Gianfrancisco v. Excelsior Youth Centers, Inc.

Filing 109

ORDER granting in part and denying in part #72 defendant's Motion for Summary Judgment. By Judge Philip A. Brimmer on 7/13/12.(pabsec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 10-cv-00991-PAB-KMT
CAROL M. GIANFRANCISCO,
Plaintiff,
v.
EXCELSIOR YOUTH CENTERS, INC.,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Motion for Summary Judgment [Docket
No. 72] filed by defendant Excelsior Youth Centers, Inc. (“Excelsior”). The motion is
fully briefed and ripe for disposition.
I. BACKGROUND1
This case arises out of plaintiff Carol M. Gianfrancisco’s employment with
Excelsior – a residential treatment center for teenage girls with emotional and
behavioral difficulties. Gianfrancisco was employed by Excelsior for a period of 24
years, beginning on August 27, 1984 and ending with her resignation on September 3,
2008. After her resignation, Gianfrancisco filed a charge of discrimination with the
Colorado Civil Rights Division alleging that, during her employment with Excelsior
between May 17, 2008 to September 3, 2008, she was subject to wage discrimination
because of her gender, discrimination based on her Italian national origin, and

1

The following facts, unless otherwise indicated, are not in dispute.

retaliation for reporting discriminatory conduct. Docket No. 72-22. On December 23,
2008, the Equal Employment Opportunity Commission (“EEOC”) issued Gianfrancisco
a right-to-sue letter, Docket No. 72-23, and on March 18, 2009, Gianfrancisco filed this
lawsuit alleging that Excelsior violated Title VII of the 1964 Civil Rights Act, 42 U.S.C.
§ 2000e et seq.2 Docket No. 1-2.
A. Wage Discrimination
Excelsior’s treatment centers are divided into different campuses (cottages)
where students take classes and participate in counselor-led therapy programs. In
1984, Gianfrancisco began her employment with Excelsior as a Math Teacher and, over
the course of her employment, worked as a Development Aide in 1985 and a Team
Coordinator beginning on August 10, 1987.3 During this time period, Gianfrancisco
secured a Master’s Degree and became a Licensed Professional Counselor.
As a Team and Treatment Coordinator (“TTC”), Gianfrancisco was in charge of
Excelsior’s Renaissance cottage and her usual duties included supervising other
counselors as well as providing clinical treatment for students. Compared to other
cottages, Renaissance was known for having difficult students and requiring greater
oversight.

2

In the complaint, plaintiff alleges violations of the Equal Pay Act, 29 U.S.C.
§ 206(a). See Docket No. 1-2 at 23. However, in the Final Pretrial Order [Docket No.
81] plaintiff mentions only Title VII of the 1964 Civil Rights Act. Because the Final
Pretrial Order is the operative pleading, United Phosphorus, Ltd. v. Midland Fumigant,
Inc., 205 F.3d 1219, 1235 (10th Cir. 2000), the Court will address plaintiff’s Title VII
claim only.
3

In November 1995, Excelsior converted the Treatment Coordinator position into
the “Team and Treatment Coordinator.”
2

On July 29, 2004, plaintiff accepted a position as an After Care Coordinator
(“ACC”). After changing positions from a TTC to an ACC, Gianfrancisco retained the
same compensation. Because her yearly salary remained the same, plaintiff claims
that she believed that her position as an ACC was a lateral position change. Excelsior,
however, argues that a TTC usually has more responsibilities than an ACC and that the
two positions are not comparable. Heather Hurd, a Licensed Professional Counselor,
also noted that one of the differences between an ACC and a TTC is that an ACC does
not have to supervise a team of counselors. Docket No. 77-8 at 3 (Hurd Dep. 25:1-8).
After Gianfrancisco accepted a position as an ACC, employee Martin Zaffaroni
was asked to oversee the Renaissance cottage. Zaffaroni was a TTC who began his
employment with Excelsior on September 12, 1982 and became a Treatment
Coordinator on July 1, 1988. Zaffaroni was also Gianfrancisco’s supervisor in the
mid-1980s. However, unlike Gianfrancisco, Zaffaroni is not a Licensed Professional
Counselor.
According to Joan Gabrielson, Excelsior’s Executive Director, Zaffaroni was
chosen to oversee the Renaissance cottage after two traumatic incidents occurred
there. Gabrielson states that Zaffaroni was tasked with revamping the Renaissance
cottage by implementing new programming for the students. Zaffaroni had previously
revamped programming at Excelsior’s Larkspur cottage. Docket No. 77-2 at 3
(Zaffaroni Dep. 29:24-25).
Gianfrancisco alleges that, when she changed position in 2004, she was
unaware of the salaries of her fellow employees. She claims that Excelsior
admonished its employees not to discuss salaries and that no one at Excelsior
3

discussed compensation. Gianfrancisco contends that it was only upon her departure
from Excelsior in September 2008 that Wendi Roth, a former Human Resources
employee at Excelsior, informed her that Zaffaroni earned more than she earned as the
TTC for the Renaissance cottage. Gianfrancisco claims that, after speaking with Roth,
she began to research the salaries of employees at Excelsior and discovered that
Zaffaroni had earned a higher yearly salary since 2003.
Gianfrancisco claims that, as of January 1, 2004, she earned a yearly salary of
$54,018.00, which did not change when she switched positions from a TTC to an ACC.
Docket No. 72-1 at 3. Zaffaroni, on the other hand, earned an annual salary of
$52,604.03 as of January 1, 2004, which increased to $55,602.30 on July 12, 2004
when he began to work at Renaissance cottage.4 Id. at 5. Gianfrancisco claims that,
because she is a Licensed Professional Counselor and Zaffaroni does not hold such a
license, she should earn a higher yearly salary. Based on this information, she asserts
that she was subject to wage discrimination because she earned a lower yearly salary
even though she had more credentials.
Excelsior, however, claims that employee compensation is based primarily on
seniority. Excelsior also asserts that Gianfrancisco was aware that seniority was a
factor in salary decisions as evidenced by her 2004 email to Bill Gregory, Excelsior’s
former Executive Director. See Docket No. 85-3. Moreover, Excelsior argues that
4

Gianfrancisco’s yearly earnings were as follows: $55,097.00 on September 1,
2004; $56,199.00 on July 19, 2005; $58,447.00 on December 1, 2005; $61,369.00 on
September 1, 2006; $64,437.00 on September 1, 2007. Docket No. 72-1 at 3-4.
Zaffaroni’s yearly earnings were as follows: $57,270.51 on July 19, 2005; $58,415.97
on December 1, 2005; $61,336.70 on September 1, 2006; $62.036.70 on April 2, 2007;
$65,138.53 on September 1, 2007. Id. at 6.
4

Gianfrancisco’s 2004 email proves that she was aware of her co-workers’ salaries
because the email complains that her 2% raise was lower than other employees’ raises.
Id.
B. Hostile Work Environment and Constructive Discharge
In addition to the gender discrimination claim, Gianfrancisco asserts that the
events surrounding a school-sponsored play performed at Excelsior created a hostile
work environment and led to her constructive discharge.
At the end of every semester, Excelsior students, teachers, and other staff
members perform a play to celebrate the semester. The plays are typically satires
which focus on events that have occurred at Excelsior throughout the semester. Darrell
Brown, a teacher at Excelsior, has written all of the plays performed at Excelsior. On
May 15, 2008, Excelsior’s staff performed a play authored by Brown entitled “Nightmare
on Oxford Street, Part 41: Uniformity.” Docket No. 72-6.
Gianfrancisco did not see the play because of a prior engagement, but was able
to read the script. After reading the script, she thought that the play was offensive
because it ridiculed group therapy programs and defamed Italian Americans. Although
the play parodied others at Excelsior, Gianfrancisco believed that one of the characters
in the play, “Vito Tortellini,” an Italian mobster, was a caricature of Italian Americans.
According to Gianfrancisco, Vito Tortellini spoke with a strong Italian accent, used
stereotypical mobster slang, and generally depicted Italians as unintelligent, violent
criminals.5 Gianfrancisco also thought Vito Tortellini mocked her demeanor,
5

Gianfrancisco was offended by the character’s use of colloquialisms such as
“youse” instead of “you,” and references to making individuals “sleep with the fishes.”
5

appearance, and made implications about her sexual orientation because he wore a
“granny wig” that matched her hair color and was in charge of two therapy programs
similar to ones she conducted for her students. Docket No. 72-13 at 2; Docket No. 72-4
at 9 (Gianfrancisco Dep. 15:11-22); Docket No. 77-8 at 2 (Hurd Dep. 21:8-12). Hurd
and Victoria Sicard, Excelsior’s Recreational Coordinator, were also of the opinion that
Vito Tortellini was a thinly veiled parody of Gianfrancisco.
On May 19, 2008, Gianfrancisco wrote an email to her supervisor, Carol
Beauchamp-Hunter, and to Vivian Zlobec, Excelsior’s Director of Human Resources, to
voice her complaints about the play. See Docket No. 72-8. In response to plaintiff’s
email, Beauchamp-Hunter advised plaintiff that Gabrielson would conduct an
investigation. On May 20, 2008, Gianfrancisco sent Zlobec an email describing
discrimination with respect to national origin, Docket No. 72-10, and another email on
June 2, 2008 advising Zlobec and Beauchamp-Hunter that she would not be satisfied
with a simple apology. Docket No. 72-13.
To address plaintiff’s concerns about the play, Zlobec held a meeting with
Gianfrancisco on June 5, 2008. At the meeting, Zlobec gave plaintiff a copy of a letter
of apology written by Brown. Docket No. 72-5 at 6 (Gianfrancisco Dep. 74:20-24). In
the letter, Brown apologized for writing the play, insisted that the character of Vito
Tortellini was not a caricature of Italian Americans, stated that it was not his intent to
defame Italian Americans, and agreed to “accept sanctions without complaint.” Docket
No. 72-14. Gianfrancisco rejected Brown’s letter of apology and informed Zlobec that

See generally Docket No. 72-4 at 16-18.
6

she expected Brown to be formally reprimanded instead.6 On June 12, 2008, Zlobec
held a meeting with Brown and Gianfrancisco wherein Brown again apologized and said
that he would no longer write plays for Excelsior. Docket No. 72-5 at 10-12
(Gianfrancisco Dep. 84:16-86:18). Zlobec then held a third meeting with Gianfrancisco,
Jann Clevenger, a Supervisor at Excelsior, Beauchamp-Hunter, and Jim Uhernick. In
this meeting, Gianfrancisco discussed her feelings about the play and received an
apology from Clevenger. Docket No. 72-15. Thereafter, plaintiff applied for and
accepted a position with Denver Public Schools at the Contemporary Learning
Academy (“CLA”). Docket No. 72-20 at 1. Her last day of work at Excelsior was
September 3, 2008. Id.
Gianfrancisco alleges that, because of Excelsior’s refusal to publicly reprimand
Brown, she was forced to seek employment elsewhere. Docket No. 72-5 at 32
(Gianfrancisco Dep. 149:6-11). She claims that the play, her removal from the group
therapy sessions and the Canine Healers program made her feel “less trusted and less
credible.” Id. She made the decision to resign from Excelsior because, even after
working for Excelsior for 24 years, she believed she was treated as a lesser employee
based on her gender. Docket No. 86-3 at 4, ¶ 24-25.
C. Retaliation
Gianfrancisco alleges that, as a consequence of filing a complaint about the
play, she was subject to various forms of retaliation. First, Gianfrancisco claims that

6

Zlobec informed Gianfrancisco that reprimands were usually confidential at
Excelsior and that, even if Brown was reprimanded, Gianfrancisco would not be privy to
this information.
7

Excelsior restricted her ability to lead group therapy sessions. Second, Gianfrancisco
claims that Excelsior denied her request to continue working with the Canine Healers
group. And third, Gianfrancisco contends that she was not compensated for producing
graduation videos for the students.
II. STANDARD OF REVIEW
Summary judgment is warranted under Federal Rule of Civil Procedure 56 when
the “movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986); Concrete Works, Inc. v. City &
County of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994); see also Ross v. The Board of
Regents of the University of New Mexico, 599 F.3d 1114, 1116 (10th Cir. 2010). A
disputed fact is “material” if under the relevant substantive law it is essential to proper
disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir.
2001). Only disputes over material facts can create a genuine issue for trial and
preclude summary judgment. Faustin v. City & County of Denver, 423 F.3d 1192, 1198
(10th Cir. 2005). An issue is “genuine” if the evidence is such that it might lead a
reasonable jury to return a verdict for the nonmoving party. Allen v. Muskogee, 119
F.3d 837, 839 (10th Cir. 1997). When reviewing a motion for summary judgment, a
court must view the evidence in the light most favorable to the non-moving party. Id.;
see McBeth v. Himes, 598 F.3d 708, 715 (10th Cir. 2010).

8

III. ANALYSIS
A. Lilly Ledbetter Fair Pay Act
Title VII prohibits employers from discriminating against an individual with
respect to compensation because of membership in a protected class. 42 U.S.C.
§ 2000e-2(a)(1). In 2009, the Lilly Ledbetter Fair Pay Act (“Ledbetter Act”), Pub. L. No.
111-2, added the following language to Title VII’s provision governing time limits for
filing an administrative charge:
For purposes of this section, an unlawful employment practice occurs,
with respect to discrimination in compensation in violation of this
subchapter, when a discriminatory compensation decision or other
practice is adopted, when an individual becomes subject to a
discriminatory compensation decision or other practice, or when an
individual is affected by application of a discriminatory compensation
decision or other practice, including each time wages, benefits, or other
compensation is paid, resulting in whole or in part from such a decision or
other practice.
42 U.S.C. § 2000e-5(3)(A).
Congress enacted the Ledbetter Act in response to the Supreme Court’s
decision in Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618 (2007), which
held that a plaintiff’s wage discrimination claim was untimely because the administrative
charge was filed more than 300 days following the pay-setting decision. Id. at 622. The
Ledbetter Act was enacted to extend the accrual period for asserting claims with regard
to discriminatory compensation decisions. It ensures that the period during which a
plaintiff may file a charge of discrimination renews each time an employer makes a
discriminatory wage decision under Title VII. The Ledbetter Act addresses the problem
identified by the dissent in Ledbetter, that the 300-day accrual limitation strips a plaintiff

9

of a remedy because a plaintiff is usually unaware that discrimination motivated a
compensation decision until it is too late. See Almond v. Unified Sch. Dist. No. 501,
665 F.3d 1174, 1182-83 (10th Cir. 2011) (the dissent in Ledbetter argued that the better
rule is “to trigger the accrual of a compensation discrimination claim not only when
employers intentionally discriminate in pay-setting decisions, but also when they
discriminate in other ways that cause a discriminatory pay disparity.”).
The Ledbetter Act deems each paycheck issued pursuant to a discriminatory pay
structure an independent, actionable employment practice. It also explicitly provides for
“recovery of back pay for up to two years preceding the filing of the charge, where the
unlawful employment practices that have occurred during the charge filing period are
similar or related to . . . [those] that occurred outside the time for filing a charge.” 42
U.S.C. § 2000e-5(3)(B). Because the statute modifies accrual dates for claims of
discrimination, if Gianfrancisco can demonstrate that her wages were the result of a
discriminatory decision to pay her less than her male coworkers, she can recover for
each paycheck received dating back to 300 days prior to the filing with the EEOC, and
does not need to show that the discriminatory decision occurred within this period.
Gianfrancisco may also recover back pay for up to two years prior to February 14, 2008
(300 days before December 10, 2008, the day she filed a charge of discrimination).
1. Scope of the EEOC Charge
Excelsior contends that, because plaintiff limited the scope of her charge of
discrimination to the specific time period of May 17, 2008 to September 3, 2008, any
claims arising outside of this period are time-barred. Docket No. 72 at 10-12.
Moreover, because an administrative agency would not reasonably conduct an
10

investigation outside of May 17, 2008 to September 3, 2008, Excelsior claims that
Gianfrancisco has failed to exhaust her administrative remedy for all claims outside of
this period. Id.
A Title VII plaintiff must exhaust his or her administrative remedies for each
individual discriminatory or retaliatory act. Martinez v. Potter, 347 F.3d 1208, 1211
(10th Cir. 2003). “In the Tenth Circuit, exhaustion of administrative remedies is a
jurisdictional prerequisite to suit.” Jones v. United Parcel Serv., Inc., 502 F.3d 1176,
1183 (10th Cir. 2007) (citation omitted). In determining whether a plaintiff has
exhausted his or her administrative remedies, the court must identify the scope of the
allegations raised in the EEOC charge because a “plaintiff’s claim in federal court is
generally limited by the scope of the administrative investigation that can reasonably be
expected to follow the charge of discrimination submitted to the EEOC.” Mackenzie v.
City & Cnty. of Denver, 414 F.3d 1266, 1274 (10th Cir. 2005).
The Court finds that plaintiff’s wage discrimination claim may reach conduct that
occurred prior to May 17, 2008. Under the Ledbetter Act, Gianfrancisco need only
show that she received wages lower than similarly situated male co-workers between
May 17, 2008 and September 3, 2008 in order to be eligible to receive back pay for up
to two years. If Gianfrancisco can show that she received lower wages for similar work,
then the Court must determine whether her lower wages were the result of a
discriminatory decision, regardless of when that decision occurred. See 42 U.S.C.
§ 2000e-5(3)(B) (a plaintiff need only show that a wage event occurred during the
period listed in her charge of discrimination, and that this discriminatory event is related

11

to a decision that “occurred outside the time for filing a charge.”). Thus, whether
plaintiff failed to exhaust her administrative remedies for claims outside of this period is
irrelevant as it would not alter her entitlement to damages under the Ledbetter Act.
2. Title VII Wage Discrimination
Under Title VII, a pay discrimination claim requires “proof of unequal pay
between the employee and co-workers outside the protected class doing the same
work.” Almond, 665 F.3d at 1181. Moreover, such claims are limited to factual
situations involving “unequal pay for equal work,” and the “key to a successful claim is a
showing that the employer discriminatorily paid the employee too little for the position
he or she occupies.” Id. at 1180-81. Accordingly, Gianfrancisco must prove that
Excelsior intentionally discriminated against her because of her gender. Jaramillo v.
Colo. Judicial Dept., 427 F.3d 1303, 1306 (10th Cir. 2005).
Because Gianfrancisco does not have direct evidence of wage discrimination,
the Court employs the three-step burden-shifting framework set forth in McDonnell
Douglas and its progeny. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-07
(1973). Under McDonnell Douglas, Gianfrancisco must first establish a prima facie
case of discrimination. Id. at 802. Relevant to this case, a prima facie showing of
discrimination consists of evidence that she “occupie[d] a job similar to that of higher
paid males.” Miller v. Auto. Club of N.M., Inc., 420 F.3d 1098, 1117 (10th Cir. 2005),
overruled on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53
(2006). If Gianfrancisco makes such a showing, the burden of production shifts to the
Excelsior “to state a legitimate, nondiscriminatory reason for its adverse employment

12

action.” Plotke v. White, 405 F.3d 1092, 1099 (10th Cir. 2005). “If [Excelsior] meets
this burden, then summary judgment is warranted unless [Gianfrancisco] can show
there is a genuine issue of material fact as to whether the proffered reasons are
pretextual.” Id. That is, Gianfrancisco must show that Excelsior, regardless of the
proffered reasons, likely relied on discriminatory animus to pay her a lower salary.
Sprague v. Thorn Am. Inc., 129 F.3d 1355, 1363 (10th Cir. 1997).
Excelsior claims that Gianfrancisco cannot establish a prima facie case of wage
discrimination because an ACC position is not similar to a TTC position. In support,
Excelsior provides Gabrielson’s deposition testimony which states that an ACC is a
lower position in Excelsior’s employee hierarchy when compared to a TTC. Docket No.
72-2 at 7-8 (Gabrielson Dep. 23:24-24:10). In addition, Excelsior argues that Hurd’s
deposition testimony shows that, although Hurd believed that a switch from an ACC to a
TTC was a lateral move, she also stated that an ACC does not have to supervise a
team and therefore has fewer responsibilities than a TTC. Docket No. 77-8 at 3 (Hurd
Dep. 25:1-8). Moreover, Excelsior argues that Gianfrancisco understood a lateral move
to mean only no “change in salary,” not that the duties between an ACC and a TTC
would be similar. Docket No. 85-3 at 1.
In response, plaintiff provides Roth’s affidavit, which indicates that the two
positions have comparable duties, Docket No. 77-3 at 2, ¶ 8, and Sicard’s deposition,
which also states that an ACC would have the same level of responsibility as a TTC.
Docket No. 77-9 at 4 (Sicard Dep. 12:11-20). Viewing the evidence in a light most
favorable to plaintiff, the Court finds that Gianfrancisco has met her burden of
establishing a prima facie case of pay discrimination based on gender. As a female,
13

Gianfrancisco is a member of a protected class and, based on the salary figures
provided by Excelsior, she received a lower yearly salary when compared to Zaffaroni,
a male employee, after July 12, 2004 and for the years 2005, 2007, and 2008.7 See
Docket No. 72-1 at 3-6. Additionally, plaintiff’s wages at Excelsior were directly related
to the 2004 employment decision that changed her position from a TTC to an ACC. 42
U.S.C. § 2000e-5(3)(B).
Because plaintiff has established that she earned lower wages when compared
to a similarly-situated male employee, the burden shifts to Excelsior to articulate a
legitimate, non-discriminatory reason for providing Zaffaroni with a higher salary. In
providing a legitimate non-discriminatory reason, Excelsior “need not persuade the
court that it was actually motivated by the proffered reasons.” Texas Dep’t of Comty.
Affairs v. Burdine, 450 U.S. 248, 254 (1981).
Excelsior presents two reasons for Zaffaroni’s higher salary. First, Excelsior
argues that Zaffaroni received greater compensation because of his greater seniority,
and second, because Zaffaroni had more responsibility since he was given the job of
implementing changes to the Renaissance cottage. Docket No. 77-2 at 2 (Zaffaroni
Dep. 16:12-20). Because Excelsior has presented two legitimate nondiscriminatory
reasons for Zaffaroni’s larger salary, the burden shifts back to Gianfrancisco to show
that Excelsior’s articulated reasons are mere pretexts for discrimination. A plaintiff can
show pretext by “revealing such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons for its

7

Gianfrancisco received a higher yearly salary than Zaffaroni in 2006.
14

action that a reasonable factfinder could rationally find them unworthy of credence.”
Mickelson V. New York Life Ins. Co., 460 F.3d 1304, 1315 (10th Cir. 2006) (citation
omitted).
Plaintiff argues that seniority was not a controlling factor with regard to employee
compensation at Excelsior. She relies on Roth’s affidavit which states that, before
2007, the Human Resources department at Excelsior did not have a rule or
understanding that seniority was the key factor in setting wages. Docket No. 77-3 at 1,
¶¶ 3-4. Plaintiff also presents her own affidavit to argue that she was never aware that
seniority was the “key feature” in establishing salaries. Docket No. 77-1 at 1, ¶ 3.
Finally, plaintiff claims that Excelsior’s reliance on seniority is contradicted by the fact
that she received a higher salary than Zaffaroni in 2006.
Although Excelsior provided evidence that it considered seniority when setting
employee compensation, see, e.g., Docket No. 72-2 at 6 (Gabrielson Dep. 14:7-11) (a
person with more seniority could lack a professional license yet earn a higher salary);
Docket No. 77-8 at 4 (Hurd Dep. 32:16-20) (Hurd assumed that greater seniority meant
higher wages); Docket No. 77-13 at 4 (Zlobec Dep. 32:6-15) (an individual who begins
his employment at a higher rate will continue to earn a salary at that higher rate even if
they change positions); Docket No. 85-3 (2004 email from Gianfrancisco noting that
Gabrielson advised the staff that “counselors salaries [would change] to signal a value
to their seniority”), this evidence does not conclusively establish that seniority was the
“key” or deciding factor in determining salaries. Viewing the evidence in a light most
favorable to plaintiff, the Court finds that plaintiff raises a genuine dispute of fact about
whether she was subject to discrimination based on her gender. A jury could
15

reasonably believe that Excelsior’s non-discriminatory reason is pretextual and that
Excelsior discriminated against plaintiff because of her gender when it provided
Gianfrancisco with a lower salary than Zaffaroni. Accordingly, the Court denies
Excelsior’s motion for summary judgment on plaintiff’s Title VII gender discrimination
claim.
B. Hostile Work Environment
To survive summary judgment on a hostile work environment claim, a plaintiff
must show that “under the totality of circumstances (1) the harassment was pervasive
or severe enough to alter the terms, conditions, or privilege of employment, and (2) the
harassment was racial or stemmed from racial animus.” Chavez v. New Mexico, 397
F.3d 826, 831-32 (10th Cir. 2005) (citation omitted). Factors considered in determining
whether a working environment is sufficiently hostile or abusive include: “(1) the
frequency of the discriminatory conduct; (2) the severity of the conduct; (3) whether the
conduct is physically threatening or humiliating, or a mere offensive utterance; and (4)
whether the conduct unreasonably interferes with the employee’s work performance.”
Mackenzie v. City & Cnty. of Denver, 414 F.3d 1266, 1280 (10th Cir. 2005). A showing
of pervasiveness requires more “than a few isolated incidents of racial enmity.” Bolden
v. PRC, Inc., 43 F.3d 545, 551 (10th Cir. 1994). “Instead, there must be a steady
barrage of opprobrious racial comments.” Chavez, 397 F.3d at 832.
First, Gianfrancisco admitted that her work conditions were not altered by the
play and that she was able to competently perform all of her work activities. Docket No.
72-5 at 35 (Gianfrancisco Dep. 163:7-8). Because Gianfrancisco fails to show that the

16

play created an objectively abusive or hostile environment, she raises no facts sufficient
to create a genuine issue of fact that Excelsior was “permeated with discriminatory
intimidation, ridicule, and insult, [ ] sufficiently severe or pervasive to alter the
conditions” of her employment. MacKenzie, 414 F.3d at 1280.
Second, the Court finds that the evidence, even viewed in a light most favorable
to Gianfrancisco, is insufficient to show the play was racial or stemmed from racial
animus towards Italian Americans. Gianfrancisco offers no evidence that the play
“stemmed from racial animus.” Witt v. Roadway Express, 136 F.3d 1424, 1432 (10th
Cir. 1998). Brown’s letter of apology states that the play was an attempt to teach the
students at Excelsior a lesson about gangs through mob culture. See Docket No.
72-14. As Brown noted in his letter of apology, the character of Vito Tortellini does not
speak in a manner suggestive of an Italian accent, but rather use slang as would a thug
from the 1920s or 1930s. See Docket No. 72-14. Additionally, Italian Americans were
not the sole focus of the play; rather, the play ridiculed various individuals employed by
Excelsior. The evidence in the record shows that the play and the character of Vito
Tortellini were not created out of hostility towards Italian Americans.
Even fully crediting plaintiff’s belief that the play was discriminatory because it
portrayed Italian Americans as criminals and used stereotypical slang, these facts,
while offensive, fall short of the necessary statutory showing of a hostile work
environment. See Bolden, 43 F.3d at 551 (evidence of two overtly racial comments and
one arguably racial remark over the course of plaintiff’s eight years of employment does
not constitute pervasive conduct); Chavez, 397 F.3d at 833 (finding that two racially

17

motivated comments fall far short of the “steady barrage” required for a hostile
environment claim); Trujillo v. Univ. of Colo. Health Sciences Center, 157 F.3d 1211,
1214 (10th Cir. 1998) (holding that federal law “does not guarantee a utopian
workplace, or even a pleasant one”) (citation omitted); Pickens v. Shell Tech. Ventures,
Inc., 118 F. App’x 842, 850 (5th Cir. 2004) (holding that a company Christmas party
where a skit with characters in blackface was performed and racially insensitive
comments were made to plaintiff did not create a hostile work environment); Hocevar v.
Purdue Frederick Co., 223 F.3d 721, 738 (8th Cir. 2000) (finding that a skit and four
inappropriate comments can not state a claim of a hostile work environment based on
sex discrimination). No rational factfinder could conclude that, based on the
performance of the play, animus towards Italian Americans was so pervasive at
Excelsior that it created a hostile environment. See Faragher v. City of Boca Raton,
524 U.S. 775, 788 (1998) (Title VII is not a “general civility code” and “sporadic use of
abusive language, gender-related jokes, and occasional teasing” are among the
“ordinary tribulations of the workplace”); Witt, 136 F.3d at 1433 (courts must consider
the nature and context of the incidents, keeping in mind that the “mere utterance of a
statement ‘which engenders offensive feelings in an employee’ would not affect the
conditions of employment to a sufficiently significant degree to violate Title VII.”).
Gianfrancisco argues that, even if the play is not evidence of pervasive hostility,
it constitutes a single severe event which transformed Excelsior into a hostile
environment. Docket No. 77 at 11-12. Plaintiff relies on Tademy v. Union Pac. Corp.,
614 F.3d 1132 (10th Cir. 2008), a case where the Tenth Circuit held that a “sufficiently

18

severe episode may occur as rarely as once” and still create a hostile work
environment. Id. at 1144. In Tademy, the Tenth Circuit found that, even though the
plaintiff was not subjected to racism on a daily basis, evidence of “highly offensive
graffiti” and a “life-sized lynching noose” hanging in a work shack were sufficiently
“egregious act[s] of discrimination calculated to intimidate African-Americans.” Id. at
1144-45.
Although the play portrayed Vito Tortellini as an unintelligent, violent mobster, it
fell short of racial denigration of Italian Americans and did not include events calculated
to intimidate or threaten physical action. See id. at 1142 (observing that “the [lynching]
noose is among the most repugnant of all racist symbols.”). As such, the play was not
a severe enough event that is, on its own, susceptible to an inference of a hostile work
environment.8 Cf. Smith v. Sheahan, 189 F.3d 529, 534 (7th Cir. 1999) (“Breaking the
arm of a fellow employee because she is a woman, or, as here, damaging her wrist to
the point that surgery was required, because she was a woman, easily qualifies as a
severe enough isolated occurrence to alter the conditions of her employment”); see
MacKenzie, 414 F.3d at 1280 (noting “courts should filter out offhand comments, and
isolated incidents”); Chavez, 397 F.3d at 832 (“Title VII is not a code of workplace

8

Due to plaintiff’s failure to establish a hostile environment claim, the Court does
not have to determine whether there is evidence that Excelsior’s “response to the
incident[] of which it was apprised was inadequate.” Tademy, 614 F.3d at 1139. The
Court notes, however, that Excelsior responded to Gianfrancisco’s complaint by holding
two meetings wherein Brown and Clevenger apologized for their participation in the play
and canceled the play permanently. See Duncan v. Manager, Dep’t of Safety, City &
Cnty. of Denver, 397 F.3d 1300, 1310 (“If the employer’s response ends the
harassment by the employee in question, we presume that the remedial action was
sufficient.”).
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conduct . . . a hostile environment claim requires a showing not only of severe and
pervasive harassment, but of severe and pervasive harassment based on [national
origin].”). Accordingly, Excelsior is entitled to summary judgment on plaintiff’s hostile
work environment claim.
C. Constructive Discharge
Having failed to produce evidence raising a genuine issue of fact that the play
created a hostile work environment, plaintiff cannot sustain the more onerous burden of
proving a national origin discrimination claim premised on constructive discharge. To
prove such a claim, plaintiff must show both the existence of a hostile work environment
and that her “working conditions [were] so intolerable that a reasonable person would
have felt compelled to resign.” See Penn. State Police v. Suders, 542 U.S. 129, 147
(2004); see also Tran v. Trustees of State Colleges in Colorado, 355 F.3d 1263, 1270
(10th Cir. 2004) (noting that the constructive discharge test is objective, “under which
neither the employee’s subjective views of the situation, nor her employer’s subjective
intent with regard to discharging her, are relevant.”) (citation omitted). Because plaintiff
has failed to sustain a hostile work environment claim in the first instance, a reasonable
jury could not find, on the basis of the record before the Court, that Excelsior
deliberately made or allowed plaintiff’s working conditions to becomes so intolerable
that she had no other choice but to quit. Woodward v. City of Worland, 977 F.2d 1392,
1401 (10th Cir. 1992).

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D. Retaliation
Gianfrancisco alleges that Excelsior retaliated against her for filing a complaint
about the play. Plaintiff claims that she was subject to retaliation when she was (1)
removed from group therapy sessions, (2) denied participation in the Canine Handlers
program, and (3) denied compensation for work on the students’ graduation video.
Docket No. 77 at 11.
Title VII prohibits retaliation against individuals who oppose discriminatory
employment practices in complaints or investigations of employment practices
prohibited by Title VII. See 42 U.S.C. § 2000e-3(a). To establish a prima facie case of
retaliation, a plaintiff must prove three elements: “(1) protected employee action; (2)
adverse action by an employer either after or contemporaneous with the employee’s
protected action; and (3) a causal connection between the employee’s action and the
employer’s adverse action.” Jencks v. Modern Woodmen of Am., 479 F.3d 1261,
1264-65 (10th Cir. 2007). If plaintiff can establish a prima facie case, defendant must
then articulate a legitimate, nondiscriminatory or non-retaliatory reason to support its
employment decision. Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1181 (10th Cir.
2006).
“Although no magic words are required, to qualify as protected opposition the
employee must convey to the employer his or her concern that the employer has
engaged in a practice made unlawful by [anti-discrimination statutes].” Hinds v.
Sprint/United Mgmt. Co., 523 F.3d 1187, 1203 (10th Cir. 2008). Additionally, a causal
connection “may be demonstrated by evidence of circumstances that justify an

21

inference of retaliatory motive, such as protected conduct closely followed by adverse
action.” See Conner v. Schnuck Markets, Inc., 121 F.3d 1390, 1395 (10th Cir. 1997).
Excelsior claims that Gianfrancisco fails to raise a viable retaliation claim
because it was unreasonable for her to believe that she engaged in protected activity.
Docket No. 72 at 17. The Court disagrees. Plaintiff’s formal complaint about the play
and its portrayal of Italian Americans constitutes protected activity.9 See 42 U.S.C.
§ 2000e-3(a); Hertz v. Luzenac Am., Inc., 370 F.3d 1014, 1015 (10th Cir. 2004) (plaintiff
need not show the employer discriminated against her; plaintiff need only show that,
after she engaged in protected activity, she had a reasonable good-faith belief the
opposed behavior was discriminatory). The question thus becomes whether
Gianfrancisco was subject to an “adverse employment action.” Jencks, 479 F.3d at
1264-65.
The Tenth Circuit has “liberally define[d] the phrase ‘adverse employment
action’” and takes “a case-by-case approach, examining the unique factors relevant to
the situation at hand.” Hillig v. Rumsfeld, 381 F.3d 1028, 1031 (10th Cir. 2004)
(citations omitted). In general, only acts that “constitute[] a significant change in
employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change in
benefits” will rise to the level of an adverse employment action. Id. at 1038. However,

9

Plaintiff’s claim that she was retaliated against because she did not receive
payment for the graduation video, however, does not state a viable retaliation claim.
Plaintiff has not shown that she requested compensation for the graduation video
before her resignation. She only alleges that, after she resigned from Excelsior, she
discovered that another individual received compensation for producing the video.
22

the term “adverse employment action” is not necessarily limited to such acts. Id. at
1031 (noting that an employer’s action that causes “harm to future employment
prospects,” such as a negative job reference, can be considered an adverse
employment action (quoting Berry v. Stevinson Chevrolet, 74 F.3d 980, 986–87 (10th
Cir.1996))). Although the term is not confined, for example, to “monetary losses in the
form of wages or benefits[,] . . . ‘a mere inconvenience or an alteration of job
responsibilities’” does not constitute an “adverse employment action.” Sanchez v.
Denver Pub. Schs., 164 F.3d 527, 532 (10th Cir. 1998). Accordingly, a plaintiff must
show that the alleged adverse action caused more than “de minimis harm” to or a “de
minimis impact” upon an employee’s job opportunities or status. Hillig, 381 F.3d at
1033 (emphasis in original).
The Court finds that plaintiff has failed to provide any evidence – direct or
otherwise – that she was subject to any adverse employment action in retaliation for
complaints about the play. It is undisputed that Gianfrancisco’s removal from group
therapy sessions and from Canine Healers did not lead to a negative job reference, did
not reduce her compensation,10 and did not cause a change in her overall benefits.
Docket No. 72-5 at 33-35 (Gianfrancisco Dep. 150:11-14, 163:7-19). The record shows
that these actions were undertaken because she had not fully recovered from a back
injury. Docket No. 72-17 at 1; Docket No. 72-19. Accordingly, Gianfrancisco fails to
raise a genuine issue of fact that Excelsior subjected her to an adverse employment
10

Plaintiff claims that she was denied “payment for continued work with my dog
therapy program,” Docket No. 77-1 at 4, but does not deny that, due to her back injury
and the possibility of reinjuring herself if involved with clients, she was not allowed to
participate in the Canine Healers program until her doctor approved.
23

action in retaliation for engaging in protected activity. Sanchez, 164 F.3d at 532.
Therefore, Excelsior is entitled to summary judgment on plaintiff’s retaliation claim.
IV. CONCLUSION
Based on the foregoing, it is
ORDERED that Defendant’s Motion for Summary Judgment and Brief in Support
Thereof [Docket No. 72] is GRANTED in part and DENIED in part as indicated in this
Order.

DATED July 13, 2012.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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