Falls v. Sporting News Pub. Co.

• Decision Date: 15 January 1988
• Docket Number: No. 86-1548,86-1548
• Citation: 834 F.2d 611
• Parties: 45 Fair Empl.Prac.Cas. 752, 45 Empl. Prac. Dec. P 37,623, 2 Indiv.Empl.Rts.Cas. 1239 Joseph F. FALLS, Plaintiff-Appellant, v. The SPORTING NEWS PUBLISHING COMPANY; Richard Waters; and Tom Barnidge, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 611

834 F.2d 611

45 Fair Empl.Prac.Cas. 752,

45 Empl. Prac. Dec. P 37,623,

2 Indiv.Empl.Rts.Cas. 1239

Joseph F. FALLS, Plaintiff-Appellant, v. The SPORTING NEWS PUBLISHING COMPANY; Richard Waters; and Tom Barnidge, Defendants-Appellees.

No. 86-1548.

United States Court of Appeals Sixth Circuit.

Argued May 22, 1987.

Decided Dec. 3, 1987.

Rehearing and Rehearing En Banc Denied Jan. 15, 1988.

Deborah L. Gordon, Stark & Gordon, Detroit, Mich., Clark D. Cunningham (argued), University of Michigan Law School, Ann Arbor, Mich., for plaintiff-appellant.

Herschel P. Fink (argued), William D. Sargent, Honigman, Miller, Schwartz and Cohn, Detroit, Mich., for defendants-appellees.

Before KEITH and NORRIS, Circuit Judges, and PECK, Senior Circuit Judge.

ALAN E. NORRIS, Circuit Judge.

Plaintiff, Joseph F. Falls, appeals from the judgment of the United States District Court for the Eastern District of Michigan, granting summary judgment to defendants, Richard Waters, Tom Barnidge, and The Sporting News Publishing Company. In his complaint, plaintiff characterized this diversity action as one "to enforce civil and common law rights arising out of Plaintiff's employment relationship with Defendant, pursuant to the Elliott-Larsen Civil Rights Act, M.C.L.A. Sec. 37.2101 et seq., and the Michigan common law." The three counts of the complaint were predicated upon age discrimination, defamation, and injurious falsehood.

Plaintiff was fifty-seven years old when his complaint was filed, and had been a sports writer for over thirty-five years. He was sports editor of the Detroit News, and also contributed a weekly column to the The Sporting News (TSN), a weekly newspaper, from 1963 until June 1985, when defendant Tom Barnidge, TSN's editor, discharged him. He received $90 per column from TSN.

The parties disagree on the proper characterization of plaintiff's relationship with TSN. While he refers to himself as a part-time employee, TSN maintains that he was an independent contractor contributing part-time piece work or free lance writing assignments. It is undisputed, though, that plaintiff's compensation fron TSN was reported on IRS Form 1099, and not on a W-2 Form, as was the case for compensation paid to TSN's "employees"; that there was no formal contract of employment between plaintiff and TSN; that TSN provided plaintiff with no formal office space or equipment except for a telephone credit card with which he was to charge his phone calls to TSN; that plaintiff has been identified by the public as a TSN writer and received fan mail addressed to him at TSN; that he was not reimbursed for travel or other business expenses by TSN and did not receive traditional "employee benefits" from TSN; that his columns were submitted pursuant to deadlines set by TSN, which edited them before publication; that plaintiff was required to produce original columns for TSN and was told to cover specific sporting events; and that TSN provided him with sports research materials.

Plaintiff alleged that two other columnists over the age of fifty-five were also discharged and replaced by younger writers, and that he had been defamed by a letter written by Barnidge in response to a reader's inquiry, and by an interview given by TSN's president, defendant Richard Waters, to USA Today, a nationally distributed newspaper.

On January 31, 1986, plaintiff filed this action. Rather than answer the complaint, defendants filed a motion for summary judgment and, before full discovery was completed, the district court granted summary judgment on May 22, 1986.

Plaintiff contends that the district court erred in these regards: (1) by granting summary judgment before discovery had been completed; (2) in holding that an independent contractor is not protected under the Michigan civil rights act; (3) by improperly applying the common law master-servant analysis in determining that plaintiff was not an "employee" protected from age discrimination under the act; (4) in determining that statements made about plaintiff did not ground a cause of action for defamation; and (5) by holding that a cause of action was not pleaded for the tort of injurious falsehood. Because we agree with plaintiff's positions on some of these issues, we reverse the district court and remand for further proceedings.

Plaintiff's claim of age discrimination was brought pursuant to the Elliott-Larsen Civil Rights Act, Sec. 202(1), Mich. Comp. Laws Sec. 37.2202, which states, in pertinent part:

An employer shall not:

(a) Fail or refuse to hire, or recruit, or discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of religion, race, color, national origin, age, sex, height, weight, or marital status.

In contending that the district court erred in concluding that his working relationship with TSN was not protected by the Michigan act, plaintiff first maintains that he was not required to prove that he was an employee of TSN since, even if he were an independent contractor, he would be protected so long as his compensation was impacted by TSN because of his age. Although there are no reported cases from Michigan courts specifically addressing the point, plaintiff notes that the terms "individual" and "compensation" are not defined in the act, and argues that they therefore should be construed according to their common usage. He also maintains that, in Michigan, social legislation is liberally construed to ensure sweeping coverage. TSN responds that, because of the similarity of the language and the intended purposes of both the Federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. Sec. 623(a)(1), and Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. Sec. 2000e-2(a), federal decisions construing these statutes are persuasive authority in deciding similar issues under the Michigan act. See Langlois v. McDonald's Restaurants, Inc., 149 Mich.App. 309, 312, 385 N.W.2d 778, 780 (1986). TSN reasons that independent contractors are not protected under the Michigan act because they do not fall within the ambit of the ADEA or Title VII.

Although this court has rejected a narrow construction of the term "employee" under both Title VII and the ADEA, it has nevertheless adhered to a standard that would exclude from the protection of either act a person who cannot be considered an employee, but is instead clearly an independent contractor. See Armbruster v. Quinn, 711 F.2d 1332, 1341-42 (6th Cir.1983) (Title VII); EEOC v. First Catholic Slovak Ladies Ass'n, 694 F.2d 1068, 1070 (6th Cir.1982), cert. denied, 464 U.S. 819, 104 S.Ct. 80, 78 L.Ed.2d 90 (1983) (ADEA). Because the Michigan act is so similar to Title VII and the ADEA, and Michigan courts regard federal precedent on questions analogous to those presented under Michigan's civil rights statutes as highly persuasive [Langlois v. McDonald's Restaurants, Inc.], we may assume that Michigan courts would follow our precedents and interpret the state act to limit its coverage to employees.

The question then remains whether the district court erred in failing to conclude that plaintiff was an employee of TSM, for purposes of the Michigan act. Plaintiff maintains that the "District Court should have eschewed a simplistic common law distinction between employees and independent contractors, and instead, made a detailed analysis of all the factors involved in the working relationship between Plaintiff and Defendants." Had the court done so, he argues, it would have concluded that plaintiff was an integral part of TSN's business. On the other hand, TSN presents a number of cases containing employment situations similar to plaintiff's, which TSN uses to support its contention that he was an independent contractor.

Whether or not plaintiff was an employee of TSN, as contemplated by the Michigan act, must be resolved by reference to an "economic reality" test developed by Michigan courts to replace the common law "control" test. See, e.g., Wells v. Firestone Tire & Rubber Co., 421 Mich. 641, 364 N.W.2d 670 (1984); Askew v. Macomber, 398 Mich. 212, 247 N.W.2d 288 (1976). This requires viewing an employment situation as a whole in relation to the statutory scheme contemplated by the Michigan act. Control of the worker's duties, payment of wages, authority to hire and fire, and responsibility for the maintenance of discipline, are all factors to be considered, but no one factor is controlling. Wells v. Firestone Tire & Rubber Co., 421 Mich. at 647-48, 364 N.W.2d 670. Whether TSN was plaintiff's employer, then, will depend upon the economic realities of their relationship, and among the relevant factors that will demonstrate an employment relationship are those listed above, as well as whether the duties performed by plaintiff were an integral part of TSN's business and contributed to the accomplishment of a common goal. Askew v. Macomber, 398 Mich. at 217-18, 247 N.W.2d 288. Other factors to be considered were listed by the Michigan Court of Appeals in McKissic v. Bodine, 42 Mich.App. 203, 208-09, 201 N.W.2d 333, 335-36 (1972). Establishment of an independent contractor relationship would require a convincing accumulation of factors indicating that plaintiff's services were rendered in the course of his pursuit of his separate business enterprise of selling those services. Hyslop v. Klein, 85 Mich.App. 149, 157, 270 N.W.2d 540, 543-44 (1978).

It is not clear from the district court's opinion what test was applied in evaluating the relationship between the parties. From its citation of authorities relying upon control as the determining factor, it would appear that the common law test played a decisive role in the court's analysis. In addition, the summary judgment evidence was conflicting on some of the factors relied upon by the court, such as plaintiff's receiving compensation only for published articles, his not...