102 F.3d 625 (1st Cir. 1996), 96-1402, Speen v. Crown Clothing Corp.

Docket Nº:96-1402.
Citation:102 F.3d 625
Party Name:William SPEEN, Plaintiff, Appellant, v. CROWN CLOTHING CORPORATION, Richard Silverman, and Jack Silverman, Defendants, Appellees.
Case Date:December 23, 1996
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 625

102 F.3d 625 (1st Cir. 1996)

William SPEEN, Plaintiff, Appellant,


CROWN CLOTHING CORPORATION, Richard Silverman, and Jack

Silverman, Defendants, Appellees.

No. 96-1402.

United States Court of Appeals, First Circuit

December 23, 1996

Heard Oct. 10, 1996.

Rehearing and Rehearing En Banc Denied Jan. 21, 1997.

As Amended Jan. 22, 1997.*

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[Copyrighted Material Omitted]

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Philip R. Olenick with whom Paul L. Nevins was on brief, Boston, for appellant.

Timothy P. Cox with whom John C. Wyman and Roche, Carens & DeGiacomo were on brief, Boston, for appellees.

Before CYR, BOUDIN and STAHL, Circuit Judges.

STAHL, Circuit Judge.

Plaintiff-appellant, William 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

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

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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 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). After MCAD made a preliminary determination that it had jurisdiction over Speen's claim because it found him to be an employee for purposes of the federal and state age discrimination statutes, a determination that does not 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

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.

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

Crown contends that Speen cannot sue under the ADEA or the Massachusetts anti-age

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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 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, 387 Mass. 11, 438 N.E.2d 811, 814 (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 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, 283 Mass. 74, 186 N.E. 231, 232 (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., 265 Mass. 236, 164 N.E. 77, 78 (1928) ("Although the conclusive test of the relationship of master and servant is 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,

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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 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...

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