United States District Court, D. Massachusetts
J. Casper United States District Judge
Jane Doe (“Doe”) has filed this lawsuit against
Defendants Frank Medeiros (“Medeiros”) and Ellis
Management Services, Inc. (“Ellis”) alleging a
number of claims related to a purported assault committed by
Medeiros. D. 11. Ellis has moved for summary judgment on the
vicarious liability claim leveled against it. D. 51. For the
reasons stated below, the Court ALLOWS the motion.
Standard of Review
role of summary judgment is “to pierce the pleadings
and to assess the proof in order to see whether there is a
genuine need for trial.” Mesnick v. Gen. Elec.
Co., 950 F.2d 816, 822 (1st Cir. 1991) (quoting
Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st
Cir. 1990)). The burden is on the moving party to show,
through the pleadings, discovery and affidavits, “that
there is no genuine dispute as to any material fact and
[that] the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). A fact is material if it
“might affect the outcome of the suit under the
governing law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A genuine issue of
material fact exists where the evidence with respect to the
material fact in dispute “is such that a reasonable
jury could return a verdict for the nonmoving party.”
moving party satisfies its burden, the burden shifts to the
nonmoving party to set forth specific facts showing that
there is a genuine, triable issue. Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986). The Court must view
the entire record in the light most favorable to the
nonmoving party and make all reasonable inferences in that
party's favor. O'Connor v. Steeves, 994 F.2d
905, 907 (1st Cir. 1993). Summary judgment is appropriate if,
after viewing the record in the nonmoving party's favor,
the Court determines that no genuine issue of material fact
exists and that the moving party is entitled to judgment as a
matter of law. Id. at 906-07.
following facts are drawn from the parties' statements of
material facts, D. 53, D. 58, and supporting documents and
are undisputed unless otherwise noted.
whose sole office is in Texas, provides mystery shopping
services (also known as “secret shops”)
throughout the country for the apartment and multifamily
leasing industry. D. 53 ¶¶ 1-3; D. 58 ¶¶
1-3. These secret shops provide the client with a plethora of
information including-but not limited to-feedback regarding
their employees' performance, descriptions of the
physical appearance of the clients' rental properties and
notice of whether specific properties are in compliance with
internal policies and regulations. D. 53 ¶ 4; D. 58
¶ 4. In selecting secret shoppers to visit its
clients' sites, Ellis requires no interview process. D.
53 ¶ 9; D. 58 ¶ 9. Rather, prospective secret
shoppers do no more than fill out a basic application form
online. D. 53 ¶ 8; D. 58 ¶ 8. A background check is
performed on individuals who submit applications and, so long
as they have no felony record and have not committed any
sex-related crimes, they are eligible to work for Ellis as a
secret shopper. D. 53 ¶ 10; D. 58 ¶ 10.
secret shoppers working for Ellis are required to sign a form
entitled “Ellis, Partners in Mystery Shopping
Independent Contractor Agreement & Authorization to
Record Shopper Communications” (the
“Agreement”), which states that Ellis has
“no power or authority over the specific manner in
which [the secret shopper] perform[s] [his or her] duties
under this Agreement, that control belonging solely to the
[secret shopper].” D. 53 ¶¶ 11, 13; D. 58
¶¶ 11, 13; D. 54-1 at 1, 3. The Agreement further
stipulates that Ellis “is only concerned with the end
result, namely, the collection of the necessary data for the
Property identified in an Assignment.” D. 53 ¶ 13;
D. 58 ¶ 13; D. 54-1 at 3. Secret shoppers must also
complete a “certification program” online that
serves as a tutorial for those working on behalf of Ellis. D.
53 ¶ 14; D. 58 ¶ 14. This tutorial, which on
average lasts between thirty to forty-five minutes, provides
shoppers with tips pertaining to secret shopping assignments,
such as how to communicate effectively while performing an
assignment. D. 53 ¶ 14; D. 58 ¶ 14. Once a person
has completed the certification program, he or she is
eligible to perform mystery shops for Ellis's customers.
D. 54 ¶ 14.
secret shoppers are provided a username and password to
access a protected portion of Ellis's website that
provides the secret shopper with a list of available
assignments. D. 53 ¶ 15; D. 58 ¶ 15. Ellis does not
inform its secret shoppers whether assignments are available
and, instead, the onus is on the secret shopper to log in to
the website to find available assignments. D. 53 ¶ 16;
D. 58 ¶ 16. Whether to request an available assignment
is in the secret shopper's discretion and Ellis imposes
no minimum number of assignments a secret shopper must
complete. D. 53 ¶¶ 16-17; D. 58 ¶¶ 16-17.
In fact, Ellis does not require that a secret shopper
complete even one assignment (i.e., they may elect to
complete none). D. 53 ¶ 17; D. 58 ¶ 17.
shops are awarded to the first individual requesting the
assignment so long as the individual is not a former employee
of the client whose property is being shopped. D. 53 ¶
20; D. 58 ¶ 20. While the Ellis online tutorial states
that a secret shopper should “normally complete the
telephone portion of the shopping assignment . . . on the
same day [the secret shopper] shops the property, ” the
secret shopper is otherwise free to decide the date and time
of the shop within the timeframe set by the client. D. 61-1
at 11-12; D. 53 ¶ 22; D. 58 ¶ 22. During a secret
shop, the Ellis worker poses as a person hoping to rent an
apartment at the client's property. D. 53 ¶ 23; D.
58 ¶ 23. After visiting the apartment and observing the
property and the employee, the shopper must then log on to
Ellis's website and complete an online form that asks for
specific information requested by the client. D. 53 ¶
25; D. 58 ¶ 25. With the exception of completing the
online form, secret shoppers are otherwise not required to
communicate with Ellis before or after a shop unless they
encounter difficulties in completing the assignment. D. 53
¶ 28; D. 58 ¶ 28; D. 61-1 at 26. Ellis does not
provide any sort of evaluative feedback to the secret
shoppers after they submit their reports, although Ellis, in
its discretion, may reach out to the secret shopper if the
questions in the report are not sufficiently answered or if
Ellis determines that there is some other problem in the
report. D. 53 ¶ 29; D. 58 ¶ 29; D. 59-2 at 19-21.
shoppers are paid a flat fee, not on an hourly or salary
basis. D. 53 ¶¶ 30-31; D. 58 ¶¶ 30-31.
They neither receive any fringe benefits from Ellis, nor do
they have any deductions or withholdings taken from their pay
by Ellis. D. 53 ¶ 32; D. 58 ¶ 32. Ellis does not
reimburse secret shoppers for any expenses they incur during
a secret shop. D. 53 ¶ 33; D. 58 ¶ 33. Ellis also
does not provide its secret shoppers with any office space.
D. 53 ¶ 34; D. 58 ¶ 34. Secret shoppers are not
required to wear any kind of uniform and are instead
permitted to wear casual street clothing while performing an
assignment. D. 53 ¶ 36; D. 58 ¶ 36. They also are
not prohibited from working for other companies, including
other secret shopping companies. D. 53 ¶ 37; D. 58
worked with about a dozen different secret shopping companies
between 2009 and 2012, including companies that, like Ellis,
evaluate apartments and other rental properties. D. 53 ¶
41; D. 58 ¶ 41. In or around April 2011, Medeiros
entered into an independent contractor agreement with Ellis
to be a secret shopper. D. 53 ¶ 43; D. 58 ¶ 43.
Between August and December 2011, Medeiros completed four
secret shopping assignments with Ellis. D. 53 ¶ 45; D.
58 ¶ 45. During this time period, he performed secret
shops with other companies. D. 53 ¶ 49; D. 58 ¶ 49.
Medeiros never spoke with any representative of Ellis while
working for them. D. 53 ¶ 56; D. 58 ¶ 56. He had no
other contact with Ellis other than through Ellis's
website and via e-mails confirming that he had been given an
assignment to complete. D. 53 ¶ 56; D. 58 ¶ 56.
formerly worked as a property manager in Fall River,
Massachusetts for Community Builders, a property management
company. D. 55-2. On December 12, 2011, Medeiros scheduled a
meeting with Doe to see apartments in Fall River as part of a
secret shop assignment. Id. Doe claims that during
the secret shop later that day, Medeiros asked her “if
[she] was wired” and then “patt[ed] [her] chest
down for wire.” Id. Medeiros was fired from
his job with Ellis once Ellis learned that he had been
accused of inappropriately touching Doe's breasts during
his scheduled secret shop. D. 53 ¶ 63; D. 58 ¶ 63.
At no point did Ellis instruct or suggest that Medeiros
engage in such conduct while on a mystery shop, nor did
Medeiros's job require him to do so. D. 53 ¶ 61, 62;
D. 58 ¶ 61, 62. Medeiros's secret shopping job with
Ellis in no way required him to determine whether any person
at any of his shopping assignments was “wearing a
wire” or had a recording device on her person. D. 53
¶ 62; D. 58 ¶ 62. Medeiros also did not believe it
was part of his job to pat down or have such physical contact
with Doe as part of his job with Ellis. D. 53 ¶ 59; D.
58 ¶ 59.
instituted this action in state court on December 15, 2014,
D. 1-1 at 4, and the case was removed to this Court on March
27, 2015. D. 1. Ellis thereafter moved to dismiss. D. 13. The
Court granted Ellis' motion to dismiss as to Doe's
claim for negligent hiring, but denied the motion as to
Doe's vicarious liability claim against Ellis. D. 22.
After the Court denied the motion to dismiss, the parties
proceeded with ...