Doe v. Medeiros et al
Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER. The Court ALLOWS Defendants motion for summary judgment, D. 51. (Maynard, Timothy)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
Civil Action No. 15-11356
FRANK MEDEIROS and
ELLIS MANAGEMENT SERVICES, INC.,
MEMORANDUM AND ORDER
July 21, 2017
Plaintiff Jane Doe (“Doe”) has filed this lawsuit against Defendants Frank Medeiros
(“Medeiros”) and Ellis Management Services, Inc. (“Ellis”) alleging a number of claims related to
a purported assault committed by Medeiros. D. 11. Ellis has moved for summary judgment on
the vicarious liability claim leveled against it. D. 51. For the reasons stated below, the Court
ALLOWS the motion.
Standard of Review
The role of summary judgment is “to pierce the pleadings and to assess the proof in order
to see whether there is a genuine need for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822
(1st Cir. 1991) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)). The burden
is on the moving party to show, through the pleadings, discovery and affidavits, “that there is no
genuine dispute as to any material fact and [that] the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). A fact is material if it “might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of
material fact exists where the evidence with respect to the material fact in dispute “is such that a
reasonable jury could return a verdict for the nonmoving party.” Id.
If the moving party satisfies its burden, the burden shifts to the nonmoving party to set
forth specific facts showing that there is a genuine, triable issue. Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986). The Court must view the entire record in the light most favorable to the
nonmoving party and make all reasonable inferences in that party’s favor. O’Connor v. Steeves,
994 F.2d 905, 907 (1st Cir. 1993). Summary judgment is appropriate if, after viewing the record
in the nonmoving party’s favor, the Court determines that no genuine issue of material fact exists
and that the moving party is entitled to judgment as a matter of law. Id. at 906-07.
The following facts are drawn from the parties’ statements of material facts, D. 53, D. 58,
and supporting documents and are undisputed unless otherwise noted.
Ellis, whose sole office is in Texas, provides mystery shopping services (also known as
“secret shops”) throughout the country for the apartment and multifamily leasing industry. D. 53
¶¶ 1-3; D. 58 ¶¶ 1-3. These secret shops provide the client with a plethora of information
including—but not limited to—feedback regarding their employees’ performance, descriptions of
the physical appearance of the clients’ rental properties and notice of whether specific properties
are in compliance with internal policies and regulations. D. 53 ¶ 4; D. 58 ¶ 4. In selecting secret
shoppers to visit its clients’ sites, Ellis requires no interview process. D. 53 ¶ 9; D. 58 ¶ 9. Rather,
prospective secret shoppers do no more than fill out a basic application form online. D. 53 ¶ 8; D.
58 ¶ 8. A background check is performed on individuals who submit applications and, so long as
they have no felony record and have not committed any sex-related crimes, they are eligible to
work for Ellis as a secret shopper. D. 53 ¶ 10; D. 58 ¶ 10.
All secret shoppers working for Ellis are required to sign a form entitled “Ellis, Partners in
Mystery Shopping Independent Contractor Agreement & Authorization to Record Shopper
Communications” (the “Agreement”), which states that Ellis has “no power or authority over the
specific manner in which [the secret shopper] perform[s] [his or her] duties under this Agreement,
that control belonging solely to the [secret shopper].” D. 53 ¶¶ 11, 13; D. 58 ¶¶ 11, 13; D. 54-1 at
1, 3.1 The Agreement further stipulates that Ellis “is only concerned with the end result, namely,
the collection of the necessary data for the Property identified in an Assignment.” D. 53 ¶ 13; D.
58 ¶ 13; D. 54-1 at 3. Secret shoppers must also complete a “certification program” online that
serves as a tutorial for those working on behalf of Ellis. D. 53 ¶ 14; D. 58 ¶ 14. This tutorial,
which on average lasts between thirty to forty-five minutes, provides shoppers with tips pertaining
to secret shopping assignments, such as how to communicate effectively while performing an
assignment. D. 53 ¶ 14; D. 58 ¶ 14. Once a person has completed the certification program, he or
she is eligible to perform mystery shops for Ellis’s customers. D. 54 ¶ 14.
Ellis’s secret shoppers are provided a username and password to access a protected portion
of Ellis’s website that provides the secret shopper with a list of available assignments. D. 53 ¶ 15;
D. 58 ¶ 15. Ellis does not inform its secret shoppers whether assignments are available and,
instead, the onus is on the secret shopper to log in to the website to find available assignments. D.
53 ¶ 16; D. 58 ¶ 16. Whether to request an available assignment is in the secret shopper’s discretion
While Doe objects to the extent Ellis seeks to use the words of the Agreement to draw a
legal conclusion as to the employment or agency status of secret shoppers, it does not dispute that
the Agreement does, in fact, contain the quoted language. D. 58 ¶ 13.
and Ellis imposes no minimum number of assignments a secret shopper must complete. D. 53 ¶¶
16-17; D. 58 ¶¶ 16-17. In fact, Ellis does not require that a secret shopper complete even one
assignment (i.e., they may elect to complete none). D. 53 ¶ 17; D. 58 ¶ 17.
Secret shops are awarded to the first individual requesting the assignment so long as the
individual is not a former employee of the client whose property is being shopped. D. 53 ¶ 20; D.
58 ¶ 20. While the Ellis online tutorial states that a secret shopper should “normally complete the
telephone portion of the shopping assignment . . . on the same day [the secret shopper] shops the
property,” the secret shopper is otherwise free to decide the date and time of the shop within the
timeframe set by the client. D. 61-1 at 11-12; D. 53 ¶ 22; D. 58 ¶ 22. During a secret shop, the
Ellis worker poses as a person hoping to rent an apartment at the client’s property. D. 53 ¶ 23; D.
58 ¶ 23. After visiting the apartment and observing the property and the employee, the shopper
must then log on to Ellis’s website and complete an online form that asks for specific information
requested by the client. D. 53 ¶ 25; D. 58 ¶ 25. With the exception of completing the online form,
secret shoppers are otherwise not required to communicate with Ellis before or after a shop unless
they encounter difficulties in completing the assignment. D. 53 ¶ 28; D. 58 ¶ 28; D. 61-1 at 26.
Ellis does not provide any sort of evaluative feedback to the secret shoppers after they submit their
reports, although Ellis, in its discretion, may reach out to the secret shopper if the questions in the
report are not sufficiently answered or if Ellis determines that there is some other problem in the
report. D. 53 ¶ 29; D. 58 ¶ 29; D. 59-2 at 19-21.
Secret shoppers are paid a flat fee, not on an hourly or salary basis. D. 53 ¶¶ 30-31; D. 58
¶¶ 30-31. They neither receive any fringe benefits from Ellis, nor do they have any deductions or
withholdings taken from their pay by Ellis. D. 53 ¶ 32; D. 58 ¶ 32. Ellis does not reimburse secret
shoppers for any expenses they incur during a secret shop. D. 53 ¶ 33; D. 58 ¶ 33. Ellis also does
not provide its secret shoppers with any office space. D. 53 ¶ 34; D. 58 ¶ 34. Secret shoppers are
not required to wear any kind of uniform and are instead permitted to wear casual street clothing
while performing an assignment. D. 53 ¶ 36; D. 58 ¶ 36. They also are not prohibited from
working for other companies, including other secret shopping companies. D. 53 ¶ 37; D. 58 ¶ 37.
Medeiros worked with about a dozen different secret shopping companies between 2009
and 2012, including companies that, like Ellis, evaluate apartments and other rental properties. D.
53 ¶ 41; D. 58 ¶ 41. In or around April 2011, Medeiros entered into an independent contractor
agreement with Ellis to be a secret shopper. D. 53 ¶ 43; D. 58 ¶ 43. Between August and December
2011, Medeiros completed four secret shopping assignments with Ellis. D. 53 ¶ 45; D. 58 ¶ 45.
During this time period, he performed secret shops with other companies. D. 53 ¶ 49; D. 58 ¶ 49.
Medeiros never spoke with any representative of Ellis while working for them. D. 53 ¶ 56; D. 58
¶ 56. He had no other contact with Ellis other than through Ellis’s website and via e-mails
confirming that he had been given an assignment to complete. D. 53 ¶ 56; D. 58 ¶ 56.
Doe formerly worked as a property manager in Fall River, Massachusetts for Community
Builders, a property management company. D. 55-2. On December 12, 2011, Medeiros scheduled
a meeting with Doe to see apartments in Fall River as part of a secret shop assignment. Id. Doe
claims that during the secret shop later that day, Medeiros asked her “if [she] was wired” and then
“patt[ed] [her] chest down for wire.” Id. Medeiros was fired from his job with Ellis once Ellis
learned that he had been accused of inappropriately touching Doe’s breasts during his scheduled
secret shop. D. 53 ¶ 63; D. 58 ¶ 63. At no point did Ellis instruct or suggest that Medeiros engage
in such conduct while on a mystery shop, nor did Medeiros’s job require him to do so. D. 53 ¶ 61,
62; D. 58 ¶ 61, 62. Medeiros’s secret shopping job with Ellis in no way required him to determine
whether any person at any of his shopping assignments was “wearing a wire” or had a recording
device on her person. D. 53 ¶ 62; D. 58 ¶ 62. Medeiros also did not believe it was part of his job
to pat down or have such physical contact with Doe as part of his job with Ellis. D. 53 ¶ 59; D. 58
¶ 59. 2
Plaintiffs instituted this action in state court on December 15, 2014, D. 1-1 at 4, and the
case was removed to this Court on March 27, 2015. D. 1. Ellis thereafter moved to dismiss. D.
13. The Court granted Ellis’ motion to dismiss as to Doe’s claim for negligent hiring, but denied
the motion as to Doe’s vicarious liability claim against Ellis. D. 22. After the Court denied the
motion to dismiss, the parties proceeded with discovery. The Court heard the parties on the
pending motion on June 14, 2017, and took this matter under advisement. D. 64.
Ellis is Not Vicariously Liable for Medeiros’s Actions
The doctrine of respondeat superior provides that an employer is subject to liability for the
torts of its employees committed while acting within the scope of their employment. Dias v.
Brigham Med. Assocs., 438 Mass. 317, 319-20 (2002); Restatement (Third) of Agency § 2.04
Doe disputes the fact that Medeiros did not believe it was part of his job to fondle Doe’s
breasts to the extent that those facts are premised on the phrasing of certain questions asked of
Medeiros at his deposition. D. 58 ¶ 59. Specifically, Doe argues that the questions at the
deposition focused on whether anyone at Ellis “asked” or “wanted” Medeiros to check for a wire
on her or pat her down. Id. Such questions, she maintains, shed no light on whether the alleged
physical contact was done in furtherance of Medeiros’s work for Ellis. Id. For purposes of the
undisputed, material facts of this case, however, the Court accepts the evidence proffered by Ellis
that Medeiros did not believe touching Doe was a part of his job. Indeed, at his deposition,
Medeiros answered “[a]bsolutely not” when asked whether he had “any reason to believe that
anyone at Ellis wanted you to check if someone was wearing a wire or recording device,” D. 55-1
at 42, and answered “[n]o” to whether he had “any reason to believe that [patting down Doe was]
part of your assignment on that shop.” Id. at 43. He also answered “[n]o” to whether “it was part
of [his] assignment on that visit to have physical contact with the plaintiff.” Id. at 44. Doe has
offered no evidence to the contrary.
(Am. Law Inst. 2006). To prevail on a claim of vicarious liability, a plaintiff must demonstrate
both that (1) an employer-employee relationship existed and (2) the alleged tortious conduct fell
within the scope of employment. Dias, 438 Mass. at 321–22.
Employer-Employee Relationship Does Not Exist
In interpreting the employer-employee relationship in a vicarious liability claim,
Massachusetts courts use a common law test to distinguish employees who are covered by such
claim from independent contractors who are not. See id. at 321. “The critical issue in determining
an individual’s status as either an employee or an independent contractor is the control over the
individual. . . . If there is no right to control, then the individual is an independent contractor.”
Bolen v. Paragon Plastics, Inc., 754 F. Supp. 221, 228 (D. Mass. 1990) (citing Cowan v. E. Racing
Ass’n, 330 Mass. 135, 141 (1953)). “[T]he retention of control must be such that the independent
contractor is not entirely free to do the work in [his] own way.” Paradoa v. CNA Ins. Co., 41
Mass. App. Ct. 651, 654 (1996) (quoting Restatement (Second) of Torts § 414, Comment c (Am.
Law Inst. 1965)) (internal quotation marks omitted). Thus, “if in the performance of his work an
individual is at all times bound to obedience and subject to direction and supervision as to details,
he is an employee; but if he is only responsible for the accomplishment of an agreed result in an
agreed manner, he is an independent contractor.” Athol Daily News v. Bd. of Review of the Div.
of Emp’t & Training, 439 Mass. 171, 175 (2003) (quoting Brigham’s Case, 348 Mass. 140, 14142 (1964)).
Doe argues that Ellis maintained control over its secret shoppers—including Medeiros—
and, as such, the relationship between Ellis and its secret shoppers was that of an employeremployee. D. 57 at 5. In particular, Doe notes that only individuals who passed the online tutorial
were eligible to secret shop on behalf of Ellis and that Ellis created the evaluative forms that secret
shoppers were required to complete after conducting an assignment. Id. Doe also points out that
Ellis maintained certain timetables that secret shoppers were expected to follow, such as requiring
that the evaluative forms be completed within twenty-four hours of a secret shop. Id. at 3, 5.
Lastly, Doe explains that Ellis “monitor[s] [the reports submitted after a shop] for completeness.”
Id. at 5. These undisputed facts, Doe continues, are indicative of an employment model designed
to maintain control over secret shoppers. Id.
The Court disagrees. While Medeiros was required to complete the online certification
program, he only did so one time and no other trainings or tutorials were ever mandated. See
Santangelo v. N.Y. Life Ins. Co., No. 12-cv-11295-NMG, 2014 WL 3896323, at *8 (D. Mass.
Aug. 7, 2014) (concluding that plaintiff was an independent contractor and not an employee where
he “did not have regularly scheduled meetings outside of the one annual sales training”). An
otherwise isolated instance of training does not create the level of control necessary under the
common law test of agency.
Moreover, the material in the online tutorial gave suggestions, not mandates for conducting
assignments. See D. 61-1 at 18 (explaining how to complete an on-site shop). For example, the
certification program presented secret shoppers with potential scenarios and then offered various
ways of responding if such a situation occurred during an actual shop. Id. The fact that the tutorial
provided suggestions and not mandatory requirements is bolstered by Medeiros’s own
understanding of the certification program. Indeed, in describing the tutorial, Medeiros explained:
[W]hat they give you here is suggestions on answering certain questions that the
plaintiff might have asked, okay? So they give you suggestions. You may choose
one of those suggestions or come up with an equally feasible suggestion.
D. 62-1 at 4. Additionally, because the only contact Ellis had with secret shoppers after an
assignment was through the online evaluation form, no mechanism existed by which Ellis could
know whether a secret shopper adhered to any specific suggestions outlined in the tutorial or
whether he decided to deviate from what was proposed in that training. D. 53 ¶ 27; D. 58 ¶ 27.3
Doe’s reliance on the fact that Ellis distributed questionnaire forms to its secret shoppers
and set timetables for completing work as a means of demonstrating control is also unavailing. At
Ellis’s 30(b)(6) deposition, Ellis’s representative testified that the reports secret shoppers were
required to complete after a shop were customized by Ellis’s clients. D. 62-1 at 11. For example,
in one such instance “a client wanted to know what the shopper was told if they asked if the
property accepted service animals, because [the property] had a ‘no pets’ policy,” and, as a result,
the form was adjusted to include a question inquiring about how the property manager responded
to a question about pets. Id. at 9. The representative further explained that Ellis “honor[s] pretty
much any request a client wants us to make.” Id. at 7. That is, a client could request that secret
shops occur “Monday through Friday only” or could limit shops to “between 12:00 and 2:00.” Id.
at 8. These client specific requests would necessarily alter the means by which secret shoppers
conducted their assignments. These adjustments, however, are par for the course with any
independent contractor job. Indeed:
It is in the nature of a contract that the contractor promises to deliver the
performance bargained for by the client. For example, a builder will build a
building according to the specifications of an architect. That does not make the
builder an employee. A painter will paint a house the colors dictated by the
homeowner. That does not make the painter an employee. In short, requiring a
contractor to meet the client’s technical specifications is not the type of “control”
which bestows “employee” status on the contractor.
While Doe disputes the fact that Ellis has no way of knowing what occurs during a shop,
her dispute rests upon Ellis’s requirement that the secret shopper contact Ellis if they have
difficulty completing a particular assignment. D. 58 ¶ 27. Although it is true that Ellis does, in
fact, instruct secret shoppers to contact them if such a scenario arises, it does not alter the balance
of undisputed facts that show Ellis’s lack of control over the secret shopper.
Herman v. Mid-Atl. Installation Servs., Inc., 164 F. Supp. 2d 667, 672–73 (D. Md. 2000), aff’d
sub nom. Chao v. Mid-Atl. Installation Servs., Inc., 16 F. App’x 104 (4th Cir. 2001).
“[C]onstraints imposed by customer demands” and “measures springing from customer demands,”
in other words “do not create an employee relationship.” FedEx Home Delivery v. NLRB, 563
F.3d 492, 501 n. 7 (D.C. Cir. 2009). Here, the questions in the forms ultimately came from the
individual clients Ellis was serving rather than from Ellis itself. Requiring that secret shoppers
answer the questions requested by clients does not amount to control by Ellis such that an
employer-employee relationship exists.
The fact that specified time tables could be imposed on certain assignments—which the
undisputed, material facts show were determined by Ellis’s clients, not Ellis—does not compel a
different conclusion. The facts here are analogous to Penn v. Va. Int’l Terminals, Inc., 819 F.
Supp. 514 (E.D. Va. 1993). There, the district court was tasked with determining whether truck
drivers for a trucking company were independent contractors or employees. Id. at 515. In
concluding that the truckers were the former, the court explained that “the fact that [Defendant]
would tell [Plaintiff] when and where to pick up a load, and when and where to deliver it is not
sufficient control to establish an employment relationship. [Defendant] could hardly serve its
customers’ needs if this was left to the discretion of its drivers.” Id. at 524-25. The court
continued, “[i]f a shipper requested, say, a parcel delivery service, to pick up a package for delivery
across the country the next day before a certain time, it could not be seriously argued that the
delivery service became the employee of the shipper.” Id. In other words, mandating that certain
tasks be completed within a specified time is sometimes a necessary part of serving a client. In
the same way that truckers completing cross-country deliveries could be expected to pick up
shipments by a certain time without shedding their independent contractor status, so too could Ellis
request that secret shoppers finish their assignments in a specified time period outlined by its
clients without evidencing the control required to establish employee status. See id.
Ellis monitors evaluation submissions and imposes minimum word lengths on certain form
questions to ensure that forms submitted by its secret shoppers are complete and filled out
correctly. Contrary to Doe’s position, however, these facts “do not suggest an employment
relationship because [they are] addressed to the ends to be achieved . . . rather than the means to
achieve that result.” C.C. E., Inc. v. NLRB, 60 F.3d 855, 859 (D.C. Cir. 1995) (alteration in
original) (citation and internal quotation marks omitted).
For example, at Ellis’s 30(b)(6)
deposition, Ellis’s representative explained that if a secret shopper submitted a report that said
nothing more than “[i]t was pretty” in his description of a property, an Ellis reviewer would contact
the shopper to provide more detail. D. 59-2 at 19-20. That is, Ellis monitored the evaluation forms
as a type of quality control to check that the answers submitted by shoppers were responsive to the
questions sought by Ellis’s clients. These quality controls imposed on Ellis’s secret shoppers are
“constraint[s] [that] inhere in any subcontractor relationship.” Dole v. Amerilink Corp., 729 F.
Supp. 73, 76 (E.D. Mo. 1990). This is especially true where, as here, “a company’s control over
an aspect of the workers’ performance is motivated by a concern for customer service.” C.C. E.
Inc., 60 F.3d at 859.
Based upon the undisputed facts here, Ellis possessed little control over Medeiros.
Medeiros maintained structural control over his secret shopping assignments, having the discretion
to accept as many or as few secret shopping opportunities as he desired. D. 55-1 at 32-34. Indeed,
Medeiros was under no obligation to accept even one assignment and no adverse consequences
could flow from his refusal to accept a particular job. Id. Medeiros also had complete control
over his schedule and decided the date and time of the shop, within the timeframe set by the
individual client. D. 54 at 4; D. 55-1 at 23. In fact, Medeiros stated that he enjoyed being an
independent contractor. D. 55-1 at 22. When asked why, he explained:
Well, it’s freedom. You’re not required to report, punch a clock, be at a job like I
did before. [With Ellis] I was owning my own business. . . . There’s a freedom in
what you can do, what assignments you can chose [sic], chose [sic] not to do, chose
[sic] when to do them. So there’s a freedom about it that was good.
Id. at 22-23; see Dykes v. DePuy, Inc., 140 F.3d 31, 38 (1st Cir. 1998) (determining that an
individual who had “control over his day-to-day business” and “set his own hours” was an
independent contractor). Medeiros was also free to work for other mystery shopping companies
and did so. D. 55-1 at 49. The ability to work for other companies, even those who directly
compete against Ellis, lends further credence to Ellis’s lack of control over Medeiros. See
Ruggiero v. Am. United Life Ins. Co., 137 F. Supp. 3d 104, 116 (D. Mass. 2015) (determining a
lack of control where company did not “interfere with [Plaintiff] and his agents selling the products
of competitors”); see also Santangelo, 2014 WL 3896323, at *8 (explaining that “plaintiff [was]
clearly an independent contractor, not an employee” where he “was free to sell the products of
other life insurance companies and did so during the time he had a contract with [Defendant]”).
Nor did Medeiros ever speak with any representative of Ellis. D. 55-1 at 31 (“Q. And you never
spoke orally with anyone from Ellis. A. I don’t, no.”). Rather, his sole contact with Ellis was
through Ellis’s online website or through e-mails confirming that his requests for certain shop
assignments had been approved. Id. at 20. Such lack of communication or supervision is
demonstrative of Ellis’s lack of control. See Paradoa v. CNA Ins. Co., 41 Mass. App. Ct. 651,
654-55 (1996) (affirming a lower court’s conclusion that a company lacked control over
independent contractors where “there is no evidence of communication” between the company and
the worker and the company “did not supervise” the work performed). Finally, while Medeiros
was provided with advice on how to conduct himself during his secret shops through the online
tutorial he completed, Ellis in no way directed or controlled how Medeiros behaved during any
particular shop, nor did it evaluate his conduct during any shop. D. 54 at 5. Ellis’s only interaction
with Medeiros after a secret shop assignment had been assigned to him was through the submission
of his evaluation forms. Id. Medeiros, in other words, was free to structure how he performed his
secret shops in whatever manner he wished. Such freedom does not represent the control necessary
for an employer-employee relationship. See Lopez v. Massachusetts, 588 F.3d 69, 85 (1st Cir.
2009) (concluding that plaintiffs were not employees where the entity they worked for had “no
control over plaintiffs’ day-to-day job performance”); see also Speen v. Crown Clothing Corp.,
102 F.3d 625, 629 (1st Cir. 1996) (explaining that an employee is one who “at every moment, with
respect to every detail . . . is bound to obedience and subject to direction and control”).
At the motion to dismiss stage of this case, the Court articulated other considerations
besides direction and control that could be considered in determining whether an employeremployee relationship exists. Specifically, this Court identified the method by which the entity
pays its worker, the parties’ understanding of their relationship and the location of the work as
factors that may be assessed in determining the nature of a professional relationship. Doe v.
Medeiros, 168 F. Supp. 3d 347, 351 (D. Mass. 2016). Here, all of these factors weigh in favor of
concluding that Medeiros is an independent contractor.
First, Medeiros was paid a flat rate for each of the assignments he completed and was never
reimbursed for expenses. D. 54 at 5. In addition, Medeiros’s salary was never subject to taxes,
withholdings or any other deductions. Id. He also did not receive a W-2, nor did he receive fringe
benefits from Ellis. Id. In fact, no Ellis secret shoppers were given W-2 forms. Id. Instead,
individuals who made greater than $600 were given 1099 forms. Id. These facts are emblematic
of an independent contractor relationship. See Kakides v. King Davis Agency, Inc., 283 F. Supp.
2d 411, 416–17 (D. Mass. 2003) (determining worker was an independent contractor where
“commission payments were disbursed without withholding, consistent with the tax rules
governing independent contractors,” and she received no fringe benefits); see also Speen, 102 F.3d
at 633 (independent contractor relationship existed where an individual was subject to a 1099 form
rather than a W-2 form). Second, Medeiros did not work at any of Ellis’s offices, which were
located in Texas, and instead conducted his assignments at Ellis’s client property sites in
Massachusetts and Rhode Island. D. 53 ¶ 57; D. 58 ¶57; see Lopez, 588 F.3d at 85 (explaining
that the fact that plaintiffs “do not work on [company’s] premises” is a factor favoring independent
Finally, neither Ellis nor Medeiros viewed their relationship as that of
employer-employee. The Agreement between Ellis and Medeiros—which was titled “Partners in
Mystery Shopping Independent Contractor Agreement”—also indicates that Medeiros was an
independent contractor, see Spencer v. Roche, 755 F. Supp. 2d 250, 262 (D. Mass. 2010)
(concluding independent contractor relationship exists where parties’ contract stated worker “shall
act at all times under this Agreement as an independent contractor. The parties agree that [the]
[company] shall not have and shall not exercise any control or direction over the manner or method
by which [the worker] provides the [s]ervices”), and Medeiros testified that he was motivated to
work for Ellis in part because he enjoyed the freedom associated with being an independent
contractor. D. 54-1 at 1; see D. 55-1 at 21-23. Where both parties to the Agreement are in accord
that an employer-employee relationship does not exist (and no evidence suggesting otherwise has
been introduced), a third-party assertion, here by Doe, to the contrary fails.
The facts present here parallel In re Chan, 8 N.Y.S.3d 489, 490 (N.Y. App. Div. 2015).
There, the court reversed a decision of the New York’s Unemployment Insurance Appeal Board
that had determined a secret shopper was an employee. In re Chan, 8 N.Y.S.3d at 490. In
concluding that the secret shopper was, instead, an independent contractor, the court explained that
the secret shopping company “did not supervise claimant, provide him with employment reviews
or training or reimburse him for travel expenses.” Id. The secret shopper also “signed up for
assignments through [the secret shopping company’s] website and had the discretion to choose
any assignment that he desired.” Id. In addition, he provided secret shopping services to other
companies. Id. Moreover, the secret shopping company “paid claimant a fixed fee for each
assignment, and no taxes were withheld from that fee.” Id. Finally, the court explained that
although the secret shopper was required to complete an evaluative questionnaire regarding each
assignment he performed, “this fact is ‘just as readily required of an independent contractor as of
an employee’” Id. (quoting In re Hertz Corp., 2 N.Y.3d 733, 735 (2004)). In reaching this
conclusion, the court distinguished In re Pozarycki, 738 N.Y.S.2d 748 (2002), a separate secret
shopper case that had reached the opposite result. While many of the facts in In re Chan and In re
Pozarycki overlapped, the court noted that unlike the situation in In re Chan, the secret shopper in
In re Pozarycki received assignments directly from the secret shopping company. Id. Moreover,
the company in In re Pozarycki reimbursed its secret shoppers for travel expenses. Id. Neither of
those facts presented themselves in In re Chan and, similarly, neither of those factors present
themselves here. See id.; D. 53 ¶¶ 16, 33; D. 58 ¶¶ 16, 33.4
Doe also points to Corp. Research Int’l v. Unemployment Comp. Bd. of Review, No. 441
C.D. 2010, 2011 Pa. Commw. Unpub. LEXIS 53, at *5 (Pa. Commw. Ct. Jan. 11, 2011), to suggest
that secret shoppers are employees. D. 57 at 6. There, the court affirmed a judgment entered by
the state’s Unemployment Compensation Review Board (the “Board”) where the company for
whom the secret shopper worked never showed up for the unemployment hearing. Corp. Research
Int’l, 2011 Pa. Commw. Unpub. LEXIS 53, at *6. As such, the Board accepted the uncontradicted
testimony of the secret shopper, which the appellate court noted was “conclusive on appeal.” Id.
This decision does not undermine the undisputed evidence presented by Ellis that demonstrates
Medeiros’s role as an independent contractor.
Taken together, these facts demonstrate an independent contractor relationship between
Medeiros and Ellis.5
Scope of Employment
Even if Medeiros were an employee and not an independent contractor, the actions alleged
against him were not performed within the scope of any such employment. Ellis, therefore, may
not be vicariously liable for Medeiros’s alleged actions. See Worcester Ins. Co. v. Fells Acres Day
Sch., Inc., 408 Mass. 393, 404 (1990) (explaining that “[a]n employer may [only] be held
vicariously liable for the intentional tort of an agent if the tortious act or acts were committed
within the scope of employment”).
An employee’s conduct falls within the scope of his
employment if: (1) it is of the kind for which he is hired to perform; (2) it occurs within the
authorized time and space limits and (3) it was motivated, at least in part, by a purpose to serve
the employer. See Wang Labs., Inc. v. Bus. Incentives, Inc., 398 Mass. 854, 859 (1986).
In its ruling on the motion to dismiss, the Court determined that Doe had plausibly alleged
Medeiros assaulted Doe while searching for a wire and that his search of her body could be of the
kind he was hired to perform, even if it was “unlikely.” Medeiros, 168 F. Supp. 3d at 352-53. The
Court noted that Medeiros’s assignment was to pose undercover to evaluate Doe’s job
performance. Id. at 352. The Court continued that, “Medeiros’[s] concern regarding a wire could
have conceivably reflected the ‘undercover’ and ‘secret’ nature of his work.” Id. at 353. Similarly,
the Court concluded that the allegations could also have been plausibly motivated by a desire to
Doe argues that there are circumstances where a company may be held vicariously liable
for the actions of an independent contractor. D. 57 at 6-7 (citing cases). Such liability, however,
only attaches in those circumstances where the company directs the conduct that caused the harm,
here to Doe. Id. Thus, because Ellis did not direct Medeiros’s alleged assault, the cases Doe cites
are inapplicable here.
serve Ellis. Id. The Court explained that “[e]ven if Medeiros’[s] view of the ‘secret’ and
‘undercover’ elements of his job, including searching for a wire, was overzealous or misguided, it
is at least plausible that his conduct may have been motivated in part by a desire to protect the
‘secret’ and ‘undercover’ nature of his work.” Id. While the claim, therefore, passed the
plausibility test, it does not dictate the Court’s conclusion based on a now full record of undisputed
The parties have now had the benefit of discovery and Ellis relies upon undisputed
evidence demonstrating that Medeiros did not act within the scope of employment. For example,
Medeiros testified that Ellis never required, suggested or instructed that he have any sort of
physical contact with a shop target. D. 55-1 at 42-44 (“Q. Any reason to believe it was part of
your assignment on that visit to have physical contact with the plaintiff? A. No.”). Indeed, he
disclaimed any suggestion that Ellis may have wanted him to check Doe for a wire. Id. (“Q. Did
anyone at Ellis . . . ever tell you you had to check if someone was wearing a wire or recording
device? A. No. Q. Did you have any reason to believe that anyone at Ellis wanted you to check
if someone was wearing a wire or recording device? A. Absolutely not.”). Moreover, the
evaluative questionnaire that Medeiros completed after his secret shop with Doe included no
questions relating to a wire, nor did it ask him to speculate as to whether he thought Doe might be
recording him. D. 54-3. Doe does not dispute these facts but responds by making conclusory
arguments that Medeiros’s conduct was “directly related to [his] work” because it was “part of his
evaluation of Ms. Doe.” D. 57 at 10. She also asserts that Medeiros “did not grab Ms. Doe’s chest
for his own sexual gratification,” but rather “did so as part of his covert work for Ellis.” Id. at 11.
Doe, however, provides no evidence for either contention.
At summary judgment, the Court may not “draw unreasonable inferences or credit bald
assertions, empty conclusions, rank conjecture, or vitriolic invective. Pina v. Children’s Place,
740 F.3d 785, 795 (1st Cir. 2014) (quoting Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d
1, 8 (1st Cir. 2007) (internal quotation marks omitted). Thus, “[i]f a nonmovant bears the ultimate
burden of proof on a given issue, she must present definite, competent evidence sufficient to
establish the elements of her claim in order to survive a motion for summary judgment. . . . This
is no less true in . . . cases where motive is at issue.” Id. at 795-96 (citation and internal quotation
If Medeiros did, in fact, assault Doe by touching her chest as is alleged, that assault appears
to be sexual in nature, rather than for non-sexual purposes relating to a working relationship
between Ellis and Medeiros. See Petrell v. Shaw, 453 Mass. 377, 384 (2009) (holding that rector’s
sexual relationship with parishioner was outside of the scope of his employment); Doe v. Purity
Supreme, Inc., 422 Mass. 563, 568 (1996) (holding that assistant store manager’s rape and sexual
assault were not within the scope of employment); Worcester Ins. Co., 408 Mass. at 404-05
(holding that day-care center employees’ sexual abuse of children was not within the scope of
employment). Applying common law principles of agency, the Supreme Judicial Court has
reasoned that “rape and sexual assault . . . do not serve the interests of the employer” and are “not
motivated by a purpose to serve the employer.” Doe, 422 Mass. at 568. Moreover, sexual abuse
can never be services of “the kind [employees are] employed to perform.” Worcester Ins. Co., 408
Mass. at 405 (alteration in original) (quoting Wang Labs., Inc., 398 Mass. at 859) (internal
quotation mark omitted).
As such, the Massachusetts Supreme Judicial Court has declined to rule that employers are
vicariously liable for sexual assaults even where—unlike here—an employer-employee
relationship is well-established. See, e.g., Petrell, 453 Mass. at 383-84 (concluding that bishop
and diocese were not vicariously liable for rector’s sexual activity even though it was undisputed
rector was an employee); Doe, 422 Mass. at 568 (declining to find vicarious liability because
“plaintiffs . . . failed to allege facts that would show that the assistant store manager was acting
within the scope of employment” when he allegedly committed rape and sexual assault); Worcester
Ins. Co., 408 Mass. at 404-05 (ruling that sexual assaults committed by salaried director-level
employees “[did] not trigger vicarious liability” against day-care center). Thus, as a matter of law,
if Medeiros’s assault of Doe was sexual in nature, his actions necessarily fall outside of the scope
of his employment with Ellis.
While Doe cites a range of cases in which courts held that an employee’s conduct fell
within the scope of employment or that a reasonable jury could have found such, these cases are
inapposite because the conduct examined in the cited cases are not acts of sexual misconduct. See,
e.g., Manning v. Grimsley, 643 F.2d 20, 22, 24 (1st Cir. 1981) (holding that jury could find pitcher
who threw a ball at heckling spectator was acting in response to an interference with the pitcher’s
ability to perform employment duties); Meyer v. Runyon, 869 F. Supp. 70, 78-79 (D. Mass. 1994)
(ruling that postal service officials’ conduct underlying a tortious interference and defamation
action was within the scope of employment because they were engaged in the kinds of activities
they were hired to perform); Howard v. Town of Burlington, 399 Mass. 585, 586, 591 (1987)
(concluding town’s committee chairwoman was acting within the scope of employment during a
discussion that led to a defamation action against her); Commonwealth v. Jerez, 390 Mass. 456,
458 (1983) (concluding consul’s alleged assault of police officer occurred while consul was
engaged in exercise of consular function under Vienna Convention); Suckney v. Bert P. Williams,
Inc., 355 Mass. 62, 64 (1968) (holding that jury could find that a delivery driver’s helper was
acting within the scope of employment when he assaulted the plaintiff because he was hired to
ensure that deliveries were delivered, even if it required force); Harris v. Devos, No. CA 93803B,
1996 WL 1185142, at *4-5 (Mass. Super. Ct. Mar. 15, 1996) (concluding salesman acted within
the scope of employment in assaulting taxi driver who interfered with salesman’s ability to impress
In sum, Doe has provided no evidence to support an inference that Medeiros acted within
the scope of his employment when he allegedly assaulted her.
For the foregoing reasons, the Court ALLOWS Defendants’ motion for summary
judgment, D. 51.
/s/ Denise J. Casper
United States District Judge
In arguing that Medeiros was acting within the scope of his employment, Plaintiff
discusses at length Jerez, 390 Mass. 456, 458 (1983). D. 57 at 9-10. Jerez, however, does not aid
Doe’s argument here. In Jerez, the Supreme Judicial Court determined that a consul was immune
from prosecution under the Vienna Convention for the alleged assault and battery of a police
officer. Id. at 458, 463. The Supreme Judicial Court’s analysis turned on its interpretation of the
scope of the Vienna Convention, “the scope of a consul’s functions and consular immunity.” Id.
at 460. The court held that the consul’s conduct occurred in response to the plaintiff-police
officer’s conduct that was interfering with his ability to perform his duties under the Vienna
Convention—in this case attending a cultural gathering. Id.
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