
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.  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 & 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
