Michael v. Rocky Mountain Festivals, Inc.

          ORDER PARTIALLY GRANTING AND PARTIALLY DENYING MOTION FOR SUMMARY JUDGMENT [ECF. #142]

          S. KATO CREWS, U.S. MAGISTRATE JUDGE

         This Order addresses Defendant's Motion for Summary Judgment (“Motion”) on all remaining claims. The Court has reviewed the Motion, the Response, the Reply, and the exhibits attached to those filings. [ECF. #143, #146, #147, #152, #153.] Oral argument will not materially assist the Court's resolution.^[1] The Court PARTIALLY GRANTS and PARTIALLY DENIES the Motion for the reasons explained below.

         A. JURISDICTION

         The Court has jurisdiction over this case under 28 U.S.C. § 1331 (federal question) and 28 U.S.C. § 1367 (supplemental jurisdiction).

         B. BACKGROUND FACTS

         The undisputed material facts are as follows, unless otherwise noted: Plaintiff reads tarot cards at local renaissance festivals around the country. She worked as a tarot card reader at the Colorado Renaissance Festival (“Festival”) for over 30 years, from the early 1980's through 2016. Defendant owns and operates the Festival sixteen days over eight weekends each summer in Larkspur, Colorado. The Festival brings together various artists, entertainers, crafts, and food purveyors to create a realistic Renaissance-era marketplace for its patrons, complete with King Henry, Queen Anne, and a kingdom called Larkspurshire. The goal is to create a “living, breathing, believable Festival atmosphere at all times, ” and to “delight each and every patron that enters [the] Kingdom.”

         To work at the Festival, each season Plaintiff signed a space lease agreement with Defendant. The agreement at issue in this case is the 2015 Space Lease Agreement signed by the Parties on April 10, 2015.^[2] Plaintiff signed the Space Lease Agreement to engage in palmistry and tarot card reading at the Festival. The agreement allowed her to build a booth on Festival grounds from which she could provide her services on specific days during the 2015 season. The season ran from June 13 to August 2, 2015. When working at the Festival, Plaintiff charged patrons of her booth a fee for her services. On average, she charged $20-$25 ($10 for children) during the years 2013, 2014, and 2015. Her revenue in each of those years did not exceed $8, 000.

         Defendant paid no salary, hourly wage, or other direct compensation to Plaintiff. The Space Lease Agreement required Plaintiff to pay Defendant rent to lease a portion of land for locating and operating her booth. In addition to paying rent, the Space Lease Agreement obligated Plaintiff to pay for the electricity used at her booth, provide her own insurance, and report her revenues to applicable governmental agencies for federal and state tax-related purposes. The agreement also contained a provision titled “Independent Contractor Status, ” where Plaintiff acknowledged (among other things) she was not an employee of Defendant.

         The Space Lease Agreement also contained a provision requiring Plaintiff to follow Defendant's Rules and Regulations of the Realm (“Rules”). That provision specified that the Rules were “intended to govern the conduct of the Exhibitor and its Staff on the Festival Site . . . on Festival days and throughout the Festival season.”^[3] The Rules are extensive. Pertinent to Plaintiff, they governed: the specific hours her booth needed to be staffed during Festival days; when and whether she could close her booth due to inclement weather and provided a $100 fine if she closed it without Defendant's permission; her costume, which Defendant needed to approve in advance; her manner of speech, decorum and performance; the style or coloring of her hair and covering of tattoos or body piercings; the goods or services she could sell; the equipment she could use or have present at her booth; any changes to her booth, which required advance approval; how she could be disciplined for violating the Rules; what advertising she could do for her booth, if any; the identification with an “employee number” to be worn by her at all times during the Festival; and, to whom among Defendant's management personnel Plaintiff should direct her questions about the Festival.

         This case arose because Defendant did not invite Plaintiff back for the 2016 season. Plaintiff claims this was in retaliation for her prior complaint of sexual harassment. According to Plaintiff, in 2013, David Walker (“Walker”), Defendant's Site Manager, sexually harassed her on a single occasion by confiscating her entrance pass and telling her he would return it if she performed oral sex on him. Plaintiff rejected this advance, complained about it to Defendant's Crafts Coordinator, and later got her entrance pass back. Plaintiff alleges Defendant did not invite her back for the 2016 season in retaliation for her sexual harassment complaint involving Walker, and further that Walker lobbied Defendant not to invite her back because of her prior complaint.

         Jim Paradise, Sr. (“Paradise”), is Defendant's sole shareholder. Absent a writing to the contrary, he is the sole person authorized to act for Defendant. The Space Lease Agreement provides that Plaintiff could not rely upon oral statements from others associated with the Festival due to Paradise's sole authority to speak for and bind Defendant.

         According to Paradise, when an existing Exhibitor is granted or offered a lease for the next season, space leases are sent out in March or April the following year.^[4] But he also sometimes allows people to sign leases as late as June of the applicable season. The latter could happen “with people who have been around and we know that they're important to the festival.” Thus, the fact that a previous Exhibitor does not have a lease signed until right before the season starts does not mean they could not participate in the Festival because there are times when Paradise makes last-minute deals.

         During her numerous years working at the Festival, Plaintiff never received any written complaints about her booth, her appearance, her interactions with patrons, or anything else. Her personality did not change in any meaningful way over the years. At some point, after either realizing or being told (by someone other than Paradise) that she was not going to be asked back for the 2016 season, Plaintiff wrote to Paradise on December 1, 2015. In her letter, she wrote “to inquire about my renewal, ” offered to relocate or differently theme her booth, and asked Paradise to call or write her in response.

         The record is not clear on whether Paradise received Plaintiff's December 1, 2015 letter. Nevertheless, it is undisputed that Paradise subsequently sent Plaintiff a written notice dated January 18, 2016, asking Plaintiff to remove her booth. Paradise sent the notice to a Hawaii address Plaintiff identified for herself in the Space Lease Agreement. Ultimately, Plaintiff never received the notice-it was returned to Paradise unopened and marked undeliverable. Defendant subsequently removed Plaintiff's booth. Plaintiff claims she did not know or understand that Defendant had terminated their relationship until March 7, 2016, when Defendant's Crafts Coordinator told her that Defendant would not relocate her booth.

         Defendant claims it removed Plaintiff's booth based on a provision of the Space Lease Agreement which provided, in relevant part, that: (1) Exhibitors could only construct temporary structures on the leased space; (2) in the event of termination of the agreement, all structures constructed on or then existing on the leased space would be considered personal property; and, (3) “if any personal property remains on the Leased Space for a period of six months after the end of the term of this lease, then such personal property shall be automatically assigned to and become the property of [Defendant], and may, at the [Defendant's] option, be removed . . . .” Regarding this latter provision, the Space Lease Agreement is for a specified term running from 1:00 p.m. the day before the commencement of the Festival Period, to 1:00 p.m. the day following the end of the Festival Period. The Festival Period began on June 13, 2015, and ended on August 2, 2015. Thus, the term of the Space Lease Agreement was from 1:00 p.m. on June 12, 2015, to 1:00 p.m. on August 3, 2015. It is undisputed that Defendant removed Plaintiff's booth sometime after February 3, 2016, which was over six months after the end of the 2015 Festival season.

         Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) on August 2, 2016. In her charge of discrimination, she stated she had “subcontracted as a Tarot Card Reader” with the Festival since 1980. When she signed her charge of discrimination, she “declare[d] under penalty of perjury” that the information in her charge of discrimination was “true and correct.” [ECF. #143-2.] Plaintiff's remaining claims in this action include: unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964; breach of contract; and, breach of implied covenant of good faith and fair dealing.

         C. STANDARD OF REVIEW

         The purpose of a summary judgment motion is to assess whether trial is necessary. White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. 1995). Summary judgment is proper when 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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute is “genuine” if the issue could be resolved in favor of either party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994). A fact is “material” if it might reasonably affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Farthing, 39 F.3d at 1134.

         A party who does not have the burden of proof at trial must show the absence of a genuine issue of fact. Concrete Works of Colo., Inc. v. City & Cty. of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994), cert. denied514 U.S. 1004 (1995). Once the motion has been properly supported, the burden shifts to the nonmovant to show by tendering depositions, affidavits, and other competent evidence that summary judgment is not proper. Id., at 1518. All evidence must be viewed in the light most favorable to the party opposing the motion. Kidd v. Taos Ski Valley, Inc., 88 F.3d 848, 851 (10th Cir. 1996). However, conclusory statements and testimony based merely on conjecture or subjective belief are not competent summary ...