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United States District Court, N.D. California
April 21, 2014
THOMAS HENNIGHAN, Plaintiff,v.INSPHERE INSURANCE SOLUTIONS, INC., Defendant
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[Copyrighted Material Omitted]
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Re: Dkt. Nos. 59, 65.
For Thomas Hennighan, Plaintiff: Lawrance A. Bohm, LEAD ATTORNEY, Bradley J. Mancuso, Bohm Law Group, Sacramento, CA.
For Insphere Insurance Solutions, Inc, Defendant: Barbara Ann Fitzgerald, LEAD ATTORNEY, Kathryn T McGuigan, Morgan Lewis & Bockius LLP, Los Angeles, CA; Paulo Byron McKeeby, PRO HAC VICE, Morgan Lewis & Bockius LLP, Dallas, TX.
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WILLIAM H. ORRICK, United States District Judge.
Determining whether an individual is an independent contractor or employee requires a fact-intensive analysis that is not often susceptible to resolution on summary judgment. Plaintiff Thomas Hennighan is an insurance sales agent who signed an independent contractor agreement with defendant Insphere Insurance Solutions, Inc., and each party has asked me to determine his classification as a matter of law. Hennighan was paid only commissions, had his own clients, kept his own hours (more than 50 percent of which were spent out of the office), and paid his own taxes and expenses. While Insphere had certain expectations about his sales results, it did not exercise sufficient control over the means and methods that Hennighan used to do his job to make him an employee. No jury could reasonably find differently, so I will GRANT Insphere's motion for summary judgment and DENY Hennighan's motion for partial summary judgment.
Insphere is in the business of selling insurance policies. Hennighan used to sell policies for it. His relationship with Insphere began on April 23, 2010, when he signed a contract entitled " Independent Insurance Agent Commission-Only Contract" with Insphere. Pl. Dep. Ex. 1. The agreement stated,
SECTION VII -- Independent ContractorBy executing this Contract, I [Hennighan] recognize and understand that I
By executing this Contract, I [Hennighan] recognize and understand that I
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am an independent contractor and nothing in this Contract or otherwise is intended to create an employer/employee relationship between Me and Insphere or an Insurance Company. . . . As an independent contractor, I will decide when, where, and the manner and means to conduct My business activities. While Insphere and/or its agents or representatives may from time to time provide Me with models and guidelines, I recognize and acknowledge that I have complete discretion to set My business hours and schedule.
As an independent contractor, I will be responsible for payment of all expenses and fees incurred by Me, including but not limited to business overhead, transportation, state and federal income tax, self-employment tax, social security tax, unemployment tax and workers' compensation. I am responsible for and shall pay all taxes, duties, assessments and other government charges related to My performance under this Contract.
If Insphere or an Insurance Company, or any of their respective agents or representatives, takes a position that I feel is contrary to My independent contractor status or requires Me to act in such a manner that I believe to be inconsistent with My independent contractor status, I agree to notify Insphere immediately . . . of such conduct.
Pl. Dep. Ex. 1, Section VII, at 6-7. Either Hennighan or Insphere could terminate the agreement at will. Pl. Dep. Ex. 1, Section X, at 8. Hennighan believed that he was hired to be a salesman for Insphere. Pl. Dep. 68:2-8. As part of this agreement, Hennighan would receive a commission whenever he successfully sold a policy for Insphere. Pl. Dep. 88:18-89:8. Hennighan read the agreement before he signed it. Pl. Dep. 134:3-5.
On the same day that he signed the contract, Hennighan also signed an " Administrative Fee Acknowledgement," which stated, " [a]s an independent contractor, I agree that I will be responsible for payment of all expenses and fees incurred by Me, or by Insphere on My behalf, including the $130.00 administrative fee required to process My Contract application, appointment fees, business cards and other miscellaneous fees related to My Contract." Pl. Dep. Ex. 2.
Shortly thereafter, in May or June 2010, Hennighan paid for and took online training to get a California health and life insurance license. Pl. Dep. 37:5-17. He paid for and received that license in June 2010. Pl. Dep. 35:7-18. He also paid for and took continuing education requirement classes in order to maintain his license. Pl. Dep. 38:25-39:22. In 2012, he paid for the renewal of his license. Pl. Dep. 35:19-24. There is no evidence that he ever received or requested reimbursement for these expenses.
Insphere offered various insurance products and carriers that Hennighan could sell. Pl. Dep. 58:1-11. These products included life and health insurance, and supplemental dental, vision, and disability policies. Pl. Dep. 70:19-22. Although Insphere brought certain products to Hennighan's attention, Hennighan could decide which products he would or would not sell. Pl. 112:3-19.
Hennighan had the opportunity to pursue prospective policyholders from a variety of sources. Schooler Mot. Decl. (Dkt. No. 61) ¶ 3. Hennighan testified that there are " countless" ways to get " leads," i.e., potential clients, including " talk[ing] to people on the street," purchasing them, or through networking. Pl. Dep. 79:7-19, 80:10-20. Hennighan purchased leads and even paid for a membership in a " tip club" to seek leads. Pl. Dep. 80:10-20, 81:14-82:5.
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Ultimately, successful leads would become Hennighan's own clients. Pl. Dep. 131:2-11. However, a witness for Hennighan claims that Insphere " owns and controls all sales prospects and clients." Shirley Umamoto Mot. Decl. (Dkt. No. 68) ¶ 12.
For work, Hennighan paid for or provided his own laptop (Pl. Dep. 119:22-120:6), cellular phone and monthly usage fees (Pl. Dep. 120:11-22), printer (Pl. Dep. 121:5-18), paper and toner (Pl. Dep. 122:6-13), and car (Pl. Dep. 122:14-124:3). Hennighan also paid for the insurance and gas on his car, even when he used it while doing work for Insphere. Pl. Dep. 123:14-20. There is no evidence that he ever received or requested reimbursement for these expenses. Insphere provided Hennighan with access to its San Jose, California, office for use when meeting clients, but he did not have an assigned office. Pl. Dep. 117:2-23. He had to sign up to use office space for a day. Id. Hennighan worked outside of the office more than 50 percent of the time. Pl. Dep. 237:15-238:7. He kept his own office in Santa Cruz, California. Pl. Dep. 183:2-16.
Hennighan could sell insurance anywhere in California and did not need approval to set up an appointment with a potential client. Pl. Dep. 77:13-20, 146:23-147:2. He initially worked three days a week in the San Jose office, but then decided to work either at home or in his Santa Cruz office. Pl. Dep. 183:2-16. Much of his work was done at clients' houses, in public settings, or on the road. Pl. Dep. 119:17-19, 183:2-16, 237:15-238:7.
Larry Roth was the San Jose office's Agency Manager during the last few months of Hennighan's contract with Insphere and remains the manager to this day. Roth Decl. (Dkt. No. 60) ¶ ¶ 1, 3. Roth conducts a weekly sales meeting that typically occurs on Tuesday and usually lasts around an hour and one-half to two hours. Roth Decl. ¶ 2. While attendance at the sales meetings by agents is voluntary, he generally encourages them to attend if they feel it would be helpful for them to share marketing and related experiences with other agents. Id. Occasionally, agents are asked to attend product training to ensure that they comply with rules and regulations regarding the marketing of insurance and related products. Id.
Hennighan, however, says that he was " required" to attend annual regional meetings, to participate in a weekly call-in team meeting, and to participate on a call-in production report meeting three times a week. Hennighan Mot. Decl. (Dkt. No. 66) ¶ ¶ 12-15. He says that Insphere was careful about not calling the meetings " mandatory," but there was some expectation that they had to be attended. Pl. Dep. 142:20-25. Insphere also " strenuously advised" him that if he wanted to remain " employed by Insphere," he had to attend every such meeting. Hennighan Mot. Decl. ¶ 16. Other employees also testified that sales agents were required to participate in weekly call-ins and meetings. Greg Umamoto Mot. Decl. (Dkt. No. 69) ¶ 5; Shirley Umamoto Mot. Decl. ¶ 3. Agents were held accountable and threatened with termination if they missed phone-in meetings. O'Connell Mot. Decl. (Dkt. No. 67) ¶ 31-33.
Aside from the various meetings, agents " are not regularly in attendance" at the San Jose office but rather market and sell insurance and related products, and communicate with potential policyholders or other customers, on their own schedules and as they see fit. Roth Decl. ¶ 2. But one employee claims that sales agents are required to go into the San Jose office regularly. Shirley Umamoto Mot. Decl. ¶ 22. Roth asserts that other than periodically
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reviewing agents' sales reports, he did not set an agent's work schedule or supervise or monitor an agent's work. Roth Decl. ¶ 2. He contends that he did not formally evaluate agents' or Hennighan's work. Roth Decl. ¶ 3. However, a former employee says that " Insphere requires performance evaluations" and sales agents are required to fill out goal sheets against which they are held accountable. Shirley Umamoto Mot. Decl. ¶ 17.
Insphere paid Hennighan commissions; it did not provide him with a salary or wages. Pl. Dep. 88:10-89:4. He never filled a time sheet for Insphere. Pl. Dep. 88:14-17. (However, insurance carriers would sometimes award Hennighan bonuses if he sold enough of their policies. Pl. Decl. 99:1-25.) Because Hennighan was free to establish his own schedule and determine the amount of investment, time, and otherwise that he wished to make in selling Insphere products, Hennighan bore the risk of profit or loss by controlling the amount of time, effort, and financial investment he chose to put into his sales activities. Schooler Mot. Decl. ¶ 2. Insphere did not provide him with vacation pay, holiday pay, or group health insurance, and no one ever told him that he would be eligible for it. Pl. Dep. 86:22-87:17. No one at Insphere ever told him that he could not take a lunch or rest break when he wanted to. Pl. Dep. 140:21-142:4, 241:24-242:4.
Two witnesses for Hennighan claim that Insphere expects its sales agents to not have outside businesses or to sell other companies' products. Shirley Umamoto Mot. Decl. ¶ ¶ 31, 34; O'Connell Mot. Decl. ¶ 19. One of them claims that Insphere agents were not allowed to have unapproved outside appointments and that she was told to warn a sales agent that if the agent did not give up her outside appointments, she would be terminated. O'Connell Mot. Decl. ¶ ¶ 4, 5.
Hennighan sold insurance policies outside of his relationship with Insphere because he felt that he needed more work. Pl. Dep. 107:16-18. Through Insphere, Hennighan had appointments to sell for insurance carriers such as Aetna, Health Net, HealthMarkets, Blue Cross Anthem, Genworth, and ING, but Insphere did not get its agents the ability to sell anunuities. Pl. Dep. 103:9-19, 105:3-18. So Hennighan got his own appointments outside of Insphere with Aviva and other insurance companies to sell annuities. Pl. Dep. 103:9-104:23, 136:24-137:1. He reached out to Steven Valdez of First Authority to get an annuity contract because Hennighan felt that his commissions were being cut back by Insphere and he needed to make money. Pl. Dep. 106:1-107:13.
Hennighan contracted with Insphere to only sell policies throughout California. Pl. Dep. 145:20-23, 146:23-147:2. Through Valdez, Hennighan became licensed to sell insurance in Arizona, Texas, and South Carolina. Pl. Dep. 146:4-22. In addition, Hennighan was appointed with Cigna Health and Life Insurance Company (Pl. Dep. 109:12-16, 111:6-12), Humana Insurance Company (Pl. Dep. 109:17-23), Assurety Life (Pl. Dep. 112:20-22), Blue Shield of California (Pl. Dep. 112:25-113:18), Time Insurance Company (Pl. Dep. 113:21-114:1), Golden Rule Insurance Company (Pl. Dep. 114:9-14), Guarantee Trust Life (Pl. Dep. 114:15-16), and Royal Neighbors of America (Pl. Dep. 115:10-11).[1]
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Hennighan reported on his tax returns that he did not receive any wages in 2010, 2011, and 2012. Pl. Dep. Exs. 4 (2010 tax return) & 5 (2012 tax return); McGuigan Decl. Ex. 6 (2011 tax return). Instead, Hennighan reported earning business income and deducted various business expenses, e.g., for his cell phone, lead purchases, and driving mileage. Id.
On November 18, 2011, Hennighan filed a complaint with the California Division of Labor Standards Enforcement alleging that he was improperly treated as an exempt employee and that Insphere did not pay all his wages. Pl. Dep. Ex. 6. On February 2, 2012, after a conference was held to determine the validity of the claim, a Deputy Labor Commissioner determined that Hennighan was an independent contractor. Pl. Dep. Ex. 8.
Roth never met Hennighan after he was assigned to the San Jose office in February 2012 until he was deposed in this action. Roth Decl. ¶ ¶ 1, 4. After Roth started in San Jose, Hennighan had no contact with the office, sold no insurance policies or other products, and attended no meetings at the office. Roth Decl. ¶ 4. Based on Hennighan's inactivity for about two months, Roth contacted Insphere's corporate office in April 2012 to initiate termination of Hennighan's contract. Id. Roth claims that his decision was not influenced by Hennighan's complaint to the California Labor Commissioner and he is not sure he was even aware of Hennighan's complaint when he initiated the termination. Id. On April 26, 2012, Insphere sent Hennighan a contract termination letter based on Roth's recommendation. Roth Decl. ¶ 5; Smith Decl. Ex. 3. Mark Smith, Insphere's Chief Operating Officer, did not know that Hennighan had filed a complaint against Insphere when he signed the termination letter based on Roth's recommendation. Smith Decl. ¶ 2.
Hennighan filed this action in the Superior Court of California, County of Santa Clara, on January 22, 2013, and it was removed to this Court on February 13, 2013. Dkt. No. 1. After several motions to dismiss and various stipulations, Insphere remains the sole defendant. The Second Amended Complaint contains the following causes of action: (1) unlawful discharge, discrimination, and retaliation under California Labor Code Sections 98.6 and 1102.5; (2) wrongful termination in violation of public policy codified in California Labor Code Sections 98.6, 1102.5, 204, 226, 226.7, 227, 510, 512, 1194, and 2802 and Business and Professions Code Section 17200; (3) failure to immediately pay wages upon discharge under California Labor Code Section 201; (4) failure to make agreed upon vacation payments under California Labor Code Sections 227 and 227.3; (5) failure to provide itemized wage statements under California Labor Code Section 226; (6) failure to provide meal and break periods under California Labor Code Sections 226.7 and 512; (7) failure to pay overtime wages under California Labor Code Sections 510 and 1194; (8) failure to indemnify work-related expenditures under California Labor Code Section 2802; (9) unlawful, unfair, and fraudulent business practices under Business and Professions Code Section 17200 as evidenced by violation of public policy and California Labor Code Sections 98.6, 1102.5, 204, 226, 226.7, 227, 510, 512, 1194, and 2802; and (10) violations warranting penalties under the Private Attorneys General Act of 2004, California Labor Code Sections 2698 and 2699.
On March 12, 2014, Insphere filed a motion for summary judgment on all causes of action. Dkt. No. 59. On the same day, Hennighan filed a motion for
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partial summary judgment on the issue of his classification. Dkt. No. 65. A hearing on the motions was held on April 16, 2014.
Summary judgment is proper " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party, however, has no burden to disprove matters on which the non-moving party will have the burden of proof at trial. The moving party need only demonstrate to the court " that there is an absence of evidence to support the non[-]moving party's case." Id. at 325.
Once the moving party has met its burden, the burden shifts to the non-moving party to " designate specific facts showing a genuine issue for trial." Id. at 324 (quotation marks omitted). To carry this burden, the non-moving party must " do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). " The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
In deciding a summary judgment motion, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. " Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment." Id. However, conclusory or speculative testimony in affidavits is insufficient to raise genuine issues of fact and defeat summary judgment. See Thornhill Publ'g Co. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979). Similarly, " uncorroborated and self-serving" testimony that " flatly contradicts [ ] prior sworn statements" cannot create a genuine issue of fact. Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996).
A district court need not consider evidence in the record " unless it is brought to the district court's attention" because the court is " not required to comb the record to find some reason" to grant or deny summary judgment; rather, " if a party wishes the court to consider [evidence for a particular issue], the party should bring that desire to the attention of the court." Carmen v. S.F. Unified Sch. Dist., 237 F.3d 1026, 1029 (9th Cir. 2001) (citation and internal punctuation omitted); see also Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (stating that the court is not obligated " to scour the record in search of a genuine issue of triable fact" ).
A. Separately Filed Evidentiary Objections
Civil Local Rule 7-3(a) states, " Any evidentiary and procedural objections to [a] motion must be contained within the [opposition] brief or memorandum." Civil Local Rule 7-3(c) similarly states, " Any evidentiary and procedural objections to the opposition must be contained within the reply brief or memorandum."
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Despite these provisions, both parties have filed objections (as well as responses to objections) to evidence separate from their briefs and memoranda. Dkt. Nos. 77, 82, 85, 86 & 89. All these objections are STRUCK for failing to comply with the Local Rules. Hennighan's objections, in particular, are also unsupported and appear to have been made for an improper purpose, unwarranted by existing law.
I have made independent determinations on the admissibility and materiality of the evidence presented, and admit the evidence referred to in this Order. Any other objection is moot.[2]
B. Testimony Before California Unemployment Appeals Board
In his memoranda in opposition to Insphere's motion for summary judgment, Hennighan cites extensively to testimony given before the California Unemployment Appeals Board.[3] See Mancuso Opp'n Decl. (Dkt. No. 81) Ex. A, Roth Dep. Tr. Hennighan's counsel states that the testimony is drawn from a November 2, 2012, hearing conducted with the California Employment Development Department in the case of Shirley Umamoto v. Insphere Insurance Solutions, Inc. Mancuso Opp'n Decl. ¶ 2.
Section 1960 of the California Unemployment Insurance Code states, " Any finding of fact or law, judgment, conclusion, or final order" of the Board " shall not be used as evidence in any separate or subsequent action or proceeding" in any court. Cal. Unemp. Ins. Code § 1960. Section 1952 of the Code further provides that the Board is " not bound by common law or statutory rules of evidence or by technical
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or formal rules of procedure." Cal. Unemp. Ins. Code § 1952.
Generally, California law cannot bind a federal court on rules of procedure. However, I am not persuaded that testimony before the Board constitutes admissible evidence. First, Hennighan has not identified any relevance between that matter and this action. Second, the proceedings were not subject to the usual rules of evidence, which renders some of the testimony inappropriate for consideration. Third, Insphere did not have the same motive to develop testimony and rebuttal in the unemployment compensation hearing, where the stakes are much lower, as they do in this action. Fourth, though Section 1960 does not apply to me, it matters that the California legislature has enacted this law and that another judge on this Court has decided to follow it and deny admission of similar testimony. See Totah v. Lucasfilm Entm't Co. Ltd., No. 09-cv-4051-MMC, 2010 WL 5211457, at *7 n.21 (N.D. Cal. Dec. 16, 2010) (refusing to take judicial notice of transcript), aff'd, 500 F.App'x 573 (9th Cir. 2012); but see Baldwin v. Rice, 144 F.R.D. 102 (E.D. Cal. 1992).
I will not consider Hennighan's citations to the proceedings in deciding these motions. For the same reasons, I will not consider the Board's rulings concerning a non-party, cited as authority by Hennighan in his memorandum in support of his own motion for partial summary judgment, Pl. Mot. (Dkt. No. 65) 10-11, in deciding that motion.
C. Declarations Accompanying Hennighan's Partial Motion For Summary Judgment
Insphere argues that Hennighan's own declaration in support of his motion for partial summary judgment should be struck because it " is rife with statements contradicting his sworn deposition testimony." Def. Opp'n (Dkt. No. 72) 3. At the summary judgment phase, credibility determinations and the weighing of evidence are not functions of the court. Anderson, 477 U.S. at 252. Nonetheless, " [t]he general rule in the Ninth Circuit is that a party cannot create an issue of fact by an affidavit contradicting his prior deposition testimony." Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262, 266 (9th Cir. 1991). A court is well within its discretion to disregard " sham" declarations when deciding motions for summary judgment. See id.
Insphere is correct that Hennighan's declaration contains conclusory assertions, without any factual enhancement, that appear to contradict his deposition testimony. While I will not strike Hennighan's declaration in toto, I will only consider facts that do not appear to be a sham or a blatant attempt to create a dispute of fact.
Insphere argues that Hennighan's counsel's declaration contains inappropriate factual assertions that are not based on personal knowledge and make improper legal conclusions. Def. Opp'n 4. For example, counsel claims, " Insphere controls every aspect of Sales Agents and Sales Leaders work" and " Insphere executives send notifications talking about tracking their work, conference calls, and threatening that if they do not meet Insphere expectations, they will be terminated." Mancuso Mot. Decl. (Dkt. No. 70) ¶ ¶ 19 & 20. As Federal Rule of Civil Procedure 56(c)(4) states, " declaration[s] used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Many portions of counsel's declaration do not
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meet this standard and I will disregard them where warranted.
Hennighan has also submitted the declarations of Deborah O'Connell, Greg Umamoto, and Shirley Umamoto in support of his motion for partial summary judgment. See Dkt. Nos. 67-69. While these declarations may be helpful in providing information about Insphere generally, the California Court of Appeals has found it appropriate to disregard declarations in which nothing is said about the plaintiff herself. See Beaumont-Jacques v. Farmers Grp., Inc., 217 Cal.App.4th 1138, 1145-46, 159 Cal.Rptr.3d 102 (2013) (" Nothing in [the] lengthy declaration mentions Appellant. We see no error in excluding this declaration." ). The declarations proffered by Hennighan do not mention him at all. While I am not bound by state rules about evidence, I find these declarations to be less helpful for the reason articulated by the California Court of Appeals.[4]
A. Applicable Law [5]
" Employers have varying responsibilities with respect to persons performing services on their behalf. These responsibilities depend, in part, on whether those persons are classified as employees or independent contractors under the Labor Code." Cristler v. Express Messenger Sys., Inc., 171 Cal.App.4th 72, 76, 89 Cal.Rptr.3d 34 (2009). Because the California Labor Code does not expressly define " employee," the common law test for employment applies. Estrada v. FedEx Ground Package Sys., Inc., 154 Cal.App.4th 1, 10, 64 Cal.Rptr.3d 327 (Ct. App. 2007). " The parties' label is not dispositive and will be ignored if their actual conduct establishes a different relationship." Id.
Where a plaintiff has provided services to the employer, the plaintiff has established a prima facie case that an employer-employee relationship existed. Robinson v. George, 16 Cal.2d 238, 105 P.2d 914, 917 (1940). " Once the employee establishes a prima facie case, the burden shifts to the employer, which may prove, if it can, that the presumed employee was an independent contractor." Narayan v. EGL, Inc., 616 F.3d 895, 900 (9th Cir. 2010).
" The right to control the means by which the work is accomplished is clearly the most significant test of the employment relationship . . . ." [6] Tieberg v. Unemployment Ins. App. Bd., 2 Cal.3d 943, 950, 88 Cal.Rptr. 175, 471 P.2d 975
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" An independent contractor is one who renders service in the course of an independent employment or occupation, following his employer's desires only in the results of the work, and not the means whereby it is to be accomplished." Varisco v. Gateway Sci. & Eng'g, Inc., 166 Cal.App.4th 1099, 1103, 83 Cal.Rptr.3d 393 (Ct. App. 2008) (citations and internal punctuation omitted). " On the other hand, the relationship of master and servant or employer and employee exists whenever the employer retains the right to direct how the work shall be done as well as the result to be accomplished." Id. " But this rule requires that the right to exercise complete or authoritative control, rather than mere suggestion as to detail, must be shown." Id. Generally, where an employer is more concerned with the quality of the result rather than the manner in which the work is done, that is evidence of an independent-contractor relationship. Mission Ins. Co. v. Workers' Comp. Appeals Bd., 123 Cal.App.3d 211, 224, 176 Cal.Rptr. 439 (Ct. App. 1981). " [T]he fact that a certain amount of freedom of action is inherent in the nature of the work does not change the character of the employment where the employer has general supervision and control over it." Toyota Motor Sales U.S.A., Inc. v. Super. Ct., 220 Cal.App.3d 864, 875, 269 Cal.Rptr. 647 (Ct. App. 1990).
However, because that test " is often of little use in evaluating the infinite variety of service arrangements," S. G. Borello & Sons, Inc. v. Dep't of Indus. Relations, 48 Cal.3d 341, 350, 256 Cal.Rptr. 543, 769 P.2d 399 (1989), courts may consider the following factors:
(1) whether the worker is engaged in a distinct occupation or business, (2) whether, considering the kind of occupation and locality, the work is usually done under the principal's direction or by a specialist without supervision, (3) the skill required, (4) whether the principal or worker supplies the instrumentalities, tools, and place of work, (5) the length of time for which the services are to be performed, (6) the method of payment, whether by time or by job, (7) whether the work is part of the principal's regular business, and (8) whether the parties believe they are creating an employer-employee relationship.
Estrada, 154 Cal.App.4th at 10. Courts also consider whether the employer has the right to discharge at will without cause. Borello, 48 Cal.3d. at 350.
" [T]he individual factors cannot be applied mechanically as separate tests; they are intertwined and their weight depends often on particular combinations." Germann v. Workers' Comp. Appeals Bd., 123 Cal.App.3d 776, 783, 176 Cal.Rptr. 868 (Ct. App. 1981). That some factors suggest an employment relationship does not lead to the conclusion that such a relationship necessarily exists. Varisco, 166 Cal.App.4th at 1106. " Under federal law, as under state law, the existence and degree of each factor regarding the status of a person as an independent contractor or employee is a question of fact while the legal conclusion to be drawn from those facts--whether workers are employees or independent contractors--is a question of law." Harris v. Vector Marketing Corp., 656 F.Supp.2d 1128, 1136 (citations and punctuation omitted). " Even if one or two of the individual factors might suggest an employment relationship, summary judgment is nevertheless proper when, as here, all the factors weighed and considered as a whole establish that [the plaintiff] was an independent contractor and not an employee . . . ." Arnold v. Mut. of Omaha Ins. Co., 202 Cal.App.4th 580, 590,
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135 Cal.Rptr.3d 213 (Ct. App. 2011) (citation omitted).
" [I]n order to prevail on [a] motion for summary judgment . . . [an employer] would have to establish that a jury would be compelled to find that it had established by a preponderance of the evidence that the [plaintiff was an] independent contractor[ ]." Narayan, 616 F.3d at 900. The Ninth Circuit has recognized that " [t]his hurdle is particularly difficult for [a defendant] to overcome in light of . . . the multi-faceted test that applies in resolving the issue whether the [plaintiff is an] employee[ ]." Id. " [I]t is the rare case where the various factors will point with unanimity in one direction or the other." Id. at 901 (citation omitted). The Ninth Circuit quoted with approval a concurring opinion in Secretary of Labor v. Lauritzen, stating, " If we are to have multiple factors, we also should have a trial. A fact-bound approach calling for the balancing of incommensurables, an approach in which no ascertainable legal rule determines a unique outcome, is one in which the trier of fact plays the principal part." 835 F.2d 1529, 1542 (7th Cir. 1987) (Easterbrook, J., concurring).
Determining whether an employer controls the plaintiff in a manner such that the plaintiff is either an employee or independent contractor depends on many facts. One case, Arnold v. Mutual of Omaha Insurance Co., 202 Cal.App.4th 580, 135 Cal.Rptr.3d 213 (Ct. App. 2011), is particularly instructive. There, the California Court of Appeals affirmed the trial court's grant of summary judgment finding that the plaintiff--an insurance sales agent--was an independent contractor. In reaching its decision, the court relied on the following facts: (1) training is generally not mandatory and only required with respect to compliance with state law; (2) while office space is available, it is shared and not assigned; (3) agents are not reimbursed for business expenses; (4) the plaintiff could determine the amount of time, place, and manner in which to solicit clients; (5) the plaintiff solicited for other insurance companies while working for the defendant; (6) the assistant general manager of the office did not supervise or evaluate the plaintiff's work; (7) there was a minimum requirement to submit one application for a product to avoid termination; (8) the plaintiff was paid by commission; (9) at the time of her appointment, the plaintiff and the defendant understood that they were creating an independent-contractor relationship; and (10) the plaintiff engaged in a distinct occupation requiring a license from the Department of Insurance. Arnold, 202 Cal.App.4th at 588-90. Based on these facts, the court concluded, " we have little difficulty concluding the trial court reached the correct conclusion," i.e., that the plaintiff was an independent contractor. Id. at 590.
Similarly, in Beaumont-Jacques v. Farmers Grp., Inc., 217 Cal.App.4th 1138, 159 Cal.Rptr.3d 102 (2013), the California Court of Appeals considered the trial court's grant of summary judgment finding that the plaintiff was an independent contractor. The plaintiff was a district manager of an insurance company who supervised sales agents. The court noted that the plaintiff " exercised meaningful discretion with reference to her efforts," and while the defendants " had input over the quality and direction of those efforts, they did not have sufficient 'control of the details' with respect to those efforts." Id. at 1140. The plaintiff was paid on commission, signed a contract stating that she and the defendant were not in an employer-employee relationship, their contract was mutually terminable
Page 1100
with 30 days' notice, the plaintiff determined her own hours, and deducted business expenses from her tax returns. Notably, even though the defendant required business plans to be submitted and expected the managers to attend arranged meetings, the court stated that " a weighing and consideration of the record as a whole leads to the conclusion the trial court properly ruled, as a matter of law, that Appellant was an independent contractor." Id. at 1145, 1147.
Several principles stand out in these cases. Where a plaintiff " used her own judgment in determining whom she would solicit" ; " the time, place, and manner in which she would solicit, and the amount of time she spent soliciting" ; the " appointment [ ] was nonexclusive, and she in fact solicited for other insurance companies" where the manager did " not evaluate her performance and did not monitor or supervise her work; and training was voluntary, there is no significant right to control. Arnold, 202 Cal.App.4th at 589. An individual who determines his own hours and break times " on most days" exercises " meaningful discretion." Beaumont-Jacques, 217 Cal.App.4th at 1145. Required meetings and training related to legal compliance do not necessarily indicate an employment relationship. Desimone v. Allstate Ins. Co., No. 96-cv-3606-CW, 2000 WL 1811385, at *13 (N.D. Cal. Nov. 7, 2000); Arnold, 202 Cal.App.4th at 589; Mission Ins. Co., 123 Cal.App.3d at 221 (stating that the fact that plaintiff " on occasion attended lectures or classes" is not evidence that the company " controlled the manner in which the desired result was to be achieved " ). An individual who deducts costs as business expenses or identifies himself as self-employed on personal tax returns weighs in favor of finding an independent contractor relationship. Beaumont-Jacques, 217 Cal.App.4th at 1145.
On the other hand, a company " may retain a broad general power of supervision and control as to the results of the work so as to insure satisfactory performance of the independent contract--including the right to inspect . . . the right to make suggestions or recommendations as to details of the work . . . the right to prescribe alterations or deviations in the work--without changing the relationship from that of owner and independent contractor or the duties arising from that relationship." McDonald v. Shell Oil Co., 44 Cal.2d 785, 790, 285 P.2d 902 (1955). The ultimate issue in this analysis is whether the company " controlled to any meaningful degree the means by which [the plaintiff] performed and accomplished her duties." Beaumont-Jacques, 217 Cal.App.4th at 1145.
B. Application Of Law: Control
The undisputed evidence shows that Hennighan was responsible for the means by which he performed his work and that Insphere did not meaningfully " control" him. Hennighan was free to establish his own schedule and determine the extent to which he wanted to work. He could choose which Insphere policies he wanted or did not want to sell. Pl. 112:3-19. There is no evidence that he was required to sell a certain number of policies within a given time period or to generate a certain amount of revenue. Nor is there any evidence that he was required to work a certain number of hours. He could set his own appointments or choose not to work at all. Pl. Dep. 76:16-77:3. Insphere did not control the means by which he interacted with clients, i.e., in person or by phone, nor how he sought leads, whether
Page 1101
internally or through membership programs.
Insphere did not monitor or supervise the work of an agent. Roth Decl. ¶ ¶ 2-3. There is no evidence of any formal reviews ever occurring, nor has Hennighan put forward any evidence of informal reviews in which he or other agents were held accountable for the manner in which they sold Insphere's products. Agents were not regularly in attendance at the office, and most training was voluntary except for sessions related to insurance rules and regulations. Roth Decl. ¶ 2. But required meetings or training do not necessarily indicate an employment relationship. Desimone, 2000 WL 1811385, at *13. Similarly, merely expecting agents to call in about their progress selling policies is simply evidence that Insphere was concerned about the agents' results and not the means by which they reached those results.
Hennighan had great latitude in the way he went about his work. He had his own office outside of Insphere, he scheduled his own client appointments, and he took rest and lunch breaks whenever he chose. Pl. Dep. 140:21-142:4, 241:24-242:4. He did not have any guaranteed vacation because he could work as little or as much as he wanted. He did not testify that he failed to receive rest or lunch breaks, or vacation time to which he was entitled. Hennighan stated that he worked outside of the office at least half the time. Pl. Dep. 237:15-240:7.
The strongest evidence advanced by Hennighan related to Insphere's expectations for its sales agents. Hennighan declared that he was " required" to attend annual regional meetings, to participate in a weekly call-in team meeting, and to participate on a call-in production report meeting three times a week. Hennighan Mot. Decl. ¶ ¶ 12-15; Greg Umamoto Decl. ¶ 5; Shirley Umamoto Mot. Decl. ¶ 3. He points to testimony by others stating that sales agents were " required to be in the office three days a week for training" and that they could be terminated if they did not attend. Pl. Opp'n (Dkt. No. 78) 5 (citing Mancuso Opp'n Decl. Ex. F, O'Connell Dep. 104:4-105:25, 150:15-20); Hennighan Mot. Decl. ¶ 16. They were required to have a certain number of appointments per week and were pressured to produce business. O'Connell Mot. Decl. ¶ 26. Sales agents are required to go into the San Jose office regularly. Shirley Umamoto Mot. Decl. ¶ 22. Their productivity was monitored and they were held accountable to certain goals. Shirley Umamoto Mot. Decl. ¶ ¶ 14, 17. Insphere also managed the way sales agents sold its products by requiring them to use an approved script when selling its products over the phone. Hennighan Mot. Decl. ¶ 10; Shirley Umamoto Mot. Decl. ¶ 35. Workers also had to use Insphere-approved advertising materials and all means of advertising, including emails, social media, and physical media, were controlled by Insphere. O'Connell Mot. Decl. ¶ 29. Hennighan also says that he was limited in his ability to have outside business. Henninghan Mot. Decl. ¶ ¶ 4-6.
The totality of the evidence does not raise a triable issue of fact that Insphere controlled the means by which Hennighan performed his work to such an extent that he was an employee. Even if Insphere monitored sales agents' productivity and set goals for them, that only relates to the results Insphere expected, not the manner by which agents had to achieve those goals--the key distinction for showing control. It also does not matter that agents had to attend training sessions--that a plaintiff " on occasion attended lectures or classes" is not evidence that the company " controlled the manner in which the desired
Page 1102
result was to be achieved." Mission Ins. Co., 123 Cal.App.3d at 221. As a business, it is also unremarkable that Hennighan had to call in to give periodic production reports on how his sales were going--indeed, counsel conceded at the motion hearing that these calls were brief. Finally, the fact that Insphere might require a script or preapproved materials to be used in sales of its products does not in itself show an undue amount of control sufficient to tip the scale in favor of finding an employment relationship. Fundamentally, Insphere is selling a product, so it is not unreasonable to expect minimal standards for remaining " on message," so long as Insphere has not " affirmatively assumed control, interfered with or actively directed any details of the work being performed" by Hennighan. McDonald, 44 Cal.2d at 789.
Hennighan has pointed to almost " nothing about the manner in which [Insphere] want[s] or expect[s]" him to sell policies, " nor the manner in which he should satisfy" any expectations they have. Beaumont-Jacques, 217 Cal.App.4th at 1146.
C. Application Of Law: Borello Factors
In addition to the element of control, California courts also look to the Borello factors. They are instructive here because each weighs strongly in favor of Insphere except for two, which are essentially neutral.
1. Distinct Occupation
" If a worker is engaged in a distinct occupation or business, then that would suggest that the worker is an independent contractor rather than an employee." Harris, 656 F.Supp.2d at 1138-38. In other words, there must be evidence that the plaintiff " held herself out as a separate occupation or business." Id.
Hennighan was engaged in insurance sales, which required state licenses. Pl. Dep. 35:7-24, 146:4-22. This requirement suggests a distinct occupation. Arnold, 202 Cal.App.4th at 589 (finding that the plaintiff " was engaged in a distinct occupation requiring a license from the Department of Insurance" ). Furthermore, Hennighan was affiliated with and sold insurance for other companies, including a separate insurance agency, First Authority Insurance. The fact that Hennighan sold insurance on behalf of other companies supports his classification as an independent contractor. Id. (finding that the plaintiff's relationship " was nonexclusive, and she in fact solicited for other insurance companies during her appointment" ). Indeed, Hennighan continued selling insurance after the termination of his contract with Insphere. Pl. Dep. 108:20-24. Hennighan also identified himself as self-employed in his tax returns, thereby weighing in favor of a independent-contractor relationship.
Hennighan offered testimony that Insphere's sales agents were at least discouraged, if not forbidden, from working for other insurance companies. Pl. Opp'n 3-4 (citing Mancuso Opp'n Decl. Ex. F, O'Connell Dep. 21:22-23:20, 24:16-26:13, 26:24-29:5, 33:12-25). In his declaration, Hennighan claims that (1) he was instructed that he could only sell Insphere products; (2) he could not sell products Insphere did not offer; (3) he could not solicit for insurance companies that were not approved by Insphere; (4) he needed approval for any marketing materials he used; and (5) any soliciting by phone had to be based on an Insphere-approved script. Hennighan Mot. Decl. ¶ ¶ 3-10. Greg and Shirley Umamoto also declare that Insphere requires its sales agents to only sell Insphere
Page 1103
products; otherwise, they would be terminated. Greg Umamoto Decl. ¶ ¶ 3-4; Shirley Umamoto Mot. Decl. ¶ 9.
But the evidence nonetheless shows that Hennighan held himself out as a separate business. He sold insurance products outside of Insphere. He stated on his tax returns that he was self-employed. That Hennighan apparently continued selling insurance after his termination by Insphere also suggests an independent-contractor status. Ruiz v. Affinity Logistics Corp., 887 F.Supp.2d 1034, 1045 (S.D. Cal. 2012). Hennighan provided conclusory testimony that Insphere either discouraged or prohibited outside work and his counsel stated at the hearing that Hennighan was doing something he should not have done. But as Hennighan has noted, " realities, not contractual labels, determine employment status." Pl. Mot. 12. Here, the reality is that Hennighan acted as a separate business. This factor weighs in Insphere's favor.
2. Supervision
" If the type of work performed is usually done under an employer's direction, it suggests an employer-employee relationship; if the work is usually done by a specialist without supervision, it suggests an independent contractor relationship." Ruiz, 887 F.Supp.2d at 1045. Where a special license is needed, that suggests a lack of supervision and thus an independent-contractor relationship. See id. at 1045-46. And where a plaintiff can " determin[e] her own day-to-day hours, including her vacations" and " on most days, fix[ ] the time for her arrival and departure at her office and elsewhere, including lunch and breaks," that suggests an independent-contractor status. Beaumont-Jacques, 217 Cal.App.4th at 1144. One court noted, " this factor is largely duplicative of the control factor." Harris, 656 F.Supp.2d at 1139.
The evidence shows that Hennighan set his own schedule, found his own leads, made his own appointments, decided what products to recommend, decided where to work, and furnished all means for his work. His work also requires state licenses and continuing education. Importantly, there is no evidence that Insphere supervised, dictated, critiqued, or even stayed informed about the means by which Hennighan performed his work. While agents had goals set out for them and had to report their sales, and they would sometimes work in the San Jose office, " it is not necessarily unusual for sales employees to work under minimal supervision." Harris, 656 F.Supp.2d at 1139. This factor weighs strongly in favor of Insphere.
3. Skill
" Where no special skill is required of a worker, that fact supports a conclusion that the worker is an employee instead of an independent contractor." Harris, 656 F.Supp.2d at 1139.
The sale of insurance requires a certain degree of skill and expertise, as evidenced by the fact that agents must past a licensing test and have continuing education and relicensing requirements. Indeed, Hennighan admitted that sales agents had to learn many new regulations, particularly due to new federal healthcare laws. Pl. Dep. 239:17-240:4. This factor weighs in Insphere's favor.
4. Instrumentalities
Where the defendant " did not furnish the majority of the tools and instrumentalities" nor " a place to work," this fact weighs in favor of finding an independent-contractor relationship. Ruiz, 887 F.Supp.2d at 1047. Where a plaintiff " used his own car, purchas[ed] its gas . . . and liability insurance," and " received no standard employee benefits," he is likely an independent contractor." Beaumont-Jacques,
Page 1104
217 Cal.App.4th at 1144.
Here, Hennighan was responsible for providing his own equipment, including his car, cell phone, and laptop. Hennighan paid for his car's gas and insurance even when he used it for work. Hennighan was not given an office and he worked out of his own residence, clients' homes, or public places. He also paid his own licensing fees and purchased his own leads. Hennighan also took tax deductions for his business expenses. See Beaumont-Jacques, 217 Cal.App.4th at 1145 (finding business deductions to be evidence of an independent-contractor relationship). Insphere provided him with no benefits, such as health insurance or vacation pay. Although Hennighan notes that Insphere controls advertising materials and that Insphere " supplies" an office for agents, he does not explain why those facts mean that it " furnishes" the necessary instrumentalities of his job. The furnishing of a shared office space, which agents need not use, for occasional client meetings is not significant. This factor weighs in Insphere's favor.
5. Length of Time
" Where a worker is employed for a lengthy period of time, the relationship with the employer looks more like an employer-employee relationship." Harris, 656 F.Supp.2d at 1140. Where there does not appear to be a contemplated end to the relationship, that weighs in favor of an employment relationship. Ruiz, 887 F.Supp.2d at 1048.
The relationship between Insphere and Hennighan lasted only two years. Their contract was terminable at will by either side. This factor is neutral.
6. Method of Payment
" Where the worker is paid by the hour, it typically suggests an employment relationship; where the worker is paid by the job, it points toward independent contractor." Ruiz, 887 F.Supp.2d at 1048. Hennighan was paid by commission only. He did not receive 401(k) or other benefits that certain Insphere employees received. Schooler Opp'n Decl. ¶ 5. This factor weighs in Insphere's favor.
7. Part of Regular Business
" When the work being done is an 'integral part' of the regular business of the purported employer, this serves as a 'strong indicator' that the worker is an employee." Ruiz, 887 F.Supp.2d at 1048 (citing Borello, 769 P.2d at 408). Obviously, the work done by Hennighan is part of Insphere's regular business. But in any direct sales business, what a sales representative does is a regular part of the company's business. Harris, 656 F.Supp.2d at 1140. This factor is neutral.
8. Parties' Belief
A court must look to " the parties' belief as to their relationship status." Ruiz, 887 F.Supp.2d at 1049. Mere labels set out in an agreement do not establish the existence or non-existence of an employer-employee relationship. See Estrada, 154 Cal.App.4th at 10 (Ct. App. 2007). However, " a lawful agreement between the parties expressly stating that the relationship created is that of independent contractor should not be lightly disregarded . . . ." Mission Ins. Co., 123 Cal.App.3d at 226; see also Arnold, 202 Cal.App.4th at 584-85.
The contract explicitly states that Hennighan is an independent contractor. Hennighan admits that he read the contract before signing it. Hennighan also identified himself as self-employed on his tax returns and deducted business expenses.
Page 1105
A plaintiff who " deduct[s] costs as a business expense in her personal tax returns[,] and, identif[ies] herself as self-employed in those returns," is likely an independent contractor. Beaumont-Jacques, 217 Cal.App.4th at 1145.
Hennighan argues that the fact that several sales agents filed complaints with the California Labor Commissioner about misclassification suggests that they believed they were actually employees. Pl. Mot. 20. That argument is not compelling, particularly since the contract was not for form only--as described above, the parties acted consistent with an independent-contractor relationship. This factor weighs in Insphere's favor.
9. Termination
A mutual termination clause is evidence of an independent-contractor relationship. See Beaumont-Jacques, 217 Cal.App.4th at 1147; see also Desimone, 2000 WL 1811385, at *15 (" A mutual termination provision is consistent either with an employment-at-will relationship or parties in a continuing contractual relationship." ) (quotation marks and citation omitted); Arnold v. Mut. of Omaha Ins. Co., 202 Cal.App.4th 580, 589, 135 Cal.Rptr.3d 213 (Ct. App. 2011) (" a termination at-will clause for both parties may properly be included in an independent contractor agreement, and is not by itself a basis for changing that relationship to one of an employee" ). Since there was a mutual termination clause here, this factor weighs in favor of Insphere.
D. Hennighan's Arguments
Hennighan cites Hopkins v. Cornerstone America, 545 F.3d 338 (5th Cir. 2008), as support for his position and says that " Defendant has already lost this issue [of whether Hennighan is an employee or not] with regards to Sales Leaders." Pl. Mot. 8. He states that " the Fifth Circuit ruled that Cornerstone--which later became Insphere--improperly classified Sales Leaders as independent contractors instead of employees." Pl. Mot. 8-9. This case is inapposite for two reasons. First, sales leaders are not the same position as sales agents and their responsibilities are completely different--as the court recognized, sales leaders are " primarily responsible for recruiting, training, and managing a team of subordinate sales agents." Id. at 342. Second, Hopkins was brought under the Fair Labor Standards Act and the court assessed, " as a matter of economic reality, [whether] the worker is economically dependent upon the alleged employer or is instead in business for himself." Id. at 343. This analysis is quite different than the test under California law for whether an independent-contractor relationship exists. Hopkins does not apply.
Hennighan also cites another case in support, Cutter v. HealthMarkets, Inc., No. 10-cv-11488 (D. Mass. 2011). Pl. Mot. 11. Hennighan submits several documents in the case as exhibits, but only one of them appears to be an actual order. Mancuso Mot. Decl. Ex. H. The order is simply an adopted proposed order certifying a class of " [a]ll persons who worked as agents or district sales leaders in Massachusetts selling insurance products on behalf of HealthMarkets, Inc. . . ." Ignoring the fact that HealthMarkets is no longer a party to this case, and that Cutter dealt with Massachusetts law, an adopted proposed order which says little more than what is quoted above is not a " ruling that Sales Agents and Sales Leaders did in fact hold common positions and perform common services," as Hennighan asserts. Pl. Mot. 11.
Finally, Hennighan cites Toyota Motor Sales U.S.A., Inc. v. Superior Court, 220 Cal.App.3d 864, 877, 269 Cal.Rptr.
Page 1106
(Ct. App. 1990), for the proposition that the mere fact that he deducted certain business expenses on his tax returns " cannot be used to prove independent contractor status." Def. Opp'n 18. His counsel pointed to Toyota again at the motion hearing as strongly supportive of Hennighan.
In Toyota, the plaintiff was injured in a car accident when he was rear-ended by a pizza deliveryman. The plaintiff sued his own car's manufacturer (for having allegedly defective seatbelts), the pizza company, and the deliveryman himself. After the pizza company and deliveryman settled with the plaintiff and the trial court found the settlements to be in good faith, the trial court dismissed Toyota's cross-complaint against the pizza company for comparative equitable indemnity based on its conclusion that the deliveryman was an independent contractor and, accordingly, the pizza company was not liable under respondeat superior. Toyota appealed. The Court of Appeals vacated the trial court's order, reasoning that the deliveryman was subject to the total control of the pizza company except for perhaps which route he could take or how fast he could drive. Hennighan's counsel argues that Hennighan is similarly limited in his discretion.
Toyota is distinguishable. Insurance sales agents, who are licensed independently by the State of California, are not comparable to pizza deliverers. The Court of Appeals observed that the pizza company " directed and controlled (1) the number, nature and type of pizzas to be delivered, (2) the time when such deliveries would take place, (3) the persons and locations to whom they would be delivered and (4) the price to be charged for each pizza and the total amount of money to be collected from each customer. In short, [the pizza company] determined what would be delivered, when and to whom and what price would be charged." Id. at 875-76. Here, there is no evidence that Insphere directed the number, nature, or type of insurance policies Hennighan must sell. Nor is there evidence that Hennighan had to work certain hours, had to sell to certain persons, or had to charge a particular price. The court also noted that " the only evidence offered in support of the claim that [the deliveryman] was an independent contractor was that he provided his own car, expenses and insurance." Id. at 876. Here, in addition to paying for his own car and its insurance, there is significantly more evidence showing that Hennighan is an independent contractor.
In Toyota, the pizza company required the deliveryman to pay his own taxes. The court correctly observed, " An employer cannot change the status of an employee to one of independent contractor by illegally requiring him to assume burdens which the law imposes directly on the employer." Id. at 877. The issue here is whether Hennighan was an independent contractor in the first place who was legally obligated to pay his own taxes. He was. Toyota does not apply.
E. Exemption
The California Labor Code expressly does " not include any individual employed as an outside salesman." Cal. Lab. Code § 1171. " Outside salesperson" is defined as any person " who customarily and regularly works more than half the working time away from the employer's place of business selling tangible or intangible items or obtaining orders or contracts for products, services or use of facilities." Cal. Code Regs. tit. 8, § 11070. " Working time" includes time spent on " other related activities [related to " selling" ] such as
Page 1107
preparation, travel time, and paperwork." Ramirez v. Yosemite Water Co., Inc., 20 Cal.4th 785, 801, 85 Cal.Rptr.2d 844, 978 P.2d 2 (1999).
Hennighan admitted that he spent more than 50 percent of his time outside of the office. Pl. Dep. 237:15-240:7. He sold Insphere-approved insurance products through direct client contact and stated that " [a] lot" of his work was done at either clients' houses or in public settings away from the office. Pl. Dep. 119:17-19. Insphere argues that Hennighan " does not dispute, and, therefore concedes, that, if he were an employee, he would be classified under the outside sales exemption and would not be entitled to overtime, or meal and rest breaks." Pl. Reply (Dkt. No. 87) 1.
With respect to this issue, without deciding or relying on it, Insphere seems to have the better argument.
F. Conclusion
I am persuaded that Insphere is entitled to judgment as a matter of law that Hennighan is an independent contractor. Any control Insphere exercised over Hennighan was generally unrelated to the manner and means by which Hennighan accomplished his work and was directed more towards the results. An analysis of the amount of control exerted by Insphere and the Borello factors showed that all the factors were either in Insphere's favor or neutral. " Even if one or two of the individual factors might suggest an employment relationship, summary judgment is nevertheless proper when, as here, all the factors weighed and considered as a whole establish that [Hennighan] was an independent contractor and not an employee . . . ." Arnold, 202 Cal.App.4th at 590. Hennighan did not successfully point to any genuine dispute of material fact sufficient to prevent summary judgment.
At the motion hearing, I asked Hennighan's counsel whether Hennighan's causes of action would all fail as a matter of law if I determined that Hennighan was an independent contractor. He conceded that all of them would except for the First and Second Causes of Action for retaliation. However, California law does not afford independent contractors a right to relief for wrongful termination. See Sistare-Meyer v. Young Men's Christian Ass'n, 58 Cal.App.4th 10, 18, 67 Cal.Rptr.2d 840 (1997) (holding that independent contractors cannot bring wrongful termination claims based on public policy predicated on racial discrimination); see also Ali v. L.A. Focus Publ'n, 112 Cal.App.4th 1477, 1484, 5 Cal.Rptr.3d 791 (2003) (" Several appellate courts . . . have held that, because independent contractors are not employees, they lack standing to assert a claim for wrongful termination in violation of public policy." ), disapproved of on other grounds by Reid v. Google, Inc., 50 Cal.4th 512, 113 Cal.Rptr.3d 327, 235 P.3d 988 (2010). Accordingly, all of Hennighan's causes of action fail as a matter of law and summary judgment should be granted to Insphere on all of them. See Taylor v. Waddell & Reed Inc., No. 09-cv-02909, 2013 WL 435907, at *7 (S.D. Cal. Feb. 1, 2013) (" the Court need not address Jaeger's additional state law claims . . . as these claims are conditioned upon Jaeger being properly classified as an employee" ).
Because there is no genuine dispute of material fact and the evidence shows that Hennighan is an independent contractor as
Page 1108
a matter of law, Insphere's motion for summary judgment is GRANTED and Hennighan's motion for partial summary judgment is DENIED.
The Clerk is directed to enter judgment accordingly and close the file.
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August 18, 2008
WILLIAM FRIMPONG, PLAINTIFF,v.1199SEIU UNITED HEALTHCARE WORKERS EAST, DEFENDANT.
The plaintiff, William Frimpong, filed this action asserting breach of the duty of fair representation and breach of contract against the defendant, 1199SEIU United Healthcare Workers East ("1199SEIU" or the "Union"). The action was originally filed in New York State Supreme Court, Bronx County, no earlier than July 20, 2007, the date of the Summons and Verified Complaint. The defendant removed the action to this Court pursuant to 28 U.S.C. §§ 1331 and 1441 because the dispute arises under section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185. The defendant now moves to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, or alternatively for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, on the grounds that the duty of fair representation claim is time-barred and the breach of contract claim fails to state a claim upon which relief can be granted. For the reasons stated below, the motion for summary judgment is granted.
Both parties have submitted affidavits and the motion plainly placed the plaintiff on notice that the defendant sought summary judgment as an alternative to a motion to dismiss. Because both parties have submitted affidavits, and the Court has considered them, this Court will treat the motion as a motion for summary judgment. See Rutigliano v. City of New York, No. 07 Civ. 4614, 2008 WL 110946, at *2 (S.D.N.Y. Jan. 2, 2008) ("[T]he essential inquiry [in converting a motion to dismiss to a summary judgment] is whether the non-movant should reasonably have recognized the possibility that the motion might be converted into one for summary judgment . . . . ") (quoting Krijn v. Pogue Simone Real Estate Co., 896 F.2d 687, 689 (2d Cir. 1990) (internal quotation marks omitted).
Summary judgment may not be granted unless "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Matican v. City of New York, 524 F.3d 151, 154 (2d Cir. 2008). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them." Gallo v. Prudential Residential Servs., Ltd., 22 F.3d 1219, 1224 (2d Cir. 1994). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation omitted); Gallo, 22 F.3d at 1223; see also Cardona v. Vidal, No. 06 Civ. 13680, 2008 WL 2856455, at *1 (S.D.N.Y. July 24, 2008).
The following facts are undisputed unless otherwise noted. The plaintiff was an employee of the Bronx-Lebanon Hospital (the "Hospital") from 1989 up to December 8, 2003. (Compl. ¶¶ 5; Morales Aff. ¶ 2.) The plaintiff alleges that he has been a member in good standing of the defendant Union since 1989. (Compl. ¶¶ 3-4.) In November 2003, the plaintiff was suspended from his position on the housekeeping staff at the Hospital as a result of an altercation with another employee and was ultimately terminated. (Compl. ¶¶ 7, 8; Morales Aff. ¶ 3.) With the assistance of the Union the plaintiff appealed his dismissal and a grievance hearing, at which he was represented by the Union, was held on March 10, 2004. (Compl. ¶ 13; Morales Aff. ¶¶ 4-6 and Ex. B.) On March 11, 2004, the Union received a letter from the Hospital denying the plaintiff's grievance and stating that it would not reinstate the plaintiff. (Morales Aff. ¶ 6 and Ex. B.) The plaintiff subsequently requested, and the Union declined, to take the matter to arbitration. (Compl. ¶ 14; Morales Aff. ¶ 7.) Pursuant to the Union Constitution, the plaintiff appealed the Union's decision not to arbitrate his claim to the Chapter Hearings and Appeals Board ("Chapter Board"), which affirmed the Union's decision. (Compl. ¶ 14; Morales Aff. ¶¶ 8-11 and Ex. D.) The plaintiff then appealed the Chapter Board's decision to the Union Division Hearings and Appeals Board ("Division Board"), which has final authority to determine whether the Union must take a grievance to arbitration. (Compl. ¶ 14; Morales Aff. ¶ 13.) Following a hearing, the Division Board affirmed the Chapter Board's decision. (Compl. ¶ 14; Morales Aff. ¶¶ 16-17.) The plaintiff was notified of the final decision of the Union not to arbitrate by a letter dated June 16, 2005, which stated:
After reviewing all information presented by you, it is concluded that there is virtually no likelihood of succeeding at arbitration. . . . [T]he decision in this matter is final. . . . We hope you understand that the union cannot effectively pursue the many meritorious grievances that arise if it is unduly burdened with cases that have no realistic prospect of success. (Compl. ¶ 14; Morales Aff. Ex. F.)
The plaintiff asserts that, in October 2004, he was hired by Crowne Plaza Hotel in Manhattan, which is under the auspices of Union Local 6. (Compl. ¶ 20.) During the eleven-month period in which he was unemployed, the plaintiff alleges that he went to the Union office several times in search of job placement assistance, but that the Union's representatives informed him that they would not help him obtain other employment. (Compl. ¶¶ 2, 15-16.) The plaintiff claims that while he was unemployed the Union did not pay him benefits, offer him job counseling or training, or inform him of entities that performed these functions. (Id. ¶ 17.)
By a summons and verified complaint dated July 20, 2007, the plaintiff sued the Union in New York State Supreme Court, Bronx County. Liberally construed, the verified complaint alleged that the Union breached its duty of fair representation by failing to arbitrate the plaintiff's grievance and that the Union breached its contract with the plaintiff by failing to provide job counseling, assistance, and training, or notice of such services, as required by the "Union Manual Rules." (Compl. ¶¶ 14, 15-22.)
The plaintiff's first claim is that the Union breached its duty of fair representation. The duty of fair representation is a duty implied in the structure of the National Labor Relations Act ("NLRA"). DelCostello v. Int'l Broth. Teamsters, 462 U.S. 151, 164 (1983). A union breaches its duty of fair representation only when its conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith. Air Line Pilots Ass'n Int'l v. O'Neill, 499 U.S. 65, 76 (1991); see also Barr v. United Parcel Serv., Inc., 868 F.2d 36, 43 (2d Cir. 1989); Gorham v. Transit Workers Union of America Local 100, No. 98 CIV. 313, 1999 WL 163567, at *3 (S.D.N.Y. Mar. 24, 1999). The statute of limitations for a duty of fair representation claim is six months. See DelCostello, 462 U.S. at 169-172 (1983); see also White v. White Rose Food, 128 F.3d 110, 114 (2d Cir. 1997); Joseph v. Terrence Cardinal Cooke Health Care Center, No. 07 Civ. 9325, 2008 WL 892508, at *3 (S.D.N.Y. Apr. 2, 2008). It is well settled that the "the cause of action accrue[s] no later than the time when [the union members] knew or reasonably should have known that . . . a breach ha[s] occurred." Ramey v. Dist. 141, Int'l Ass'n of Machinists & Aerospace Workers, 378 F.3d 269, 278 (2d Cir. 2004) (alterations in original) (quoting Santos v. Dist. Council of New York City, 619 F.2d 963, 969 (2d Cir. 1980)).
The plaintiff's claim that the Union breached its duty of fair representation by failing to take his claim to arbitration is plainly time barred. On June 16, 2005, the Union informed the plaintiff that the decision not to arbitrate his grievance was final and therefore no further action would be taken with respect to his termination. At that time, the plaintiff knew or reasonably should have known that the Union had allegedly breached its duty of fair representation by refusing to arbitrate his grievance. The plaintiff did not file this action until July 2007, twenty-five months later, which is outside the six-month statute of limitations. The claim for a breach of the duty of fair representation by allegedly failing to pursue the plaintiff's grievance in an arbitration proceeding is therefore dismissed because it is time-barred.
The plaintiff asserts a second claim against the Union for breach of contract, based on the Union's alleged failure to provide the plaintiff with "job counseling and assistance and training" in violation of the "Union Manual Rules." (Compl. ¶¶ 17-22.) The Union argues that this claim should also be viewed as a breach of the Union's duty of fair representation because it arises out of the Union's role as exclusive collective bargaining representative of the employees in the unit. See Vaca v. Sipes, 386 U.S. 171, 177 (1967). However, at oral argument on the motion the plaintiff clarified that he was not alleging a breach of the duty of fair representation, but was in fact alleging a breach of the Collective Bargaining Agreement between the League of Voluntary Hospitals and Homes of New York and the Union (the "CBA").
The CBA addresses the method and manner in which the members of the bargaining unit receive benefits, job training, and job assistance and placement services. (Morales Aff. Ex. A.) "Ordinarily, an employee's only claim against a union for violation of the terms of a collective bargaining agreement is for a violation of the duty of fair representation." McKoy v. Potter, No. 01 Civ. 1984, 2002 WL 31028691, at *11 (S.D.N.Y. Sept. 12, 2002) (citing United Steelworkers of Am. v. Rawson, 495 U.S. 362, 372-75 (1990)). However, pursuant to the third-party beneficiary doctrine, an employee may state a claim against a union for a violation of the collective bargaining agreement in limited circumstances. See Int'l Bhd. Of Elec. Workers v. Hechler, 481 U.S. 851, 861 and 864-865 (1987). To establish a claim against the union for breach of contract, the employee "must be able to point to language in the collective-bargaining agreement specifically indicating an intent to create obligations enforceable against the union by the individual employees." Rawson, 495 U.S. at 374; see, e.g., Mahoney v. Chicago Pneumatic, No. G80-349, 1982 WL 2010, at *2 (W.D.Mich. July 27, 1982) (holding that the Union had not "assumed a role which carries responsibilities and duties beyond that of fair representation" through its involvement in setting up an apprenticeship program for members and in the monitoring of workplace safety but rather they were "inextricably intertwined and embodied in the union's duty of fair representation") (internal citations omitted).
Here, the plaintiff's only specific allegation is that the Union's failure to provide job search assistance breached Article VI of the CBA. Article VI states, in relevant part, that:
The Joint Employment Service . . . will be the sole source of referrals for all 1199 bargaining unit jobs for a seven (7) day period. This service will include referrals of agency and per diem workers. A priority consideration for employment will be given to qualified referrals. In emergency situations or cases where qualified agency or per diem workers are not available, the Employer may hire without going through the Joint Employment Service. Disputes will be subject to review by the Contract Interpretation and Policy Committee . . . . The Employment Placement Service shall maintain a computerized bank of prospective employees from all sources, and shall maintain a validation process by which employees' prior work performance, licensure and certification are verified. (Morales Aff. Ex. A., at 14-15.) The language in Article VI does not create an obligation enforceable against the Union by individual employees. The provision creates obligations on the part of the employer toward the Union. The provision is silent with respect to the Union's obligation to assist employees with job search and placement. Thus, it is clear that any duty the Union might have to assist its employees in this regard is "inextricably intertwined and embodied in the union's duty of fair representation." Mahoney, 1982 WL 2010, at *2; see also Rawson, 495 U.S. at 374 ("Nothing in the [CBA] suggests that it creates rights directly enforceable by the individual employees against the Union . . . [the CBA], consists entirely of agreements between the Union and the employer and enforceable only by them."); Bryant v. Int'l Union, U.M.W. of Am., 467 F.2d 1, 5 (6th Cir. 1972) ("It would be a mistake of vast proportion to read every power granted the union by management as creating a corollary contract right in the employee as against the union."). Therefore, to the extent that the plaintiff is alleging a breach of contract claim based on the Union's violation of Article VI, the claim is legally insufficient.
The plaintiff next argues that he was wrongfully denied job training and benefits in violation of the CBA. However, he has failed to identify the specific language that allegedly creates such an obligation.*fn1 Instead, the plaintiff appeared to argue that Article II, Section 4 of the CBA gave rise to this duty. Article II, Section 4 states that "[A]n employee shall be considered a member of the Union in good standing if he/she tenders his/her periodic dues and initiation fee uniformly required as a condition of membership." (Morales Aff. Ex. A at 9.) Based on this language the plaintiff argues that he is entitled to whatever benefits are contained in the CBA, so long as the Union accepts his dues. However, even assuming that the plaintiff was a member in good standing, this argument fails to establish a claim for breach of contract. The Supreme Court has made it clear that courts should permit breach of contract claims only in cases where the language of the CBA clearly intended to confer an individual right on the Union member. See Rawson, 495 U.S. at 374-375 (noting that the duty of fair representation is in and of itself a purposefully limited check on the union because a "wide range of reasonableness must be allowed a statutory bargaining representative in serving the unit it represents"). These allegations plainly fail to state a claim for breach of contract.
Even if the plaintiff were eligible for benefits or assistance from the Funds it is the duty of the Fund Trustees, not the Union, to make decisions as to the allocation of benefits from the Funds. (Morales Aff. Ex A. at 14, 76.) The Funds are not defendants in this action. Moreover, the plaintiff has not even alleged that he applied for assistance from the Funds. (Yalkut Affirmation ¶ 6.)
The plaintiff's final argument is that the Union had a duty to inform him of the aforementioned benefits and services when he allegedly inquired about them at the Union office. Specifically, the plaintiff alleges that the Union breached this duty by failing to provide advice and information as to how and where he could receive training and job placement when he inquired. However, the plaintiff does not point to a source of this obligation in the CBA nor does he cite to any cases in support of his position that such a duty exists.*fn2 In the absence of specific language creating the alleged obligation, the plaintiff has failed to state a claim for breach of contract as a matter of law.
To the extent that this claim is viewed as a duty of fair representation claim it is plainly time-barred. The plaintiff states that his damage results from the Union's repeated refusal "to provide the plaintiff with the rights and assistance to which he was entitled." (Compl. ¶ 19.) The plaintiff then alleges that he secured a new job in October 2004, with a different union. He obtained this new job thirty-three months before he filed the present complaint. By October 2004 the plaintiff knew what services the Union had or had not provided and made his own arrangements to obtain a new job. Although the plaintiff alleges ongoing damage from the Union's "improper and unjustified refusal" to assist him in his job search, "a breach of duty by the union is apparent to the member at the time [the member] learns of the union action or inaction about which [the member] complains." Ghartey v. St. John's Queens Hosp., 869 F.2d 160, 165 (2d Cir. 1989); see also Demchik v. Gen. Motors Corp., 821 F.2d 102, 105 (2d Cir. 1987) ("[T]he statute of limitations begins to accrue . . . when the employee had actual or constructive notice that the union has breached its duty of fair representation."). The fact that the Union allegedly told the plaintiff that "someone would contact [him]" is not sufficient to toll the statute of limitations with respect to his duty of fair representation claim. See Wallace v. Seacrest Linen, No. 04 CV 6035, 2006 WL 2192777, at *8 (S.D.N.Y. Aug. 2, 2006) ("Suits filed after this six-month limit are time-barred, even if the union has been unresponsive to the plaintiff or the plaintiff holds out hopes for future representation.") (citing Cohen v. Flushing Hosp. & Med. Ctr., Local 1199, 68 F.3d 64, 68 (2d Cir. 1995)).
The Court has considered all of the parties' arguments. To the extent not specifically addressed, the arguments are either moot or without merit. For the reasons explained in this opinion, the defendant's motion for summary judgment (Docket No. 7) is granted. The Clerk is directed to enter judgment and to close this case.
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Math Day is sponsored by the UWG Department of Mathematics
High School RegistrationThe Registration Form is due by February 12th. However, due to limited space on campus, we will need to cut Registration off at 250 students. So Registration may end earlier if we reach our capacity. For reference, last year we had over 320 students register. If you have any questions, feel free to email Dr. Scott Sykes at firstname.lastname@example.com.
Schedule of Events
Time Event Location 9:00 am - 9:30 am Arrival and Registration Campus Center 9:30 am - 9:45 am Welcome Campus Center 9:55 am - 10:50 am Individual Tests Various Buildings 10:55 am - 11:30 am Team Tests Various Buildings 11:30 am - 12:45 pm LUNCH** 12:45 pm - 1:20 pm MATH Talk Campus Center 1:25 pm - 2:05 pm Final Individual Competition Campus Center 2:10 pm- 2:30 pm Awards Campus Center
Time: 9:00 am - 9:30 am
Event: Arrival and Registration
Location: Campus Center
Time: 9:30 am - 9:45 am
Event: Welcome
Location: Campus Center
Time: 9:55 am - 10:50 am
Event: Individual Tests
Location: Various Buildings
Time: 10:55 am - 11:30 am
Event: Team Tests
Location: Various Buildings
Time: 11:30 am - 12:45 pm
Event: LUNCH**
Time: 12:45 pm - 1:20 pm
Event: MATH Talk
Location: Campus Center
Time: 1:25 pm - 2:05 pm
Event: Final Individual Competition
Location: Campus Center
Time: 2:10 pm- 2:30 pm
Event: Awards
Location: Campus Center
**Lunch is not provided. You can eat lunch at the campus dining facilities (Z6 or the new East Commons Dining Hall adjacent to Boyd Building) or eat off campus.
Ciphering Rules
- For each division, the five individuals with the highest test scores will participate in the ciphering match.
- Calculators are not allowed.
- Each round of the ciphering match will be limited to 10 minutes.
- The time limit for each question will be 90 seconds.
- There will be up to 6 questions per round, depending on time available.
- Points will be awarded as follows:
- A correct answer given during the first 30-seconds will receive 3 points.
- A correct answer given during the second 30-seconds will receive 2 points.
- A correct answer given during the third 30-seconds will receive 1 point.
- Each participant is allowed only one solution per problem.
- No answers will be accepted after the time limit expires.
- All answers should be expressed in completely simplified form:
- Expressions reduced to lowest terms
- No decimal answers
- Radicals must be simplified
- No negative exponents
- The five participants in each round will be seated in the front of the auditorium.
- Participants will be provided answer sheets with room for scratch work.
- When the problem is presented, the timekeeper will start the stopwatch and hold up three fingers for 30 seconds. During the second 30 seconds, the timekeeper will hold up two fingers; and during the third 30 sec, one finger.
- Participants will work the problem, place their answer in the space provided, and hold up the answer sheet.
- Scorers will accept the forms, determine the number of points possible by observing the timekeeper, and write this number on the answer sheet in the space provided.
- After the time limit has expired or all participants have submitted answers (whichever occurs first), the answer will be revealed, and the scorers will submit the sheets with correct answers to the scorekeepers.
- The next problem will then be displayed.
- Problems will be presented until the 10 minute limit is reached or six problems have been presented, whichever occurs first.
- Scorekeepers will then post the total points awarded to each participant.
- The rounds will proceed in the following order:
Level 1, Level 2, Level 3, Calculus
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PrizesStudents will receive trophies in the individual competition.
In the Problem-Solving Competition, teams will receive certificates.
Trophies will also be given to the overall top three teams.
Undergraduate Math ContestThe Department of Mathematics has organized a math competition for UWG undergraduate students. All UWG undergraduate students are invited to participate in the competition, which will be held as part of Math Day, February 26th, 2016.
A minimal background in mathematics is needed.
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The deadline for registration is February 24th, 2016.
The first two places will get cash prizes $100 and $75. The 3rd to 6th top scores will receive $50 textbook vouchers, redeemable at the University Bookstore. Certificates and prizes will be announced at the close of Math Day activities, around 2:10PM.
Who: UWG undergraduate students
When: February 26th, 2016, 10:00 am -11:00 am
Where: Department of Mathematics, Boyd 304
Prizes: Cash awards and textbook vouchers
For further information, please contact Dr. Vu Kim Tuan at email@example.com


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170K 📈 The #NRL club membership tracker is keeping tabs on how all sixteen sides are faring - and we...
4 days ago - 6 Likes
Dragons utility player Beau Scott has today agreed to terms with the Club for a further three years, until the end of 2012.
Scott made his NRL debut for the Sharks in Round 22 of season 2005 against the Storm and has played a total 79 games in the NRL, 51 of these with the Dragons.
The Picton Magpies junior joined the Dragons in 2002 and played in the lower grades before moving to the Sharks in 2005 where he made his NRL debut. Scott returned to the Dragons in 2007 and has played in both the back row and centre positions.


text:
Paz en el campo
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Paz en el campo is a previously unpublished instrumental piece by Hideharu Mori which was included in the Music Ironman Collection album. The title translates as "Peace in the field".


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Gender: Girl
Meaning: The youger sister of Sita
Origin: Bengali, Indian, Sanskrit
Religion: Hindu
Oormila is a Hindu Girl name, meaning of the name is The youger sister of Sita and origin of the name is Bengali, Indian, Sanskrit. This name is mostly used in Hindu.
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text:
Leopards outswim Beavers, 15-7
The women's water polo team defeated Caltech 15-7 at Las Flores Park Friday. The game was the Leopards' second game in the annual Claremont Convergence event.
Students get 'Shot of Reality' at alcohol event
Applause and laughter poured out of the Athletics Pavilion on Monday night as Order of Omega's "A Shot of Reality" presentation educated and entertained students.
Young musicians display sophisticated talent
Pianos spoke, violins cried and an audience of 40 clapped with enthusiasm as the Chamber Music Concert Sunday in Morgan Auditorium.
Firefighters test new equipment
The La Verne Fire Department takes the time to demo new equipment.
Telephone system change expands communication options
The University of La Verne is currently in the process of bringing its telephone system more up to date.
Fairplex hosts Irish festivities for all to enjoy
The weather held out and set for a perfect weekend for celebrating Irish culture at the Irish Fair at the Pomona Fairplex Saturday and Sunday.
Food Court: Baresse's passion involves sweets
Senior psychology major Katie Barrese takes to baking as her stress reliever.
Bear Attack rocks Art after Hours
Members of indie rock band Bear Attack perform at the Pomona College Museum of Art Feb. 28 for the museum's event, Art After Hours.
New TSA rules are too lenient
As if flying was not already stressful, annoying and complicated enough, the Transportation Security Administration's new regulations set to take effect on April 25 add a whole new layer of worry.
La Verne hits its way to a sweep over Ducks
The softball team pulled off back-to back wins against Stevens Institute 9-1 in game one and 19-0 in game two at Wheeler Park Sunday.


text:
Travel Explainer
What's at the End of the Road Not Taken?The Explainer answers travel questions for the month of August.
Slate Plus
What Will Happen After Marriage Equality?And more from Slate's Outward live event in New York.
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The Great J-School DebateFour Slate-sters (and journalism school grads) dish on the pros and cons of going to journalism school.
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The Grinder Has Literally Nothing to Do With Grindr. But Its Marketing Team Sure Loves the Innuendo.


text:
Barstad Says He's Changed His Life Since Fatal Crash 'The Hardest Thing Is Knowing I'Ve Killed Two People'
The spring evening when James Barstad killed two women by crashing his truck through a busy Spokane intersection was the day he finally got what he wanted.
For three years, the 30-year-old Barstad said he had tried to break free from drugs, drinking and the repeated excuses that always kept him from turning his life around.
Speaking in jail the day after being convicted of two counts of first-degree murder, Barstad said the May 25 crash left him with "changes so profound people don't have any idea."
He's found personal faith and growth, mixed with heavy doses of pain and anguish.
"I know what people think. They'd like to see me hang (for killing two people)," Barstad said.
"But there's nothing I can do. Even if I produce a sign of remorse and show it to people every day, it won't matter. They won't understand what I'm going through."
Barstad is the first driver in Washington state convicted of firstdegree murder after a car crash. Prosecutors convinced a Spokane County Superior Court jury that he had met one of the conditions needed for first-degree murder - extreme indifference to human life.
Killed in the crash were 14-year-old Julie Allen and 26-year-old Karen Sederholm.
Barstad testified during his trial that he drank three pitchers of beer before the accident. Later that day, he argued with his girlfriend and left her house drunk and angry.
Barstad's chances during his recent trial were battered when prosecutors showed jurors TV video taken at the scene of the crash. Dressed in cutoffs, sporting multi-colored hair and scowling at cameras, Barstad at that point appeared deranged, dangerous and defiant.
"People don't know how it was for me, then," he said. "I had an incredible, horrible thing just happen to me. They have no idea what my feelings were. They might see me laugh, but how do they know I wasn't really scared, confused."
Since the crash, Barstad said he's turned to faith and prayer to keep his spirit intact.
Barstad said his problems with drugs and alcohol began while attending North Central High School. "I was into partying, that's how it started."
He moved to the Tri-Cities, taking a job in hotel management.
"I am a caring, generous person," he said. His life started falling off the tracks the more he drank and used drugs, he said.
Within the past two years, his mother died. Then the woman with whom he'd had two children left him, taking the children. "She took off on Christmas Day," he said.
By last spring, Barstad had a record in Montana for possession of methamphetamine, had quit his job and moved back to Spokane.
"I knew that I had to turn my life around. But I guess I was waiting for the push.
"Well, this was the big push," he said, shaking his head.
"I wake up and it's not easy. The hardest thing is knowing I've killed two people, and nothing I'll do will ever make that change." He hopes one day to ask forgiveness from the victims' families. He doesn't pretend they'll welcome his offer.
"If I had lost my daughter in this kind of wreck, I'd want to kill the guy who did it, too," he said.
Barstad will be sentenced later this year to at least 45 years in prison. He hopes to win a reversal of the murder convictions, then get a shorter sentence for two counts of vehicular homicide.
If he returns to society, he said he will take on the reformed sinner's role. "I don't want people to drive and drink, or do what I've done.
"I was the only one in that crash not wearing a seat belt, and I came out unscathed. There must have been a reason for that.
"I want to be an inspiration so others won't drive and drink. I want to tell people: 'Be very, very careful."'
, DataTimes ILLUSTRATION: Color photo


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Since the 9/11 terrorist attacks, the U.S. government has spent at least $10 billion on communication efforts designed to advance the strategic interests of the U.S. However, foreign public opinion polling data shows that negative views towards the U.S. persist despite the collective efforts to counteract them by the State Dept., Broadcasting Board of Governors, U.S. Agency for International Development, Dept. of Defense, and other U.S. government agencies. Based on the significant role U.S. strategic communication and public diplomacy efforts can play in promoting U.S. national security objectives, such as countering ideological support for violent extremism, they are being highlighted as an urgent issue for the new admin. and Congress.Key Issues for Congressional Oversight Jess T. Ford ... Beginning in 2003, we reported on the importance of a national communication strategy to ensure agency efforts are properly coordinated, convey consistent messages to target audiences, focus on achieving concrete and measurable objectives, and lead to mutually reinforcing benefits overseas.1 In 2005, ... a new comprehensive strategy by December 2009 to guide interagency strategic communication efforts. 3 It is importantanbsp;...
|U. S. Public Diplomacy
|Jess T. Ford
|DIANE Publishing - 2009-09


text:
first edition Quarter Morocco, marbled boards
1809 · Rio de Janeiro
by Guimarães, Manoel Ferreira de Araujo (1777-1838)
Rio de Janeiro: Na Impressão Regia, 1809. First edition. Quarter Morocco, marbled boards. Near Fine. Scarce, with only two copies found, in Chile and Lima, Peru. 8vo. 20 by 15.5 cm. 7 pp. Patriotic poem. Modern binding, with extra strips of paper bound in so as to provide some heft to the binding. A ding on edge of front board. Light wear. (Inventory #: 005035)