Jury to decide if tarot card reader for renaissance festival was Title VII employee
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Friday, July 12, 2019

Jury to decide if tarot card reader for renaissance festival was Title VII employee

By Joy P. Waltemath, J.D.

Although the festival did not pay her, it did exert substantial control over when she had to be onsite, how she looked, acted, and spoke, and what she could advertise and sell.

Avoiding summary judgment on her Title VII retaliation claim, a woman who had read tarot cards at the Colorado Renaissance Festival for over 30 years, and who claimed that her "space lease arrangement" was not renewed because she complained that the festival’s site manager confiscated her entrance pass and demanded oral sex in exchange for its return, convinced a magistrate in the federal district court in Colorado that maybe a jury could find she was an "employee." Although the court was skeptical of her direct and indirect remuneration argument (the festival did not pay her), it did consider favorably cases by exotic dancers, who also were not directly paid but found to be FLSA employees, and also pointed to the significant level of control the festival exercised as evidenced by the "Rules and Regulations of the Realm" she was required to follow (St. Michael v. Rocky Mountain Festivals, Inc., July 10, 2019, Kato Crews, S.).

Renaissance festival. Each season for over 30 years, the plaintiff signed a "space lease agreement" with the Colorado Renaissance Festival, which runs 16 days over eight weekends each summer in Larkspur, Colorado. The festival paid her no salary, hourly wage, or other direct compensation; she paid rent to lease a portion of land for locating and operating her booth, for the electricity used at her booth, and provided her own insurance. The agreement also acknowledged her independent contractor status. She charged fees for her tarot card readings.

The agreement also required her to follow the festival’s "Rules and Regulations of the Realm," which were extensive. They covered the specific hours her booth needed to be staffed; if and when she could close her booth due to inclement weather (she’d be fined $100 if she closed it without permission); her costume, which had to be pre-approved; her speech, decorum, and performance; her hairstyle and color; what goods or services she could sell; the equipment she could use; any changes to her booth, which also had to be pre-approved; how she could be disciplined for violating the Rules; what advertising she could do, if any; and the required identification with an "employee number" she had to wear at all times during the Festival.

According to the plaintiff, the festival did not invite her back for the 2016 season in retaliation for complaining about sexual harassment during a prior year. She complained that the festival’s site manager had confiscated her entrance pass and said he would return it if she performed oral sex on him. She rejected his advance, complained to festival personnel, and later got her entrance pass back. She also alleged that the site manager lobbied the festival not to invite her back because she complained about him.

Festival as "employer." Although the festival initially contended that it did not employ enough employees to be a Title VII employer, the plaintiff pointed to the fact that the festival was an integrated enterprise with the Pittsburgh Renaissance Festival, and the two festivals combined have the requisite number of employees. The court agreed based on undisputed evidence that Paradis, the festival owner, also owns the limited liability company that operates the Pittsburgh Renaissance Festival; and the festivals share a payroll software license, website and ticket design, employment and crafter applications, and vehicles; and, sometimes the Colorado crafter coordinator hires the Pittsburgh crafters. Because there was also evidence that even standing alone, a reasonable jury could decide it the Colorado festival had the required number of employees, the court denied summary judgment on numerical "employer" status.

Plaintiff as "employee." Calling the plaintiff’s alleged status as a Title VII employee "a much closer call," the court ultimately decided that this too, would be a jury question. The Tenth Circuit has adopted a "hybrid test" to determine whether a worker is an "employee" under Title VII, with the main focus on "the employer's right to control the ‘means and manner’ of the worker's performance." But before getting that far, because it was undisputed the festival did not pay the plaintiff any direct compensation, the court considered the threshold-remuneration test first. To that end, the plaintiff first argued that the festival was "the ultimate source" of her income "because it controls her access to her customers, making that income direct compensation." She also contended income from sources controlled or delimited by an employer is a substantial indirect benefit.

Between this argument, of which the court was skeptical (although it did favorably analogize FLSA exotic dancer cases where, even though dancers were not paid wages, they were considered FLSA employees), and the measure of control the festival exerted over the plaintiff’s work, the court found a triable issue of fact for the jury. It reasoned that the plaintiff had evidence showing disputed issues of material fact over her employment status under both the threshold-remuneration test and the hybrid test.

Timeliness. The festival also challenged her Title VII claim as untimely. She filed her charge of discrimination on August 2, 2016, so the last alleged unlawful employment practice must have occurred on or after October 7, 2015, to be timely. Given her evidence that she had worked at the festival for over 30 years, the festival sometimes allowed people, including long-time exhibitors, to sign leases as late as June of the applicable season, and that she received communications in both January and March of 2016 confirming that it would not allow her to return, a jury could find that she learned of the festival’s retaliatory refusal to invite her within the statutory period. Accordingly, the court denied summary judgment on the timeliness issue as well.

However, the court granted summary judgment to the festival based on her state-law contract breach and good faith and fair dealing claims.

The case is No. 1:16-cv-02969-SKC.

Attorneys: Julie Kathleen Bisbee (King & Greisen, LLP) for Michele St. Michael. Thomas Richard Rice (Howe & Rice, LLC) for Rocky Mountain Festivals, Inc.

Companies: Rocky Mountain Festivals, Inc.

Cases: EmployeeStatus CoverageLiability Retaliation SexualHarassment ColoradoNews

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