United States District Court, D. Colorado
MICHELE ST. MICHAEL, Plaintiff,
v.
ROCKY MOUNTAIN FESTIVALS, INC., Defendant.
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
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