

                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 &amp;                                                                      
DeGiacomo were on brief for appellees.                 

                                         

                      December 23, 1996
                                         

          STAHL, Circuit Judge.  Plaintiff-appellant, William                      STAHL, Circuit Judge.                                          

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                           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 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

                             -2-                                          2

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).  Without benefit of

any MCAD  determination that  would 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

                                                    

1.  Speen  also asserted claims  under Massachusetts statutes
governing minimum  wage, overtime  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  limitations. Speen

                             -3-                                          3

          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.

                                                    

subsequently voluntarily dismissed these claims. 

2.  Crown and the Silvermans had previously filed a motion to
dismiss and a motion for summary judgment on  essentially the
same  grounds. The district court denied both motions. At the
summary judgment  hearing, the district court  noted that the
undisputed   facts  "weigh[ed]   quite   heavily  toward   an
evaluative determination of  independent contractor  status,"
explaining  that it was "very likely that that's the way it's
going to appear to  [the court] at the end of the plaintiff's
evidence."  The   court   nonetheless  denied   the   motion,
determining that  a more  appropriate time for  resolving the
employee/independent contractor  issue would be at  the close
of the plaintiff's  evidence in connection with a  motion for
judgment as a matter of law.

                             -4-                                          4

                      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).  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                      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  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

                             -5-                                          5

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,  438 N.E.2d  811, 814                                                  

(Mass.  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

                             -6-                                          6

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, 186  N.E. 231, 232  (Mass. 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., 164 N.E. 77, 78 (Mass. 1928) ("Although the                            

conclusive test of  the relationship of master and servant is

                             -7-                                          7

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, 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

                             -8-                                          8

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 every

detail")  necessary to conclusively establish employee status

without  looking  to  any  of  the  additional  "subordinate"

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

the common law test as being a multifactored one.

          Subsequent   Massachusetts   case  law,   in  fact,

acknowledges as  much.  While recognizing the vitality of the

common  law test  in  Massachusetts, for  example, the  Comey                                                                         

court explained  that "[t]rial  judges  should carefully  and

fully instruct juries on  all the factors that may  be useful

in  distinguishing  employees from  independent contractors."

Comey, 438 N.E.2d at  815.  This language indicates  that the                 

common  law test in Massachusetts, as  in other states, while

directed towards  the question of right  of control, involves

the assessment of multiple factors.  See Restatement (Second)                                                                         

of  Agency   220 (1957).  Indeed, the Comey court immediately                                                       

goes  on  to  cite  with  approval federal  cases  which,  it

explains, "list[]  factors  which may  distinguish  employees

from independent contractors."  Id.                                              

          Confronted with such language,  lower Massachusetts

courts have proceeded on the view that 

          [i]n  the  employment context,  a master-
          servant relationship is  determined by  a
          number of factors, including the right of
          the  employer to  control the  details of

                             -9-                                          9

          the work done by the employee, the method
          of  payment, the  skill  required in  the
          particular   occupation,    whether   the
          employer     supplies     the      tools,
          instrumentalities and place  of work,  as
          well  as the  parties' own  belief as  to
          whether  they  are  creating   a  master-
          servant relationship.

Chase  v. Independent  Practice  Ass'n, 583  N.E.2d 251,  253                                                  

(Mass. App. Ct. 1991).

          The  district  court  thus  did  not  err  when  it

determined this multifactored approach  to be the  applicable

legal test  in Massachusetts.  Contrary  to Speen's assertion

that  the district  court  found  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   established  and  other  factors  need  to  be

examined.  Given how Massachusetts precedent discusses "right

of control" in its  technical sense, this would seem  to mean

the  multifactored test  is triggered  when employer  control

does not  encompass the person  hired "at every  moment, with

respect to every detail."  McDermott's Case, 186 N.E. at 232.                                                       

          It is  thus not  so much  the case that  additional

"subordinate" factors might outweigh the existence of a right

of  control  (as  Speen  wrongly contends  was  the  district

court's  view) as  it is  that the  failure to  demonstrate a

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

that term serves as the  gateway to a multifactored analysis.

                             -10-                                          10

This  analysis,  in  turn, does  not  ignore  but takes  into

account  the  level  of  control present  in  the  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  have used at least  three different

tests  to determine whether a  claimant is a covered employee

rather than an unprotected independent contractor under anti-

discrimination acts such as the ADEA.  The  first test is the

traditional common law  test of agency  which focuses on  the

employer's right of  control using a  multifactored analysis.

See Frankel v. Bally, Inc., 987  F.2d 86 (2d Cir. 1993).  The                                      

second test  -- typically more expansive --  is the "economic

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

a matter of economic reality are dependent upon  the business

to which they  render service."   Bartels v. Birmingham,  332                                                                   

U.S. 126, 130  (1947); Doty  v. Elias, 733  F.2d 720,  722-23                                                 

(10th Cir. 1984).   The third test is  a "hybrid" test, which

considers   the  economic   realities   of   the   employment

relationship but retains  a focus on the employer's  right to

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

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

          The First Circuit has not previously  decided which

test to  apply to the ADEA.   In view of  the Supreme Court's

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

                             -11-                                          11

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   Court  in  Darden   faced  the  task   of                                                 

interpreting a  definition of  "employee" found in  ERISA, 29

U.S.C.   1002(6) ("any  individual employed by an employer"),

that is virtually  identical to  that found in  the ADEA,  29

U.S.C.    630(f) ("an individual employed  by any employer").

See Darden, 503  U.S. at 323.   The Court found this to  be a                      

"nominal  definition"  that   "is  completely  circular   and

explains  nothing." Id.    In the  absence  of any  provision                                  

suggesting a contrary  congressional design or an  indication

that  "absurd results" would follow,  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  common  law,  a  court  must  infer,
          unless  the  statute otherwise  dictates,
          that  Congress  means to  incorporate the
          established meaning of these terms. . . .
          In the past,  when Congress has used  the
          term 'employee' without  defining it,  we
          have concluded that Congress  intended to
          describe the conventional  master-servant
          relationship as  understood by common-law
          agency doctrine."

                             -12-                                          12

Darden,  503  U.S.  at  322-23 (internal  citations  omitted)                  

(quoting Community  for  Creative Non-Violence  v. Reid,  490                                                                   

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

          To  help avoid  any  confusion on  the matter,  the

Darden Court  went on to  summarize the operative  common law                  

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  other  factors   relevant  to   this
          inquiry  are  the  skill   required;  the
          source   of  the   instrumentalities  and
          tools;  the  location  of  the  work; the
          duration of the relationship  between the
          parties; whether the hiring party has the
          right  to  assign additional  projects to
          the hired party; the  extent of the hired
          party's discretion over when and how long
          to work; the method of payment; the hired
          party's   role   in  hiring   and  paying
          assistants; whether  the work is  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  went on  to stress that  the common  law

test  requires   that  "[']all   of  the  incidents   of  the

relationship must be assessed and weighed with no one  factor

being decisive.'"  Darden,  503 U.S. at 324 (quoting  NLRB v.                                                                      

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

                             -13-                                          13

          We conclude  that the Court's opinion  in Darden is                                                                      

sufficiently  clear to remove doubt as to the identity of the

proper  standard and  its contours.   We  therefore disregard

decisions  in  those circuits  that  have employed  standards

other  than the  common  law test  in  determining whether  a

claimant was a covered  employee under the ADEA.   See, e.g.,                                                                        

Oestman,  958 F.2d  at 305  (the Tenth  Circuit  applying the                   

hybrid test in determining whether  an insurance agent is  an

employee  under the ADEA).   But see Frankel  v. Bally, Inc.,                                                                        

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

Darden,  the traditional common  law test for  agency must be                  

applied to the ADEA instead of the hybrid standard). 

          The  Darden  decision also  circumscribes otherwise                                 

suggestive language  in First  Circuit case  law interpreting

federal  employment  legislation  such  as   the  Fair  Labor

Standards  Act (FLSA).  In  earlier decisions, this court has

looked to a line of Supreme Court  precedent interpreting the

FLSA and Social  Security Act  to reach the  view that  "[i]n

determining employer status, 'economic reality' prevails over

technical  common law concepts of agency."  Donovan v. Agnew,                                                                        

712  F.2d 1509,  1510  (1st Cir.  1983)  (FLSA case)  (citing

Goldberg v.  Whitaker, 366  U.S.  28, 33  (1961) (FLSA  case)                                 

(citing  United States  v.  Silk, 331  U.S.  704, 713  (1947)                                            

(Social  Security  Act case)  and  Rutherford  Food Corp.  v.                                                                    

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

                             -14-                                          14

          This  line  of cases  essentially adopted  the non-

common law  view we considered above,  namely that "employees

are those who as  a matter of economic reality  are dependent

upon  the business to which they render service."  Bartels v.                                                                      

Birmingham,  332 U.S.  at 130.   The  Darden Court,  however,                                                        

explicitly differentiated  the definitions of  employee found

in the FLSA from  that in ERISA, which virtually  mirrors the

ADEA in  this regard.  See  Darden, 503 U.S. at  325-26.  The                                              

Court's analysis  of the difference between  these two pieces

of   legislation   suggests  that   this   circuit's  earlier

pronouncements in  FLSA cases like Donovan  concerning use of                                                      

the "economic  reality" test  in determining employee  status

may  need to  be confined to  the FLSA context  in which they

were first enunciated.  In any  event, in view of the Court's

express reasoning  in Darden, we feel  confident in reasoning                                        

that the  "economic reality" test cannot  be readily imported

into the ADEA context, either  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                    

          Based  on our  review of  the relevant  federal and

state  precedent,  we  are  of  the  view  that  federal  and

Massachusetts  law  use  roughly  identical  tests  based  on

traditional  agency  law principles  to  determine whether  a

                             -15-                                          15

claimant  in  an  age  discrimination  suit  is  a  protected

employee. 

          There may be some  question whether the federal and

state tests  are employed in exactly the  same way in view of

some  of the  language  in older  Massachusetts decisions  we

considered above.  These earlier opinions speak of  the right

of  control  as  if it  were  a  predominant  factor that  is

considered  before  and  above   others,  at  least  in  some

instances.  This way  of employing the multifactor test  runs

counter  to  instructions  the  Supreme  Court  reiterated in

Darden,  503  U.S.  at 324  ("all  of  the  incidents of  the                  

relationship must be assessed and  weighed with no one factor

being  decisive.") (internal  quotations  omitted).   To  the

extent any  divergence between the federal  and Massachusetts

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

in  which  a hired  party is  subject  to the  "direction and

control" of the hiring party  "at every moment, with  respect

to every detail."  McDermott's Case, 186 N.E. at 232.                                               

          A  review of  the  record,  however,  reveals  that

Speen's claim does not present such a case.   The record does

not contain  evidence that  even remotely suggests  Speen was

subject  to the  "direction and control"  of Crown  "at every

                                                    

3.  As we more fully explained above, we are  not sure such a
difference  exists since  more recent  Massachusetts opinions
cite  federal cases and the Restatement (Second) of Agency in
support of their discussion. 

                             -16-                                          16

moment, with respect to every detail."  We are thus convinced

that  federal  and  Massachusetts  law  confront  Speen  with

multifactored tests concerning employee status that are, as a

practical matter, indistinguishable.

          Looking   at   the   record   with    this   common

multifactored test  in  mind  --  even through  a  lens  that

requires  us  to consider  the  evidence  and the  reasonable

inferences that are  to be  drawn from it  in the light  most

favorable  to Speen  as the  non-moving party --  we conclude

that the district court  correctly granted Crown's motion for

a  judgment as  a  matter  of law  on  the  federal ADEA  and

Massachusetts statutory age discrimination claims.

          We  do  not see  how  the jury  was  presented with

evidence sufficient  to support a  finding that Speen  was an

employee  rather  than an  independent  contractor.   Speen's

counsel  vigorously  argues   that  the  evidence   presented

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

he  had  to  obey   "onerous  work  rules."    The   evidence

overwhelmingly  shows,  however, that  Speen  was  kept on  a

rather long leash, if not  actually allowed to run free in  a

rather large yard, and was  allowed to follow procedures that

afforded  him the  type of  independence for  which employees

typically yearn.

          We first  call attention to  the substantial number

of  factors that, as the  district court rightly noted, weigh

                             -17-                                          17

in favor of  a finding that  Speen's relationship with  Crown

was  that of an independent contractor.  The evidence reveals

that  Speen himself  decided where  he went  and how  long he

worked on  any particular  day.   How  and in  what order  he

covered his territory was something he determined.  Speen was

not required to  report to  a Crown  place of  business on  a

daily  basis;  in fact,  he  appeared  at  a  Crown  location

infrequently during the year.

          Furthermore,  Speen  was   not  required  to  carry

anything, do anything,  or say anything  in particular as  he

went  about  trying  to  sell  Crown  (and  other)  products.

Although Crown  provided Speen with some  business cards that

announced him as a Crown representative and also provided him

with samples  that he was free  to use in attempting  to make

sales, the  evidence does  not indicate that  Crown compelled

Speen to do  anything in particular or somehow controlled the

manner  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  contractor status, as does

the fact that  he received  Form 1099s rather  than W-2s  for

federal tax purposes.

          Moreover,  Speen  had  early  on   told  his  Crown

supervisors he wished  to be  treated as an  employee and  in

particular  wished   to  be  enlisted   in  Crown's  employee

retirement  pension plan.   Crown  refused and  gave  Speen a

                             -18-                                          18

take-it-or-leave-it   response,   but  Speen   continued  his

relationship with Crown.  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  thus represent two  additional

factors  that weigh  in  favor of  a  finding of  independent

contractor status.

          Several other salient factors were  also present in

the   Speen-Crown  relationship,   but  the   district  court

correctly noted that they  are all compatible with  either an

independent  contractor  or  employee  relationship.    Thus,

although Speen was  required to phone Crown  daily and report

his sales and  the calls  he had made,  typically by  leaving

information  on an  answering  machine,  this arrangement  is

equally compatible  with the status of  either an independent

contractor or employee.

          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  fill out orders  he

obtained on forms that Crown provided.  Speen also decided to

stop  selling non-Crown  items  once he  reached one  million

dollars in sales on  Crown's line of products.   The district

court correctly noted that  these features of the Speen-Crown

relationship  are   essentially  neutral  in   terms  of  the

multifactor  test,  since they  are  equally compatible  with

                             -19-                                          19

either  an employee  or independent  contractor status.   The

evidence  developed at  great and  tedious length  during the

plaintiff's case  on these points thus  did not significantly

advance Speen's view of his relationship with Crown. 

          On the other hand,  the evidence presented  reveals

not  only  that  Speen  did  accept  the  take-it-or-leave-it

proposition  Crown offered him, but  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  behind  Speen's decision  to  establish  the

corporation, but  its  function  is  uncontroverted.    Crown

issued  checks made out jointly  to Newton and  Speen for the

commissions  Speen's services  earned, and  Newton, in  turn,

paid Speen.   The  district court  correctly noted  that this

fact, while not conclusive in any specific sense, constituted

an additional factor militating against a finding of employee

status.

          Under  the  multifactored  test, we  conclude  that

there was not enough  evidence from which a  factfinder could

make  a  reasoned determination  in  favor  of  Speen on  the

question of whether he  was a Crown employee for  purposes of

the  ADEA or Massachusetts law.   As the  district court ably

determined,  a finding  for the  plaintiff would  not comport

with the applicable legal standard governing employee status.

                       The ERISA Claim                                   The ERISA Claim                                                  

                             -20-                                          20

          The  preceding  analysis also  disposes  of Speen's

ERISA  claim.   In  view  of  the  Supreme Court's  unanimous

interpretation of the term "employee"  in Darden, 503 U.S. at                                                            

323, Speen  can be considered an employee  for ERISA purposes

only  if we so find using the same  test we have just used to

determine that he is  not an employee for ADEA purposes.   We

conclude, therefore, that Speen's  ERISA claim fails for lack

of standing.

           The Massachusetts Common Law Tort Claims                       The Massachusetts Common Law Tort Claims                                                               

           Speen   finally   appeals  the   district  court's

disposition  of   his   Massachusetts  common   law   claims.

Specifically,   he  alleged   that  the   Silverman  brothers

tortiously interfered with his advantageous relationship with

Crown.  The district court entered  a judgment as a matter of

law  in favor of the defendants  on the tortious interference

claim as well.

          Under  established  Massachusetts jurisprudence,  a

plaintiff   suing  for   relief  on   a  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  knowledge   of  such   [a]

relationship; (3) the  defendant's intentional and  malicious

interference with  it; (4) the plaintiff's  loss of advantage

directly resulting from the defendant's conduct."  Comey, 438                                                                    

                             -21-                                          21

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

1948)).4

          Importantly, for our  purposes here,  Massachusetts

case  law indicates that this  tort claim does  not require a

finding  that  the  plaintiff  was an  employee,  but  rather

encompasses independent contractors as  well.  See Comey, 438                                                                    

N.E.2d at 816-17.   This lifts the barrier that  proved fatal

to Speen's federal and state statutory claims.

          The  tort  of  interference  with  an  advantageous

relationship,  of  course,  does  not recognize  a  right  to

lifetime   tenure  or  a   perpetual  business  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

a  spiteful, malignant purpose,  unrelated to  the legitimate

corporate interest."   Wright  v. Shriners Hosp.,  589 N.E.2d                                                            

1241, 1246  (Mass. 1992)  (quoting Sereni v.  Star Sportswear                                                                         

Mfg.,  509 N.E.2d 1203, 1206  (Mass. App. Ct.  1987)).  Under                

                                                    

4.   Massachusetts  courts have  recently stated  a plaintiff
must prove:  "(1) he had  a contract with a  third party; (2)
the defendant knowingly induced the third party to break that
contract;  (3) the  defendant's interference, in  addition to
being intentional, was improper  in motive or means; and  (4)
the plaintiff was harmed by the defendant's actions."  Wright                                                                         
v.  Shriners  Hosp.,  589  N.E.2d  1241,  1245  (Mass.  1992)                               
(quoting  G.S. Enterprises  v.  Falmouth  Marine, 571  N.E.2d                                                            
1363, 1369 (Mass. 1991)).  We do not believe this more recent
formulation changes our analysis. 

                             -22-                                          22

Massachusetts law, corporations  and corporate officers  thus

possess both a qualified privilege and a corresponding "duty"

to shareholders  to discharge hired parties  when those hired

"d[o]  not measure  up to the  job."   Sereni, 509  N.E.2d at                                                         

1206.

          This  qualified  privilege  and  concomitant  duty,

necessarily,  are  not unbounded.    The  privilege does  not

excuse unlawful  malevolence or  malice in connection  with a

decision to discharge a  hired party.  Whether the  requisite

malice  exists for a defendant  to be held  liable under this

cause of action "depends on the  evidence in each case and on

what  the  trier  of  fact may  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  a showing of intentional age

discrimination  as sufficient  to  meet the  proof of  malice

needed  for recovery under this  tort claim.   See Comey, 438                                                                    

N.E.2d at 816-17.

          Thus, our  inquiry turns to whether Speen presented

sufficient  evidence of  age  discrimination  to require  the

question to be put to the  jury.  For reasons that follow, we

conclude he did not. 

          In reaching  this result, we focus  both on Speen's

proffered  statistical arguments  regarding the  treatment of

other  Crown  salesmen and  his  alleged  direct evidence  of

                             -23-                                          23

discriminatory motive.   On the issue  of use of  statistical

evidence,  our cases5 establish that a plaintiff need not and

"should  not be  required  to produce  'smoking-gun' evidence

before prevailing  in a discrimination suit.   There are many

veins  of circumstantial  evidence  that may  be  mined by  a

plaintiff  to  this end.   These  include  . .  . statistical

evidence  showing  disparate  treatment by  the  employer  of

members  of the protected  class."  Mesnick  v. General Elec.                                                                         

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

have  allowed  the  use  of indirect  evidence  of  disparate

treatment,  including  evidence  concerning  "the  employer's

general  practices  and  policies  concerning  employment  of

[protected classes]."   Lewis  v.  Area II  Homecare For  Sr.                                                                         

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

          The  difficulty   with  Speen's  attempts   to  use

statistical  evidence  was not  in  what  he  was  trying  to                                                    

accomplish but rather how.  In particular, Speen attempted to                                     

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

Speen's  sales figures  with other  members of  Crown's sales

force.   Other  testimony,  however,  established that  Crown

                                                    

5.   For the  purposes of  evaluating the  age discrimination
issue   we  of   course  focus   on  relevant   Massachusetts
precedents. To the extent, however, that Massachusetts courts
approvingly  cite  federal cases  in discussing  the criteria
concerning proof  of discrimination, we turn  to federal case
law  where necessary or fruitful. See, e.g., Lewis v. Area II                                                                         
Homecare  For Sr. Citizens, 493 N.E.2d  867, 872 (Mass. 1986)                                      
(citing  McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-                                                     
05 (1973)).   

                             -24-                                          24

expected  different results from differently positioned sales

representatives,  depending on their  territory, whether they

were new to  a territory, and other factors.   In turn, Speen

failed  to  explain  why  the  group  that  he  selected  for

treatment  was  an  appropriate  and  representative  sample.

Judge  Keeton  correctly  characterized  Speen's  statistical

method  as   one  involving  "simply  picking   out  whatever

employees  the  plaintiff  wants  to pick  out  from  all the

evidence before the court,  treat[ing] those as if they  were

the only instances, and urg[ing] the  jury to draw inferences

of age  discrimination from  that comparison."   Judge Keeton

was right in saying,

          That  won't  do....[I]t  doesn't take  an
          expert    on   statistical    method   to
          understand  that  of  course  [it]'s  not
          appropriate to limit yourself [to some of
          the  population]  when you're  looking at
          evidence  for the  purpose of  drawing an
          inference from a statistical distribution
          to pick  only a few [people]  rather than
          some[ number]  that can be  shown in some
          way on a reasoned basis to be at least  a
          representative    sample    if   not    a
          consideration of all the evidence.

          Numbers selected in such an unreasoned  fashion are

not   sufficient  to   support   a  reasoned   inference   of

impermissible  discrimination.    Ironically,   the  evidence

presented weighs against the  finding of disparate  treatment

that  Speen sought to prove.  Out  of a sales force of twenty

people, all  five salesmen  over the  age of  70 at the  time

Speen was discharged in December  1992 were still selling for

                             -25-                                          25

Crown at  the time of  the trial  of Speen's  claim in  March

1996.    Combined  with  the  fact  that  no  other  salesmen

experienced a larger  decline in sales than  Speen during the

five year period  1987-1992, this part  of the evidence  does

not permit a reasoned  inference either of age discrimination

or  that  Crown's  proffered  reason  for  terminating  Speen

(declining and unsatisfactory sales figures) was pretextual.

           Contrary to Speen's assertions, a different result

does not  obtain if we  consider Speen's testimony  about the

alleged  statement  that  Jack  Silverman  made  when   Speen

allegedly  asked Silverman  to justify  the decision  to fire

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

old?"  This piece of  evidence, which we must credit  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  draw a reasonable inference that  Speen was

fired due to his age.

          In   reaching  this   conclusion,  we   first  call

attention  to the  line  of Massachusetts  and federal  cases

which indicate that "'isolated  or ambiguous remarks, tending

to suggest  animus based  on age, are  insufficient, standing

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

v.  Husky Injection  Molding Sys.,  646 N.E.2d  111, 118  n.9                                             

(Mass.  1995) (quoting  Fontaine v.  Ebtec Corp.,  613 N.E.2d                                                            

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

                             -26-                                          26

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  the statement was  not

isolated or ambiguous but  rather constitutes direct evidence

of  age   discrimination  and  reveals  that   the  protected

characteristic --  age  -- was  a  motivating factor  in  the

decision  to  fire him.   Speen's  counsel  thus urges  us to

conclude that "even standing alone the plaintiff's  quotation

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

old  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  relevant

case law instructs us not to consider the  statement standing

alone  but instead to look  at all the  evidence presented in

the  totality of the circumstances.   In other  words, a fact

finder looking solely at  the statement "Why  do I need a  71

year  old  when I  can  have a  51  year old"  could  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   ruling  that   there  was

                             -27-                                          27

insufficient  evidence  for  a  jury  to  draw  a  reasonable

inference  that Speen  was fired due  to his age  or permit a

reasonable  inference  that   Crown's  proffered  reason  for

terminating   Speen   (declining  and   unsatisfactory  sales

figures) was pretextual.

          To  the extent  that we  reach a  different outcome

than  the  one Speen  urges,  Speen's mistaken  view  of what

precedent requires  a court to do  in a case like  the one at

bar  explains this  difference.   Speen correctly  notes that

proffered    direct    evidence   of    unlawful   employment

discrimination  removes a claimant's case from the well-known

McDonnell Douglas  three-part test for  discrimination (prima                             

facie  case, legitimate business justification, and rebuttal)

operative in  essentially the same way  in both Massachusetts

and federal courts.  We have indicated as much.  See Smith v.                                                                      

F.W.  Morse &amp; Co., 76 F.3d 413,  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  characteristic was  a  motivating  factor  in  the

employment  action  --  the McDonnell  Douglas  framework  is                                                          

inapposite."); see  also Smith v. Stratus  Computer, Inc., 40                                                                     

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

          Notwithstanding  what Speen would  have us believe,

the  fact  that  the  familiar framework  that  guides  cases

involving indirect, circumstantial evidence of discrimination

                             -28-                                          28

may  be  inapposite  here   does  not  conclude  the  matter.

Specifically, whether Silverman's alleged  statement actually

constitutes direct evidence  of discriminatory motive remains

somewhat of an open question, since the line in the  case law

between  what  constitutes  direct and  indirect  evidence of

discriminatory motive  is blurred rather than  clearly drawn.

See Smith, 76 F.3d at 421.  References to "smoking guns"  can                     

thus be less  than fruitful  to the extent  they obscure  the

fact  that this  Circuit  has  yet  to  define  clearly  what

constitutes direct  evidence of discrimination.   See  Ayala-                                                                         

Gerena  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  and the approach

the district court took  in resolving this case, we  need not

decide   whether   or  not   Silverman's   alleged  statement

constituted a "smoking gun" because the result  here would be

the same  either  way.   As  we have  previously  noted in  a

similar  case   involving  appellate  review  of  a  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

                             -29-                                          29

direct evidence/circumstantial  evidence tamisage, preferring

to go  directly to  a finding  that, on the  totality of  the

evidence  presented, [Crown  and  the Silvermans]  had proven

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

          The evidence presented in the instant case resolves

the  age discrimination  issue  in favor  of the  defendants,

whether  we find  Jack  Silverman's alleged  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  the five

year  period 1987-1992.   The  evidence  does show  that some

salesmen who were not terminated had sales that declined more

than  Speen's in  absolute dollar  terms in  the year  or two

prior to Speen's termination.   But other evidence shows that

Crown salesmen each faced  different expectations in terms of

year-to-year  sales,  depending  on  the  location  of  their

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

          The   evidence   further  indicates   that  Speen's

supervisors were  unhappy with  Speen's performance and  that

Jack Silverman  had complained about Speen's  declining sales

figures and attitude  on numerous occasions in  the two years

or  so prior  to  Speen's  termination.    In  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

                             -30-                                          30

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  "a  real  salesman."   The  evidence

further reveals  both that Crown had  terminated the services

of  several salesmen and that other salesmen had retired.  No

discernible age-related  pattern, however, emerges  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  discharge in  December 1992  still sold  for

Crown  at the time  of Speen's trial  in March 1996.   One of

those active salesmen was over 80 years old.

          This proffered evidence --  considered in the light

most favorable to Speen,  but also in its entirety  -- cannot

be said either to permit a reasonable factfinder to reach the

conclusion   that  Speen's  firing   was  triggered   by  age

discrimination  or  to  permit  a  reasonable  inference that

Crown's proffered reason for terminating Speen (declining and

unsatisfactory sales  figures) was  pretextual.  Even  if the

jury credited Jack Silverman's alleged  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  is to  review  the  evidence  and  the

reasonable inferences  extractable from it in  the light most

favorable  to  the nonmovant,  namely,  Speen.   While  "this

                             -31-                                          31

approach does not allow the court to consider the credibility

of witnesses, resolve conflicts in testimony, or evaluate the

weight  of the  evidence, neither  does it  pave the  way for

every  case, no  matter  how  sketchy,  to reach  the  jury."

Smith,  76 F.3d  at  425 (internal  quotations and  citations                 

omitted).   Put another way, "a mere scintilla of evidence is

not  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  425-26   (internal  quotations                                    

omitted).   These  time-worn  principles of  law support  the

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

          Nothing  in  the  Massachusetts cases  leads  us to

question   this  result   given   the  fact   that  the   age

discrimination  issue  we  are  considering  is  embedded  in

Speen's  state common law tort  claim.  As  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  trier of fact may reasonably infer from that

evidence."    Gram,  429  N.E.2d  at  24.    "Any  reasonable                              

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

rather  than  possibilities."     Id.   at  24-25   (internal                                                

quotations omitted).   In view  of the language  in Gram,  we                                                                    

thus  conclude  that  Massachusetts  courts  would  not  view

Speen's  claim (that  he was  fired due  to his  age) as  one

                             -32-                                          32

supported by reasonable  inferences drawn  from the  evidence

presented.

                          Conclusion                                      Conclusion                                                

          Speen  failed to  provide  sufficient  evidence  to

support  a finding that he  was a Crown  employee who enjoyed

protection under  the applicable federal and  state statutory

provisions governing age  discrimination and pension  rights.

Nor  did  he  produce  evidence  sufficient  to  support  his

remaining  Massachusetts  common law  tort  claims.   On  the

evidence  presented, we  conclude  that the  district court's

entry  of judgment  as  a matter  of  law for  the  appellee-

defendants was correct.

          Affirmed.                      Affirmed.

                             -33-                                          33
