Speen v. Crown Clothing Corp. , 102 F.3d 625 ( 1996 )

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
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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.
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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
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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
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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
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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
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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
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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.
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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
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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."
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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)).
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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))).
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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
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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.
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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
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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
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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
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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
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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
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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.
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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
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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)).
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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