Speen v. Crown Clothing Corp. ( 1996 )


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  • USCA1 Opinion











    United States Court of Appeals
    For the First Circuit
    ____________________


    No. 96-1402

    WILLIAM SPEEN,

    Plaintiff, Appellant,

    v.

    CROWN CLOTHING CORPORATION, RICHARD SILVERMAN,
    AND JACK SILVERMAN,

    Defendants, Appellees.

    ____________________

    APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MASSACHUSETTS

    [Hon. Robert E. Keeton, U.S. District Judge] ___________________

    ____________________

    Before

    Cyr, Boudin and Stahl,
    Circuit Judges. ______________

    ____________________

    Philip R. Olenick with whom Paul L. Nevins was on brief for _________________ ______________
    appellant.
    Timothy P. Cox with whom John C. Wyman and Roche, Carens & ______________ _____________ _______________
    DeGiacomo were on brief for appellees. _________


    ____________________

    December 23, 1996
    ____________________



















    STAHL, Circuit Judge. Plaintiff-appellant, William STAHL, Circuit Judge. _____________

    Speen, appeals from a district court judgment as a matter of

    law in favor of defendants-appellees Crown Clothing

    Corporation, Jack Silverman, and Richard Silverman in an age

    discrimination and pension rights suit involving his alleged

    wrongful termination in violation of federal and

    Massachusetts law. Because Speen failed to provide

    sufficient evidence to support a finding that he was a Crown

    employee for the purposes of his federal and state statutory

    claims, or evidence sufficient to support his remaining

    Massachusetts common law tort claims, we affirm.

    Background and Prior Proceedings Background and Prior Proceedings ________________________________

    Speen began his career as a men's clothing salesman

    following his discharge from the U.S. Army in 1945. Over the

    ensuing twenty-seven years, Speen served as a New England

    sales representative for various companies. In 1972, he

    became a sales representative for Crown Clothing Corporation

    ("Crown"). Jack and Richard Silverman respectively serve as

    Crown's president and treasurer.

    For the next twenty years, Speen travelled

    throughout New England as a Crown representative hawking

    Crown products -- sports jackets, raincoats and the like --

    to men's clothing stores. For some of that time, Speen, with

    Crown's approval, also sold non-competing lines of men's

    clothes from other manufacturers, most notably slacks. By



    -2- 2













    1992, however, Speen's relationship with Crown increasingly

    soured. Speen's immediate supervisor, Jack Silverman, often

    expressed his dissatisfaction with Speen's declining raincoat

    sales. In December 1992, Crown notified Speen -- first

    orally and then in writing -- that his service would be

    terminated, effective the end of the month. Crown went on to

    replace Speen, then 71 years old, with a new representative,

    aged 51.

    In June 1993, unwilling to accept Crown's adverse

    action, Speen filed a complaint with the Massachusetts

    Commission Against Discrimination (MCAD). Without benefit of

    any MCAD determination that would carry with it preclusive

    effect, Speen filed this suit in federal district court in

    November 1994. Speen's federal action claimed that his

    termination amounted to unlawful age discrimination under the

    federal Age Discrimination in Employment Act (ADEA), 29

    U.S.C. 621-634, and Mass. Gen. L. ch. 151B, 9, and also

    sought pension rights under the Employee Retirement Income

    Security Act (ERISA), 29 U.S.C. 1140. Speen, in addition,

    advanced a Massachusetts common law tort claim against the

    Silvermans, alleging a tortious interference with his

    advantageous business relationship with Crown.1

    ____________________

    1. Speen also asserted claims under Massachusetts statutes
    governing minimum wage, overtime pay, and the frequency of
    payment of wages. In its Memorandum and Order of May 9, 1995,
    the district court found these claims to be time-barred under
    the respectively applicable statutes of limitations. Speen

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    The matter proceeded to trial before a jury. At

    the conclusion of plaintiff's evidence, the defendants filed

    a motion for judgment as a matter of law pursuant to Fed. R.

    Civ. P. 50(a) on essentially two grounds. The first was that

    Speen was not a Crown employee, but rather an independent

    contractor who enjoyed no protection under the applicable

    statutory provisions.2 The second was that Speen had not

    produced sufficient evidence to allow a jury to conclude that

    he was maliciously discharged because of his age in violation

    of Massachusetts common law. The court granted the motion,

    ordering a judgment for the defendants on all claims. This

    appeal ensued.

    For the reasons set forth below, we reject Speen's

    arguments concerning the employee/independent contractor

    issue and his Massachusetts common law tort claims and thus

    affirm the district court's decision.



    ____________________

    subsequently voluntarily dismissed these claims.

    2. Crown and the Silvermans had previously filed a motion to
    dismiss and a motion for summary judgment on essentially the
    same grounds. The district court denied both motions. At the
    summary judgment hearing, the district court noted that the
    undisputed facts "weigh[ed] quite heavily toward an
    evaluative determination of independent contractor status,"
    explaining that it was "very likely that that's the way it's
    going to appear to [the court] at the end of the plaintiff's
    evidence." The court nonetheless denied the motion,
    determining that a more appropriate time for resolving the
    employee/independent contractor issue would be at the close
    of the plaintiff's evidence in connection with a motion for
    judgment as a matter of law.

    -4- 4













    Standard of Review Standard of Review __________________

    We review de novo a district court's decision to _______

    grant judgment as a matter of law pursuant to Rule 50(a). In

    exercising that plenary review, we use "the 'same stringent

    standard incumbent upon the trial court in the first

    instance.'" Greenberg v. Union Camp Corp., 48 F.3d 22, 26 _________ _________________

    (1st Cir. 1995) (quoting Favorito v. Pannell, 27 F.3d 716, ________ _______

    719 (1st Cir. 1994)).

    We thus consider the evidence and the reasonable

    inferences that are to be drawn from it in the light most

    favorable to the party opposing the motion, in this case, the

    plaintiff. A motion for a judgment as a matter of law "is

    proper at the close of plaintiffs' case only when the

    plaintiffs' evidence, viewed in this light, would not permit

    a reasonable jury to find in favor of the plaintiffs on any

    permissible claim or theory." Murray v. Ross-Dove Co., 5 ______ _____________

    F.3d 573, 576 (1st Cir. 1993).

    The Employee/Independent Contractor Issue The Employee/Independent Contractor Issue _________________________________________

    Crown contends that Speen cannot sue under the ADEA

    or the Massachusetts anti-age discrimination statute, Mass.

    Gen. L. ch. 151B, because, for purposes of those statutes, he

    is not a covered "employee," but rather an unprotected

    "independent contractor." Speen vigorously disputes this

    contention and further argues that the issue of his proper

    classification, in any event, was a question for the jury



    -5- 5













    that should not have been decided by the district court on a

    Rule 50(a) motion.

    Both federal and Massachusetts courts have found

    that the federal and Massachusetts statutes prohibiting age

    discrimination in employment do not reach independent

    contractors. See Robinson v. Overseas Military Sales Corp., ___ ________ _____________________________

    21 F.3d 502, 509 (2d Cir. 1994); Hayden v. La-Z-Boy Chair ______ _______________

    Co., 9 F.3d 617, 619 (7th Cir. 1993); Daughtrey v. Honeywell, ___ _________ __________

    Inc., 3 F.3d 1488, 1495-96 (11th Cir. 1993); Oestman v. ____ _______

    National Farmers Union Ins. Co., 958 F.2d 303, 304-05 (10th ________________________________

    Cir. 1992); Garrett v. Phillips Mills, Inc., 721 F.2d 979, _______ ____________________

    980 (4th Cir. 1983); Comey v. Hill, 438 N.E.2d 811, 814 _____ ____

    (Mass. 1982). See generally, Francis M. Dougherty, ___ _________

    Annotation, Who, Other Than Specifically Excluded Persons, Is _________________________________________________

    "Employee" Under 4(a)(1) Of Age Discrimination in _____________________________________________________________

    Employment Act Of 1967 (29 USCS 623(a)(1)), 125 A.L.R. Fed. ____________________________________________

    273, 287-89 (1995) (collecting federal cases).

    The salience of the employee/independent contractor

    distinction in age discrimination cases thus is clear. Less

    easily discernible, however, are the tests federal and

    Massachusetts law use to distinguish a covered employee from

    an unprotected independent contractor.

    1. Employee Status Under Massachusetts Law __________________________________________

    In interpreting the Commonwealth's employment

    discrimination law, Mass. Gen. L. ch. 151B, Massachusetts



    -6- 6













    courts use a common law test to distinguish employees who are

    covered by the statute from independent contractors who are

    not. Comey, 438 N.E.2d at 814. The parties in this case both _____

    concede this point. Where they differ is in their assessment

    of what factors Massachusetts courts look to in applying the

    common law test. Speen argues that a claimant is considered

    an employee under Massachusetts law if he can show that the

    employer enjoyed the right to control his labor. This, Speen

    contends, he can do. In particular, he argues he was a Crown

    employee because he had to call in his orders every night and

    fill out special Crown order forms. Crown responds that this

    type of activity does not make one an employee under

    Massachusetts law, since a mere showing of some element of

    control is not conclusive under the multifactored test

    Massachusetts courts use to determine employee status.

    Speen points to older Massachusetts cases which

    indicate that the test of employee status is the right to

    control. McDermott's Case, 186 N.E. 231, 232 (Mass. 1933) ________________

    ("The exact point at issue is whether the claimant was a

    servant or employee, or an independent contractor. The

    essence of the distinction is the right of control. . . .

    Other considerations and tests are important only as they

    bear upon the right of control."); Khoury v. Edison Electric ______ _______________

    Illuminating Co., 164 N.E. 77, 78 (Mass. 1928) ("Although the ________________

    conclusive test of the relationship of master and servant is



    -7- 7













    the right to control, other factors may be considered in

    determining whether the right to control exists, but they are

    subordinate to this primary test.").

    Upon initial inspection, the language in these

    cases would seem to support Speen's contention that the

    district court misstated the relevant Massachusetts standard

    when it concluded that Massachusetts uses a multifactored

    analysis in distinguishing employees from independent

    contractors. A closer reading of the cases and consideration

    of later Massachusetts decisions, however, dispels this

    conclusion.

    In McDermott's Case, for example, the court __________________

    explained that an independent contractor is one "not subject

    to direction and control as to every detail of the work" to

    be performed. Conversely, an employee is one who "at every

    moment, with respect to every detail. . . is bound to

    obedience and subject to direction and control." McDermott's ___________

    Case, 186 N.E. at 232. The Khoury court explained this ____ ______

    feature of the Massachusetts common law test as follows: "the

    employee must be subject to control by the employer, not only

    as to the result to be accomplished but also as to the means

    to be used." Khoury, 164 N.E. at 78. ______

    Such language, gleaned from the decisions upon

    which Speen's counsel relies, indicates the great degree to

    which Speen and Massachusetts courts mean rather different



    -8- 8













    things when they refer to "right of control" within the

    context of the common law test. Simply put, the level of

    employer control ("at every moment, with respect to every

    detail") necessary to conclusively establish employee status

    without looking to any of the additional "subordinate"

    factors is such that, as a practical matter, one may speak of

    the common law test as being a multifactored one.

    Subsequent Massachusetts case law, in fact,

    acknowledges as much. While recognizing the vitality of the

    common law test in Massachusetts, for example, the Comey _____

    court explained that "[t]rial judges should carefully and

    fully instruct juries on all the factors that may be useful

    in distinguishing employees from independent contractors."

    Comey, 438 N.E.2d at 815. This language indicates that the _____

    common law test in Massachusetts, as in other states, while

    directed towards the question of right of control, involves

    the assessment of multiple factors. See Restatement (Second) ___ ____________________

    of Agency 220 (1957). Indeed, the Comey court immediately __________ _____

    goes on to cite with approval federal cases which, it

    explains, "list[] factors which may distinguish employees

    from independent contractors." Id. __

    Confronted with such language, lower Massachusetts

    courts have proceeded on the view that

    [i]n the employment context, a master-
    servant relationship is determined by a
    number of factors, including the right of
    the employer to control the details of


    -9- 9













    the work done by the employee, the method
    of payment, the skill required in the
    particular occupation, whether the
    employer supplies the tools,
    instrumentalities and place of work, as
    well as the parties' own belief as to
    whether they are creating a master-
    servant relationship.

    Chase v. Independent Practice Ass'n, 583 N.E.2d 251, 253 _____ ____________________________

    (Mass. App. Ct. 1991).

    The district court thus did not err when it

    determined this multifactored approach to be the applicable

    legal test in Massachusetts. Contrary to Speen's assertion

    that the district court found that "subordinate" factors

    might outweigh the existence of a right of control, the state

    cases tell us that Massachusetts courts make the employee

    determination in this way only when a right of control is not

    conclusively established and other factors need to be

    examined. Given how Massachusetts precedent discusses "right

    of control" in its technical sense, this would seem to mean

    the multifactored test is triggered when employer control

    does not encompass the person hired "at every moment, with

    respect to every detail." McDermott's Case, 186 N.E. at 232. ________________

    It is thus not so much the case that additional

    "subordinate" factors might outweigh the existence of a right

    of control (as Speen wrongly contends was the district

    court's view) as it is that the failure to demonstrate a

    "right of control" in the narrowly-defined technical sense of

    that term serves as the gateway to a multifactored analysis.


    -10- 10













    This analysis, in turn, does not ignore but takes into

    account the level of control present in the employment

    relationship despite the fact that this control, taken alone,

    would not be enough to establish employee status.

    2. Employee Status Under the ADEA _________________________________

    Federal courts have used at least three different

    tests to determine whether a claimant is a covered employee

    rather than an unprotected independent contractor under anti-

    discrimination acts such as the ADEA. The first test is the

    traditional common law test of agency which focuses on the

    employer's right of control using a multifactored analysis.

    See Frankel v. Bally, Inc., 987 F.2d 86 (2d Cir. 1993). The ___ _______ ___________

    second test -- typically more expansive -- is the "economic

    realities" test, which holds that "employees are those who as

    a matter of economic reality are dependent upon the business

    to which they render service." Bartels v. Birmingham, 332 _______ __________

    U.S. 126, 130 (1947); Doty v. Elias, 733 F.2d 720, 722-23 ____ _____

    (10th Cir. 1984). The third test is a "hybrid" test, which

    considers the economic realities of the employment

    relationship but retains a focus on the employer's right to

    control. See Oestman v. National Farmers Union Ins. Co., 958 ___ _______ _______________________________

    F.2d 303 (10th Cir. 1992).

    The First Circuit has not previously decided which

    test to apply to the ADEA. In view of the Supreme Court's

    unanimous decision in Nationwide Mut. Ins. Co. v. Darden, 503 _______________________ ______



    -11- 11













    U.S. 318 (1992), we now adopt the common law test for

    determining who qualifies as an "employee" under the ADEA and

    expressly hold that covered employees under the ADEA are

    those who are employees under traditional agency law

    principles.

    While the Supreme Court has not directly determined

    this issue, the Court in Darden faced the task of ______

    interpreting a definition of "employee" found in ERISA, 29

    U.S.C. 1002(6) ("any individual employed by an employer"),

    that is virtually identical to that found in the ADEA, 29

    U.S.C. 630(f) ("an individual employed by any employer").

    See Darden, 503 U.S. at 323. The Court found this to be a ___ ______

    "nominal definition" that "is completely circular and

    explains nothing." Id. In the absence of any provision __

    suggesting a contrary congressional design or an indication

    that "absurd results" would follow, the Court took the view

    that the term "employee" should be interpreted in accordance

    with traditional agency law principles:

    "[w]here Congress uses terms that have
    accumulated settled meaning under. . .
    the common law, a court must infer,
    unless the statute otherwise dictates,
    that Congress means to incorporate the
    established meaning of these terms. . . .
    In the past, when Congress has used the
    term 'employee' without defining it, we
    have concluded that Congress intended to
    describe the conventional master-servant
    relationship as understood by common-law
    agency doctrine."




    -12- 12













    Darden, 503 U.S. at 322-23 (internal citations omitted) ______

    (quoting Community for Creative Non-Violence v. Reid, 490 _____________________________________ ____

    U.S. 730, 739-40 (1989) (internal quotation marks omitted)).

    To help avoid any confusion on the matter, the

    Darden Court went on to summarize the operative common law ______

    test with the following language:

    "In determining whether a hired party is
    an employee under the general common law
    of agency, we consider the hiring party's
    right to control the manner and means by
    which the product is accomplished. Among
    the other factors relevant to this
    inquiry are the skill required; the
    source of the instrumentalities and
    tools; the location of the work; the
    duration of the relationship between the
    parties; whether the hiring party has the
    right to assign additional projects to
    the hired party; the extent of the hired
    party's discretion over when and how long
    to work; the method of payment; the hired
    party's role in hiring and paying
    assistants; whether the work is part of
    the regular business of the hiring party;
    whether the hiring party is in business;
    the provision of employee benefits; and
    the tax treatment of the hired party."

    Id., 503 U.S. at 323-24 (quoting Reid, 490 U.S. at 751-52 ___ ____

    (footnotes omitted)).

    The Court went on to stress that the common law

    test requires that "[']all of the incidents of the

    relationship must be assessed and weighed with no one factor

    being decisive.'" Darden, 503 U.S. at 324 (quoting NLRB v. ______ ____

    United Ins. Co. of America, 390 U.S. 254, 258 (1968)). __________________________





    -13- 13













    We conclude that the Court's opinion in Darden is ______

    sufficiently clear to remove doubt as to the identity of the

    proper standard and its contours. We therefore disregard

    decisions in those circuits that have employed standards

    other than the common law test in determining whether a

    claimant was a covered employee under the ADEA. See, e.g., ___ ____

    Oestman, 958 F.2d at 305 (the Tenth Circuit applying the _______

    hybrid test in determining whether an insurance agent is an

    employee under the ADEA). But see Frankel v. Bally, Inc., _______ _______ ___________

    987 F.2d 86, 90 (2d Cir. 1993) (holding that, in the wake of

    Darden, the traditional common law test for agency must be ______

    applied to the ADEA instead of the hybrid standard).

    The Darden decision also circumscribes otherwise ______

    suggestive language in First Circuit case law interpreting

    federal employment legislation such as the Fair Labor

    Standards Act (FLSA). In earlier decisions, this court has

    looked to a line of Supreme Court precedent interpreting the

    FLSA and Social Security Act to reach the view that "[i]n

    determining employer status, 'economic reality' prevails over

    technical common law concepts of agency." Donovan v. Agnew, _______ _____

    712 F.2d 1509, 1510 (1st Cir. 1983) (FLSA case) (citing

    Goldberg v. Whitaker, 366 U.S. 28, 33 (1961) (FLSA case) ________ ________

    (citing United States v. Silk, 331 U.S. 704, 713 (1947) _____________ ____

    (Social Security Act case) and Rutherford Food Corp. v. _____________________

    McComb, 331 U.S. 722, 729 (1947) (FLSA case))). ______



    -14- 14













    This line of cases essentially adopted the non-

    common law view we considered above, namely that "employees

    are those who as a matter of economic reality are dependent

    upon the business to which they render service." Bartels v. _______

    Birmingham, 332 U.S. at 130. The Darden Court, however, __________ ______

    explicitly differentiated the definitions of employee found

    in the FLSA from that in ERISA, which virtually mirrors the

    ADEA in this regard. See Darden, 503 U.S. at 325-26. The ___ ______

    Court's analysis of the difference between these two pieces

    of legislation suggests that this circuit's earlier

    pronouncements in FLSA cases like Donovan concerning use of _______

    the "economic reality" test in determining employee status

    may need to be confined to the FLSA context in which they

    were first enunciated. In any event, in view of the Court's

    express reasoning in Darden, we feel confident in reasoning ______

    that the "economic reality" test cannot be readily imported

    into the ADEA context, either on its own or as part of some

    "hybrid" test that amalgamates the "economic reality"

    standard and the traditional common law approach.

    3. Speen's Status Under the ADEA and Mass. Gen. L. ___________________________________________________

    ch. 151B ________

    Based on our review of the relevant federal and

    state precedent, we are of the view that federal and

    Massachusetts law use roughly identical tests based on

    traditional agency law principles to determine whether a



    -15- 15













    claimant in an age discrimination suit is a protected

    employee.

    There may be some question whether the federal and

    state tests are employed in exactly the same way in view of

    some of the language in older Massachusetts decisions we

    considered above. These earlier opinions speak of the right

    of control as if it were a predominant factor that is

    considered before and above others, at least in some

    instances. This way of employing the multifactor test runs

    counter to instructions the Supreme Court reiterated in

    Darden, 503 U.S. at 324 ("all of the incidents of the ______

    relationship must be assessed and weighed with no one factor

    being decisive.") (internal quotations omitted). To the

    extent any divergence between the federal and Massachusetts

    multifactor test might exist,3 it would seem to involve cases

    in which a hired party is subject to the "direction and

    control" of the hiring party "at every moment, with respect

    to every detail." McDermott's Case, 186 N.E. at 232. ________________

    A review of the record, however, reveals that

    Speen's claim does not present such a case. The record does

    not contain evidence that even remotely suggests Speen was

    subject to the "direction and control" of Crown "at every


    ____________________

    3. As we more fully explained above, we are not sure such a
    difference exists since more recent Massachusetts opinions
    cite federal cases and the Restatement (Second) of Agency in
    support of their discussion.

    -16- 16













    moment, with respect to every detail." We are thus convinced

    that federal and Massachusetts law confront Speen with

    multifactored tests concerning employee status that are, as a

    practical matter, indistinguishable.

    Looking at the record with this common

    multifactored test in mind -- even through a lens that

    requires us to consider the evidence and the reasonable

    inferences that are to be drawn from it in the light most

    favorable to Speen as the non-moving party -- we conclude

    that the district court correctly granted Crown's motion for

    a judgment as a matter of law on the federal ADEA and

    Massachusetts statutory age discrimination claims.

    We do not see how the jury was presented with

    evidence sufficient to support a finding that Speen was an

    employee rather than an independent contractor. Speen's

    counsel vigorously argues that the evidence presented

    established that Crown kept Speen on a "short leash" and that

    he had to obey "onerous work rules." The evidence

    overwhelmingly shows, however, that Speen was kept on a

    rather long leash, if not actually allowed to run free in a

    rather large yard, and was allowed to follow procedures that

    afforded him the type of independence for which employees

    typically yearn.

    We first call attention to the substantial number

    of factors that, as the district court rightly noted, weigh



    -17- 17













    in favor of a finding that Speen's relationship with Crown

    was that of an independent contractor. The evidence reveals

    that Speen himself decided where he went and how long he

    worked on any particular day. How and in what order he

    covered his territory was something he determined. Speen was

    not required to report to a Crown place of business on a

    daily basis; in fact, he appeared at a Crown location

    infrequently during the year.

    Furthermore, Speen was not required to carry

    anything, do anything, or say anything in particular as he

    went about trying to sell Crown (and other) products.

    Although Crown provided Speen with some business cards that

    announced him as a Crown representative and also provided him

    with samples that he was free to use in attempting to make

    sales, the evidence does not indicate that Crown compelled

    Speen to do anything in particular or somehow controlled the

    manner in which Speen attempted to sell men's clothing. The

    fact that Speen was paid on a commission basis also weighs in

    favor of a finding of independent contractor status, as does

    the fact that he received Form 1099s rather than W-2s for

    federal tax purposes.

    Moreover, Speen had early on told his Crown

    supervisors he wished to be treated as an employee and in

    particular wished to be enlisted in Crown's employee

    retirement pension plan. Crown refused and gave Speen a



    -18- 18













    take-it-or-leave-it response, but Speen continued his

    relationship with Crown. He did not reject what was offered;

    rather, he accepted it and worked under this regimen for many

    years. The parties' understanding and Speen's exclusion from

    Crown's employee pension plan thus represent two additional

    factors that weigh in favor of a finding of independent

    contractor status.

    Several other salient factors were also present in

    the Speen-Crown relationship, but the district court

    correctly noted that they are all compatible with either an

    independent contractor or employee relationship. Thus,

    although Speen was required to phone Crown daily and report

    his sales and the calls he had made, typically by leaving

    information on an answering machine, this arrangement is

    equally compatible with the status of either an independent

    contractor or employee.

    Crown required Speen to attend two sales meetings a

    year that featured the introduction of the new season's line

    of clothing. He also was required to fill out orders he

    obtained on forms that Crown provided. Speen also decided to

    stop selling non-Crown items once he reached one million

    dollars in sales on Crown's line of products. The district

    court correctly noted that these features of the Speen-Crown

    relationship are essentially neutral in terms of the

    multifactor test, since they are equally compatible with



    -19- 19













    either an employee or independent contractor status. The

    evidence developed at great and tedious length during the

    plaintiff's case on these points thus did not significantly

    advance Speen's view of his relationship with Crown.

    On the other hand, the evidence presented reveals

    not only that Speen did accept the take-it-or-leave-it

    proposition Crown offered him, but also that he went on to

    form a corporation, Newton Company, Inc. ("Newton"), of which

    he became an employee. Some dispute exists in the record as

    to the reason behind Speen's decision to establish the

    corporation, but its function is uncontroverted. Crown

    issued checks made out jointly to Newton and Speen for the

    commissions Speen's services earned, and Newton, in turn,

    paid Speen. The district court correctly noted that this

    fact, while not conclusive in any specific sense, constituted

    an additional factor militating against a finding of employee

    status.

    Under the multifactored test, we conclude that

    there was not enough evidence from which a factfinder could

    make a reasoned determination in favor of Speen on the

    question of whether he was a Crown employee for purposes of

    the ADEA or Massachusetts law. As the district court ably

    determined, a finding for the plaintiff would not comport

    with the applicable legal standard governing employee status.

    The ERISA Claim The ERISA Claim _______________



    -20- 20













    The preceding analysis also disposes of Speen's

    ERISA claim. In view of the Supreme Court's unanimous

    interpretation of the term "employee" in Darden, 503 U.S. at ______

    323, Speen can be considered an employee for ERISA purposes

    only if we so find using the same test we have just used to

    determine that he is not an employee for ADEA purposes. We

    conclude, therefore, that Speen's ERISA claim fails for lack

    of standing.

    The Massachusetts Common Law Tort Claims The Massachusetts Common Law Tort Claims ________________________________________

    Speen finally appeals the district court's

    disposition of his Massachusetts common law claims.

    Specifically, he alleged that the Silverman brothers

    tortiously interfered with his advantageous relationship with

    Crown. The district court entered a judgment as a matter of

    law in favor of the defendants on the tortious interference

    claim as well.

    Under established Massachusetts jurisprudence, a

    plaintiff suing for relief on a claim of tortious

    interference must prove the existence of the following: "(1)

    a business relationship or contemplated contract of economic

    benefit; (2) the defendant's knowledge of such [a]

    relationship; (3) the defendant's intentional and malicious

    interference with it; (4) the plaintiff's loss of advantage

    directly resulting from the defendant's conduct." Comey, 438 _____





    -21- 21













    N.E.2d at 816 (citing Owen v. Williams, 77 N.E.2d 318 (Mass. ____ ________

    1948)).4

    Importantly, for our purposes here, Massachusetts

    case law indicates that this tort claim does not require a

    finding that the plaintiff was an employee, but rather

    encompasses independent contractors as well. See Comey, 438 ___ _____

    N.E.2d at 816-17. This lifts the barrier that proved fatal

    to Speen's federal and state statutory claims.

    The tort of interference with an advantageous

    relationship, of course, does not recognize a right to

    lifetime tenure or a perpetual business relationship.

    Massachusetts case law discussing the claim in the context of

    discharge cases explains that companies and their supervisors

    have the right to fire or terminate the services of hired

    parties so long as they do not do so "malevolently, i.e., for

    a spiteful, malignant purpose, unrelated to the legitimate

    corporate interest." Wright v. Shriners Hosp., 589 N.E.2d ______ ______________

    1241, 1246 (Mass. 1992) (quoting Sereni v. Star Sportswear ______ _______________

    Mfg., 509 N.E.2d 1203, 1206 (Mass. App. Ct. 1987)). Under ____


    ____________________

    4. Massachusetts courts have recently stated a plaintiff
    must prove: "(1) he had a contract with a third party; (2)
    the defendant knowingly induced the third party to break that
    contract; (3) the defendant's interference, in addition to
    being intentional, was improper in motive or means; and (4)
    the plaintiff was harmed by the defendant's actions." Wright ______
    v. Shriners Hosp., 589 N.E.2d 1241, 1245 (Mass. 1992) _______________
    (quoting G.S. Enterprises v. Falmouth Marine, 571 N.E.2d ________________ ________________
    1363, 1369 (Mass. 1991)). We do not believe this more recent
    formulation changes our analysis.

    -22- 22













    Massachusetts law, corporations and corporate officers thus

    possess both a qualified privilege and a corresponding "duty"

    to shareholders to discharge hired parties when those hired

    "d[o] not measure up to the job." Sereni, 509 N.E.2d at ______

    1206.

    This qualified privilege and concomitant duty,

    necessarily, are not unbounded. The privilege does not

    excuse unlawful malevolence or malice in connection with a

    decision to discharge a hired party. Whether the requisite

    malice exists for a defendant to be held liable under this

    cause of action "depends on the evidence in each case and on

    what the trier of fact may reasonably infer from that

    evidence." Gram v. Liberty Mut. Ins. Co., 429 N.E.2d 21, 24 ____ _____________________

    (Mass. 1981). For our purposes, it is only important to note

    that Massachusetts courts treat a showing of intentional age

    discrimination as sufficient to meet the proof of malice

    needed for recovery under this tort claim. See Comey, 438 ___ _____

    N.E.2d at 816-17.

    Thus, our inquiry turns to whether Speen presented

    sufficient evidence of age discrimination to require the

    question to be put to the jury. For reasons that follow, we

    conclude he did not.

    In reaching this result, we focus both on Speen's

    proffered statistical arguments regarding the treatment of

    other Crown salesmen and his alleged direct evidence of



    -23- 23













    discriminatory motive. On the issue of use of statistical

    evidence, our cases5 establish that a plaintiff need not and

    "should not be required to produce 'smoking-gun' evidence

    before prevailing in a discrimination suit. There are many

    veins of circumstantial evidence that may be mined by a

    plaintiff to this end. These include . . . statistical

    evidence showing disparate treatment by the employer of

    members of the protected class." Mesnick v. General Elec. _______ _____________

    Co., 950 F.2d 816, 824 (1st Cir. 1991). Massachusetts courts ___

    have allowed the use of indirect evidence of disparate

    treatment, including evidence concerning "the employer's

    general practices and policies concerning employment of

    [protected classes]." Lewis v. Area II Homecare For Sr. _____ __________________________

    Citizens, 493 N.E.2d 867, 872 (Mass. 1986). ________

    The difficulty with Speen's attempts to use

    statistical evidence was not in what he was trying to ____

    accomplish but rather how. In particular, Speen attempted to ___

    rely on evidence that compared Crown's treatment of Speen and

    Speen's sales figures with other members of Crown's sales

    force. Other testimony, however, established that Crown

    ____________________

    5. For the purposes of evaluating the age discrimination
    issue we of course focus on relevant Massachusetts
    precedents. To the extent, however, that Massachusetts courts
    approvingly cite federal cases in discussing the criteria
    concerning proof of discrimination, we turn to federal case
    law where necessary or fruitful. See, e.g., Lewis v. Area II ___ ____ _____ _______
    Homecare For Sr. Citizens, 493 N.E.2d 867, 872 (Mass. 1986) __________________________
    (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804- ______________________ _____
    05 (1973)).

    -24- 24













    expected different results from differently positioned sales

    representatives, depending on their territory, whether they

    were new to a territory, and other factors. In turn, Speen

    failed to explain why the group that he selected for

    treatment was an appropriate and representative sample.

    Judge Keeton correctly characterized Speen's statistical

    method as one involving "simply picking out whatever

    employees the plaintiff wants to pick out from all the

    evidence before the court, treat[ing] those as if they were

    the only instances, and urg[ing] the jury to draw inferences

    of age discrimination from that comparison." Judge Keeton

    was right in saying,

    That won't do....[I]t doesn't take an
    expert on statistical method to
    understand that of course [it]'s not
    appropriate to limit yourself [to some of
    the population] when you're looking at
    evidence for the purpose of drawing an
    inference from a statistical distribution
    to pick only a few [people] rather than
    some[ number] that can be shown in some
    way on a reasoned basis to be at least a
    representative sample if not a
    consideration of all the evidence.

    Numbers selected in such an unreasoned fashion are

    not sufficient to support a reasoned inference of

    impermissible discrimination. Ironically, the evidence

    presented weighs against the finding of disparate treatment

    that Speen sought to prove. Out of a sales force of twenty

    people, all five salesmen over the age of 70 at the time

    Speen was discharged in December 1992 were still selling for


    -25- 25













    Crown at the time of the trial of Speen's claim in March

    1996. Combined with the fact that no other salesmen

    experienced a larger decline in sales than Speen during the

    five year period 1987-1992, this part of the evidence does

    not permit a reasoned inference either of age discrimination

    or that Crown's proffered reason for terminating Speen

    (declining and unsatisfactory sales figures) was pretextual.

    Contrary to Speen's assertions, a different result

    does not obtain if we consider Speen's testimony about the

    alleged statement that Jack Silverman made when Speen

    allegedly asked Silverman to justify the decision to fire

    him: "Why do I need a 71 year old when I can have a 51 year

    old?" This piece of evidence, which we must credit as true

    in view of the requirement that we review the evidence in the

    light most favorable to the nonmoving party, would still not

    enable a jury to draw a reasonable inference that Speen was

    fired due to his age.

    In reaching this conclusion, we first call

    attention to the line of Massachusetts and federal cases

    which indicate that "'isolated or ambiguous remarks, tending

    to suggest animus based on age, are insufficient, standing

    alone, to prove an employer's discriminatory intent.'" Blare _____

    v. Husky Injection Molding Sys., 646 N.E.2d 111, 118 n.9 _____________________________

    (Mass. 1995) (quoting Fontaine v. Ebtec Corp., 613 N.E.2d ________ ___________

    881, 885 n.7 (Mass. 1993) (citing Gagne v. Northwestern Nat'l _____ __________________



    -26- 26













    Ins. Co., 881 F.2d 309, 314 (6th Cir. 1989) and Leichihman v. ________ __________

    Pickwick Int'l, 814 F.2d 1263, 1271 (8th Cir.), cert. denied, ______________ _____ ______

    484 U.S. 855 (1987))). See Lehman v. Prudential Ins. Co. of ___ ______ _______________________

    America, 74 F.3d 323, 329 (1st Cir. 1996). _______

    Speen's counsel argues that the statement was not

    isolated or ambiguous but rather constitutes direct evidence

    of age discrimination and reveals that the protected

    characteristic -- age -- was a motivating factor in the

    decision to fire him. Speen's counsel thus urges us to

    conclude that "even standing alone the plaintiff's quotation

    of Jack Silverman's comment to him, 'Why do I need a 71 year

    old when I can have a 51 year old' is, if credited by the

    jury, sufficient toprove .. . [Speen]was fireddue to hisage."

    We reach a contrary result because the relevant

    case law instructs us not to consider the statement standing

    alone but instead to look at all the evidence presented in

    the totality of the circumstances. In other words, a fact

    finder looking solely at the statement "Why do I need a 71

    year old when I can have a 51 year old" could reach a

    reasonable inference that Speen was fired because of his age.

    But that is not this case. If we consider this statement in

    the context of all the evidence presented, which we must do,

    since we are not afforded the luxury of selectively picking

    and choosing what evidence we will consider, we conclude that

    Judge Keeton was correct in ruling that there was



    -27- 27













    insufficient evidence for a jury to draw a reasonable

    inference that Speen was fired due to his age or permit a

    reasonable inference that Crown's proffered reason for

    terminating Speen (declining and unsatisfactory sales

    figures) was pretextual.

    To the extent that we reach a different outcome

    than the one Speen urges, Speen's mistaken view of what

    precedent requires a court to do in a case like the one at

    bar explains this difference. Speen correctly notes that

    proffered direct evidence of unlawful employment

    discrimination removes a claimant's case from the well-known

    McDonnell Douglas three-part test for discrimination (prima _________________

    facie case, legitimate business justification, and rebuttal)

    operative in essentially the same way in both Massachusetts

    and federal courts. We have indicated as much. See Smith v. ___ _____

    F.W. Morse & Co., 76 F.3d 413, 421 (1st Cir. 1996) ("On the _________________

    relatively rare occasions when a smoking gun is discernible -

    - that is, when a plaintiff produces direct evidence that the

    protected characteristic was a motivating factor in the

    employment action -- the McDonnell Douglas framework is __________________

    inapposite."); see also Smith v. Stratus Computer, Inc., 40 ___ ____ _____ _______________________

    F.3d 11, 15 (1st Cir. 1994).

    Notwithstanding what Speen would have us believe,

    the fact that the familiar framework that guides cases

    involving indirect, circumstantial evidence of discrimination



    -28- 28













    may be inapposite here does not conclude the matter.

    Specifically, whether Silverman's alleged statement actually

    constitutes direct evidence of discriminatory motive remains

    somewhat of an open question, since the line in the case law

    between what constitutes direct and indirect evidence of

    discriminatory motive is blurred rather than clearly drawn.

    See Smith, 76 F.3d at 421. References to "smoking guns" can ___ _____

    thus be less than fruitful to the extent they obscure the

    fact that this Circuit has yet to define clearly what

    constitutes direct evidence of discrimination. See Ayala- ___ ______

    Gerena v. Bristol Myers-Squibb Co., No. 95-1867, slip op. at ______ ________________________

    17 (1st Cir. September 5, 1996) (citing Smith, 76 F.3d at 431 _____

    (Bownes, J., concurring)).

    Given the relevant jurisprudence and the approach

    the district court took in resolving this case, we need not

    decide whether or not Silverman's alleged statement

    constituted a "smoking gun" because the result here would be

    the same either way. As we have previously noted in a

    similar case involving appellate review of a directed

    verdict, "[d]iscretion is sometimes the better part of valor,

    and courts often wisely decide to sidestep difficult

    theoretical questions if answers to them are not essential to

    the proper resolution of a case." Smith, 76 F.3d at 421. As _____

    in Smith, "[w]e have here a good example of such a prudential _____

    approach. The trial court largely bypassed any differential



    -29- 29













    direct evidence/circumstantial evidence tamisage, preferring

    to go directly to a finding that, on the totality of the

    evidence presented, [Crown and the Silvermans] had proven

    that [age] discrimination did not trigger the firing." Id. __

    The evidence presented in the instant case resolves

    the age discrimination issue in favor of the defendants,

    whether we find Jack Silverman's alleged statement to be

    direct evidence of discrimination (a "smoking gun") or not.

    In particular, the evidence presented reveals that no other

    salesman experienced a larger decline in sales for the five

    year period 1987-1992. The evidence does show that some

    salesmen who were not terminated had sales that declined more

    than Speen's in absolute dollar terms in the year or two

    prior to Speen's termination. But other evidence shows that

    Crown salesmen each faced different expectations in terms of

    year-to-year sales, depending on the location of their

    territory, how long they had covered it, and other factors.

    The evidence further indicates that Speen's

    supervisors were unhappy with Speen's performance and that

    Jack Silverman had complained about Speen's declining sales

    figures and attitude on numerous occasions in the two years

    or so prior to Speen's termination. In at least one

    instance, Silverman did so in front of other Crown salesmen,

    much to Speen's embarrassment. Speen's performance, however,

    did not improve. The evidence also demonstrates that at



    -30- 30













    least two of Crown's more valued customers contacted Crown on

    their own volition to complain about Speen or to advise Crown

    to replace Speen with "a real salesman." The evidence

    further reveals both that Crown had terminated the services

    of several salesmen and that other salesmen had retired. No

    discernible age-related pattern, however, emerges from this

    evidence. Those who were fired included young, middle-aged,

    and older salesmen. We again note that out of a sales force

    of twenty people, all five salesmen over the age of 70 at the

    time of Speen's discharge in December 1992 still sold for

    Crown at the time of Speen's trial in March 1996. One of

    those active salesmen was over 80 years old.

    This proffered evidence -- considered in the light

    most favorable to Speen, but also in its entirety -- cannot

    be said either to permit a reasonable factfinder to reach the

    conclusion that Speen's firing was triggered by age

    discrimination or to permit a reasonable inference that

    Crown's proffered reason for terminating Speen (declining and

    unsatisfactory sales figures) was pretextual. Even if the

    jury credited Jack Silverman's alleged statement, therefore,

    Speen was not entitled to a jury verdict in his favor.

    To be sure, our duty in this appeal from a judgment

    as a matter of law is to review the evidence and the

    reasonable inferences extractable from it in the light most

    favorable to the nonmovant, namely, Speen. While "this



    -31- 31













    approach does not allow the court to consider the credibility

    of witnesses, resolve conflicts in testimony, or evaluate the

    weight of the evidence, neither does it pave the way for

    every case, no matter how sketchy, to reach the jury."

    Smith, 76 F.3d at 425 (internal quotations and citations _____

    omitted). Put another way, "a mere scintilla of evidence is

    not enough to forestall a directed verdict, especially on a

    claim or issue as to which the burden of proof belongs to the

    objecting party." Id. at 425-26 (internal quotations __

    omitted). These time-worn principles of law support the

    district court's disposition of this part of Speen's action.

    Nothing in the Massachusetts cases leads us to

    question this result given the fact that the age

    discrimination issue we are considering is embedded in

    Speen's state common law tort claim. As we noted earlier,

    Massachusetts courts have explained that the requisite malice

    required for finding liability under a claim for tortious

    interference exists "depend[ing] on the evidence in each case

    and on what the trier of fact may reasonably infer from that

    evidence." Gram, 429 N.E.2d at 24. "Any reasonable ____

    inference of malice must, however, be based on probabilities,

    rather than possibilities." Id. at 24-25 (internal __

    quotations omitted). In view of the language in Gram, we ____

    thus conclude that Massachusetts courts would not view

    Speen's claim (that he was fired due to his age) as one



    -32- 32













    supported by reasonable inferences drawn from the evidence

    presented.

    Conclusion Conclusion __________

    Speen failed to provide sufficient evidence to

    support a finding that he was a Crown employee who enjoyed

    protection under the applicable federal and state statutory

    provisions governing age discrimination and pension rights.

    Nor did he produce evidence sufficient to support his

    remaining Massachusetts common law tort claims. On the

    evidence presented, we conclude that the district court's

    entry of judgment as a matter of law for the appellee-

    defendants was correct.

    Affirmed. Affirmed.






























    -33- 33



Document Info

Docket Number: 96-1402

Filed Date: 12/24/1996

Precedential Status: Precedential

Modified Date: 3/3/2016

Authorities (25)

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Goldberg v. Whitaker House Cooperative, Inc. , 81 S. Ct. 933 ( 1961 )

National Labor Relations Board v. United Insurance Co. of ... , 88 S. Ct. 988 ( 1968 )

Charles Franklin GARRETT, Appellant, v. PHILLIPS MILLS, INC.... , 721 F.2d 979 ( 1983 )

elmer-e-oestman-jr-v-national-farmers-union-insurance-co-a , 958 F.2d 303 ( 1992 )

Favorito v. Pannell , 27 F.3d 716 ( 1994 )

Rutherford Food Corp. v. McComb , 331 U.S. 722 ( 1947 )

Community for Creative Non-Violence v. Reid , 109 S. Ct. 2166 ( 1989 )

McDonnell Douglas Corp. v. Green , 93 S. Ct. 1817 ( 1973 )

Becky Doty, Vicky Doty, David Price and Roy Price, Cross-... , 733 F.2d 720 ( 1984 )

Mony LEICHIHMAN, Appellant, v. PICKWICK INTERNATIONAL and ... , 814 F.2d 1263 ( 1987 )

Sereni v. Star Sportswear Manufacturing Corp. , 24 Mass. App. Ct. 428 ( 1987 )

John P. Murray v. Ross-Dove Company, Inc. And Dovetech, Inc. , 5 F.3d 573 ( 1993 )

J. William Hayden v. La-Z-Boy Chair Company , 125 A.L.R. Fed. 717 ( 1993 )

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Harold Frankel v. Bally, Inc. , 987 F.2d 86 ( 1993 )

Chase v. INDEPENDENT PRACTICE ASSOCIATION, INC , 31 Mass. App. Ct. 661 ( 1991 )

Greenberg v. Union Camp Corp. , 48 F.3d 22 ( 1995 )

64-fair-emplpraccas-bna-638-64-empl-prac-dec-p-42973-howard-e , 21 F.3d 502 ( 1994 )

Jimmie Ruth Daughtrey v. Honeywell, Inc., Bull Hn ... , 3 F.3d 1488 ( 1993 )

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