Stockmar v. Colorado School of Traditional Chinese Medicine, Inc.

Filing 81

ORDER denying 44 Motion for Summary Judgment; denying 45 Motion for Summary Judgment; granting in part and denying in part 46 Motion for Summary Judgment. By Judge Christine M. Arguello on 01/19/2015. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 13-cv-02906-CMA-MJW
VANESSA STOCKMAR,
Plaintiff,
v.
COLORADO SCHOOL OF TRADITIONAL CHINESE MEDICINE, INC.,
a Colorado corporation,
Defendant.
______________________________________________________________________
ORDER DENYING PLAINTIFFS’ MOTIONS FOR SUMMARY JUDGMENT AND
DENYING IN PART AND GRANTING IN PART DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
______________________________________________________________________
This is a gender discrimination and retaliation case in which two female Plaintiffs,
Vanessa Stockmar and Tanya Carleton, former employees at the Colorado School of
Traditional Chinese Medicine (“CSTCM”),1 both allege that they were (1) the targets of
sexual harassment by their CSTCM supervisor, Vladimir Dibrigida, in violation of Title
VII of the Civil Rights Act, 42 U.S.C. § 2000e-2; and (2) the targets of retaliatory
discharge, insofar as CSTCM terminated their employment because they complained of
sexual harassment, in violation of 42 U.S.C. § 2000e(a).
1

CSTCM offers Masters of Science Degrees in Acupuncture and Traditional Chinese Medicine.
Stockmar was CSTCM’s registrar from July 2010 until May of 2011. Carleton was CSTCM’s
Assistant Clinic Supervisor from August of 2006 to May of 2007, and its Academic Dean from
May of 2007 to August of 2011.

Plaintiff Carleton argues that this Court should grant summary judgment against
CSTCM on her retaliatory discharge claim (Doc. # 45 at 13), whereas Plaintiff Stockmar
argues that this Court should grant summary judgment against CSTCM as to both her
Title VII claim and her retaliation claim (Doc. # 44 at 17). The Court denies both of
Plaintiffs’ motions because there are disputed issues of material fact both as to whether
the complained-of conduct was unwelcome and as to Defendant’s motive and intent in
terminating2 Plaintiffs’ employment. For the same reasons, the Court denies
Defendant’s Motion for Summary Judgment as to liability. However, the Court grants
that portion of the Motion that requests the court to cap compensatory damages at
$50,000, pursuant to 42 U.S.C. § 1981a(b)(3)(A).
I. STANDARD OF REVIEW
Summary judgment is appropriate if the moving party demonstrates there is
“no genuine issue as to any material fact” and that it is “entitled to a judgment as a
matter of law.” Fed. R. Civ. P. 56(a). In applying this standard, the Court views the
evidence and all reasonable inferences therefrom in the light most favorable to the
nonmoving party. Adler v. Wal–Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998).
II.
A.

ANALYSIS

PLAINTIFFS’ MOTIONS FOR SUMMARY JUDGMENT
Title VII prohibits “discriminat[ion] against any individual with respect to his [or

her] compensation, terms, conditions, or privileges of employment, because of such

2

As explained below, Defendant contends that Stockmar was not terminated, but rather, that
she voluntarily resigned and CSTCM accepted her resignation (albeit, before she actually
wanted to leave her job). (Doc. # 46-1 at ¶ 13.)
2

individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). In
Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66 (1986), the United States
Supreme Court held that a plaintiff may establish a Title VII violation by proving that
discrimination based on sex created a “hostile or abusive work environment.” To
survive summary judgment on this claim, a plaintiff must show that: (1) she is a member
of a protected group; (2) she was subject to unwelcome harassment; (3) the
harassment was based on sex; (4) the harassment was so severe or pervasive that it
altered a term, condition, or privilege of the plaintiff's employment and created an
abusive working environment; and (5) a basis for employer liability. Harsco Corp. v.
Renner, 475 F.3d 1179, 1186 (10th Cir. 2007).
Title VII also “forbids employer actions that ‘discriminate against’ an employee (or
job applicant) because he has ‘opposed’ a practice that Title VII forbids or has ‘made a
charge, testified, assisted, or participated in’ a Title VII ‘investigation, proceeding, or
hearing.’” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006) (quoting
42 U.S.C. § 2000e–3(a)). To establish a prima facie case of retaliation, a plaintiff must
show that (1) she engaged in protected opposition to discrimination; (2) the employer
took an adverse employment action against her; and (3) a causal connection exists
between the protected activity and the adverse action. Dick v. Phone Directories Co.,
397 F.3d 1256, 1267 (10th Cir. 2005).
Regarding Plaintiff Carleton’s Motion, Defendant contends that a genuine issue
of material fact – i.e., whether the requisite “causal connection” exists between
Carleton’s filing of an EEOC charge and her termination – precludes summary judgment
3

on her retaliation claim. Specifically, Defendant points to the deposition testimony of
Mark Manton, CSTCM’s chief executive officer and the individual who terminated
Carleton. Manton testified that Carleton’s termination was not motivated by her filing of
an EEOC claim but rather because she was an “uncooperative” employee. (Doc. # 47
at 5.) Although the jury may ultimately conclude that Mr. Manton’s explanation is not
credible, questions regarding an employer’s motive and intent in making an employment
decision are “particularly inappropriate” for summary judgment disposition. See Randle
v. City of Aurora, 69 F.3d 441, 453 (10th Cir. 1995) (internal citation omitted) (“If the
plaintiff succeeds in raising a genuine factual issue regarding the authenticity of the
employer's stated motive . . . it is for the trier of fact to decide which story is to be
believed”). Accordingly, the Court DENIES Plaintiff Carleton’s Motion.
As for Plaintiff Stockmar’s Motion, Defendant contends that the Court should not
grant summary judgment because DiBrigida’s conduct was not “unwelcome.” In support
of this argument, Defendant points to DiBrigida’s deposition testimony, stating that
Stockmar engaged in sexual joking and banter with him and that “everything was
consensual.”3 (Doc. # 72-1 at 2-3.)4 Meanwhile, Stockmar has submitted evidence
3

Defendant also submits evidence from a written statement composed by Alexis DiBrigida,
DiBrigida’s daughter, regarding events which occurred at a December 2010 holiday party held
at Plaintiff Carleton’s home. (Doc. # 72 at 3.) Specifically, Ms. DiBrigida claims that Stockmar
acted in a flirtatious manner toward DiBrigida. (Id.) Plaintiffs have filed a Motion in Limine to
exclude evidence regarding this 2010 holiday party on the basis that it is irrelevant and
prejudicial. (Doc. # 77.) Given the other evidence disputing whether DiBrigida’s conduct was
“unwelcome,” the Court not need to consider this evidence (or this issue) in resolving the instant
Motions.
4

Defendant’s Motion characterizes Stockmar’s conduct at the December 2010 holiday dinner
as “despicable.” (Doc. # 72 at 5.) Such ad hominem attacks are both unprofessional and
unhelpful to the Court.
4

indicating DiBrigida’s conduct was, in fact, unwelcome. (Doc. # 44 at 2-4, Doc. # 44-5
at ¶¶ 5, 9-10, Doc. # 47-1 at 22:10-25, 23:1-2.) Whether DiBrigida’s conduct was
“welcome” inevitably requires evaluations of both DiBrigida’s and Stockmar’s credibility,
evaluations which must be made by the jury – not the Court. See Randle, 69 F.3d at
453. Similarly, although Stockmar claims that she was terminated in retaliation for
reporting sexual harassment, Manton claims that she was not terminated, but rather,
that she resigned, because “she was quitting and moving to Virginia.” (Doc. # 46-1 at ¶
13); see also (Doc. # 44-10) (a letter from Manton to Stockmar, stating that “Your
attorney Mr. Schaefer’s letter dated May 19, 2011 asserts you were ‘constructively
discharged’ and have been forced to leave. That is untrue. Mr. Schaefer states you
would be leaving CSTCM ‘soon.’ It is in our mutual best interest to sever CSTCM’S
relationship with you now. In CSTCM’s view you have quit your employment here.”)
Stockmar denies telling Manton that she was resigning or moving to Virginia. (Doc. #
47-1 at 52:19-25, 53:1-10.) Thus, a genuine issue of material fact remains as to a)
whether Stockmar was terminated or actually resigned; and b) if she was terminated,
whether CSTCM did so because she engaged in a protected activity, namely, reporting
sexual harassment. Accordingly, Plaintiff Stockmar’s Motion is also DENIED.
B.

DEFENDANT’S CROSS-MOTION FOR SUMMARYJUDGMENT
Defendant’s Cross-Motion contends that Defendant is entitled to summary

judgment regarding CSTCM’s liability because (1) DiBrigida’s conduct was not
“unwelcome”; and (2) CSTCM should prevail on what is known as the Faragher/Ellerth
defense. (Doc. # 46.) See Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998);
5

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 765 (1998). That affirmative defense is
available to an employer only when there has been no “tangible employment action”
against an employee. Ellerth, 524 at 761-62. An employer pleading the defense must
demonstrate that (1) the employer exercised reasonable care to prevent and correct
promptly any harassing behavior; and (2) the plaintiff employee unreasonably failed to
take advantage of any preventive or corrective opportunities provided by the employer
or to avoid harm otherwise. Id. at 765. In the alternative, Defendant’s Motion contends
that, even if Defendant is ultimately held liable, compensatory damages should be
capped at $50,000 per Plaintiff, pursuant to 42 U.S.C. § 1981a.
As explained above, the question of whether DiBrigida’s conduct was “welcome”
is highly disputed here, and accordingly must be resolved by the jury.
Moreover, because Plaintiffs’ allegations of sexual harassment “culminated” in
adverse employment actions, the Faragher/Ellerth defense is not available to CSTCM.
See Ellerth, 524 at 761-62. In Helm v. Kansas, 656 F.3d 1277, 1287 (10th Cir. 2011),
the Tenth Circuit held that, to demonstrate that the harassment “culminated” in the
adverse action, a plaintiff must establish a “strong causal nexus between the
supervisor’s harassment and the tangible employment action.” In applying this
standard, that court also held that no reasonable juror could find that the plaintiff’s
termination in that case was causally connected to the harassment she experienced,
because her direct supervisor (against whom she had complained regarding
harassment) had removed himself from any employment decisions, and there was no
other evidence to connect the reporting of the alleged harassment of her direct
6

supervisor with her termination (which occurred after she was arrested and charged
with a felony and two misdemeanors preventing her from performing her work). Id. In
this case, because Manton, not DiBrigida, actually fired Stockmar and Carleton, both
Plaintiffs must connect DiBrigida’s harassing conduct to their terminations (by Manton)
in order to bar application of the Faragher/Ellerth defense.5
Here, Plaintiffs have submitted sufficient evidence for the Court to conclude that
that their reporting harassment or filing a charge of discrimination with the EEOC based
on DiBrigida’s conduct “culminated” in adverse employment actions against them.
Unlike in Hall, there is no evidence indicating that DeBrigida was entirely removed from
either Plaintiffs’ employment decisions; instead, the record indicates that DeBrigida’s
conduct was very much related to the Plaintiffs’ separations from employment.
In particular, Stockmar alleges that on May 19, 2011, she informed Manton that
she had obtained legal representation and was filing a charge with the EEOC. (Doc. # 6
at ¶¶ 27). Merely six days later, on May 27, 2011, she received two letters – one
indicating that “CSTCM is currently conducting an outside investigation of Ms.
Stockmar’s allegations,” which “should conclude by about June 10, 2011,” and another
from Mr. Manton, which made no reference to Stockmar’s purported move to Virginia
and stated in relevant part that
I regret to inform you your last day here at the School is Friday May 27,
5

Because DiBrigida was Carleton and Stockmar’s supervisor, and DiBrigida himself was
supervised by Manton, see (Doc. # 45-4), Defendant’s liability would seemingly be premised on
a slightly modified version of the so-called “rubber stamp” or “cat’s paw” theories, which “refer[ ]
to a situation in which a biased subordinate, who lacks decisionmaking power, uses the formal
decisionmaker as a dupe in a deliberate scheme to trigger a discriminatory employment action.”
E.E.O.C. v. BCI Coca–Cola Bottling Co. of Los Angeles, 450 F.3d 476, 484 (10th Cir. 2006).
7

2011. . . . I and the CSTCM board are very upset by this matter. If any of
your material allegations against Vladimir [DiBrigida] are found to be true,
the School offers its profound apologies to you . . . Your attorney Mr.
Schaefer’s letter dated May 19, 2011 asserts you were ‘constructively
discharged’ and have been forced to leave. That is untrue. Mr. Schaefer
states you would be leaving CSTCM ‘soon.’ It is in our mutual best
interest to sever CSTCM’S relationship with you now. In CSTCM’s
view you have quit your employment here.
(Doc. # 44-10) (emphasis added). Although the jury may well credit Manton’s account
that he was not motivated to discharge Stanton to retaliate against her, but merely was
allowing her to resign of her own accord, this letter shows that CSTCM at least
accelerated the end of Stockmar’s employment – i.e., the equivalent of termination –
because the school was “very upset” about her complaints. See Ellerth, 524 U.S. at
760-61 (internal quotation omitted) (“If the plaintiff can show that she suffered an
economic injury from her supervisor’s actions, the employer becomes strictly liable
without any further showing.”)
Manton does not contest that he terminated Carleton, but explains that he did so
because she was an “uncooperative” employee, not because she filed an EEOC claim
or complained about alleged sexual harassment. (Doc. # 47 at 5). However, other
evidence disputes this account, and indicates that Manton believed Carleton was being
“uncooperative” precisely because she complained about sexual harassment. On
August 23, 2011, Carleton received a letter stating, in relevant part that
You have alleged that you have been sexually harassed by Vladimir
DiBrigida, another employee of the school . . . Your allegations are untrue.
. . . Recently, your lawyer demanded $112,000 on behalf from the School.
This is absurd. The school has done nothing wrong here and I have done
everything humanly possible to restore a professional workplace here and
keep you employed. Your refusal to cooperate with our efforts to have a
mediator work on resolution with you and Vladimir through a series of
8

private and joint meetings and your ongoing hostile, defensive and difficult
attitude towards Vladimir and the Board has defeated any hopes of
meaningful progress. You have put the School in an impossible situation,
all driven by your greed for money. Bottom line, the School is not going to
employ you and pay you so you can launch frivolous and expensive legal
proceedings against us and try (as you have been doing these past few
months) to bolster your legal claims against the School. This is highly
disloyal and the school is not going to tolerate it further. Indeed, it is
blackmail. You will receive no severance pay. You don’t deserve it.
(Doc. # 44-12.) Additionally, CSTCM’s response to Carleton’s EEOC charge states that
Carleton’s “employment ended when she decided to sue the school and refused to
cooperate with resolving the problems . . . the school made every attempt to resolve the
issue, however Ms. Carleton made it impossible to do so, she refused resolution and
instead retained a lawyer and demanded a huge settlement from a school.” (Doc. # 4512 at 2) (emphasis added).
Manton’s letters, as well as CSTCM’s response to Carleton’s EEOC charge,
explicitly reference Plaintiffs’ complaints of sexual harassment against DiBrigida (and
the fact that Plaintiffs hired lawyers to represent them against the company) in the
context of explaining the reasons for their separation from CSTCM employment.
Although neither the letters nor the response to the EEOC charge outright state that the
Plaintiffs were terminated “because of their complaints of sexual harassment,” they are
sufficient evidence that DiBrigida’s conduct was connected to the end of Plaintiffs’
employment with CSTCM. Consequently, DiBrigida’s harassing conduct “culminated” in
an adverse employment action, such that the Faragher/Ellerth defense is unavailable.
As such, Defendant’s Motion for Summary Judgment on the issue of liability is DENIED.

9

Defendant’s Motion also argues that CSTCM’s compensatory damages should
be capped at $50,000, pursuant to 42 U.S.C. § 1981a(b)(3)(A). That statute provides
that compensatory damages shall not exceed $50,000 “for each complaining party . . .
in the case of a[n] [employer] who has more than 14 and fewer than 101 employees in
each of 20 or more calendar weeks in the current or preceding calendar year.” 42
U.S.C. § 1981a(b)(3)(A). In support of this argument, Defendant submitted a
declaration from Manton stating that CSTCM “has never had more than 100 employees
in it’s [sic] over 25 years of existence.” (Doc. # 46-1 at ¶ 6.) Plaintiffs offer no
affirmative evidence in rebuttal; instead, they argue that CSTCM has inadequately
supported its argument with Manton’s bare say-so. (Doc. # 56 at 6-7.) However,
Defendant provided additional evidence in its Reply brief in support of its Motion;
specifically, Defendant provided a copy of CTSCM’s Colorado State Unemployment
Insurance Tax Reports that show that the number of “covered workers who worked or
received pay for the payroll” varied during the course of Plaintiffs’ tenure with CSTCM,
but the highest number of employees working or receiving pay was 66. (Doc. # 75-2 at
27, 29, 30.) Because Plaintiffs have submitted no evidence to indicate that CSTCM had
more than 100 employees, and Defendant has submitted competent evidence indicating
that CSTCM never employed more than 66 individuals, the Court GRANTS Defendant’s
Motion in part and holds that the $50,000 compensatory damage limitation of 42 U.S.C.
§ 1981a(b)(3)(A) is applicable in this case.6

6

Defendant’s Motion argues that “Each Plaintiff’s damage claim is ‘capped’ at $50,000.” (Doc.
# 46 at 5) (emphasis added). To minimize confusion, the Court emphasizes that, assuming
CSTCM is found liable, the Plaintiffs’ compensatory damages would be capped at $50,000, but
10

III. CONCLUSION
Accordingly, the Court ORDERS that Plaintiffs’ Motions for partial summary
judgment (Doc. ## 44, 45) are DENIED. It is
FURTHER ORDERED that Defendant’s Cross-Motion for Summary Judgment
(Doc. # 46) is GRANTED in part and DENIED as to the remainder.
DATED: January 19, 2015
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

their back pay or front pay damages would not be. See 42 U.S.C. § 1981b(2) (emphasis added)
(stating that “[c]ompensatory damages awarded under this section shall not include backpay,
interest on backpay, or any other type of relief authorized under section 706(g) of the Civil
Rights Act of 1964 [42 U.S.C.A. § 2000e–5(g)].”); Pollard v. E.I. du Pont de Nemours & Co., 532
U.S. 843, 848 (2001) (holding that front pay is not an element of compensatory damages within
the meaning of § 1981a, and, therefore, that the statutory cap of § 1981a(b)(3) is inapplicable to
front pay).
11