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Doe v. Medeiros

United States District Court, D. Massachusetts

July 21, 2017

JANE DOE, Plaintiff,
v.
FRANK MEDEIROS and ELLIS MANAGEMENT SERVICES, INC., Defendants.

          ORDER

          Denise J. Casper United States District Judge

         I. Introduction

         Plaintiff Jane Doe (“Doe”) has filed this lawsuit against Defendants Frank Medeiros (“Medeiros”) and Ellis Management Services, Inc. (“Ellis”) alleging a number of claims related to a purported assault committed by Medeiros. D. 11. Ellis has moved for summary judgment on the vicarious liability claim leveled against it. D. 51. For the reasons stated below, the Court ALLOWS the motion.

         II. Standard of Review

         The role of summary judgment is “to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)). The burden is on the moving party to show, through the pleadings, discovery and affidavits, “that there is no genuine dispute as to any material fact and [that] the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists where the evidence with respect to the material fact in dispute “is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

         If the moving party satisfies its burden, the burden shifts to the nonmoving party to set forth specific facts showing that there is a genuine, triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The Court must view the entire record in the light most favorable to the nonmoving party and make all reasonable inferences in that party's favor. O'Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993). Summary judgment is appropriate if, after viewing the record in the nonmoving party's favor, the Court determines that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Id. at 906-07.

         III. Factual Background

         The following facts are drawn from the parties' statements of material facts, D. 53, D. 58, and supporting documents and are undisputed unless otherwise noted.

         Ellis, whose sole office is in Texas, provides mystery shopping services (also known as “secret shops”) throughout the country for the apartment and multifamily leasing industry. D. 53 ¶¶ 1-3; D. 58 ¶¶ 1-3. These secret shops provide the client with a plethora of information including-but not limited to-feedback regarding their employees' performance, descriptions of the physical appearance of the clients' rental properties and notice of whether specific properties are in compliance with internal policies and regulations. D. 53 ¶ 4; D. 58 ¶ 4. In selecting secret shoppers to visit its clients' sites, Ellis requires no interview process. D. 53 ¶ 9; D. 58 ¶ 9. Rather, prospective secret shoppers do no more than fill out a basic application form online. D. 53 ¶ 8; D. 58 ¶ 8. A background check is performed on individuals who submit applications and, so long as they have no felony record and have not committed any sex-related crimes, they are eligible to work for Ellis as a secret shopper. D. 53 ¶ 10; D. 58 ¶ 10.

         All secret shoppers working for Ellis are required to sign a form entitled “Ellis, Partners in Mystery Shopping Independent Contractor Agreement & Authorization to Record Shopper Communications” (the “Agreement”), which states that Ellis has “no power or authority over the specific manner in which [the secret shopper] perform[s] [his or her] duties under this Agreement, that control belonging solely to the [secret shopper].” D. 53 ¶¶ 11, 13; D. 58 ¶¶ 11, 13; D. 54-1 at 1, 3.[1] The Agreement further stipulates that Ellis “is only concerned with the end result, namely, the collection of the necessary data for the Property identified in an Assignment.” D. 53 ¶ 13; D. 58 ¶ 13; D. 54-1 at 3. Secret shoppers must also complete a “certification program” online that serves as a tutorial for those working on behalf of Ellis. D. 53 ¶ 14; D. 58 ¶ 14. This tutorial, which on average lasts between thirty to forty-five minutes, provides shoppers with tips pertaining to secret shopping assignments, such as how to communicate effectively while performing an assignment. D. 53 ¶ 14; D. 58 ¶ 14. Once a person has completed the certification program, he or she is eligible to perform mystery shops for Ellis's customers. D. 54 ¶ 14.

         Ellis's secret shoppers are provided a username and password to access a protected portion of Ellis's website that provides the secret shopper with a list of available assignments. D. 53 ¶ 15; D. 58 ¶ 15. Ellis does not inform its secret shoppers whether assignments are available and, instead, the onus is on the secret shopper to log in to the website to find available assignments. D. 53 ¶ 16; D. 58 ¶ 16. Whether to request an available assignment is in the secret shopper's discretion and Ellis imposes no minimum number of assignments a secret shopper must complete. D. 53 ¶¶ 16-17; D. 58 ¶¶ 16-17. In fact, Ellis does not require that a secret shopper complete even one assignment (i.e., they may elect to complete none). D. 53 ¶ 17; D. 58 ¶ 17.

         Secret shops are awarded to the first individual requesting the assignment so long as the individual is not a former employee of the client whose property is being shopped. D. 53 ¶ 20; D. 58 ¶ 20. While the Ellis online tutorial states that a secret shopper should “normally complete the telephone portion of the shopping assignment . . . on the same day [the secret shopper] shops the property, ” the secret shopper is otherwise free to decide the date and time of the shop within the timeframe set by the client. D. 61-1 at 11-12; D. 53 ¶ 22; D. 58 ¶ 22. During a secret shop, the Ellis worker poses as a person hoping to rent an apartment at the client's property. D. 53 ¶ 23; D. 58 ¶ 23. After visiting the apartment and observing the property and the employee, the shopper must then log on to Ellis's website and complete an online form that asks for specific information requested by the client. D. 53 ¶ 25; D. 58 ¶ 25. With the exception of completing the online form, secret shoppers are otherwise not required to communicate with Ellis before or after a shop unless they encounter difficulties in completing the assignment. D. 53 ¶ 28; D. 58 ¶ 28; D. 61-1 at 26. Ellis does not provide any sort of evaluative feedback to the secret shoppers after they submit their reports, although Ellis, in its discretion, may reach out to the secret shopper if the questions in the report are not sufficiently answered or if Ellis determines that there is some other problem in the report. D. 53 ¶ 29; D. 58 ¶ 29; D. 59-2 at 19-21.

         Secret shoppers are paid a flat fee, not on an hourly or salary basis. D. 53 ¶¶ 30-31; D. 58 ¶¶ 30-31. They neither receive any fringe benefits from Ellis, nor do they have any deductions or withholdings taken from their pay by Ellis. D. 53 ¶ 32; D. 58 ¶ 32. Ellis does not reimburse secret shoppers for any expenses they incur during a secret shop. D. 53 ¶ 33; D. 58 ¶ 33. Ellis also does not provide its secret shoppers with any office space. D. 53 ¶ 34; D. 58 ¶ 34. Secret shoppers are not required to wear any kind of uniform and are instead permitted to wear casual street clothing while performing an assignment. D. 53 ¶ 36; D. 58 ¶ 36. They also are not prohibited from working for other companies, including other secret shopping companies. D. 53 ¶ 37; D. 58 ¶ 37.

         Medeiros worked with about a dozen different secret shopping companies between 2009 and 2012, including companies that, like Ellis, evaluate apartments and other rental properties. D. 53 ¶ 41; D. 58 ¶ 41. In or around April 2011, Medeiros entered into an independent contractor agreement with Ellis to be a secret shopper. D. 53 ¶ 43; D. 58 ¶ 43. Between August and December 2011, Medeiros completed four secret shopping assignments with Ellis. D. 53 ¶ 45; D. 58 ¶ 45. During this time period, he performed secret shops with other companies. D. 53 ¶ 49; D. 58 ¶ 49. Medeiros never spoke with any representative of Ellis while working for them. D. 53 ¶ 56; D. 58 ¶ 56. He had no other contact with Ellis other than through Ellis's website and via e-mails confirming that he had been given an assignment to complete. D. 53 ¶ 56; D. 58 ¶ 56.

         Doe formerly worked as a property manager in Fall River, Massachusetts for Community Builders, a property management company. D. 55-2. On December 12, 2011, Medeiros scheduled a meeting with Doe to see apartments in Fall River as part of a secret shop assignment. Id. Doe claims that during the secret shop later that day, Medeiros asked her “if [she] was wired” and then “patt[ed] [her] chest down for wire.” Id. Medeiros was fired from his job with Ellis once Ellis learned that he had been accused of inappropriately touching Doe's breasts during his scheduled secret shop. D. 53 ¶ 63; D. 58 ¶ 63. At no point did Ellis instruct or suggest that Medeiros engage in such conduct while on a mystery shop, nor did Medeiros's job require him to do so. D. 53 ¶ 61, 62; D. 58 ¶ 61, 62. Medeiros's secret shopping job with Ellis in no way required him to determine whether any person at any of his shopping assignments was “wearing a wire” or had a recording device on her person. D. 53 ¶ 62; D. 58 ¶ 62. Medeiros also did not believe it was part of his job to pat down or have such physical contact with Doe as part of his job with Ellis. D. 53 ¶ 59; D. 58 ¶ 59.[2]

         IV. Procedural History

         Plaintiffs instituted this action in state court on December 15, 2014, D. 1-1 at 4, and the case was removed to this Court on March 27, 2015. D. 1. Ellis thereafter moved to dismiss. D. 13. The Court granted Ellis' motion to dismiss as to Doe's claim for negligent hiring, but denied the motion as to Doe's vicarious liability claim against Ellis. D. 22. After the Court denied the motion to dismiss, the parties proceeded with ...


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