Ocasio v. Raad Broad. Corp.

954 F.Supp.2d 67

Glerisbet Pagán OCASIO, Plaintiff,

v.RAAD BROADCASTING CORP., Defendant.

Civil No. 11–1538 (BJM).

United States District Court, D. Puerto Rico.

June 24, 2013.

Miguel Simonet–Sierra, Simonet Sierra Law Office, Guaynabo, PR, Dora L. Monserrate, Monserrate & Monserrate, Jose R. Olmo–Rodriguez, Olmo & Rodriguez Matias, San Juan, PR, for Plaintiff.

Maria Cristina Mullan–Davila, Rios Gautier Law Office, Guaynabo, PR, for Defendant.

OPINION AND ORDER

BRUCE J. McGIVERIN, United States Magistrate Judge.

Between June 5, 2008 and August 5, 2009, plaintiff Glerisbet Pagán Ocasio (“Pagán”) worked as a radio host for RAAD Broadcasting Corp. (“RAAD”). During this period, Pagán claims she was the victim of sexual harassment, which created a hostile work environment for her. She sued RAAD for doing nothing about the situation. She alleges violations of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., as well as discrimination and tortious conduct under Puerto Rico law. Docket No. 1 ¶¶ 40–41, 47.

RAAD now moves for summary judgment. Docket No. 43. Pagán opposed (Docket No. 54) and RAAD replied (Docket No. 60). The motion for summary judgment is granted in part and denied in part.

BACKGROUND

The factual record is summarized here using the Local Rule 56 statements of uncontested facts, considering Docket No. 45 (“Def. St.”), Docket No. 60 (“Reply”), Docket No. 55 at 1–7 (“Pl. St.”), and Docket No. 55 at 7–11 (“Pl. Additional Facts”).¹

The Contract

On May 23, 2008, Pagán signed a Professional Services Contract with RAAD to be a co-hostess of a late afternoon radio show produced by La X that would air Monday through Friday from 3 p.m. to 7 p.m. Docket No. 11–1 at 1 (“Contract”). The contract stated that Pagán was an independent contractor. Id. at 6. She would receive an annual salary of $35,000, to be paid biweekly. Id. at 2. She was given fifteen days of annual leave and fourteen days of sick leave, as required by the Puerto Rico Department of Labor and Human Resources. Id. at 2. Pagán agreed to work exclusively for RAAD on FM radio, but she was allowed to pursue other opportunities on AM radio or TV, as a spokesperson or actress, or making commercial endorsements. Def. St. 45 ¶ 53; Pl. St. 55 ¶ 53. RAAD did not provide her with health insurance, life insurance, or retirement benefits, nor did it pay for her unemployment benefits. Def. St. ¶¶ 55–56; Pl. St. ¶¶ 55–56.

In addition to acting as a co-hostess, Pagán agreed to participate in advertising and marketing campaigns inherent to her work at no additional cost. Contract at 5–6. She also agreed to act as Master of Ceremonies in at least two activities produced by the radio station, for which she would receive $400 each. Id. at 5. Fees for any additional activities that Pagán wanted or was asked to participate in would be negotiated separately. Def. St. ¶ 45; Pl. St. ¶ 45. She agreed to maintain her good image and the good image of RAAD. Contract at 4.

For its part, RAAD agreed to “sell the services of talent fees for live mentions and integrations performed by [Pagán] for the amount of $30 per live mention.” Id. at 3. Pagán was responsible for billing and collecting the fees. Id. The rate could be adjusted by mutual agreement in accordance with market conditions. Id. Pagán would also receive a 20% commission for any direct sales she made to third parties, all of which had to be approved by the Sales Manager at RAAD. Id. at 7.

Under the contract, Pagán was eligible for certain bonuses, including a signing bonus and a $1,000 bonus annually for working exclusively for RAAD on FM radio. Id. at 3, 7. Any other bonuses would be tied to the rating of the show. Id. at 5. Pagán agreed to pay taxes and social security directly; RAAD did not need to withhold any taxes for her beyond the deductions required for independent contractors. Id. at 6.

Termination of the contract could occur in a few ways. RAAD could terminate the contract and fine Pagán $20,000 if she violated the exclusivity agreement for FM radio. Id. at 4. The parties could terminate the contract after giving three months' notice in writing if both parties agreed that the radio program “did not work.” Id. at 6–7. The parties also agreed that Pagán would be in default if the program did not rank within the top five radio programs for its time slot, unless the fallen ranking was not attributable to Pagán. Id. at 4–5. The contract, which was to last 36 months, went into effect on June 5, 2008. Id. at 4.

The Work

For the duration of the contract, Pagán co-hosted the radio show with Ronaldo Campos (“Campos”) and Juan Adames (“Adames”). Citing Pagán's deposition, RAAD states that Campos and Adames were also independent contractors. Def. St. ¶ 15. Pagán however testified that she believed that they were, but not that she knew definitively. Pl. St. ¶ 15. See also Docket No. 48–6 at 53 (“Pl. Deposition”). Campos was the main producer of the radio show. Def. St. ¶ 21; Pl. St. ¶ 21. He evaluated potential additional producers for the show, created the initial outline for each show, and controlled what went on air during the program as operator of the master console. Def. St. ¶¶ 28, 30, 32; Pl. St. ¶¶ 28, 30, 32. Pagán, Campos, and Adames used their own computers for the show. Def. St. ¶¶ 18–20; Pl. St. ¶¶ 18–20. Pagán used her personal email and cell phone to communicate with the other hosts, and her own TV and magazines to prepare for the show. Def. St. ¶¶ 35–36; Pl. St. ¶¶ 35–36.

The skills needed for the show were skills that Pagán had before signing the contract. Def. St. ¶ 34; Pl. St. ¶ 34. They included topic elaboration, improvisation, gift of words, gift of communication, how to get to the public, public recognition, the ability to develop a mix between comedy and fun, and skills developed through acting. Def. St. ¶ 34; Pl. St. ¶ 34. However, Pagán had no prior experience as a radio show host. Pl. Additional Facts ¶ 14.²

Pagán often prepared for the show in advance at her home. Def. St. ¶ 37; Pl. St. ¶ 37. Pagán prepared for the show by staying current with the news. Pl. Deposition at 88. Pagán had free time during the day, but she stated that preparing for the show generally required her to be watchful of the news all of the time. Def. St. ¶ 38; Pl. St. ¶ 38. No one controlled where or when she did work to prepare for the program. Pl. Deposition at 90–91.

Pagán, Adames, Campos and the other producers (Hector Bravo, Miguel Morales, and José Calderón) controlled the contents of the radio program. Def. St. ¶ 29; Pl. St. ¶ 29. RAAD's vice president states that the producers were independent contractors. Def. St. ¶ 31. RAAD had no access to the conversations and information exchanged between Pagán, Adames, and Campos during the radio program. Def. St. ¶ 33; Pl. St. ¶ 33. Pagán states that they would normally meet at the radio station at 1 p.m. for a pre-show meeting. Pl. Additional Facts ¶ 15.³ At the meeting, the producers would inform Pagán of the topics of conversation for the day and tell her how they wanted her to hold the conversations to attract the right audience. Pl. Additional Facts ¶ 15; Reply ¶ 3.15. Pagán states that they also told her how to dress. Pl. Additional Facts ¶ 17. RAAD's vice president says that this was only in response to complaints about her inappropriate attire. Reply ¶ 3.17. After the show, Pagán states that the producers would meet until 8 p.m. to discuss the next show. Pl. St. ¶ 16. RAAD's vice president says that whether this happened or not, it was not required by RAAD. Reply ¶ 3.16

While she was working for RAAD, Pagán pursued other opportunities. She developed her own line of jeans and hosted a television program. Deposition at 102. She also participated in nine presentations for RAAD and was paid $450 per presentation. Def. St. ¶ 49; Pl. St. ¶ 49.

While she worked for RAAD, Pagán used the 480.6B Informative Return tax form issued by the Puerto Rico Department of Treasury. Def. St. ¶ 57; Pl. St. ¶ 57. This form is used to report income derived from professional services. Def. St. ¶ 57; Pl. St. ¶ 57. RAAD gave her this form. Pl. Deposition at 79. In 2008 and 2009, Pagán filed Individual Income Tax Returns that show that all of her income was earned as a self-employed person. Def. St. ¶ 6, 8; Pl. St. ¶ 6, 8.

Cancellation

RAAD sent a letter to Pagán, Adames, and Campos on August 6, 2009 cancelling their contracts. Def. St. ¶ 41; Pl. St. ¶ 41. Afterwards, Pagán entered an unwritten agreement to continue as one of the two radio announcers for one month while RAAD looked into other alternatives for the show. Def. St. ¶ 42; Pl. St. ¶ 42.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate 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). A fact is material only if it “might affect the outcome of the suit under the governing law,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and “[a] ‘genuine’ issue is one that could be resolved in favor of either party.” Calero–Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir.2004). The court does not weigh facts, but instead ascertains whether the “evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Leary v. Dalton, 58 F.3d 748, 751 (1st Cir.1995).

The movant must first “inform[ ] the district court of the basis for its motion,” and identify the record materials “which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); R. 56(c)(1). If this threshold is met, the opponent “must do more than simply show that there is some metaphysical doubt as to the material facts” to avoid summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The nonmoving party...