Poitevin-Velazquez et al v. A.T. Cross Company et al
Filing
92
OPINION AND ORDER granted 58 60 Motions for Summary Judgment. Signed by Judge Carmen C. Cerezo on 8/31/2011.(mld)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
DAPHNE POITEVIN-VELAZQUEZ, JOSE
REINALDO MARTINEZ-RAMOS, and the
conjugal partnership constituted by them
Plaintiffs
CIVIL 09-1703CCC
vs
A.T. CROSS COMPANY, DAVID FERREIRA
and LIANNE PORTUONDO
Defendants
OPINION AND ORDER
This action for employment discrimination is now before us on defendants A.T. Cross
Company (Cross) and Lianne Portuondo’s Motions for Summary Judgment (docket
entries 58 and 60, respectively). Defendant David Ferreira joined the motions (docket
entry 61). Plaintiffs opposed(docket entries 72, 73 and 74) and Portuondo replied (docket
entry 83). Plaintiff Poitevin’s remaining claims1 include those filed against the company with
which she formerly worked, A.T. Cross Company, pursuant to the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. § 621 et seq., and national origin discrimination under
Title VII of the Civil Rights Act, 42 U.S.C. § 2000e (Title VII) and, as to all defendants, her
Law 100 claim, and her husband José Reinaldo Martínez-Ramos’ and their conjugal
partnership’s claims under Article 1802 of the Civil Code of Puerto Rico.2
I.
PLEADING/SUMMARY JUDGMENT STANDARDS
Under Fed. R. Cv. P. 8(a)(2), a pleading must contain a “short and plain statement
of the claim showing that the pleader is entitled to relief.” While the rule does not require a
detailed
factual
allegation,
it
does demand
more
than
an
unadorned,
“the
1
Poitevin’s claims against Ferreira and Portuondo under the ADEA, Title VII, and Law 80, her own
Articles 1802-1803 and Law 115 claims against all defendants were DISMISSED. See, Partial Judgment of
November 12, 2010 (docket entry 69).
2
Although Puerto Rico Law 80 is invoked in the jurisdictional paragraph of the complaint, Poitevin has not
averred a cause of action under this law.
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2
defendant-unlawfully-harmed -me “accusation.
Iqbal v. Ashcroft, 129 S.Ct. 1937,
1949 (2009). A pleading that offers labels and conclusions or a formulaic recitation of the
elements of a cause of action will not do. Threadbare recitals of those elements, supported
by mere conclusory statements, does not suffice. Twombly, supra, at 555.
Summary Judgment “is proper if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that the
moving party is entitled to a judgment as a matter of law.” Rule 56 of the Federal Rules of
Civil Procedure; Sands v. Ridefilm Corp., 212 F.3d. 657, 660-61 (1st Cir. 2000);
Barreto-Rivera v. Medina Vargas, 168 F.3d. 42, 45 (1st Cir. 1999). The party seeking
summary judgment must first demonstrate the absence of a genuine issue of material fact
in the record. DeNovellis v. Shalala,124 F.3d. 298, 306 (1st Cir. 1997). The nonmoving
party must establish the existence of at least one relevant and material fact in dispute to
defeat such a motion. Brennan v. Hendrigan, 888 F.2d 129 (1st Cir. 1989).
The purpose of a summary judgment motion is to “pierce the boilerplate of the
pleadings and assay the parties proof in order to determine whether trial is actually
required.” Wynne v. Tufts University, 976 F.2d 791, 794 (1st Cir. 1992). The Court must
look at the record in the light most favorable to the non-moving party; however the Court
need not rely on unsubstantiated allegations. To defeat a motion for summary judgment,
evidence offered by non-movant “must be significantly probative of specific facts.” Prescott
v. Higgins, 538 F.3d. 32, 40 (1st Cir. 2008); Pérez v. Volvo Car Corp., 247 F.3d. 303, 317
(1st Cir. 2001).
We may ignore “conclusory allegations, improbable inferences and
unsupported speculation. Prescott, at 40.
A dispute is genuine if the evidence about the fact is such that a reasonable jury
could resolve the point in the favor of the non-moving party. A fact is material if it has the
potential of determining the outcome of the litigation. The non-moving party may not rest on
mere allegations or denials of his pleading but must“come forward with ‘specific facts
showing that there is a genuine issue for trial.’ [A] genuine issue of material fact exists if: (1)
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3
there is a dispute of fact; (2) the disputed fact is material to the outcome of the case; and
(3) the dispute is genuine, that is, a reasonable jury could return a verdict for either party.”
RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49 F.3d 399, 401 (8th Cir. 1995).
That is, the non-moving party may only overcome the motion with evidence sufficient
to raise a genuine issue of fact that is both relevant and material. See, Daury v. Smith,
842 F.2d 9, 11 (1st Cir. 1988); Cruz v. Crowley Towing, 807 F.2d 1084 (1st Cir. 1986). That
is, “the mere existence of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion [. . .].” Anderson v. Liberty Lobby, 477 U.S. 242,
248 (1986).
On issues where the nonmoving party bears the ultimate burden of proof at trial, he
may not defeat a motion for summary judgment by relying on evidence that is “merely
colorable” or “not significantly probative”. Rather, the nonmovant must present definite,
competent evidence to rebut the motion.
Pagano v. Frank, 983 F.2d 343, 347
(1st Cir. 1993), citing Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991).
Summary judgment is appropriate even when elusive concepts like motive or intent are in
play if the non-moving party
rests merely upon conclusory allegations, improbable
inferences, and unsupported speculation.
Feliciano v. El Conquistador, 218 F.3d 1
(1st Cir. 2000); Medina Muñoz v. R.J. Reynold Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
Therefore, the nonmoving party’s failure to advance evidence establishing the essential
elements of the cause of action, and for which they have the burden of proof, warrants the
dismissal of the case through summary judgment. Celotex v. Catrett, 477 U.S. 37 (1986).
Many of Poitevin’s responses to defendants’ statement of uncontested material facts
are merely denied, or followed by a sentence, or a variation of “Exhibit (5) is a self-serving
statement made by co-defendant Portuondo, after conclusion of discovery . . .,” with no
supporting evidence to refute the content. Local Rule 56(c) requires “a party opposing a
motion for summary judgment to accept, deny, or qualify each entry in the movant’s
statement of material facts paragraph by paragraph and to support any denials,
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4
qualifications, or new assertions by particularized citations to the record.” Cabán
Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 6-7 (1st Cir. 2007) (our emphasis). If the
party opposing summary judgment fails to comply with Local Rule 56(c), “the rule permits
the district court to treat the moving party’s statement of facts as uncontested.” Alsina-Ortiz
v. Laboy, 400 F.3d 77, 80 (1st Cir. 2005).
The purpose of this “anti-ferret rule” is to require the parties to focus the district
court’s attention on what is, and what is not, genuinely controverted. Id., see also Cabán
Hernández, supra, at 7. Otherwise, the parties would improperly shift the burden of
organizing the evidence presented in a given case to the district court. Id., at 8; Alsina-Ortiz,
supra, at 80. Local Rule 56 is intended to prevent parties from shifting to the district court
the burden of sifting through the inevitable mountain of information generated by discovery
in search of relevant material. Ríos Jiménez v. J. Principi, 520 F.3d. 31, 38 (1st Cir. 2008).
Given Local Rule 56(c)’s important purpose, this Court has repeatedly upheld its
enforcement, stating that litigants ignore it “at their peril. Torres-Rosado v. Rotger-Sabat,
335 F.3d 1, 4 (1st Cir. 2003). Local Rule 56(c) requires “a party opposing a motion for
summary judgment to accept, deny, or qualify each entry in the movant’s statement of
material facts paragraph by paragraph and to support any denials, qualifications, or new
assertions by particularized citations to the record.” Cabán Hernández v. Philip Morris USA,
Inc., 486 F.3d 1, 6-7 (1st Cir. 2007).
The Court held that submitting an “alternate statement of facts,” rather than admitting,
denying, or qualifying a defendant’s assertions of fact “paragraph by paragraph as required
by Local Rule 56(c),” justifies the issuance of a “deeming order,” which characterizes
defendant’s assertions of fact as uncontested. Cabán Hernández, supra. Accordingly, the
following Uncontested Material Facts, submitted by Cross and denied without evidentiary
citations to the record by plaintiff, are deemed ADMITTED: Statement numbers 12, 14-16,
26, 31, 39-49, 51-55, and 58.
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II.
5
FACTUAL ALLEGATIONS
In their motions for summary judgment defendants submit that Poitevin lacks claims
under the federal laws invoked because she was not Cross’ employee. They further contend
that she did not suffer a hostile work environment, the claim for which they argue that, in any
event, is time-barred. They also state that she lacks a claim for national origin, age
discrimination. or for retaliation under Title VII and the ADEA, because the termination of her
employment was based on good business reasons. They additionally argue that her
husband and conjugal partnership’s cause of action is time-barred. Because the issue of
whether Poitevin was an independent contractor or an employee of defendant Cross is
dispositive of her federal claims, we limit our discussion and address only this issue.
Eliminating all conclusory averments of law and fact, and speculation, the relevant,
material facts as pled in the complaint are as follows:
Poitevin, began working directly with Cross in 2001 as a merchandiser, when the
Company took over the operations of its Puerto Rico distributor Hawayek Freeport, with
which she had been an independent contractor/ non-exclusive merchandiser.3
In
March, 2007, David Ferreira, Cross’ Traveling Retail Manager for Latin America, who worked
out of Miami, Florida, became her supervisor. Id., ¶ 17.
Plaintiff then narrates the fact of multiple incidents occurring after his appointment
that she alleges demonstrate a hostile work environment based on national origin and age
discrimination See, e.g. ¶¶ 18, 19, 22, 23, 24, 26, 27, 28, 30, 32 and 34. Plaintiff’s first
cause of action against Cross is for national origin discrimination and termination of her work
relationship with Cross in retaliation for complaining about said discrimination. Poitevin’s
second cause of action against Cross is based on age discrimination. She states that she
3
Plaintiff erroneously states in her complaint, at ¶¶ 12 and 15 that she worked for Cross since 1997 and
became a sales representative in 1999. The Pointevin/Hawayek contract, defendants’ exhibit 1, at ¶ 5b reflects that
Poitevin actually worked as an independent contractor/ non-exclusive merchandiser with Hawayek Freeport, Cross’s
distributor in Puerto Rico from 1999 through part of 2001. Cross did not take over the Puerto Rico operations until
some time in 2001. Plaintiff signed an independent contractor/merchandiser letter contract directly with Cross on
May 1, 2001. Defendant’s exhibit 3.
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6
is 57 years old, that her job performance met defendant’s requirements and expectations
and, notwithstanding her satisfactory job performance, she was dismissed and replaced by
a younger person. Id., ¶¶ 51, 52, 53, 54 and 56. The third and fourth causes action are filed
pursuant to Puerto Rico Laws 100 and 115, 29 L.P.R.A. §§ 146 and 194, et seq.,
respectively, for unlawful discrimination employment practices. Remaining of the fifth claim
is Poitevin’s husband and conjugal partnership’s subsidiary tort claim arising from
defendants’ alleged actions against Poitevin.
Plaintiff’s grounds for believing herself to be a Cross employee are summed up at
page 107 of her deposition (74-2):
A.
Because I had a time schedule, I would work forty hours, I had
a time card, I had a schedule. I had access to confidential information
regarding clients, as to credit. I had access to all the accounts, I had a direct
deposit in my account, they would pay for my vacations, I would use the whole
Fed-Ex system at A.T. Cross Puerto Rico. I appear in the Cross’s web page
as Cross’s employee, and as far as I’m concerned, because of the
relationship, my performance and because Lianne Portuondo told me so.
....
Q.
What did Lianne tell you?
A.
That I was starting to have a full and direct job with them, with
the company.
III.
ANALYSIS
Supplementing the complaint with the exhibits supporting the motions and the
uncontested material facts, we complete the events as follows:
Poitevin worked pursuant to a Merchandiser Contract with Hawayek Freeport, that
she and José M. Hawayek, the distributor in Puerto Rico for Cross, signed on September 7,
1999. Defendant’ Ex. 1. The contract specifically stated, at ¶5b, “The relationship hereby
established does not constitute that of employer or employee, partners or joint ventures, but
that of independent contractor. After Cross ended its contract with Hawayek and took over
the operation of the Puerto Rico market, it entered into a non-exclusive merchandiser
contract with Poitevin. Defendants’ Exhibit 3, the May 1, 2001 letter/contract sent by
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7
Portuondo, and accepted and signed by plaintiff, states in the introduction that Cross
confirms her appointment as a non-exclusive merchandiser in Puerto Rico under the terms
and conditions, set forth below, among which are the following:
1.
Poitevin acknowledges that Cross has developed the good name, good will,
and it products’ acceptance in the United States, Puerto Rico, the Virgin Islands, Caribbean
and other countries and it will continue to have, at its effective charge, the distribution,
promotion and marketing of its products in Puerto Rico.
2.
Poitevin acknowledges that it is not Cross’s intention to grant her the
distribution, promotion and marketing of the products in Puerto Rico.
3.
The contract would expire on December 31, 2001 without notice, and could be
renewed for one year terms by written agreement, and terminated by either party, with or
without cause, upon 30 days notice.
5.
It is stated in this paragraph that Poitevin is not a sales representative for
Cross, she is not authorized to accept purchase orders or make any representations on
Cross’s behalf and she is not entitled to receive any sale commissions because she is a
merchandiser, not a sales representative.
6.
Paragraph 6 defines the relationship between Poitevin and Cross:
The relationship between you and CROSS will be one of an
independent contractor. You have no right or authority, whether express or
implied, to assume or create any obligation on behalf of CROSS. You will not
be deemed an employee, agent or representative of CROSS. You further
acknowledge that the intention when entering into this Agreement was
that you would not be a distributor, sales representative, agent or
employee for CROSS.
(Our emphasis)
From the clear and unambiguous terms of the initial written agreement between
Cross and Poitevin, she was an independent contractor/merchandiser – not “a distributor,
sales representative, agent or employee for CROSS.” Id. It is undisputed that the contract
was not renewed in writing, and that the initial contract letter was followed by verbal
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8
agreements. The question before us is whether those agreements continued the
independent contractor relationship or established an employment relationship.
The Court of Appeals for the First Circuit has applied the “common law agency test”
in cases arising under federal anti-discrimination statutes, such as the Title VII and the Age
Discrimination in Employment Act (ADEA), which contain containing the same definition of
“employee.” See, Alberty-Vélez v. Corporación de Puerto Rico para la Difusión Pública,
361 F.3d. 1, 6 (1st Cir. 2004) and cases cited therein. Under the common law test, a court
must consider:
the hiring party’s right to control the manner and means by which the product
is accomplished. Among other factors relevant to this inquiry are the skills
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 extent of 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;
and the tax treatment of the hired party.
Id., at 7. The Court went on to say that the test provides no shorthand formula or magic
phrase that can be applied to find the answer, all of the incidents of the relationship must
be assessed and weighed with no one factor being decisive. Where there are no disputed
issues of material fact concerning the employment status, a court may decide the employee/
independent contractor question as a matter of law if the factors point so favorably in one
direction that a fact finder could not reasonable reach the opposite conclusion. Id.
In the action before us, not all of the criteria are applicable, there are some criteria
about which we have no information, and other criteria raised by plaintiff herself, which are
relevant and indicative of her work status, but not included in the list.
We first present undisputed facts bearing on the determination of Poitevin’s status,
as taken from those portions of her own statement of proposed uncontested material facts,
(docket entry 74), with which defendants have no dispute:
5.
Poitevin worked from home; She was paid directly by Cross.
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9
10.
Poitevin was paid by the hour.
11.
Poitevin had more responsibilities on January 2nd, 2002 with Cross.
13.
It was agreed that Poitevin would continue rendering services to Cross
as she had been doing but by then she had additional duties . . . .
16.
Poitevin entered into a verbal agreement with Cross.
22.
Poitevin was paid for all the hours that she worked and rendered a
report for the hours worked during the month. She was paid $10.50/hr. . . .
It was increased to $14.50/hr.
23.
Poitevin entered into a verbal contract with Cross pursuant to which her
relationship with cross Continued.
A.
The Verbal Contracts
It is undisputed that plaintiff’s initial letter contract was unequivocally one to work as
an independent contractor/merchandiser. Although Poitevin denies that the contract was
renewed at the end of 2001, her deposition testimony reflects that, thereafter, she worked
under verbal contracts.4 See, Poitevin deposition, at pp. 58-60 (58-3, 74-1 )5. Under the first
verbal agreement she relates that she was given all the client files to follow up, additional
duties, and later increase in her hourly pay. Poitevin stated, “everything continued to be
normal, everything was good, except for those changes.” Id. In her explanation of the
verbal agreements of how the employment relationship changed, plaintiff describes
increases in duties and responsibilities; she does not state that under the verbal agreements
she became an employee, was added to the employee rolls, was given equipment or now
had fringe benefits such as sick leave or company insurance. In another exchange during
her deposition, regarding changes in her relationship with Cross after the only written
contract expired, at page 12 (58-5), with Attorney Cruz leading as follows:
4
Poitevin’s Uncontested material facts (docket entry 74) numbers 23, 24 and 25 does not give any dates
on which these oral contracts were entered. It is unclear from the context whether she is referring to a new contract
or one that she has previously mentioned. Therefore, the total number of such contracts is unknown.
5
Numbers in parentheses (58-3, 74-1) refer to the docket entries and attachment numbers from which the
pages cited are taken.
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10
Q.
Let me rephrase the question. If I have [understood] you
correctly, your position is that the relationship with Cross grew after
December 2001 into a relationship where you understood you were Cross
representative in Puerto Rico.
A.
Yes.
Q.
Did it change in any other way?
A.
My responsibilities.
Q.
Besides your responsibilities, did it change in any other way?
A.
No, it continued to be the same, I continued to work.
As stated by Debra-Lee Hagopian, Cross’ Director of Human Resources, in her
Statement under Penalty of Perjury, Defendants’ Ex. 9 (59-2), ¶18:
At the time of hiring new employees, Cross requires them to sign an
“Employment at Will Contract”, an acknowledgment as to the receipt of Cross’
employment policies, which include the Equal Employment Opportunity Policy,
and a statement of compliance with Cross’ Code of Ethics and Business
Conduct, among other employee forms and documents. None of these
documents were signed by Mrs. Daphne Poitevin because she was not Cross’
employee.
Moreover, with regard to the nature of her work relationship as an independent
contractor, as opposed to an open-ended or permanent employer/employee relationship,
Poitevin states in her Charge of Discrimination before the Puerto Rico Anti-Discrimination
Unit, plaintiff’s Ex. 5, “Instead, they cancelled my contract effective November 25, 2008.”
B.
Sales Representative -“Employee” Role
Plaintiff claims a change in work status to that of Cross’ employee based on the
characterization of her position, from 2002 on, as Cross’ representative in Puerto Rico.
Plaintiff’s perception is based on her increased duties and responsibilities after her written
contract expired. She also asserts that Portuondo referred to her as Cross’ representative
in Puerto Rico. Plaintiff’s deposition, at 51-55. (58-3). Ana María López, who was hired by
Cross in June, 2008 and became plaintiff’s immediate supervisor, states In her deposition
testimony, at 62 and 64, that the clients in Puerto Rico, and the persons at Cross with
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11
whom López worked, knew, or stated to her, that Poitevin was a sales representative for
Cross in Puerto Rico. (Plaintiff’s Ex. 3).
The matter of plaintiff’s classification as a Cross sales representative, however, is not
a question of material fact bearing on the issue of her work relationship status. That an
individual is a sales representative is in no way determinative of an employer/employee
relationship as opposed to one based on an independent contractor relationship, because
sales representatives may operate under either kind of relationship. See, e.g., Ernster v.
Luxco, Inc., 596 F.3d. 1000, 1007 (8th Cir. 2010) (Marketing representative for liquor
brokerage company was an independent contractor and not an employee eligible for ADEA
protection); Dykes v. DePuy, Inc., 140 F.3d. 31, 34 (1st Cir. 1998) (Owner of company acting
as a manufacturer’s sales representative in the region was an independent contractor, not
an employee of the manufacturer.); Nieves v. Universal Solar Products, 2009 WL 481274
(D. Puerto Rico 2009)(Whether plaintiff/sales representative was an independent contractor
or was actually an employee was a question of fact that could not be resolved on summary
judgment.).
In fact, Puerto Rico’s Sales Representatives Act, Law 21 of December 5, 1009,
10 L.P.R.A. § 279 et seq. provides protection for independent contractors working as
exclusive sales representatives from unjust termination of the contractual relationship by the
manufacturer or entity that they represent. For purposes of the law, Section 279(a) defines
“sales representative” as, “an independent entrepreneur who establishes a sales
representation contract of an exclusive nature, with a principal or grantor, and who is
assigned a specific territory or market, within the Commonwealth of Puerto Rico.
Similarly, in response to Cross’s uncontested fact number 26 that a letter written by
Cross to assist with her loan application did not change or modify the parties contractual
relationship (58-1), Poitevin denies the statement as self-serving and, without providing the
letter itself, or any other evidence, adds, “The letter provided to the bank was clearly
prepared to show that, indeed, Poitevin was an employee of Cross.”(docket entry 73, at 4).
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12
Contrary to plaintiff’s interpretation, the language of the letter reflects only that she has a
work relationship, the kind of which is not identified: “I hereby state that Mrs. Daphne
Poitevin, . . works with our company . . . .” (Docket entry 87-1) (our emphasis). It does
not state that she is “an employee” or “is employed by.”
C.
Ownership of Equipment and Tools
Poitevin acknowledged that, aside from promotional and exhibitional items, the only
equipment provided by Cross were an engraving machine for use on its products, and a
laptop computer that did not work very well and that she did not use for long. That is, all of
the equipment she used – the fax machine, telephone, cellular telephone, computer, camera
and any other tools or equipment in her office were her own property. Plaintiff’s deposition
at 23-25 (58-5 ). Poitevin affirmed this statement at page 1 of her September 7, 2008 letter
to Portuondo (86-1 translated at 59-15), when she states, “ I have not received benefits, nor
training from the company ever, nor computers, photographic cameras, really no
equipment, nothing, I have to provide myself with everything and I did it.” (Our
emphasis). The fact that a worker provides his or her own tools generally indicates
independent contractor status. Peno Trucking, Inc. v. Commissioner of Internal Revenue,
296 Fed. Appx. 449, 458 (6th Cir. 2008).6
D.
Treatment of Income for Tax Purposes
With regard to plaintiff’s treatment for income tax purposes in evaluating an
individual’s work status, tax forms and tax returns are essential in determining such status.
See, e.g. Estate of Suskovich v. Anthem Health Plans of Virginia, 553 F.3d. 559, 568
(7th Cir. 2009). Cross’ uncontested fact number 8 --“Poitevin recognized that she was a
contractor when she acted as one for tax purposes. Poitevin benefitted from her status as
a contractor and deducted all the business expenses she allegedly incurred as Cross’
6
Poitevin complained in her Anti-Discrimination Unit Charge, Ex. 5, that when Cross hired Ana López,
“[s]he was given all the help I had been asking for, for so long and had never gotten, such as a fax, digital camera,
computer, expenses, and cell phone.”
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13
contractor, instead of limiting herself to the $1,1500.00 maximum employee deduction
allowed by the Puerto Rico Income tax provisions to employees.” – was denied by the
plaintiff in her response, without a citation to any supporting evidence. With her denial,
however, she did state, “Poitevin’s manner of filing her income taxes complied with state
law.” Therefore, we examine plaintiff’s tax returns and form, accepting that she has filed the
applicable forms with the correct categories for her deductions.
Except for 20047, when she did not file a tax return, plaintiff filed her annual Puerto
Rico income tax returns, not with a Form W-2, which reports wage or salary income of
employees, but with a Form 1099 which reports miscellaneous/self-employment income.
Each Form 1099, from 2001 through 2008, reflects Poitevin’s income from Cross as
“Nonemployee compensation.” (Our emphasis). The forms further reflect that no state or
federal income taxes were withheld. Furthermore, as part of her income tax returns, plaintiff
included the “Schedule M Individual,” claiming operating expense and other costs. For
example, on her 2003 tax return, she claimed expenses of $800.00 for repairs, $4,500.00
for motor vehicle expenses, $4,800.00 for utilities, $1,800.00 for travel expenses and
$800.00 for professional services, for a total of $12,400.00 in business related expenses.
Similar expenses were claimed in other years, for example, $7,050.00 in 2005, $16,700.00
in 2006, and $19,400.00 in 2008. All of these amounts are well above the $1,500.00 annual
allowance for employee deductions for business related expenses allowed on the Puerto
Rico income tax return.
Additionally, neither Poitevin’s income tax returns nor the 1099 forms reflect any
deductions by Cross for federal or Puerto Rico income tax, or for social security taxes, as
required under the Federal Insurance Contributions Act, 26 U.S.C. § 3101 et seq., for
7
During 2004 Poitevin states that she did not maintain a direct work relationship with Cross and, therefore,
was not paid by the company. Instead, she worked with her son, Krystian López, who had an independent contract
with Cross, and who was also paid non-employee compensation reported on a Form 1099. That is, the orders were
in her name but her son submitted the claims for payment to Cross and payment was made to him. Poitevin
deposition at 59-60 (74-1, 58-3).
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14
remuneration from employment. Peno Trucking, Inc., supra, at 454. That is, for income tax
purposes, plaintiff was not a Cross employee: defendant paid her non employee income as
reflected on the 1099 forms, not W-2 forms. Poitevin affirmed her non-employee status vis
a vis her tax returns by claiming as business expenses on the Schedule Ms, thousands of
dollars for maintaining an office in her home, utilities vehicle and travel expenses and other
costs that far exceeded the legal employee deduction of $1,500.00 year for business-related
expenses.
E.
Email Address, Website Access
While Poitevin claims to have had an employee number, user I.D., password and
email address as a Cross employee, her own evidence refutes this point. Plaintiff’s
Exhibit 4, is a Gmail “MyCrossBiz.com User ID/Password Reminder” originally sent by Cross
to Poitevin on March 16, 2006.
MYCROSSBIZ.COM, however, is not the Cross website
for its employees. The website’s Homepage can be used by anyone to access general
introductory information about site. With regard to secures areas of the site, it is stated,
“Only authorized distributors and business partners of Cross may access the site.”
(our emphasis). It also sets out the procedure by which distributors and business partners
can obtain additional user IDs and passwords for their employees. The email reminder to
plaintiff contains the message, “Sign in now. It’s never been easier to do business with
Cross!” (Our emphasis).8
We also note that Poitevin’s email address on the reminder, “d_poitevin@yahoo.
com”, is the same email address that she used to communicate with the defendants and
other Cross employees. There is nothing in plaintiff’s Yahoo email address that identifies it
as having any relationship with the A.T. Cross company. In contrast, copies of other emails
submitted as exhibits reflect that defendants Ferreira and Portuondo, and other Cross
8
Poitevin also contends that she appeared on Cross’ web page as an employee, and that Portuondo told
her so in 2002, (74, at 6, ¶40), but she has not submitted a copy of the website page or any other evidence to
corroborate these self serving statements.
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15
employees use individualized email addresses with the Cross’ name as the domain name,
such as
“dferreira@cross.com”, and “Rconway@cross.com”. Moreover, Poitevin
acknowledged that she never had an “@cross.com” email address. (Plaintiff deposition
at 13 (58-5).
F.
Work Hours and Fringe Benefits
Plaintiff’s contracts did not require that she work a specific number of hours on a daily
basis; she was able and/or free to work the number of hours she deemed necessary.
Plaintiff deposition at 49 (58-3). She would invoice hours that she worked and report them
to Portuondo or another Cross employee so that she could be paid for her services. Plaintiff
deposition at 75 (58-3).
At pages 118-120 (58-6) of her deposition, Poitevin claims to have been paid for
vacations in April or May, 2007 and April and May, 2008. She did not know if she had, or
if any document existed in which she was notified of either vacation or sick leave during her
relationship with Cross. Id. Also, in response to defendants’ uncontested fact number 14,
plaintiff refers to her Promoter’s Itinerary of April, 2007 as demonstrating that, “[in] April 2007
one week she only worked 8 hours; hence, she was on vacation as stated in her deposition.”
This statement is patently false, however: the “week” that she claims to have invoiced only
eight hours was a single day – Monday, April 30, 2007. Tuesday through Friday of that
week were May 1 through 4, 2007, during which Poitevin claims to have worked 32 hours
and which appear on her May, 2007 Promoter’s Itinerary. If she was paid by Cross for
vacation during the month of April, 2007, it was because she reported to Cross that she had
been working an average of eight hours every day.
With regard to other purported paid vacation in April and May of 2007 and 2008, a
review of plaintiff’s Promoter’s Itineraries for the months of April and May, 2007 reflect that
Poitevin reported that she had been servicing clients throughout the island for 40 hours
each of the four weeks and eight hours for the extra day discussed above, or 164 hours
worked in April, 2007 and that she did 184 hours of promotional work in May, 2007. In April,
CIVIL 09-1703CCC
16
2008, Poitevin claimed to have worked 164 hours and in May, 2008,184 hours. Plaintiff has
submitted no documentation to support her contention of a vacation for which Cross
knowingly paid. Rather, the evidence reflects that Poitevin reported to Cross on her
Promoter’s Itineraries that she had done promotional work for clients, averaging eight hours
per day for every weekday during those entire periods when she claims she was on
vacation. She did admit that, however, at pages 120-121 of her deposition (58-6), other than
the “vacation leave” discussed above, she did not receive any employee benefits from
Cross.
In sum, the uncontroverted evidence reflects that Poitevin worked with A.T. Cross as
an independent contractor for their entire relationship, except for the period in 2004 when
she was not paid directly by Cross, but, instead, worked with her son Krystian López, who
had his own independent contract with the company. During all her time with Cross, when
not working in the field, she worked out of her home office, and, except for an engraving
machine for use on Cross products, used her own equipment. Cross paid her as an
independent contractor, making no deductions for state or federal income tax, workman’s
compensation or social security, and Poitevin paid her income tax as an independent
contractor, claiming deductions for all her home office expense– equipment, utilities, and
materials– as well as all travel-related and vehicle expenses and repairs on the Schedule
M form, rather that the maximum of $1,500.00 allowed to employees on the Schedule I form.
She received no fringe benefits such as vacation, sick leave, insurance or an employee
discount; she did not have an official Cross email account, using instead an ordinary Yahoo
email account.
Having determined that Poitevin’s relationship with Cross was as an independent
contractor, we turn to the statutes under which she brings her federal claims: Title VII and
the ADEA. Title VII defines an “employee” as “an individual employed by an employer.”
42 U.S.C. § 2000e(f). It is now clear that this definition does not cover independent
contractors. Thus, an independent contractor may not maintain a Title VII action against the
CIVIL 09-1703CCC
17
entity with which she contracts.” Alberty-Vélez, supra, at 6; see also Dykes, supra, at 37 n.6
(Title VII does not protect independent contractors.). Similarly, the ADEA, which makes it
unlawful for an employer to discharge or otherwise discriminate against an individual with
respect to the terms and conditions of employment because of such individual’s age, also
requires that the individual be in a covered employment relationship; that is, not an
independent contractor. Camacho v. Puerto Rico Ports Authority, 369 F.3d. 570, 573
(1st Cir. 2004); Speen v. Crown Clothing Corp., 102 F.3d. 625, 629 (1st Cir. 1996).
The Court having found that plaintiff’s claims do not proceed because she was an
independent contractor and not an employee of A.T. Cross Company, defendants
A.T. Cross Company (Cross) and Lianne Portuondo’s Motions for Summary Judgment
(docket entries 58 and 60, respectively) are GRANTED and her federal claims are
DISMISSED with prejudice. The claims under Puerto Rico law are DISMISSED without
prejudice.
SO ORDERED.
At San Juan, Puerto Rico, on August 31, 2011.
S/CARMEN CONSUELO CEREZO
United States District Judge
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