs and touches between staff members. Testimony will show that the staff was aware of these things in the workplace and did not consider them to be harassing, and did not report them to the council. The evidence will show that there was never a complaint brought to the council regarding sexual harassment or sexual intercourse, mutually agreed or forced, until 1990. The APAAC council, at the close of the evidence, will ask you to return a verdict against the plaintiff and in favor of the defendant, APAAC.

Plaintiff's attorney Todd Schlier calls Denise Helm, an APAAC office worker, as the first witness.

TS: During the time that you worked for APAAC, how would you describe the language that Mr. Heinze used in the workplace?

DH: It was real crude.

TS: Did Mr. Heinze ever grab his crotch in the workplace in your presence?

DH: Yes.

TS: When he engaged in that type of gesture what would he say?

DH: Hold this.

TS: Did you believe as a female employee, that gesture and his comment was offensive?

DH: Yes.

TS: Did you think it was disgusting?

DH: Yes.

TS: Did you think it was inappropriate for the workplace?

DH: Yes.

TS: At any time when Mr. Heinze said, grabbed his crotch and said "Hold this,'' in front of any of the female employees, did any female employee ever take him up on his invitation?

DH: No. Not that I know of.

TS: Did you ever hear Mr. Heinze make a sexual suggestion to any of the female employees concerning his mustache?

DH: Yes. He would ask if we wanted a mustache ride.

TS: Do you feel his comment again was inappropriate?

DH: Yes.

TS: Did you ever see Mr. Heinze put his hands into his pants and engage in some type of simulation?

DH: Yes.

TS: Tell the jury what he would do.

DH: He would unzip his pants and take his finger and put it through the zipper and then lift his finger.

TS: In a sexual manner?

DH: Yes.

Cross-examination of Denise Helm by Allen Heinze's attorney, Steven Guttell:

SG: Ms. Helm, in the office, isn't it true that the women would discuss their sexual relations with each other?

DH: Occasionally.

SG: Ms. Hodgins would discuss her sexual activity too, would she not? Ms. Hodgins had a little poster on her computer, did she not?

DH: Yes.

SG: What did that poster say?

DH: Something to do with "sexual harassment accepted in this area.''

SG: Sexual harassment will be graded?

DH: Something like that.

Plaintiff's attorney Todd Schlier calls David Adams, an APAAC attorney and supervisor, to the witness stand.

TS: Prior to August 1988, did any female employee of APAAC come to you and personally complain about Mr. Heinze's conduct?

DA: Yes.

TS: Who was that please?

DA: Kathleen Sullivan.

TS: Isn't it true that at least on four occasions, in 1986 and 1988, Ms. Sullivan came to you and expressed her concerns about Mr. Heinze?

DA: Not that I recall.

TS: Are you saying that it didn't happen, or you don't have a recollection, sir?

DA: I don't think it happened, but I don't recall.

TS: You recall at least one occasion, don't you? Isn't it true that she came to you and she told you that Mr. Heinze had gotten her alone from time to time and fondled her breasts and possibly her buttocks?

DA: We had a conversation and words to that effect were included in the conversation.

TS: Isn't it true you were shocked when you heard that?

DA: Yes.

TS: Did Ms. Sullivan make it clear to you that Mr. Heinze's conduct toward her was unwelcome?

DA: Can't answer that yes or no.

TS: Why not?

DA: She said words to the effect that if it were outside the workplace, she might welcome it, something like that, but she didn't like it in the workplace.

TS: I want you to assume that Ms. Sullivan's story was true, that Mr. Heinze grabbed her buttocks and her breasts in the workplace from time to time when they were alone and she didn't ask for it. Do you believe that to be sexual harassment?

DA: Yes.

TS: You as a staff attorney and a supervisor of Ms. Sullivan, law clerk, did not feel you had any obligation to the other females to report that action?

DA: No.

TS: You believe Ms. Sullivan's allegations were serious?

DA: Yes.

TS: You didn't investigate her allegations, correct?

DA: Correct.

TS: Sir, isn't it true that you did not report her allegations to the council because you were afraid of Mr. Heinze and what he might do if you went to the council and reported it?

DA: In part.

Cross-examination of David Adams by APAAC's defense attorney, Douglas Fitch:

DF: Do you ever recall hearing any of the women in the APAAC office use any kind of language of a vulgar, foul nature?

DA: I recall being asked if I had gotten any the night before.

DF: What did you take that to mean?

DA: If I had gotten any sex the night before.

DF: Did you ever observe anything in the APAAC office place and this again is the time frame when Mr. Heinze was the executive director, that you personally concluded was harassment of a sexual nature.

DA: No, I didn't.

DF: So would it be fair to say that you never observed anything you felt that you believed had to be reported to the council?

DA: Correct.

Plaintiff's attorney Todd Schlier calls Kathleen Sullivan, a former APAAC law clerk, to the stand.

TS: Can you recall approximately when the first sexual advance was made toward you by Mr. Heinze in the APAAC elevator?

KS: It was between November and December of 1987.

TS: Please tell the jury what happened.

KS: I was leaving work early that day, and I went to the elevator and went down. When the doors opened on the first floor Mr. Heinze was there. He pushed me back into the elevator, shut the doors, pinned me up against the wall, held my hands behind my back, put his hands inside my dress and after a few minutes, he said, "Nothing happened here that you didn't want to, right?'' and I said, "Yes.'' He let me go.

TS: When was the second event?

KS: March or April of 1988.

TS: And again this incident occurred in the APAAC elevator?

KS: Yes, it did. It was almost exactly the same thing. I left work about 3:00 and when the doors opened, he was standing there. This time I had on a skirt and a blouse. He pushed me back in the elevator, pulled my skirt down over my hips, my blouse up over my head and kissed me, fondled me, put his hands inside my pantyhose and held me there for several minutes.

TS: Did he say anything while this was occurring?

KS: He made a lot of crude remarks. He said he "wanted to| me.'' He said that I "turned him on.'' He really "wanted it baby,'' a lot of things like that.

TS: Did you report Mr. Heinze's conduct to any person?

KS: Yes, I reported it three or four times to David Adams.

TS: Why did you report it to Mr. Adams?

KS: He was our supervisor.

TS: Tell me what you told Mr. Adams, please.

KS: I pointed out that all of the female employees were afraid to be alone when Mr. Heinze was drinking. If he'd been out drinking, we always made it a habit to go places in twos so that there was never anyone alone in the office where he might be. We looked out for each other.

TS: What did Mr. Adams say?

Steven Guttell: Objection, hearsay.

Judge: Overruled. He's an agent, an employee of the defendant.

TS: Please continue.

KS: He listened to me, acknowledged what I said, but didn't say much else.

TS: Did you ask him to do anything?

KS: I asked him for help. I said something needed to be done, somebody needed to do something.

TS: Did any of the female employees use obscene language in the workplace?

KS: We all tended to use obscenities. I don't believe they were directed in an obscene fashion. It was the language du jour. We would use the word ________ often; in moments of frustration, damm, hell. Obscene? I don't believe the female employees directed it at people in an obscene way, no.

TS: Did Mr. Heinze ...?

KS: He often used obscenity as a way of making a point and intimidating....

Cross-examination of Kathleen Sullivan by Allen Heinze's attorney, Steven Guttell:

SG: Did you ever suggest to Allen Heinze that you wanted to engage in sexual intercourse with him?

KS: Yes.

SG: And Mr. Heinze asked you to engage in sexual intercourse with him, is that correct?

KS: Yes.

SG: And you did voluntarily, is that correct?

KS: Yes.

SG: On two separate occasions?

KS: Yes.

Cross-examination of Kathleen Sullivan by APAAC's defense attorney, Douglas Fitch:

DF: Ms. Sullivan, you testified earlier that Mr. Adams was your supervisor, correct.

KS: That's correct.

DF: Isn't it true that when you met with the new summer clerks in May, 1988, you informed those clerks that Mr. Adams had no real power over you and that if you had a problem with Dave Adams, you should go to Mr. Heinze?

KS: I advised them that if they had a problem with Dave, they should go to Heinze, yes.

Re-direct by Attorney Schlier:

TS: Why did you have sexual intercourse with Allen Heinze?

KS: When my husband died, and I knew I was leaving APAAC it really did seem inevitable that I would have sex with Al. In my mind, the best way to get back the power, to be back in charge, was to say yes, to say, "o.k. buddy, my terms.'' In my mind it was because that was the only way I could get back the power that he had taken from me, by turning it around so that I said yes, instead of him intimidating me.

TS: Where did the first incident occur?

KS: In his office at APAAC on the conference table.

Plaintiff's attorney Todd Schlier calls the defendant, Allen Heinze, as his next witness.

TS: Mr. Heinze, how old are you?

AH: Fifty-three.

TS: In August 1988 you would've been fifty years old?

AH: Forty-nine.

TS: You were formerly the executive director of APAAC?

AH: Yes sir.

TS: For what period of time?

AH: From May 31, 1977 to February 2, 1991.

TS: During the time you were executive director, did you use off color or vulgar language in the presence of female employees?

AH: Occasionally, yes.

TS: Tell the jury what off color or vulgar language you used in the presence of female employees, sir.

AH: I used each and every word that the jury has already heard today.TS: Have you used those words in the presence of Council members?

AH: Occasionally, yes.

TS: Have you ever heard any of the Council members use the kind of language that we've heard in this trial in the presence of female employees?

AH: Yes.

TS: Mr. Heinze, you're acquainted with Ms. Schallock, correct?

AH: Correct.

TS: When did you first meet her, sir?

AH: I believe my first recollection of meeting her is when she came into the office after she had called to ask if she could work as a law clerk at APAAC.

TS: You don't recall her being a student of yours when you taught at Arizona State University in a class called criminal justice?

AH: She told me that she had been a student, but I don't have any recollection of Ms. Schallock in the class.

TS: When Ms. Schallock began her employment as a law clerk, during the summer of 1988 did she consult with you about law school?

AH: Yes sir, she did.

TS: Did she discuss with you whether she should concentrate on taking courses in criminal law?

AH: Yes.

TS: You noticed that she had spent a significant amount of time with her undergraduate studies, studying criminal justice, correct?

AH: Correct.

TS: She expressed to you that some day she hoped to be a prosecutor?

AH: Yes, I believe she did.

TS: Isn't it true that while you were in the office, during the summer of 1988, that whenever you were there Ms. Schallock would speak with you?

AH: I'm not sure of the answer to that.

TS: Ms. Schallock had conversations with you about her career at the law school, correct?

AH: Yes sir.

TS: You never discouraged her from coming in to talk to you, did you?

AH: I have no specific recollection of discouraging her, no.

TS: It was obvious to you that she respected your opinion, sir, is that right?

AH: It appeared to be the case, yes.

TS: The type of conversation she would have with you was the type of conversations a daughter would have with her father about making career choices, isn't that right?

AH: I don't know that that's true.

TS: Well, isn't it true sir, that Ms. Schallock viewed you as a father figure?

AH: I don't know if I agree with that.

TS: Did she discuss with you a Catholic priest who was her close friend, a Father O'Day?

AH: Yes sir, as I recall, she did.

TS: And she spoke very highly of him, didn't she?

AH: Yes she did.

TS: And isn't it true that she told you that she viewed her relationship with you similar to the relationship she had with this Catholic priest, Father O'Day?

AH: I recall her saying that she thought I was "quality people'' but I don't recall the comparison with Father O'Day, it may have occurred.

TS: You recall telling Ms. Schallock that you were honored that she had so much trust and confidence in you.

AH: Yes, I believe I did.

Attorney Schlier wants to question Heinze about exactly what happened at the APAAC conference in 1988, but that puts Heinze in a very tough position. He has never been charged with rape, but he still could be if new evidence is discovered, evidence such as statements he makes on the witness stand under oath in this civil trial. Heinze must decide whether to answer Attorney Schlier's questions and possibly open himself up to criminal prosecution, or take the fifth amendment and refuse to testify on grounds that his answers might incriminate him.

TS: Let's turn our attention to the 1988 APAAC summer conference. You were then at the Pioneer restaurant, isn't that correct, on Sunday evening, August 14, 1988?

AH: Your Honor, I respectfully decline to answer that question and avail myself of the protection afforded by the fifth amendment to the Constitution of the United States and the Constitution of the state of Arizona.

Judge: Will your response be the same relative to all activities surrounding that summer conference?

AH: Yes sir.

TS: Your Honor, I believe that there are questions that I would like to ask Mr. Heinze as to which he has not invoked his fifth amendment privilege.

Judge: I think we all understand that relative to any conduct between Mr. Heinze and the plaintiff, he is going to take the fifth amendment, which he has a right to do, and therefore we need not belabor that line of questioning.

TS: August 15, 1988 was the first day of the summer conference,

AH: Yes,...

TS: There was a poolside cocktail party at about 6:00?

AH: Yes.

TS: During the cocktail party, did you have anything to drink?

AH: Yes.

TS: What'd you have, sir?

AH: I believe one or two vodka martinis.

TS: You hadn't eaten dinner, yet, correct?

AH: No sir, I hadn't.

TS: After you had the one or two vodka martinis, did you then go to dinner with some of the county attorneys?

AH: Yes, I did.

TS: At the restaurant, did you have anything further to drink of an alcoholic nature?

AH: Yes, I did.

TS: Please tell the jury what you had to drink that night.

AH: I believe I had another one or two vodka martinis, some white wine at dinner and I believe a cognac after dinner.

TS: You didn't drive back from the restaurant to the resort, did you?

AH: No sir, I did not.

TS: You believe that you'd had enough to drink to dissuade you from driving an automobile?

AH: Yes.

TS: When you returned to the resort, did you go into the hospitality suite?

AH: Yes, I did.

TS: Start drinking beer at that time?

AH: I don't recall that.

TS: If I asked you any questions as to what occurred on that evening, you will invoke your fifth amendment privilege, correct?

AH: That's correct.

Judge: Why don't we go on to the next issue.

TS: OK? I will certainly do that.

TS: Did you continue to have contact with Ms. Schallock after the APAAC summer conference, 1988?

AH: Your Honor, I respectfully decline to answer that question and avail myself of the protection afforded by the fifth amendment to the Constitution of the United States and the Constitution of the state of Arizona.

Judge: Will your answer be the same relative to any further questions that are asked of you relative to your conversations with Ms. Schallock from that time to the present?

AH: Yes, Your Honor.

TS: I don't believe I have any further questions then, Your Honor if the witness is not going to answer my questions.

Heinze's attorney did not cross-examine him. Attorney Schlier calls Dr. Lynne Hazard, Ms. Schallock's psychologist, to the witness stand.

TS: [What was the cause of Ms. Schallock's emotional problems?]

LH: I believe that the cause, as reported to me, of her disorder was the sexual assaults that she reports having occurred in August and December of 1988. She suffered damages in a variety of areas. Let me kind of go through them. First she feels embarrassed, she feels damaged, she feels like soiled goods; she has a great deal of embarrassment and shame about what happened and it's still very difficult for her to talk about the sexual abuse. The damages that she sustains are not unlike the scars that one would sustain if you had undergone a physical kind of injury. They tend to lead to future weaknesses, psychological kind of weaknesses and vulnerabilities later on in life. For example, there's increased risk of her developing other kinds of mental disorders and the long-lasting damage that she sustained; the long-lasting after-effects include things such as when she is subjected to anything that resembles or symbolizes the original trauma, it's likely to reopen the emotional pain and the wounds that she experienced initially. She's also likely to experience significant sexual dysfunctions.

TS: Please tell the jury what rape trauma syndrome is.

LH: Rape trauma syndrome is a more specific way of describing what someone who suffers from post traumatic stress disorder has experienced. It's just a more complete way of understanding the resulting symptoms. The victim has one of two styles. One is the control style in which they don't outwardly express all the feelings and the turmoil that they're feeling inside. They kind of hide it and keep it to themselves though others are not aware of how they're feeling and then there's alternatively the express style in which they do express those feelings.

TS: There has been testimony that Ms. Schallock appeared normal during the week of the APAAC conference, engaged in activities. Is that consistent with the controlled style that you've talked about?

LH: Yes it is consistent with the controlled style. She tried to appear normal so that others wouldn't realize what she was experiencing because of the shame and humiliation associated with that. She said to me that there was a reason"I was twenty-three and a virgin and this was not what I was waiting for.''

TS: Do you have an opinion to a reasonable degree of psychological certainty as to why Ms. Schallock did not file a notice of claim with Mr. Heinze or with APAAC within one year of August 15, 1988?

Defendant's Counsel: I object. That calls for a legal conclusion not within the expertise of this witness.

Judge: Overruled. You may answer.

LH: I believe that she was unable to because of the social and emotional consequences of the sexual assault she reports.

TS: Why would Schallock go back to the hotel room with Heinze after he had propositioned her?

LH: He was a father figure to her and a mentor, and she trusted him. Another part of it had to do with the fact that often with acquaintance rape victims and their assailants there's a kind of traumatic bonding that occurs. I believe that Ms. Schallock was someone that was vulnerable, and also that Mr. Heinze probably specifically chose her because she was vulnerable. For a long, long time, he was the only one that knew what occurred, so she went back to him for counseling about what to do about this and as she said she was going to a therapist for rape counseling, but for her it was a way to undo what had happened, to try to right the situation, to try to put him back in the role of a mentor, so that's why she continued to have conversations with him and contact with him.

Cross-examination of Dr. Lynne Hazard by Kent Camnack, one of Mr. Heinze's attorneys:

KC: You testified regarding the number of reactions that you believe illustrate post traumatic stress disorder and one of those was that it is not inconsistent with that disorder to try to act normally.

LH: That is correct. Rape trauma victims will often try to appear normal so that other peoples' suspicions won't be aroused and they won't have to bear the shame and humiliation.

KC: It would also be consistent for them to act upset, wouldn't it?

LH: It could be. I think I described the express versus the controlled way of reacting in the acute phase of rape trauma syndrome, but yes, both of those are consistent.

KC: And it would be consistent with that disorder to actively pursue conversations and meetings with the other person?

LH: Yes.

KC: And it would also be consistent to avoid that person?

LH: Yes it would.

KC: And it could be consistent to mask the symptoms and go to a party? Yes?

LH: Let me explain that. It is more consistent with rape trauma syndrome in the case of an acquaintance rape to mask the symptoms and to pretend as if the relationship has not changed, as if there hadn't been the trauma of the sexual assault.

KC: And Colleen reported to you that after the assault she felt dazed and numb, didn't she?

LH: Yes she did.

KC: Would it be consistent with rape trauma syndrome for the victim to pose for a photograph showing her hands on her breasts?

LH: If this would be normal behavior for her prior to the incident, I think that she would try to appear normal. That is, she would try not to change her behavior in any way.

KC: So what you see in exhibit 47, it's your testimony that would be consistent with a post traumatic stress disorder reaction?

LH: I think that you are misstating what I am saying. What I am saying is that she would try to appear normal so any behavior that she might ordinarily have engaged in such as posing for "funny pictures,'' she would tend to engage in.

KC: It is your testimony that she didn't understand that he wanted to have sex with her that night?

LH: She didn't interpret it that way.

KC: Did she tell you that Mr. Heinze had used some crude language in the office place?

LH: Yes she did.

KC: And she told you that Mr. Heinze grabbed her breast earlier in the summer?

LH: That was characterized to me as an incident where she was unsure as to whether it was intentional or not.

KC: Did she tell you that he put both of his hands inside of her skirt?

LH: Yes she told me that.

KC: And did she tell you that when she told him to stop he did?

LH: That is exactly right, he did stop.

Plaintiff, Colleen Schallock, takes the stand.

TS: How would you characterize Mr. Heinze's language?

CS: He would use foul language on a regular basis and on occasion he made some pretty crude comments.

TS: Directed towards you?

CS: Yes, at one point.

TS: What comments did he direct to you, please?

CS: One time I was in his office and we were talking about law school and I got up to leave and I walked out and he called me back in and I stuck my head back in the door and I said, I asked him what he wanted, and he nodded at the phone and he said buzz me when you're moist.

TS: What was your reaction?

CS: I told him that I thought he was disgusting.

TS: You didn't believe that was an appropriate thing for him to say in the workplace?

CS: No. I thought that was very inappropriate.

TS: Did you ever use a curse word in the workplace?

CS: Oh, I'm sure I did.

TS: When you used a curse word in the workplace did you consider that to be an invitation for Mr. Heinze to come up and touch you inappropriately?

Defendant's Counsel: Objection, Your Honor, leading.

Judge: Overruled. After this question, Mr. Schlier, please do not try to lead the witness.

TS: OK.

CS: No.

TS: Were there any other occasions when Mr. Heinze made comments of a sexual nature which you found to be offensive?

CS: Yes. One time I was in his office and I noticed that there was a target above his desk. And I didn't know what it was for and I asked him and he said that was his target when he masturbated.

TS: Did Mr. Heinze have a statue on his desk?

CS: Yes. I think that it was like a little man and he had a barrel around him and one time I was in there and Mr. Heinze pulled the barrel down and the statue had a penis that was like falling down around his knees and Mr. Heinze made a comment to me that he was proportionately that big as well.

TS: What did you say to him?

CS: I told him that he was gross.

TS: Has Mr. Heinze ever made an unwelcome sexual advance towards you?

CS: Yes. I was sitting in the back office again with the two other law clerks and he came up to me and reached across my desk to get something and he touched my breast.

TS: And you were giving him the benefit of a doubt at that point?

CS: Exactly.

TS: OK. Was there a second occasion?

CS: It was a little while after the first incident. It was after lunch because he had come in and he seemed to have been drinking at lunch and he called me into his office and he met me at the door and he put his hands down the front of my skirt.

TS: Did he get down into your pantyhose or underwear?

CS: No. He just put his hands right between my skirt and my slip.

TS: What was your reaction?

CS: I told him to get his hands out of my skirt.

TS: What did he do?

CS: He backed off and took his hands away and started laughing and he said that "I'm not going to hurt you, I just wanted to grope you.''

TS: What did you say?

CS: I told him that he was rude and that I didn't appreciate it and I left.

TS: You've told the jury that on that Sunday night, Ms. Schallock, that Mr. Heinze put his hand into your pants, told you several times that he wanted to make love to you, and he had been drinking. What were your thoughts at that time that led you to go to the room with him?

CS: I thought basically he was propositioning me and he wanted to know if I wanted to have a relationship with him and I kept thinking he wasn't thinking clearly, he was drunk, we needed to sit down in a quiet place. I needed to say, "No, you've got the wrong impression of me, I'm sorry, but I have no intention of having a sexual relationship with you.''

TS: Did you have any anticipation that any harm would come to you by going to the room?

CS: No.

TS: At the time that you went to the room with Mr. Heinze, did you have any intention of having consensual sexual intercourse with him?

CS: No.

TS: Did you ultimately go to your room with him?

CS: Yes.

TS: What happened next?

CS: On the way there, I was explaining to him, rather apologetically, that wasn't my intention and that he must have misunderstood. I unlocked the hotel room and I went to sit down in one of the chairs.

TS: What happened then?

CS: He grabbed me by my arms, and the bed was a few feet away, and he just turned me around and threw me on the bed.

TS: What did you say to him?

CS: I started telling him no, that this wasn't what I wanted at all. He got on top of me and I tried to push him off of me.

TS: Were you crying at that point?

CS: Yes. I was.

TS: Were you able to push him off of you?

CS: No.

TS: Did Mr. Heinze threaten you with any type of violence?

CS: No, he didn't.

TS: Did he have any type of weapon with him?

CS: No.

TS: Then what happened?

CS: He was on top of me, he had got my shorts and my underwear down and I was crying and telling him to stop. Then he just yanked my shorts back down and he got on top of me.

TS: Then what happened?

CS: Then he raped me.

TS: Throughout all of this time were you telling him to stop?

CS: Yes, until he . . . once he was inside of me, I just kind of blanked out and I stopped.

TS: Did you ever scream?

CS: No.

TS: Do you know why you didn't scream?

CS: In hindsight, all I can think of was that I couldn't believe it was going on, I thought he was going to stop, I thought it was just a misunderstanding and I don't think I was fully realizing what was going on.

TS: Ms. Schallock, did you consent to that particular act of Mr. Heinze?

CS: No.

TS: Did you tell him repeatedly, no?

CS: Yes.

TS: Did you tell him to stop?

CS: Yes.

Defendant's Counsel: Your Honor, he's leading.

Judge: Sustained.

TS: Did you attempt to physically escape?

CS: I tried to push him away and I couldn't get him off of me.

TS: What happened after the incident?

CS: After the incident, he made some comment about him being an animal. I kind of panicked and I said, "I'm going back to Phoenix, I need to go back home'' and he said, "It's going to look very funny and they're going to call you in Phoenix and ask you why you left. What are you going to tell them?'' He said, "Why don't you just stay a day and see how you feel?''

TS: Did he say anything else at that point?

CS: Yes. He then told me that if I wanted to come back and work at APAAC, he would give me any amount of money I wanted.

TS: What'd you tell him?

CS: I told him no, I didn't want to be his kept law clerk.

TS: Did you consider calling the police that evening?

CS: No.

TS: How come?

CS: I was completely embarrassed about it and Mr. Heinze also picked up on that.

TS: Did you stay the rest of the conference?

CS: Yes.

TS: What was the reason that you stayed?

CS: I decided that I wasn't going to tell anybody, and had I left, there would've been questions to answer that I didn't want to answer.

TS: How did you attempt to act for the rest of the conference?

CS: I tried to act as normally as I think I would have had it not happened.

Attorney Schlier questions Ms. Schallock about her phone calls to Mr. Heinze.

TS: Generally, what kind of things would you talk about when he would call you or you would call him?

CS: At the beginning of our conversation, at one point, I said "No, this is really wrong and I don't want to talk to you anymore. I think it would be best if we just not be in touch.'' But then, he was the only one I talked to about it and I did start up the conversations with him again. I felt that there was some way I could rationalize it or make it make sense. Whenever he called, he would just go over the part about the virginity and that's the reason that I was so upset and that he was honored to have taken that.

TS: Did you see Mr. Heinze again in 1988?

CS: Yes. I got back in December and he called me the next morning and said, "Do you want to have lunch'' and I said, "No'' and he said, "If you want to get over this, you and I have to work things out'' and he told me he wouldn't touch me, it's not like I needed to be afraid of what would happen, he just wanted to make sure everything was ok. [Schallock decided to meet Heinze for lunch.] When we were leaving he said, "There are a few more things I need to talk to you about.'' I got in the car with him and he drove to a parking lot and parked. He told me to get in the back seat and I said "no'' and he started coming at me and I backed up against the passenger side.

TS: Did you see him again during the Christmas break of 1988?

CS: Yes.

TS: After you had been sexually assaulted in Sidona and sexually assaulted again in December, 1988, why would you have lunch with Mr. Heinze a third time?

CS: First of all, I'm not claiming that any of my actions were rational. What I was trying to do was to resolve the issues. In the period of time I wasn't speaking to him, in a sense, I was acknowledging something went wrong and I wasn't dealing with that very well and I guess that was my effort to try and ignore what happened.

Cross-examination of Ms. Schallock by Allen Heinze's attorney, Steven Guttell:

SG: During that Christmas vacation, you saw him a total of three times, the two luncheons and then once you were in the APAAC office going to happy hour with the APAAC employees, is that correct?

CS: Right.

SG: You weren't avoiding Mr. Heinze at Christmas, were you?

CS: No.

SG: You weren't avoiding APAAC?

CS: No.

SG: You weren't avoiding any places or people that would remind you of this traumatic event, were you?

CS: Instead, I was trying to ignore the traumatic event. What I was trying to do was to place things the way everything had been before the rape. I was trying to act like it didn't happen.

SG: Before the rape, Mr. Heinze made vulgar comments, is that correct?

CS: In my presence he made a few, yes.

SG: And he would make vulgar gestures, is that correct?

CS: Right.

CS: You continued to keep in touch with Mr. Heinze and, in March, you went back to see him at the APAAC office, didn't you?

CS: Yes, that was the first time I attempted to confront him.

SG: And you met behind closed doors with him for a half hour to 45 minutes, correct?

CS: Right.

SG: You also wrote Mr. Heinze a letter in March of 1989, is that correct?

CS: Right.

SG: Thank you. Is it not true that you tried to get in touch with Mr. Heinze after March of '89, but Mr. Heinze was not keeping in touch with you?

CS: That's not true.

SG: Isn't it true that after March of 1989, Mr. Heinze never initiated any telephone calls to you?

CS: That's not true either. I called and he returned my call.

SG: Exactly. He would never take the initiative to call you, he was always returning one of your calls after March of 1989?

CS: Well, right, yes.

SG: And you called Mr. Heinze at that time in June to get a reference for one of the sons of one of the bosses in the law firm you worked at?

CS: Right.

SG: And then, because Mr. Heinze was not initiating phone calls to you, you called him in 1989, the fall of '89, and told Denise Helm to tell that SOB to call or he's going to pay, is that correct?

CS: I did that because at that point Denise had accused me of being a lesbian and then she turned around and accused me of having an affair with Mr. Heinze. And I did that for an effect on Denise. The last sentence of that statement was "Denise, you don't realize what's going on. I'm not having an affair with him and someday you're going to find out what really happened.''

SG: But your message to Mr. Heinze was tell that SOB to call or he is going to pay, is that correct?

CS: Something to that effect, yes.

SG: When you went back into the hospitality suite, Mr. Heinze came up and spoke with you at that time?

CS: Yes.

SG: And he said that he wanted to make love to you that evening, correct?

CS: Yes.

SG: You said he said he wanted to ________ you?

CS: Right.

SG: You also said that he said he wanted to sleep with you, is that correct?

CS: Yes.

SG: And after he had said all of those things to you, you still wanted to talk to Mr. Heinze alone, is that correct?

CS: I wanted to clear things up, yes.

SG: He was drunk, correct? Intoxicated?

CS: Yes.

SG: And you voluntarily went off to your room with him, correct?

CS: Yes.

SG: And you went off to your room with him knowing that what he was doing was propositioning you, correct?

CS: Yes, and propositioning is far different than rape in my mind.

SG: You didn't go to the lounge to talk to Mr. Heinze, did you?

CS: No.

SG: You didn't go to the patio to talk to Mr. Heinze, did you?

CS: No, we went to my room.

SG: You didn't walk up the pathway and have a conversation as you walked outside with Mr. Heinze, did you?

CS: No.

SG: You didn't go to the parking lot and talk to Mr. Heinze outside, did you?

CS: No.

SG: You also never thought, I suppose, of waiting until the next day and talking to him over a cup of coffee, did you?

CS: No, because I didn't think he would rape me, either.

SG: So, what you did that evening was you took a man that had discussed with you extramarital affairs, who'd obviously been drinking, who'd put his hand on your thigh the night before, who'd put his hands up your shorts into your underwear, up your groin and touched your genital area just a little earlier that evening. You took this man who, three or four times, in clear, explicit language told you exactly what he wanted to do with you. He wanted to make love with you and he wanted to, I apologize, in your words, ________ you. And you went to your room with him, correct?

CS: Right.

SG: And while you were there, in your room, you didn't yell, correct?

CS: Right.

Plaintiff's Counsel: Objection, Your Honor, asked and answered.

Judge: Sustained. Move onto something different.

SG: While he was in your room, you didn't try to knee him, correct?

CS: Knee him? He was on top of me.

SG: You didn't try to run?

CS: He was on top of me. I couldn't run.

SG: And after he left your room that evening you continued to seek him out for months afterward, didn't you?

Plaintiff's Counsel: Objection, asked and answered.

Judge: Overruled. You may answer.

SG: And after he left your room that evening, after you said he raped you, you continued to seek him out for months and months thereafter, didn't you?

CS: Seek him out? I kept in touch with him, yes.

Cross-examination of Ms. Schallock by Scott Cook, attorney for APAAC:

SC: Did you report any of the verbal advances made by Mr. Heinze to any of the council members?

CS: No.

SC: Did you report any of the physical touching that you have described here today to any of the council members?

CS: Indirectly, I guess I did.

SC: Specifically?

CS: No.

SC: I assume it would also be fair to say that you did not report any of the conversations where you were warned by Ms. Sullivan about the activities to any of the council members?

CS: Right.

SC: And, in fact, you have no knowledge that the council members were aware of the activities that you were involved in with regard to Mr. Heinze?

CS: Well, I know that they were made aware of it but they didn't do anything about it.

SC: You were talking [sic] that they were made aware of it when you filed a complaint in June of 1990?

CS: Right.

CLOSING STATEMENTS

Ms. Schallock's lawyer, Todd Schlier:

You recall that at the beginning of my opening statement, I told you that this case involves a betrayal of trust, an abuse of power, and violation of human dignity.

I told you that this case involved the most extreme and the most contemptible sexual harassment imaginablethe sexual assault of an employee by her supervisor.

I also told you that the APAAC workplace was Mr. Heinze's personal sexual playground and I told you that Ms. Schallock worked at APAAC for just three months and that what occurred during those three months changed her life forever and now you've heard Dr. Hazard come in and she's told you that now Ms. Schallock is condemned to sexual purgatory. I've proven to you that Mr. Heinze sexually harassed Ms. Schallock.

Based upon Mr. Heinze taking the fifth amendment, there's no evidence to dispute that the assault was unwelcome in August and again in December, 1988. That conduct is sexual harassment, it's intentional infliction of emotional distress.

APAAC is equally responsible for Ms. Schallock's injuries. As a council of the state, it hired Mr. Heinze, it knew or should have known of his past sexual improprieties. His language was known to the council, his misconduct was known by the staff attorneys, and it was so pervasive that the council should've known. APAAC's own inaction, in light of the actual complaints, in doing nothing for a decade, that's negligence and that's intentional infliction of emotional distress. Based upon all the evidence, you must find that Allen Heinze is liable to Ms. Schallock for sexual harassment, intentional infliction of emotional distress, that APAAC is liable for sexual harassment, that it's responsible for Mr. Heinze's intentional infliction of emotional distress, because he was a CEO and APAAC was negligent in supervising him.

In a little while, we'll all walk out of here. We'll return to our families, we'll be okay. Soon it will be Christmas and the holiday season. Ms. Schallock will not be okay. She may never be okay. Remember, she can't come back to you, ladies and gentlemen, in another year, in five years, ten years, twenty years and say, hey, remember everything Dr. Hazard testified to in that courtroom that could happen? It did happen. "I could never get married, never have a loving husband, never had a baby. I still have flashbacks. I don't trust people. I still consider suicide. I've been hospitalized. My life is a shambles.''

She has this one opportunity, ladies and gentlemen. We must fully compensate her for what she's been through in the past and what might occur in the future. She can't come back.

Ladies and gentlemen, based upon all of the evidence, a seven figure verdict against each defendant might begin to adequately compensate Ms. Schallock for the pain, for the suffering, for the embarrassment, for the depression she has sustained as a result of these defendants' misconduct and for that which she will sustain in the future.

Allen Heinze's attorney, Steven Guttell:

This morning Mr. Schlier told you that APAAC was a sexual playground. Last week he said it was a sexual playground without any monitors. He didn't mention monitors this morning because he knows playgrounds are for children and children need monitors; adults don't need monitors. Adults must take responsibility for their own actions and their actions without regard to others and their actions with regard to others. Adults say no; adults can and do say no, adults can and do walk away.

You heard the evidence about rape trauma syndrome. A psychologist would appear to claim that any reaction is consistent with rape trauma syndrome. If you act upset, it's normal. If you act normal, it's normal. If you act depressed or act happy, it's consistent. If you cry or smile, it's consistent. According to her psychologist, if she sat in her room and cried all night and day and night and day, or went out and partied, both would be consistent with rape trauma syndrome. When this lawsuit started, Mr. Schlier talked about abuse of power and violation of human dignity. Remember Kathleen Sullivan? She's the lady who told you that she slept with Allen Heinze to get power. Dr. Hazard told you that financial reward can give Ms. Schallock power.

Let's talk about the power she had. The power she had over Allen Heinze. Allen Heinze was prominent, he was politically connected and he was married. After she slept with him, she had incredible power. She had the power to control his political, financial and social future and she used it. All she had to do was cry rape. He couldn't deny the sex, he couldn't even testify about it because he knew and she knew he knew, he could end up being prosecuted with his own denials. Of course he took the fifth amendment. This is a man who spent his entire life in the criminal justice system. He's accused of a horrendous crime. Of course, he is going to take the fifth amendment. Colleen Schallock indeed now has the power. She has the power that she threatened to use when she told Denise Helm, "Tell that S.O.B. to call, or he'll pay.'' Don't help her carry out that threat. On behalf of Mr. Heinze, I ask you to return a verdict in his favor.

APAAC attorney Scott Cook:

Witnesses sat there one by one and answered the same question that I asked each of them. Did you report to the council and they sat there one by one and said no. No nothing. No witness, no report, no particulars to the council until Ms. Schallock almost two years after her alleged event came forward.

The next piece of the puzzle I want to talk about is the notice of claim section, that is Arizona law. That will be an instruction that you will take with you back to the jury room. It says that before a lawsuit can be brought against a public entity, the person bringing the suit must file a document describing that claim within one year. There's no dispute. That was not filed. The plaintiff says that delayed reporting is common in sexual assaults, but that piece doesn't fit this case.

You see, this is not about excusable neglect at all. This is about not reporting. The facts are clear. The pieces to our puzzle are together. I submit that the plaintiff has failed to carry her burden of proof.

VERDICT

Jury Foreperson:

We, the jury duly impaneled and sworn in the above-entitled action, upon our oaths, do find for the plaintiff and against defendant, Allen Heinze for intentional or reckless infliction of emotional distress and/or sexual harassment in the workplace and find the full damages to be one million, four hundred and seventy-six thousand five hundred and fifty three dollars and 50 cents.

We, the jury duly impaneled and sworn in the above-entitled action, upon our oaths, do find for the plaintiff and against the defendant APAAC for intentional infliction of emotional distress and/or sexual harassment in the workplace and find the full damages to be $908,446.50.

We, the jury duly impaneled and sworn in the above-entitled action, upon our oaths, do find for the plaintiff and against the defendant APAAC on the negligence hiring, retention and supervision claim and find the full damages to be $908,446.50.

We want it to be clear that we have divided the liability in the following manner: Mr. Heinze, $1,476,553.50 and APAAC, $908,446.50.

Total liability is $2,385,000.00.

 


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