USCA1 Opinion

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.

STAHL, Circuit Judge.
_____________

Plaintiff-appellant, William

Speen,

law

appeals from a district court judgment as a matter of

in

favor

of

defendants-appellees

Corporation, Jack Silverman, and

discrimination and

wrongful

sufficient

Richard Silverman in an age

law.

in

violation

Because

Speen

of

federal

failed

to

and

provide

evidence to support a finding that he was a Crown

employee for

claims,

Clothing

pension rights suit involving his alleged

termination

Massachusetts

Crown

or

the purposes of his federal and state statutory

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

sales

twenty-seven years,

representative for

Speen served

various

as a

companies.

New England

In 1972,

became a sales representative for Crown Clothing

("Crown").

Jack and

he

Corporation

Richard Silverman respectively serve as

Crown's president and treasurer.

For

throughout

the

next

New England

Crown products

approval, also

clothes from

as

years,

Speen

travelled

Crown representative

-- sports jackets, raincoats and

to men's clothing stores.

Crown's

twenty

hawking

the like --

For some of that time, Speen, with

sold

non-competing lines

other manufacturers,

-22

of

most notably slacks.

men's

By

1992, however, Speen's

soured.

relationship with Crown

Speen's immediate supervisor, Jack

increasingly

Silverman, often

expressed his dissatisfaction with Speen's declining raincoat

sales.

orally

In December

and

then in

1992,

Crown notified

writing --

that

Speen

-- first

his service

would be

terminated, effective the end of the month.

replace Speen, then

Crown went on to

71 years old, with a new representative,

aged 51.

In

action,

June 1993, unwilling

Speen

filed

to accept Crown's adverse

complaint

with

Commission Against Discrimination (MCAD).

any MCAD

determination that

effect, Speen filed

November

1994.

Massachusetts

Without benefit of

would carry with

this suit in

Speen's

the

it preclusive

federal district court

federal

action

claimed that

in

his

termination amounted to unlawful age discrimination under the

federal

Age

U.S.C.

sought

Discrimination

in

Employment

Act (ADEA),

621-634, and Mass. Gen. L. ch. 151B,

pension rights

Security

under the Employee

Act (ERISA), 29 U.S.C.

advanced a

Silvermans,

Massachusetts common

alleging

1140.

9, and also

Retirement Income

Speen, in addition,

law tort claim

tortious

29

interference

against the

with

his

advantageous business relationship with Crown.1

____________________

1.

Speen

also asserted claims

governing minimum

wage, overtime

under Massachusetts statutes

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

-33

limitations. Speen

The matter proceeded

to trial before

the conclusion of plaintiff's evidence, the

a motion for judgment as a

contractor

not a

Crown employee,

who enjoyed

statutory provisions.2

At

defendants filed

matter of law pursuant to Fed. R.

Civ. P. 50(a) on essentially two grounds.

Speen was

a jury.

but rather

no protection

The

The first was that

second was

an independent

under the

applicable

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.

ordering a judgment for

The court granted

the motion,

the defendants on all claims.

This

appeal ensued.

For the reasons set

arguments

concerning

the

forth below, we reject Speen's

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

same

essentially the

grounds. The district court denied both motions. At the

summary judgment
undisputed

facts

hearing, the district court

"weigh[ed]

evaluative determination of
explaining

heavily

toward

independent contractor

an

status,"

that it was "very likely that that's the way it's

going to appear to
evidence."

quite

noted that the

The

determining that

[the court] at the end of the plaintiff's

court

nonetheless

a more

appropriate time for

employee/independent contractor
of the plaintiff's

denied

the

resolving the

issue would be at

evidence in connection with a

judgment as a matter of law.

-44

motion,

the close
motion for

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).

exercising that

standard

plenary review, we use

incumbent

instance.'"

upon

the

trial

In

"the 'same stringent

court

in

Greenberg v. Union Camp Corp., 48

_________
_________________

the

first

F.3d 22, 26

(1st Cir. 1995)

(quoting Favorito v.
________

Pannell, 27 F.3d
_______

716,

719 (1st Cir. 1994)).

We

thus consider the

inferences that

are to be

evidence and

drawn from it

the reasonable

in the light

most

favorable to the party opposing the motion, in this case, the

plaintiff.

proper

A motion for a

at

the

close

of

judgment as a matter

plaintiffs'

plaintiffs' evidence, viewed in

a reasonable

or theory."

only

when the

this light, would not permit

jury to find in favor

permissible claim

case

of law "is

of the plaintiffs on any

Murray
______

v. Ross-Dove Co.,
_____________

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

covered

"employee," but

"independent contractor."

contention and

Speen vigorously

further argues that

classification, in

rather

any event,

-55

was a

an

unprotected

disputes

the issue of

this

his proper

question for the

jury

that should not have been decided by the district

court on a

Rule 50(a) motion.

Both

federal and

that the federal

discrimination

Massachusetts courts

and Massachusetts statutes

in

employment

contractors.

See Robinson
___ ________

21 F.3d 502,

509 (2d

do

not

have found

prohibiting age

reach

independent

v. Overseas Military Sales Corp.,

_____________________________

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
_______

National Farmers Union Ins. Co., 958 F.2d 303,

________________________________

v.

304-05 (10th

Cir.

980

1992); Garrett v.
_______

(4th

(Mass.

Cir. 1983);

1982).

Phillips Mills, Inc.,

____________________

Comey v.
_____

See
___

Hill,
____

generally,
_________

721 F.2d 979,

438 N.E.2d

Francis

M.

811, 814

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

easily

discernible,

however,

Massachusetts law use to

are

the

is clear.

tests

federal

Less

and

distinguish a covered employee from

an unprotected independent contractor.

1. Employee Status Under Massachusetts Law

__________________________________________

In

interpreting

discrimination law,

the

Mass. Gen.

Commonwealth's

L.

ch. 151B,

employment

Massachusetts

-66

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.

_____

concede this point.

The parties in this case both

Where they differ is in their assessment

of what factors Massachusetts courts

common

law test.

look to in applying the

Speen argues that a claimant is considered

an employee under Massachusetts

law if he can show

employer enjoyed the right to control his labor.

contends, he can do.

that the

This, Speen

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

one

of

activity

does

Massachusetts law, since

control

is

not

not

make

a mere showing

conclusive

under

the

an

employee

under

of some element

multifactored

Massachusetts courts use to determine employee status.

of

test

Speen

points

indicate that the

control.

("The

servant

test of

exact point

or

at issue

employee, or

an

bear upon the right of

the right of

to

(Mass. 1933)

the claimant

independent

tests are

cases which

the right

N.E. 231, 232

is whether

the distinction is

considerations and

Massachusetts

employee status is

McDermott's Case, 186

________________

essence of

Other

to older

was a

contractor.

control. . .

important only

The

as they

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

-77

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

cases

would

initial inspection,

seem to

support

district court misstated

when

it concluded

analysis

in

the

language

Speen's

in

contention that

these

the

the relevant Massachusetts standard

that Massachusetts

distinguishing

uses a

employees

from

multifactored

independent

contractors.

of

later

A closer reading of the cases and consideration

Massachusetts

decisions,

however,

dispels

this

conclusion.

In

McDermott's
Case,
__________________

explained that an independent

to direction and

example,

Conversely,

moment,

respect

186

N.E. at

an employee is one who

to every

232.

The

court

the work" to

detail.

Khoury court
______

"at every

is bound

obedience and subject to direction and control."

Case,
____

the

contractor is one "not subject

control as to every detail of

be performed.

with

for

to

McDermott's
___________

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

to be used."

Khoury, 164 N.E. at 78.

______

Such

which Speen's

which

accomplished but also as to the means

language,

gleaned

from

the

counsel relies, indicates the

Speen and

Massachusetts courts mean

-88

decisions upon

great degree to

rather different

things

context

when

they refer

of the

to

"right of

common law test.

control"

Simply put,

the level of

employer

control ("at

detail")

necessary to conclusively establish employee status

without

looking

to

every moment,

within the

any

of

the

with respect

additional

to every

"subordinate"

factors is such that, as a practical matter, one may speak of

the common law test as being a multifactored one.

Subsequent

acknowledges as

common

much.

law test

court explained

Massachusetts

in

Massachusetts, for

that "[t]rial

distinguishing

law,

in

fact,

While recognizing the vitality of the

fully instruct juries on

in

case

judges

example, the

should carefully

all the factors that may

employees from

Comey
_____

and

be useful

independent contractors."

Comey, 438 N.E.2d at

_____

common

815.

This language indicates

law test in Massachusetts, as

directed towards

of Agency
__________

goes

on

220 (1957).

to

in other states, while

the question of right

the assessment of multiple factors.

cite

explains, "list[]

with

factors

of control, involves

See Restatement (Second)

___ ____________________

Indeed, the Comey court immediately

_____

approval federal

which may

from independent contractors."

cases

which,

distinguish

employees

lower Massachusetts

courts have proceeded on the view that

the

employment context,

servant relationship is

a master-

determined by

number of factors, including the right of

the

employer to

it

Id.
__

Confronted with such language,

[i]n

that the

control the

details of

-99

the work done by the employee, the method

of

payment, the

skill

particular

occupation,

employer

supplies

required in
whether
the

instrumentalities and place

well

as the

whether

they

parties' own
are

creating

the
the

tools,
of work,

as

belief as

to

master-

servant relationship.

Chase
_____

v. Independent Practice Ass'n, 583

____________________________

N.E.2d 251,

253

(Mass. App. Ct. 1991).

The

district

court

thus

did

determined this multifactored approach

legal test

that

in Massachusetts.

the district

court

Contrary

found

not

err

to be the

when

it

applicable

to Speen's assertion

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

examined.

established

factors

need

technical sense, this would seem

multifactored test

does not

other

to

be

Given how Massachusetts precedent discusses "right

of control" in its

the

and

is triggered

encompass the person

when employer

hired "at every

to mean

control

moment, with

respect to every detail."

It is

thus not

McDermott's Case, 186 N.E. at 232.

________________

so much

the case that

additional

"subordinate" factors might outweigh the existence of a right

of

control

court's

(as

view) as

Speen

it is

wrongly contends

that the

was

failure to

the

district

demonstrate a

"right of control" in the narrowly-defined technical sense of

that term serves as the

gateway to a multifactored analysis.

-1010

This

analysis,

account

the

in

level

turn, does

of

not

ignore

control present

in

but takes

the

into

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

tests

have used at least

to determine whether a

three different

claimant is a covered employee

rather than an unprotected independent contractor under anti-

discrimination acts such as the ADEA.

traditional common law

employer's right of

test of agency

control using a

The

first test is the

which focuses on

the

multifactored analysis.

See Frankel v. Bally, Inc., 987

___ _______
___________

second test

F.2d 86 (2d Cir. 1993).

-- typically more expansive --

The

is the "economic

realities" test, which holds that "employees are those who as

a matter of economic reality are dependent upon

to which they

render service."

U.S. 126, 130

(1947); Doty
____

(10th Cir. 1984).

considers

the

relationship but retains

control.

Bartels v. Birmingham,
_______
__________

v. Elias, 733
_____

The third test is

economic

the business

F.2d 720,

332

722-23

a "hybrid" test, which

realities

of

the

employment

a focus on the employer's

right to

See Oestman v. National Farmers Union Ins. Co., 958

___ _______
_______________________________

F.2d 303 (10th Cir. 1992).

The First Circuit has not previously

test to

apply to the ADEA.

In view of

decided which

the Supreme Court's

unanimous decision in Nationwide Mut. Ins. Co. v. Darden, 503

_______________________
______

-1111

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

interpreting a

U.S.C.

Court

that is virtually

faced

U.S. at 323.

definition"

explains

nothing." Id.
__

suggesting a contrary

task

of

ERISA, 29

individual employed by an employer"),

identical to

"nominal

the

"employee" found in

that found in

630(f) ("an individual employed

See Darden, 503

___ ______

that

Darden
______

definition of

1002(6) ("any

U.S.C.

in

that

the ADEA,

by any employer").

The Court found this to

"is

In the

completely

absence

circular

of any

congressional design or an

"absurd results" would follow,

29

be a

and

provision

indication

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

law,

court

common

unless
that

the

must

statute otherwise

Congress

means to

. .

infer,

dictates,

incorporate the

established meaning of these terms. . . .

In the past,

when Congress has used

term 'employee' without

defining it,

have concluded that Congress

describe the conventional
relationship as

the
we

intended to

master-servant

understood by common-law

agency doctrine."

-1212

Darden,
______

503

U.S.

at

322-23 (internal

citations

(quoting Community for Creative Non-Violence

_____________________________________

omitted)

v. Reid,
____

490

U.S. 730, 739-40 (1989) (internal quotation marks omitted)).

To

help avoid

any

confusion on

the matter,

Darden Court
______

went on to

summarize the operative

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

common law

the

other

factors

inquiry

are

source

of

tools;

the

the

relevant
skill

the

to

this

required;

the

instrumentalities

and

location

of

the

duration of the relationship

work; the
between the

parties; whether the hiring party has the

right

to

assign additional

the hired party; the

projects to

extent of the hired

party's discretion over when and how long

to work; the method of payment; the hired
party's

role

in

assistants; whether

hiring

and

the work is

paying
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

test

requires

that

went on

"[']all

to stress that

of

the

the common

incidents

relationship must be assessed and weighed with no one

of

law

the

factor

being decisive.'"

Darden,
______

503 U.S. at 324 (quoting

NLRB v.
____

United Ins. Co. of America, 390 U.S. 254, 258 (1968)).

__________________________

-1313

We conclude

that the Court's opinion

in Darden is
______

sufficiently

proper

standard and

decisions

other

clear to remove doubt as to the identity of the

in

than the

its contours.

those circuits

common

claimant was a covered

Oestman,
_______

958 F.2d

We

that

law test

have employed

in

at 305

(the Tenth

under the ADEA).

Circuit

the traditional common

See, e.g.,
___ ____

an insurance agent is

But see Frankel

_______ _______

law test for

applying the

an

v. Bally, Inc.,
___________

987 F.2d 86, 90 (2d Cir. 1993) (holding that, in

Darden,
______

standards

determining whether

employee under the ADEA.

hybrid test in determining whether

employee

therefore disregard

the wake of

agency must be

applied to the ADEA instead of the hybrid standard).

The

Darden
______

decision also

circumscribes otherwise

suggestive language

in First

federal

legislation

employment

Standards

Act (FLSA).

In

Circuit case

as

the

Fair

Labor

earlier decisions, this court has

looked to a line of Supreme Court

FLSA and Social

such

law interpreting

Security Act

precedent interpreting the

to reach the

view that

"[i]n

determining employer status, 'economic reality' prevails over

technical

712

common law concepts of agency."

F.2d 1509,

Goldberg v.
________

1510

(1st Cir.

Whitaker, 366
________

(citing

United States
_____________

(Social

Security

v.

Act case)

U.S.

1983)

and

(FLSA case)

28, 33

Silk, 331
____

Donovan v. Agnew,
_______
_____

(1961) (FLSA

U.S.

704, 713

(citing

case)

(1947)

Rutherford Food Corp.

_____________________

McComb, 331 U.S. 722, 729 (1947) (FLSA case))).

______

v.

-1414

This

common law

of cases

essentially adopted

view we considered above,

are those who as

upon

line

namely that "employees

a matter of economic reality

are dependent

the business to which they render service."

Birmingham,
__________

332 U.S.

at 130.

The

the non-

Darden Court,
______

Bartels v.
_______

however,

explicitly differentiated

in the FLSA from

ADEA in

of

legislation

pronouncements in

the "economic

may

need to

Darden, 503 U.S. at

______

of the difference between

suggests

that

this

FLSA cases like Donovan

_______

be confined to

were first enunciated.

that the

See
___

reality" test

express reasoning

employee found

that in ERISA, which virtually

this regard.

Court's analysis

the definitions of

In any

325-26.

The

these two pieces

circuit's

earlier

concerning use of

in determining employee

the FLSA context

status

in which they

event, in view of the Court's

in Darden, we feel
______

confident in reasoning

"economic reality" test cannot

into the ADEA context, either

mirrors the

be readily imported

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
________

state

Based

on our

precedent,

we

Massachusetts

traditional

law

agency

review of

are

use

of

the relevant

the

roughly

that

identical

law principles

-1515

view

to

federal and

federal

tests

based

determine whether

and

on

claimant

in

an

age

discrimination

suit

is

protected

employee.

There may be some

state tests

some

of the

are employed in exactly the

language

considered above.

of

control

as

if it

before

instances.

This way

to

in older

same way in view of

Massachusetts decisions

These earlier opinions speak of

considered

counter

question whether the federal and

were

and

the right

predominant

factor that

others,

least

some

of employing the multifactor test

runs

the

Supreme

at

is

in

instructions

above

we

Court

reiterated in

Darden,
______

503

U.S.

at 324

("all

relationship must be assessed and

being

decisive.") (internal

extent any

of

the

incidents of

the

weighed with no one factor

quotations

omitted).

divergence between the federal

To

the

and Massachusetts

multifactor test might exist,3 it would seem to involve cases

in

which

a hired

party is

control" of the hiring party

to every detail."

subject

to the

"at every moment, with

subject

review of

the

evidence that

to the

respect

McDermott's Case, 186 N.E. at 232.

________________

record,

however,

Speen's claim does not present such a case.

not contain

"direction and

reveals

The record does

even remotely suggests

"direction and control"

that

of Crown

Speen was

"at every

____________________

3.

As we more fully explained above, we are

difference
cite

exists since

more recent

not sure such a

Massachusetts opinions

federal cases and the Restatement (Second) of Agency in

support of their discussion.

-1616

moment, with respect to every detail."

We are thus convinced

that

confront

federal

and

Massachusetts

law

Speen

with

multifactored tests concerning employee status that are, as a

practical matter, indistinguishable.

Looking

multifactored test

requires

us

at

the

in

mind

to consider

to be

favorable

as the

that the district court

judgment as

--

the

inferences that are

to Speen

record

with

this

even through

evidence

lens

and the

drawn from it

common

that

reasonable

in the light

non-moving party --

most

we conclude

correctly granted Crown's motion for

matter

of law

on

the

federal ADEA

and

Massachusetts statutory age discrimination claims.

We

do

not see

evidence sufficient

employee

counsel

rather

the jury

to support a

than an

vigorously

how

argues

was

presented with

finding that Speen

independent

contractor.

that

evidence

the

was an

Speen's

presented

established that Crown kept Speen on a "short leash" and that

he

had

to

obey

overwhelmingly

"onerous

shows,

work

rules."

however, that

rather long leash, if not

Speen

The

was

evidence

kept on

actually allowed to run free in

rather large yard, and was

allowed to follow procedures that

afforded

independence for

him the

type of

which employees

typically yearn.

We first

of

call attention to

factors that, as the

the substantial number

district court rightly noted, weigh

-1717

in favor of

was

that

a finding that

Speen's relationship with

that of an independent contractor.

Speen himself

worked on

decided where

any particular

day.

The evidence reveals

he went

How

and how

and in

daily

basis;

report to

in fact,

a Crown

he

appeared

place of

at

long he

what order

covered his territory was something he determined.

not required to

Crown

Speen was

business on

Crown

he

location

infrequently during the year.

Furthermore,

Speen

was

not

required

to

carry

anything, do anything,

went

about

trying

Although Crown

or say anything

to

sell

Crown

in particular as

(and

provided Speen with some

other)

he

products.

business cards that

announced him as a Crown representative and also provided him

with samples

sales, the

that he was free

evidence does

Speen to do

manner

to use in attempting

not indicate that

to make

Crown compelled

anything in particular or somehow controlled the

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

the fact that

he received

contractor status, as does

Form 1099s rather

than W-2s

for

federal tax purposes.

Moreover,

supervisors he wished

Speen

to be

had

early

on

treated as an

told

his

Crown

employee and

in

particular

wished

to

retirement

pension plan.

be

enlisted

Crown

in

Crown's

refused and

gave

employee

Speen a

-1818

take-it-or-leave-it

response,

relationship with Crown.

but

Speen

continued

his

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

factors

that weigh

in

thus represent two

favor of

finding of

additional

independent

contractor status.

Several other salient factors were

the

Speen-Crown

relationship,

correctly noted that they

independent

contractor

although Speen was

his sales and

information

equally compatible

the

or

employee

he had made,

answering

machine,

with the status of

contractor or employee.

district

are all compatible with

relationship.

required to phone Crown

the calls

on an

but

also present in

court

either an

Thus,

daily and report

typically by

leaving

this arrangement

is

either an independent

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

obtained on forms that Crown provided.

stop

selling non-Crown

dollars in sales on

items

once he

fill out orders

Speen also decided to

reached one

Crown's line of products.

court correctly noted that

he

million

The district

these features of the Speen-Crown

relationship

are

essentially

multifactor

test,

since they

neutral

are

-1919

in

terms

of

equally compatible

the

with

either

an employee

evidence

or independent

developed at

plaintiff's case

great and

contractor status.

tedious length

on these points thus

The

during the

did not significantly

advance Speen's view of his relationship with Crown.

On the other hand,

not

only

proposition

that

Speen

did

the evidence presented

accept

Crown offered him, but

the

reveals

take-it-or-leave-it

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

corporation, but

issued

behind

its

Speen's decision

function

is

checks made out jointly

commissions

paid Speen.

Speen's services

The

to

establish

uncontroverted.

to Newton and

earned, and

district court

the

Crown

Speen for the

Newton, in

correctly noted

turn,

that this

fact, while not conclusive in any specific sense, constituted

an additional factor militating against a finding of employee

status.

Under

the

there was not enough

make

a finding

in

favor

conclude

for the

As the

that

factfinder could

of

was a Crown employee for

ADEA or Massachusetts law.

determined,

test, we

evidence from which a

reasoned determination

question of whether he

the

multifactored

Speen on

the

purposes of

district court ably

plaintiff would

not comport

with the applicable legal standard governing employee status.

The ERISA Claim

The ERISA Claim
_______________

-2020

The

ERISA

claim.

preceding

In

view

analysis also

of

the

disposes

Supreme Court's

of Speen's

unanimous

interpretation of the term "employee"

323, Speen

only

in Darden, 503 U.S. at

______

can be considered an employee

if we so find using the same

determine that he is

for ERISA purposes

test we have just used to

not an employee for ADEA purposes.

conclude, therefore, that Speen's

We

ERISA claim fails for lack

of standing.

The Massachusetts Common Law Tort Claims

The Massachusetts Common Law Tort Claims
________________________________________

Speen

disposition

Specifically,

finally

of

his

he

appeals

the

Massachusetts

alleged

that

the

district

common

court's

law

claims.

Silverman

brothers

tortiously interfered with his advantageous relationship with

Crown.

law

The district court entered

in favor of the defendants

a judgment as a matter of

on the tortious interference

claim as well.

Under

plaintiff

established

suing

for

Massachusetts jurisprudence,

relief

on

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

relationship; (3) the

interference with

knowledge

of

defendant's intentional and

it; (4) the plaintiff's

[a]

malicious

loss of advantage

directly resulting from the defendant's conduct."

-2121

such

Comey, 438
_____

N.E.2d

at 816 (citing Owen v. Williams, 77 N.E.2d 318 (Mass.

____
________

1948)).4

Importantly, for our

case

law indicates that this

finding

that

the

plaintiff

purposes here,

Massachusetts

tort claim does

not require a

was an

encompasses independent contractors as

N.E.2d at 816-17.

employee,

well.

This lifts the barrier that

but

rather

See Comey, 438

___ _____

proved fatal

to Speen's federal and state statutory claims.

The

relationship,

lifetime

tort

of

tenure

of

interference

course,

or

does

with

an

advantageous

not recognize

perpetual

business

right

to

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

spiteful, malignant purpose,

corporate interest."

1241, 1246

Mfg.,
____

Wright
______

(Mass. 1992)

unrelated to

v. Shriners Hosp.,
______________

(quoting Sereni v.
______

509 N.E.2d 1203, 1206

the legitimate

(Mass. App. Ct.

589 N.E.2d

Star Sportswear
_______________

1987)).

Under

____________________

4.

Massachusetts

must prove:

courts have

"(1) he had

recently stated

a contract with a

a plaintiff

third party; (2)

the defendant knowingly induced the third party to break that

contract;

(3) the

defendant's interference, in

being intentional, was improper

addition to

in motive or means; and

the plaintiff was harmed by the defendant's actions."

v.

Shriners Hosp.,
_______________

(quoting

589

G.S. Enterprises
________________

1363, 1369 (Mass. 1991)).

N.E.2d
v.

1241,

1245

(Mass.

Falmouth Marine, 571

________________

(4)

Wright
______
1992)
N.E.2d

We do not believe this more recent

formulation changes our analysis.

-2222

Massachusetts law, corporations

and corporate officers

thus

possess both a qualified privilege and a corresponding "duty"

to shareholders

"d[o]

to discharge hired parties

not measure

up to the

job."

when those hired

Sereni, 509
______

N.E.2d at

1206.

This

necessarily,

qualified

are

excuse unlawful

not unbounded.

malevolence or

decision to discharge a

malice

privilege

cause of action "depends on the

what

the

trier

of

The

fact may

concomitant

Whether the

to be held

duty,

privilege does

malice in connection

hired party.

exists for a defendant

and

not

with a

requisite

liable under this

evidence in each case and on

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

discrimination

needed

as sufficient

a showing of intentional age

to

for recovery under this

meet the

proof of

tort claim.

malice

See Comey, 438

___ _____

N.E.2d at 816-17.

Thus, our

sufficient

inquiry turns to whether Speen presented

evidence of

age

question to be put to the

discrimination

jury.

to require

the

For reasons that follow, we

conclude he did not.

In reaching

proffered

other

this result, we focus

statistical arguments

Crown

salesmen and

his

both on Speen's

regarding the

alleged

treatment of

direct evidence

of

-2323

discriminatory motive.

evidence,

"should

of use of

statistical

our cases5 establish that a plaintiff need not and

not be

before prevailing

veins

On the issue

required

to produce

'smoking-gun' evidence

in a discrimination suit.

of circumstantial

evidence

that may

There are many

be

mined by

plaintiff

to

evidence

members

this end.

showing

These

disparate

of the protected

include

treatment by

class."

allowed

treatment,

general

the

use

including

practices

of indirect

evidence

and

[protected classes]."

Lewis
_____

v.

employer

of

v. General Elec.
_____________

Massachusetts courts

evidence

concerning

policies

. statistical

the

Mesnick
_______

Co., 950 F.2d 816, 824 (1st Cir. 1991).

___

have

. .

of

"the

concerning

disparate

employer's

employment

of

Area II Homecare For Sr.

__________________________

Citizens, 493 N.E.2d 867, 872 (Mass. 1986).

________

The

statistical

difficulty

evidence

with

was not

accomplish but rather how.

___

Speen's

in

what
____

attempts

he

was

to

trying

use

to

In particular, Speen attempted to

rely on evidence that compared Crown's treatment of Speen and

Speen's

sales figures

force.

Other

with other

testimony,

members of

however,

Crown's sales

established that

Crown

____________________

5.

For the

issue

we

purposes of
of

course

evaluating the
focus

on

age discrimination

relevant

Massachusetts

precedents. To the extent, however, that Massachusetts courts

approvingly

cite

concerning proof
law

federal cases

in discussing

of discrimination, we turn

the criteria

to federal case

where necessary or fruitful. See, e.g., Lewis v. Area II

___ ____ _____
_______

Homecare For Sr. Citizens, 493 N.E.2d

__________________________
(citing

867, 872 (Mass. 1986)

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804______________________

_____

05 (1973)).

-2424

expected

different results from differently positioned sales

representatives,

were new to

failed

to

treatment

Judge

method

employees

territory, whether they

a territory, and other factors.

explain

was

Keeton

as

depending on their

an

why

the

group

appropriate

correctly

one

the

evidence before the court,

"simply

wants

he

selected

representative

characterized

involving

plaintiff

and

that

In turn, Speen

Speen's

picking

to pick

out

for

sample.

statistical

out

whatever

from

all the

treat[ing] those as if they

were

the only instances, and urg[ing] the

of age

discrimination from

jury to draw inferences

that comparison."

Judge Keeton

was right in saying,

That

won't

expert

do....[I]t

on

understand

doesn't take

statistical
that

of

course

an

method

to

[it]'s

not

appropriate to limit yourself [to some of

the

population]

evidence

for the

when you're

looking at

purpose of

drawing an

inference from a statistical distribution

to pick

only a few [people]

some[ number]

that can be

rather than
shown in some

way on a reasoned basis to be at least

representative

sample

if

not

consideration of all the evidence.

Numbers selected in such an unreasoned

not

sufficient

impermissible

to

support

discrimination.

presented weighs against the

reasoned

Ironically,

fashion are

inference

the

finding of disparate

of

evidence

treatment

that

Speen sought to prove.

people, all

five salesmen

Out

of a sales force of twenty

over the

Speen was discharged in December

age of

70 at the

time

1992 were still selling for

-2525

Crown at

1996.

the time of

Combined

with

the trial

the

fact

of Speen's

that

no

claim in

other

March

salesmen

experienced a larger

five year period

decline in sales than

1987-1992, this part

not permit a reasoned

or

that

Crown's

Speen during the

of the evidence

does

inference either of age discrimination

proffered

reason

for

terminating

Speen

(declining and unsatisfactory sales figures) was pretextual.

Contrary to Speen's assertions, a different result

does not

alleged

statement

allegedly

him:

old?"

obtain if we

consider Speen's testimony

that

asked Silverman

Jack

Silverman

to justify

made

about the

when

the decision

Speen

to fire

"Why do I need a 71 year old when I can have a 51

This piece of

evidence, which we must credit

year

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

Speen was

draw a reasonable inference that

fired due to his age.

In

attention

reaching

to the

line

this

conclusion,

of Massachusetts

which indicate that "'isolated

to suggest

animus based

we

first

and federal

on age, are

Husky Injection Molding Sys.,

_____________________________

(Mass.

1995) (quoting

cases

or ambiguous remarks, tending

insufficient, standing

alone, to prove an employer's discriminatory intent.'"

v.

call

Fontaine v.
________

646 N.E.2d

111, 118

Ebtec Corp.,
___________

Blare
_____

n.9

613 N.E.2d

881, 885 n.7 (Mass. 1993) (citing Gagne v. Northwestern Nat'l

_____
__________________

-2626

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

isolated or ambiguous but

of

age

discrimination

the statement was

not

rather constitutes direct evidence

and

reveals

that

the

protected

characteristic --

decision

to

age

-- was

fire him.

motivating factor

Speen's

counsel

thus urges

conclude that "even standing alone the plaintiff's

of Jack

old

in

the

us to

quotation

Silverman's comment to him, 'Why do I need a 71 year

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

case law instructs us not to consider the

alone

the

but instead to look

totality of the circumstances.

finder looking solely at

year

at all the

old

when I

can

statement standing

evidence presented in

In other

the statement "Why

have a

51

relevant

year old"

words, a fact

do I need a

could

71

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

-2727

ruling

that

there

was

insufficient

evidence

inference

that Speen

reasonable

inference

terminating

Speen

for

jury

was fired due

that

Crown's

(declining

and

to

draw

to his age

reasonable

or permit a

proffered

reason

unsatisfactory

for

sales

figures) was pretextual.

To

than

the

the extent

one Speen

that we

urges,

a court to do

bar

difference.

proffered

direct

discrimination

evidence

view

of what

in a case like

the one at

Speen correctly

notes that

of

employment

unlawful

removes a claimant's case from the well-known

McDonnell Douglas
_________________

facie

different outcome

Speen's mistaken

precedent requires

explains this

reach a

three-part test for

discrimination (prima

case, legitimate business justification, and rebuttal)

operative in

essentially the same way

in both Massachusetts

and federal courts.

We have indicated as much.

F.W. Morse & Co., 76 F.3d 413,

_________________

See Smith v.
___ _____

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

employment

characteristic was

action

inapposite."); see
___

--

motivating

factor

the McDonnell Douglas

__________________

in

the

framework

is

also Smith v. Stratus Computer, Inc., 40

____ _____
_______________________

F.3d 11, 15 (1st Cir. 1994).

Notwithstanding

the

fact

that

the

what Speen would

familiar framework

have us believe,

that

guides

cases

involving indirect, circumstantial evidence of discrimination

-2828

may

be

inapposite

here

does

not

conclude

Specifically, whether Silverman's alleged

constitutes direct evidence

the

statement actually

of discriminatory motive remains

somewhat of an open question, since the line in the

between

what

constitutes

discriminatory motive

matter.

direct and

indirect

is blurred rather than

case law

evidence of

clearly drawn.

See Smith, 76 F.3d at 421.

___ _____

thus be less

fact

than fruitful

that this

Circuit

constitutes direct

Gerena
______

References to "smoking guns"

has

to the extent

yet

to

can

they obscure

define

clearly

evidence of discrimination.

See
___

the

what

Ayala______

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

the district court took

decide

whether

or

and the approach

in resolving this case, we

not

Silverman's

alleged

constituted a "smoking gun" because the result

the same

either

way.

As

we have

previously

need not

statement

here would be

noted in

similar

case

involving

appellate

review

of

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

-2929

direct evidence/circumstantial

to go

directly to

evidence

a finding

presented, [Crown

evidence tamisage, preferring

that, on the

and

totality of

the Silvermans]

the

had proven

that [age] discrimination did not trigger the firing."

Id.
__

The evidence presented in the instant case resolves

the

age discrimination

whether

we find

Jack

issue

in favor

of the

Silverman's alleged

defendants,

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

year

evidence

period 1987-1992.

The

does show

the five

that some

salesmen who were not terminated had sales that declined more

than

Speen's in

absolute dollar

prior to Speen's termination.

Crown salesmen each faced

year-to-year

sales,

terms in

the year

or two

But other evidence shows that

different expectations in terms of

depending

on

the

location

of

their

territory, how long they had covered it, and other factors.

The

evidence

supervisors were

Jack Silverman

unhappy with

so prior

indicates

to

on numerous occasions in

Speen's

that

Speen's

Speen's performance and

had complained about Speen's

figures and attitude

or

further

termination.

In

that

declining sales

the two years

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

-3030

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

further reveals

"a

real

salesman."

both that Crown had

The

evidence

terminated the services

of

several salesmen and that other salesmen had retired.

discernible age-related

pattern, however, emerges

No

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

Crown

discharge in

at the time

December 1992

of Speen's trial

still sold

in March 1996.

for

One of

those active salesmen was over 80 years old.

This proffered evidence --

most favorable to Speen,

considered in the light

but also in its entirety

-- cannot

be said either to permit a reasonable factfinder to reach the

conclusion

that

discrimination

or

Speen's

to

firing

permit

was

triggered

reasonable

by

age

inference that

Crown's proffered reason for terminating Speen (declining and

unsatisfactory sales

figures) was

pretextual.

jury credited Jack Silverman's alleged

Even

if the

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

reasonable inferences

favorable

to

is to

review

the

evidence

extractable from it in

the nonmovant,

namely,

-3131

Speen.

and

the

the light most

While

"this

approach does not allow the court to consider the credibility

of witnesses, resolve conflicts in testimony, or evaluate the

weight

of the

every

case, no

Smith,
_____

76 F.3d

omitted).

not

evidence, neither

matter

at

how

does it

sketchy,

425 (internal

pave the

to reach

quotations and

way for

the

jury."

citations

Put another way, "a mere scintilla of evidence is

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

omitted).

These

time-worn

425-26

(internal

principles of

quotations

law support

the

district court's disposition of this part of Speen's action.

question

Nothing

in

this

result

discrimination

Speen's

issue

the

Massachusetts cases

given

we

are

state common law tort

the

fact

considering

claim.

As

leads

that

is

us to

the

age

embedded

in

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

evidence."

trier of fact may reasonably infer from that

Gram,
____

429

N.E.2d

at

24.

"Any

reasonable

inference of malice must, however, be based on probabilities,

rather

than

possibilities."

quotations omitted).

In view

Id.
__

at

24-25

of the language

(internal

in Gram,
____

we

thus

conclude

Speen's

that

claim (that

Massachusetts

he was

courts

fired due

would

to his

not

age) as

view

one

-3232

supported by reasonable

inferences drawn

presented.

Conclusion
Conclusion

from the

evidence

__________

Speen

support

failed to

a finding that he

protection under

did

remaining

evidence

entry

he

sufficient

was a Crown

produce

presented, we

of judgment

as

defendants was correct.

Affirmed.
Affirmed.

sufficient

common law

conclude

a matter

tort

to

law for

rights.

support

claims.

that the

of

to

state statutory

discrimination and pension

evidence

Massachusetts

evidence

employee who enjoyed

the applicable federal and

provisions governing age

Nor

provide

On

his

the

district court's

the

appellee-

-3333