Evans v. Massmutual Fin. Grp.

• Decision Date: 13 April 2012
• Docket Number: No. 09–CV–6028L.,09–CV–6028L.
• Citation: 856 F.Supp.2d 606
• Parties: Andrae EVANS, Plaintiff, v. MASSMUTUAL FINANCIAL GROUP, William D. Costello, Defendants.
• Court: U.S. District Court — Western District of New York

856 F.Supp.2d 606

Andrae EVANS, Plaintiff,

v.MASSMUTUAL FINANCIAL GROUP, William D. Costello, Defendants.

No. 09–CV–6028L.

United States District Court,

W.D. New York.

April 13, 2012.

Scott M. Peterson, Kiley D. Scott, Douglas James Rose, Tully Rinckey, PLLC, Albany, NY, for Plaintiff.

Paul F. Keneally, Underberg & Kessler LLP, Rochester, NY, for Defendants.

DECISION AND ORDER

DAVID G. LARIMER, District Judge.

This is an action under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), 38 U.S.C. § 4301–4335. Plaintiff Andrae Evans is a member of the New York Army National Guard. In April 2004, he was called to active duty and sent to Iraq. At the time of his callup, plaintiff was working for defendant MassMutual Financial Group (“MassMutual”).

Plaintiff was released from active duty in November 2006. He applied for reemployment with MassMutual, seeking reinstatement as a sales manager. He was informed that he could return to work at MassMutual, but as a career sales agent, not as a sales manager. Plaintiff would not consent to that offer, and apparently has not worked at MassMutual since before his deployment in 2004.

Plaintiff filed this lawsuit in January 2009, naming MassMutual and William D. Costello, a MassMutual employee, as defendants. He asserts a single cause of action under USERRA, which “provides a comprehensive remedial scheme to ensure the employment and reemployment rights of those called upon to serve in the armed forces of the United States.” Morris–Hayes v. Board of Educ. of Chester Union Free Sch. Dist., 423 F.3d 153, 160 (2d Cir.2005). Plaintiff's cause of action is based on 38 U.S.C. § 4312, which states, in relevant part, that “any person whose absence from a position of employment is necessitated by reason of service in the uniformed services shall be entitled to the reemployment rights and benefits and other employment benefits of this chapter.”

On October 26, 2009, District Judge Charles J. Siragusa of this Court issued a Decision and Order, familiarity with which is assumed, denying defendants' motion to dismiss the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure. 2009 WL 3614534. Defendants have now moved for summary judgment under Rule 56. Following the filing of that motion, this case was transferred from Judge Siragusa to me, see Dkt. # 41, and the Court heard oral argument on the motion.

DISCUSSION

I. Was Plaintiff Covered by USERRA?

Defendants contend that the undisputed facts demonstrate that plaintiff was not an employee of MassMutual, but an independent contractor, and therefore that he was not covered by USERRA. As Judge Siragusa noted in his prior decision in this case, “USERRA does not provide protections for an independent contractor.” 2009 WL 3614534, at *3 (quoting 20 C.F.R. § 1002.44). To have standing under USERRA, then, plaintiff must have been an “employee” of MassMutual. Id.

Plaintiff does not appear to dispute that general principle, but he contends that there is an issue of fact concerning whether he was an independent contractor or an employee for purposes of USERRA. Defendants assert that this argument is foreclosed by the agreements signed by plaintiff in November 2003 and May 2006, in which he expressly agreed that he would be an independent contractor, and not an employee of MassMutual. See Dkt. # 31–10, # 31–11.

While the parties' signed agreements have some bearing upon this issue, they are not dispositive. The case law is clear that the parties' use of particular labels or terms such as “independent contractor” is simply one factor that the court can consider in determining whether a plaintiff was an “employee” for purposes of USERRA.

Though the case law on this issue in the USERRA context is sparse, cases interpreting analogous provisions in the Fair Labor Standards Act (“FLSA”) are relevant in this regard. See Evans, 2009 WL 3614534, at *4 and n. 5 (noting similarity between definitions of “employee” in FLSA and USERRA; see alsoH.R. Rep. 103–65, at 21 (1993), reprinted in 1994 U.S.C.C.A.N. 2449, 2454 (“Section 4303(3) [of USERRA] would define ‘employee’, in the same expansive manner as under the Fair Labor Standards Act, 29, U.S.C. 203(e) ... and the issue of independent contractor versus employee should be treated in the same manner as under the Fair Labor Standards Act”) (citations omitted)).

In determining whether a plaintiff was an employee or an independent contractor, courts apply the “economic realities” test, which looks to the actual facts of the parties' relationship, and not simply to the nomenclature they have used in their written agreement. See, e.g., Real v. Driscoll Strawberry Associates, Inc., 603 F.2d 748, 755 (9th Cir.1979) (“Economic realities, not contractual labels, determine employment status for the remedial purposes of the FLSA”); Scantland v. Jeffry Knight, Inc., No. 8:09–CV–1985, 2012 WL 1080361, at *6 (M.D.Fla. Mar. 29, 2012) (“Economic reality controls over labels or subjective intent as to the ultimate issue of Plaintiffs' status as independent contractors or employees”); Harris v. Attorney Gen'l of the United States, 657 F.Supp.2d 1, 10 (D.D.C.2009) (“While contracts manifest the parties' intent, they do not necessarily reflect ‘economic realities' ”).

Courts have identified several factors as particularly significant vis-a-vis the economic realities analysis, including

(1) the degree of control exercised by the employer over the worker[ ], (2) the worker['s] opportunity for profit or loss and [his] investment in the business, (3) the degree of skill and independent initiative required to perform the work, (4) the permanence and duration of the working relationship, and (5) the extent to which the work is an integral part of the employer's business.

Wade v. Woodland Commons, LLC, No. 1:09–CV–1426, 2012 WL 929839, at *8 (N.D.N.Y. Mar. 19, 2012) (quoting Brock v. Superior Care, Inc., 840 F.2d 1054, 1058–59 (2d Cir.1988)) (additional cites omitted).

Ultimately, however, there is no litmus test by which to determine employment status. “The Second Circuit has treated employment ... as a flexible concept to be determined on a case-by-case basis by review of the totality of the circumstances.” Lawrence v. Adderley Indus., Inc., No. CV–09–2309, 2011 WL 666304, at *6 (E.D.N.Y. Feb. 11, 2011) (citing Barfield v. New York City Health and Hospitals Corp., 537 F.3d 132, 141–42 (2d Cir.2008) (internal quotes and brackets omitted)). The criteria mentioned above, while useful, “state no rigid rule,” but rather provide “ ‘a nonexclusive and overlapping set of factors' to ensure that the economic realities test ... is sufficiently comprehensive and flexible to give proper effect to the broad language of the FLSA.” Barfield, 537 F.3d at 143 (quoting Zheng v. Liberty Apparel Co., 355 F.3d 61, 75–76 (2d Cir.2003)). In addition, courts generally construe USERRA's provisions “liberally in favor of veterans seeking its protections.” Davis v. Advocate Health Center Patient Care Exp., 523 F.3d 681, 683–84 (7th Cir.2008). See also Serricchio v. Wachovia Securities LLC, 658 F.3d 169, 194 (2d Cir.2011) (noting “the liberal construction given to USERRA ‘for the benefit of those who ... left private life to serve their country’ ”) (quoting Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946) (referring to statutory predecessor to USERRA)).

The ultimate question of whether a plaintiff is an employee of the defendant, or an independent contractor, is a question of law. See, e.g., Harris v. Vector Marketing Corp., 656 F.Supp.2d 1128, 1136 (N.D.Cal.2009); Lewis v. ASAP Land Express, Inc., 554 F.Supp.2d 1217, 1223 (D.Kan.2008). A determination of that issue of law, however, typically cannot be made until the underlying facts concerning the nature of the plaintiff's and defendant's relationship are resolved. Thus, a plaintiff's status as either an employee or an independent contractor may present issues of fact that cannot be decided until trial. See, e.g., Keeton v. Time Warner Cable, Inc., No. 2:09–CV1085, 2011 WL 2618926, at *7 (S.D.Ohio. July 1, 2011); Zermeno v. Cantu, No. CIV. A. H–10–1792, 2011 WL 2532904, at *3 (S.D.Tex. June 24, 2011); Rodilla v. TFC–RB, LLC, No. 08–21352, 2009 WL 3720892, at *16 (S.D.Fla. Nov. 4, 2009).

In the case at bar, plaintiff has alleged a number of facts to support his assertion that he was an employee of MassMutual, rather than an independent contractor, as stated in the parties' written agreement. He contends that he was required to be at his office at certain times, which suggests that MassMutual had at least some control over his work schedule. He also notes that Todd Allen, who formerly was employed as the general agent in charge of MassMutual's Rochester office, testified at a deposition that he had recruited plaintiff to come to work at MassMutual, and that he considered plaintiff to be “an integral part of the MassMutual operation” in Rochester. Def. Ex. F at 15, 58. Allen also testified that he hired plaintiff with the expectation and intention of plaintiff and MassMutual having a long-term relationship. Id. at 58–59.

Certainly not all of the evidence weighs in favor of a finding that plaintiff was “employed” by MassMutual. The fact that plaintiff received commissions rather than a salary, for example, tends to indicate that he may have been an independent contractor, see, e.g., Chao v. Westside Drywall, Inc., 709 F.Supp.2d 1037, 1065 (D.Or.2010), although it is not dispositive, see E.E.O.C. v. Steven T. Cox, Inc., No. No. 3:99–1184, 2002 WL 32357095, at *7 (M.D.Tenn. July 19, 2002).

Given the relatively expansive construction of the term “employee” under the FLSA, and by extension, under USERRA, see Zheng, 355 F.3d at 69;Frankel v. Bally, Inc., 987 F.2d 86, 89 (2d Cir.1993), I conclude that plaintiff has demonstrated the existence of genuine issues of material fact concerning the nature of the relationship...