Kakides v. King Davis Agency, Inc.
| Decision Date | 18 September 2003 |
| Docket Number | No. CIV.A.01-CV-12031RGS.,CIV.A.01-CV-12031RGS. |
| Parties | Alexandra KAKIDES v. KING DAVIS AGENCY, INC., et al. |
| Court | U.S. District Court — District of Massachusetts |
Paul J. Klehm, Law Offices of James B. Krasnoo, James B. Krasnoo, Andover, MA, for Alexandra Kakides, Plaintiff.
Andrew K. Goldstein, Epstein, Becker & Green, PC, Boston, MA, for King Davis Agency, Defendant.
MEMORANDUM AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
On November 21, 2001, Alexandra Kakides, a then seventy-seven year old real estate broker, filed this Complaint against the real estate agency where she had worked for twenty-five years, King Davis Agency, Inc., the agency's owner, Kingsbury Davis (Davis), two officers of the company (Francis Cleary and Rodger Chadwick), and various other companies that had over time affiliated themselves with King Davis Agency.1 Kakides attributes repeated acts of sexual discrimination to Davis since at least 1990. Her sexual harassment claims include allegations of: (1) inappropriate sexual conduct by Davis, including physical touching; (2) a hostile work environment; (3) pay discrimination; and (4) retaliation. Kakides alleges claims under Title VII of the Equal Employment Opportunities Act, violations of the Massachusetts Employment Discrimination Act, G.L. c. 151B, breach of contract, breach of the covenant of good faith and fair dealing, promissory estoppel, quantum meruit, a violation of the Massachusetts Civil Rights Act, G.L. c. 12 § 11H and I, assault and battery, and intentional and negligent infliction of emotion distress. Kakides' claims are apparently alleged against each defendant.
On August 15, 2002, defendants filed a motion to dismiss, or in the alternative for summary judgment, arguing that Kakides' discrimination claims must be dismissed because she worked as an independent contractor from December 1, 1999, and it is settled law that Title VII and Chapter 151B do not apply to independent contractors. Alberty-Velez v. Corporacion De Puerto Rico Para La Difusion Publica, 242 F.3d 418, 421 (1st Cir.2001). Kakides maintains that she is a covered employee, and on the issue of her employment status the case was joined. At Kakides' request, after the defendants filed for summary judgment, the court extended the schedule to permit related discovery and then accepted supplemental briefs. On May 8, 2003, the court heard oral argument on defendants' motion.
The facts in the light most favorable to Kakides are as follows.2 In 1960, Kakides acquired a real estate broker's license and took a job with the King Davis Agency. In 1976, Kakides was asked to become vice-president of King Davis Agency. She accepted the offer and entered into a written employment contract. In 1995, Kakides complained to Davis that she was being undercompensated because she was a woman. On January 19, 1995, Davis wrote to Kakides stating:
[w]hen you joined The King Davis Agency in 1977 you were considered an "employee" of the corporation, and were covered under certain benefits . . . . On January 1, 1990, all salespeople were reclassified as independent contractors. This meant they would be liable for paying their own federal income tax payments; social security and medicare taxes; . . . and no longer would be covered under the Agency unemployment, workmen's compensation and disability insurances. They would also have to pay for their own MLS books. Since they would incur additional expenses . . . their commission schedule was revised to reflect a higher payment to them on co-broke sales and listings.
At this time, a select few individuals (corporate officers) were given the option of remaining "employees" of the Agency and thus retain their . . . benefits programs. In return for receiving these benefits, these people would remain under our "already existing" cobroke commission schedule. . . . You elected to remain an employee of the Corporation as indicated in your letter of December 27, 1989. . . . Thus, you elected to remain under this "already existing" co-broke commission schedule. . . .
I want this issue put to rest once and for all, and I do not want you to stress me out as a result of your forgetting what the arrangements are. . . . Unless I hear to the contrary we shall consider this matter closed.
On December 21, 1995, Kakides wrote Davis stating:
Effective January 1, 1996, I request my payment status be put forth as an independent contractor. My vice president benefits will remain the same (insurance, MLS books, etc.).
On July 9, 1996, Davis wrote to Kakides confirming that while Kakides had opted to be compensated as an independent contractor for her brokerage business, she would continue as an employee of King Davis Agency for purposes of "management income." Consequently, while Kakides' compensation was calculated on the same basis as that of the agency's independent contractors, she continued to receive fringe benefits in her role as a company vice-president. On July 16, 1996, Kakides alleges that Davis struck her on her buttocks.
In 1997, King Davis Agency, Inc., became King Davis Partners, LLC, and Kakides' employment contract was assigned to the new entity. On October 20, 1997, Davis joked that "[w]hen the police take Allie [Kakides] out, they will take her out the back door." In 1997, Kakides complained about a diminution in her role as a King Davis vice-president. On January 8, 1998, Davis asked Kakides if she thought his pending surgery would "help my sex?" On February 28, 1998, Davis made a derogatory remark while Kakides was bending over.
In February of 1999, King Davis Agency Partners, LLC, issued a press release announcing Kakides' induction as a profit sharing "Member Owner" of King Davis. In 1999, King Davis merged with Coldwell Banker Hunneman to form Coldwell Banker Hunneman King Davis (Hunneman). On December 1, 1999, Kakides entered into an "Independent Contractor Agreement" with Hunneman. The Agreement stated that the "Associate's relationship to the Company is that of an independent contractor engaged in an independent business." Thereafter, the payment of fringe benefits to Kakides ceased. She received commission payments only upon the successful completion of sales. She received an IRS Form 1099 at the end of each year reporting her commission payments. Taxes were no longer withheld from her gross income. Kakides paid her own licensing and listing fees, and scheduled her own sales calls. Hunneman provided Kakides with a desk and office supplies. It also required that she attend weekly marketing meetings, regular training seminars, and to perform periodic "floor duty" answering the office telephones.
In early 2000, Davis gave Kakides an advertisement from a hotel with the notation "Love KD, PS We can have some fun!" In August of 2000, Davis again struck Kakides on the buttocks. On November 9, 2000, while looking through the trunk of Kakides' car, Davis asked, "Whose panties are these?" On a date that Kakides cannot recall, Kakides alleges that Davis gave her a cartoon of a woman with semi-exposed breasts inscribed with the notation, "Allie, I hardly recognize you." On another unspecified occasion, Kakides alleges that Davis remarked, "Look, Steve is in Allie's drawers" (alluding to a co-worker helping Kakides with an uncooperative desk drawer).
On November 13, 2000, Kakides complained to Davis about the alleged sexual harassment. She alleges that she was thereafter ostracized by Davis and her co-workers and forced to resign. She filed a charge with the MCAD on December 7, 2000, and this Complaint on November 21, 2001.
Defendants argue that Kakides was an independent contractor from at least December 1, 1999, when she signed Hunneman's "Independent Contractor Agreement." Defendants also argue that any allegations of sexual harassment that pre-date December 1, 1999, are barred by the statute of limitations.
Kakides, while acknowledging the Independent Contractor Agreement, argues that she was hired as an employee and, despite the Agreement, remained an employee in substance if not name throughout her tenure with King Davis. Kakides argues that the proper test is not based on labels, but on the degree of control the employer exercises over the putative employee.
Title VII defines "employee" somewhat obscurely as "any individual employed by an employer." 42 U.S.C. § 2000e(f). In Clackamas Gastroenterology Associates v. Wells, 538 U.S. ___, 123 S.Ct. 1673, 155 L.Ed.2d 615 (2003), the Supreme Court was asked to resolve a circuit conflict as to the appropriate test to be applied in determining whether the director-shareholder physicians of a professional corporation should be deemed employees under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, which like Title VII, defines an employee as "an individual employed by an employer." 42 U.S.C. § 12111(4). The Clackamas Court began by reviewing the test it had previously developed when the term "employee" as used in a federal statute is essentially undefined.
"We have often been asked to construe the meaning of `employee' where the statute containing the term does not helpfully define it." Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 322, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992). The definition of the term in the ADA simply states that an "employee" is "an individual employed by an employer." 42 U.S.C. § 12111(4). That surely qualifies as a mere "nominal definition" that is "completely circular and explains nothing." Darden, 503 U.S. at 323, 112 S.Ct. 1344, 117 L.Ed.2d 581. As we explained in Darden, our cases construing similar language give us guidance on how best to fill the gap in the statutory text.
In Darden we were faced with the question whether an insurance salesman was an independent contractor or an "employee" covered by the Employee Retirement Income Security Act of 1974 (ERISA). Because ERISA's definition of "employee" was "completely...
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