                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                  _____________

                                  No. 02-1779WA
                                  _____________

Leon Jenkins,                       *
                                    *
            Appellant,              *
                                    * On Appeal from the United
     v.                             * States District Court
                                    * for the Western District
                                    * of Arkansas.
Southern Farm Bureau Casualty,      *
                                    *
            Appellee.               *
                               ___________

                             Submitted: September 9, 2002
                                Filed: October 15, 2002
                                 ___________

Before McMILLIAN, RICHARD S. ARNOLD, and MELLOY, Circuit Judges.
                          ___________

RICHARD S. ARNOLD, Circuit Judge.


       Leon Jenkins appeals from the District Court’s grant of summary judgment on
his claim under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq.
(the ADEA). The District Court dismissed his claim on the ground that, as an
independent contractor, he was not covered by the ADEA. The issue before this
Court is whether Mr. Jenkins provided sufficient evidence that he was an employee,
rather than an independent contractor, to raise a genuine issue of material fact as to
whether he was covered by the ADEA. We hold that Mr. Jenkins did raise such a
issue, and therefore, we reverse the District Court’s grant of summary judgment.
                                         I.

       Mr. Jenkins began working for Southern Farm Bureau Casualty (SFBC) when
he was 24 years of age and served as SFBC’s agency manager in Malvern, Hot Spring
County, Arkansas, for about 35 years. On September 15, 2000, when Mr. Jenkins
was 59 years of age, representatives of SFBC met with him and asked him to resign.
He was told that if he did not choose to resign, he would be terminated. Mr. Jenkins
decided to resign effective December 31, 2000, and notified SFBC of his decision.
The parties dispute the reason for the company’s forcing Mr. Jenkins out. Mr.
Jenkins alleges that the company forced him out to replace him with a younger
worker, while SFBC alleges that he was forced out because of repeated violations of
company policy and because of inappropriate comments he allegedly made. Mr.
Jenkins filed an ADEA complaint with the Equal Employment Opportunity
Commission. After receiving a right-to-sue letter, he commenced this lawsuit
alleging that SFBC discriminated against him on account of his age.1

       SFBC moved for summary judgment on Mr. Jenkins’s ADEA claim, asserting
that he was an independent contractor and thus not subject to the protection of the
ADEA. See 29 U.S.C. § 623. The District Court granted SFBC’s motion, holding
that there was no genuine issue of material fact, and that SFBC was entitled to
judgment because the evidence established as a matter of law that Mr. Jenkins was,
indeed, an independent contractor.

      The District Court began its analysis by noting that the ADEA “protects
‘employees,’ but not independent contractors,” District Court Order at 7, and
correctly concluded that the proper standard for determining whether a worker is an

      1
       Jenkins also raised a state-law claim that he was fired in retaliation for
complaining about a company sales quota, but that claim was not raised on this appeal
and is thus waived. See Etheridge v. United States, 241 F.3d 619, 622 (8th Cir.
2001).

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employee is set forth in Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318
(1992). In that case, the Supreme Court noted that when a statute does not contain
a helpful definition of the term “employee,” the courts should look to that term’s
common-law meaning. Id. at 322-23. The Supreme Court also included a non-
exhaustive list of factors to be considered:

      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. at 323-24 (quoting Community for Creative Non-Violence v. Reid, 490 U.S. 730,
751-52). The District Court also correctly noted that the inquiry “is fact intensive,
and all facts concerning performance and work situation should be analyzed.”
District Court Order at 8.

       The District Court then proceeded to apply the Darden factors to this case. The
District Court first considered what facts supported Mr. Jenkins’s claim that he was
an employee. The District Court concluded that there were only a few such facts:

      They would include that Jenkins accessed and used SFBC’s mainframe
      computer system; he had to abide by SFBC’s harassment policies; SFBC
      required him to maintain acceptable errors and omissions coverage; he
      participated in SFBC sponsored group insurance policies; SFBC had
      final authority to make underwriting decisions; and only SFBC had

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      authority to contract with the insurance agents who worked out of
      Jenkins’ agency.


District Court Order at 9. The District Court then considered the facts that supported
SFBC’s contention that Mr. Jenkins was an independent contractor:


      The Agency Manager Contract expressly provided that Jenkins had the
      right to control his daily activities as agency manager and the means by
      which he carried out the provisions of his contract with SFBC. In
      addition, Jenkins exercised independent judgment as to who his
      customers would be, and how he would solicit their business. Other
      than specifying that the agency office would be located in Malvern,
      Arkansas, SFBC did not select the site of the office. SFBC did not pay
      for Jenkins’ office space, office supplies or equipment, or prescribe
      office hours. Both Jenkins’ and SFBC had the right to terminate their
      relationship at any time upon ten (10) days notice, and Jenkins received
      commissions and paid self-employment taxes.

District Court Order at 9-10. After listing the factors that it found relevant, the Court
weighed the factors and concluded that Mr. Jenkins was an independent contractor.
The District Court, therefore, granted summary judgment in favor of SFBC on the
ground that Jenkins was not protected by the ADEA.2 Jenkins is before this Court
appealing that decision.


                                           II.


      A motion for summary judgment should be granted only when there is no
genuine issue as to any material fact and the moving party is entitled to judgment as

      2
        The District Court also granted summary judgment on Jenkins’s claim for
retaliatory termination. District Court Order at 10-12.

                                          -4-
a matter of law. Fed. R. Civ. Procedure 56(c). In deciding whether there is a genuine
issue of material fact, the court must view all evidence in the light most favorable to
the non-moving party and must give that party the benefit of all justifiable inferences.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986). This Court reviews
decisions to grant summary judgment de novo. See Settle v. Ross, 992 F.2d 162, 163
(8th Cir. 1993). An instructive case in the present context is Lilley v. BTM Corp.,
958 F.2d 746, 750 n.1 (6th Cir. 1992) (“The determination of employment status is
a mixed question of law and fact. Normally, a judge will be able to make this
determination as a matter of law. However, where there is a genuine issue of fact or
conflicting inferences can be drawn from the undisputed facts, as here, the question
is to be resolved by the finder of fact in accordance with the appropriate rules of
law.”)


       With this standard in mind, we first note some relevant facts not mentioned in
the District Court’s opinion. In Darden, the Supreme Court noted that one of the
factors to consider in deciding on a worker’s employment status is the length of that
worker’s service. 503 U.S. at 323. Mr. Jenkins had worked for SFBC for about 35
years without interruption. Yet another factor that the Supreme Court noted in
Darden was whether the individual’s work was part of the company’s regular course
of business. Id. at 324. Mr. Jenkins was engaged in work that was in SFBC’s regular
course of business--selling insurance. Both of these factors weigh against a
summary-judgment determination in favor of the company.


       We also respectfully disagree with the District Court with regard to others of
the relevant factors. The District Court concluded that “[o]ther than specifying that
the agency office would be located in Malvern, Arkansas, SFBC did not select the site
of the office. SFBC did not pay for Jenkins’ office space, office supplies or
equipment, or prescribe office hours.” District Court Order at 9. In the affidavit that
he attached to his opposition to summary judgment, however, Mr Jenkins stated:

                                          -5-
      5. I was told where to locate the office by Farm Bureau and the County
      Board which owned the office building. I was also instructed that the
      office was to be kept open on a daily basis with normal business hours
      of 8 a.m. to 5 p.m. on Monday through Friday.

      6. Farm Bureau paid all utilities and furnished all office equipment,
      telephones, fax machines, postage, copiers, and office supplies for the
      office. Any purchases of office furniture, phone systems, or other
      equipment or supplies were required to be approved by Farm Bureau
      after I submitted the pricing to Farm Bureau. This also included ads for
      the yellow pages in the local telephone directory.

Appellant’s Appendix 6. SFBC’s summary-judgment evidence, on the other hand,
indicates that it was the County Farm Bureau--a separate corporate entity--that
instructed Mr. Jenkins on where to locate his office, told him what hours it was to
remain open, and provided all of his equipment and supplies. Appellee’s Appendix
33-34, 44. The District Court concluded that it was not SFBC, but the County Farm
Bureau that made these decisions. District Court Order at 3.


       We take a different view. In his affidavit, Mr. Jenkins differentiates between
“Farm Bureau” and “the county board” and indicates that both entities were involved
in making these decisions. A reasonable inference from this differentiation is that
Mr. Jenkins used the term “Farm Bureau” to refer to SFBC. Read in this way, Mr.
Jenkins’s affidavit alleges that SFBC instructed him where to place his office, paid
for his utilities and office supplies, and mandated the hours that his office must
remain open. Thus, the District Court was faced with competing evidence on these
facts: SFBC alleged that it played no role in these decisions, while Mr. Jenkins’s
sworn affidavit alleged that SFBC did play a role. These competing arguments, both
in the form of affidavits, create a genuine issue of fact as to who controlled the
location of his office, who decided what hours his office would be open, and who



                                         -6-
paid for the office utilities and supplies. As the non-moving party, Mr. Jenkins was
entitled to the benefit of all reasonable inferences from the evidence.


       Are these disputed facts material? A fact is material if its determination in
favor of the non-moving party could affect the result in the case. Thus, to assess the
materiality of the disputed facts in this case, we must consider whether SFBC would
be entitled to judgment as a matter of law even if the disputed facts are ultimately
decided in Mr. Jenkins’s favor. Once we provide Mr. Jenkins with the benefit of all
reasonable inferences, four factors weigh in favor of the holding that Jenkins was an
independent contractor: (1) the agreement designates him so; (2) he was to exercise
independent judgment in deciding whom he would solicit; (3) he was paid by
commission; and (4) he was responsible for his own taxes.3 There are, on the other
hand, numerous facts supporting Mr. Jenkins’s claim that he was an employee,
assuming that the jury would resolve the issues in his favor: (1) SFBC directed the
location of his office; (2) SFBC directed what hours he was to keep his office open;
(3) SFBC paid for his utilities and office equipment; (4) SFBC required him to
maintain errors and omissions coverage; (5) SFBC provided Jenkins with a company-
sponsored insurance plan; (6) SFBC maintained ultimate authority over underwriting
decisions; (7) SFBC provided Jenkins with access to its mainframe computer;
(8) SFBC required Jenkins to abide by its harassment policies; (9) SFBC maintained
complete power to hire and fire all agents working under Jenkins’s control;
(10) Jenkins had worked for SFBC continuously for more than 30 years; and (11) the
work that Jenkins did was in SFBC’s regular course of business. On this
constellation of facts, the determination of whether Mr. Jenkins is an employee is too



      3
        The District Court also cites the ability of either party to terminate the
relationship as weighing in favor of independent-contractor status, but this fact is
equally as consistent with employment status, given that employment contracts are
generally considered to be terminable at will.

                                         -7-
close to be made as a matter of law, so Mr. Jenkins is entitled to reach the jury on this
issue.


      The judgment is reversed, and the cause remanded for further proceedings not
inconsistent with this opinion.


      A true copy.


             Attest:


                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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