
    Shelley HANSON, Plaintiff, v. FRIENDS OF MINNESOTA SINFONIA and Jay Fishman, Defendants.
    No. 00-CV-1900(JMR/FLN).
    United States District Court, D. Minnesota.
    Jan. 10, 2002.
    
      Jill Clark, Clark Law Office, Golden Valley, MN, for plaintiff.
    Louis Joseph Speltz, Frederick E. Finch, Kelly A. Putney, Ann Sheaffer Grayson, Bassford, Lockhart, Truesdell & Briggs, Shalanda D. Ballard, Flynn, Gas-kins & Bennett, Minneapolis, MN, for defendants.
   ORDER

ROSENBAUM, Chief Judge.

Plaintiff objects to the Report and Recommendation, issued November 21, 2001, by the Honorable Franklin L. Noel, United States Chief Magistrate Judge. Plaintiffs objections to the Report were timely filed, pursuant to Local Rule 72.1(c)(2).

Based upon a de novo review of the record herein, the Court adopts the Magistrate’s Report and Recommendation. Accordingly, IT IS ORDERED that:

1. Plaintiffs motion for partial summary judgment is denied. [Docket No. 29.]
2. Defendants’ motion for summary judgment is granted. [Docket No. 35.]
3. Plaintiffs remaining state law claims are dismissed without prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.

REPORT AND RECOMMENDATION

NOEL, Unites States Magistrate Judge.

THIS MATTER came for a hearing before the undersigned United States Magistrate Judge on Plaintiffs Motion for Partial Summary Judgment [# 29]. This matter has been referred to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1(c). For the reasons which follow, the Court recommends that Plaintiffs Motion be denied and Summary Judgment be entered in the Defendant’s favor.

I. FACTUAL BACKGROUND

This dispute arises from the injury of Plaintiff Shelley Hanson (“Ms.Hanson”) sustained after being struck by a light fixture during a rehearsal at the Minnesota Sinfonía Chamber Orchestra. (“Sinfo-nía”) After taking time off to recover, Ms. Hanson returned to the Sinfonía only to discover that she was terminated from her position as a clarinet player. (See Pi’s Mem.Supp.Mot. Partial Summ.J. at 1) (“PL’s SuppMem.”). Ms. Hanson filed suit alleging (1) Disability Discrimination, failure of accommodation, and Breach of Confidentiality under the Americans with Disabilities Act (“ADA”), the Minnesota Human Rights Act (“MHRA”) (2) Negligent Infliction of Emotional Distress, (3) Invasion of Privacy, (4) Defamation, (5) Interference with Prospective Business Relations, (6) Breach of Contract; and (7) Promissory Estoppel. (See Compl. at 1.)

The Sinfonía provides chamber orchestra music to members of the public who might not ordinarily have access to such events. The Sinfonia’s organizational structure consists of the Manager (also referred to as Managing Director) and the Artistic Director. (See Def.s’ Mem.Supp. Mot. for Summ.J. and Opp.Pl.’s Mot. for Partial Summ.J. at 3-4 (“Defs Opp. Mem.”).) The Manager performs all administrative tasks and the Artistic Director makes decisions regarding performers, venue and programming. The two aforementioned positions are considered employees of the Sinfonía, and as such, have payroll taxes withheld from their compensation, as well as workers compensation coverage. Defendant, Jay Fishman (“Fishman”), co-founder and Executive Director of the Sinfonía, also serves as the Artistic Director and Conductor. Sinfonía engages musicians to perform with the orchestra following auditions with the conductor. All Sinfonía musicians belong to Local 30-73 of the American Federation of Musicians, the Twin Cities union for musical entertainers. The Sinfonía musicians are governed by local union rules and a code of conduct governing how musicians are to conduct themselves during rehearsals, concerts and in the event a musician misses a scheduled concert.(<S'ee Id. at 4.)

Generally, the Sinfonía musicians are supplied a list of performance dates and venues from which they select the performances best fitting their schedules. All of the performers, including the Conductor are paid according to union list prices and on a “per set” basis. This payment is documented on tax form 1099, provided by the Sinfonía at the end of the year. The Sinfonía does not provide a pension plan, health insurance, life insurance, or any other benefits for the musicians. In fact, Sinfonía musicians provide their own instruments occasionally provide a music stand and none of the musicians are precluded from participating with other groups or performing independently. Ms. Hanson has moved for a partial summary judgment with respect to her employment status with the Sinfonía.

II. CONCLUSIONS OF LAW

A. Standard of Review

1. Plaintiffs Motion for Partial Summary Judgment [# 29]

The Supreme Court has held that summary judgment is to be used as a tool to isolate and dispose of claims or defenses that are either factually unsupported or based on undisputed facts. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hegg v. U.S., 817 F.2d 1328, 1331 (8th Cir.1987); Fisher v. Pharmacia & Upjohn, 225 F.3d 915, 919 (8th Cir.2000). Federal Rule of Civil Procedure 56(c) provides, in relevant part, that summary judgment shall be rendered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (holding that the Court must decide “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law”). When considering a motion for summary judgment, a court should construe all evidence in favor of the non-moving party. See Anderson, 477 U.S. at 255, 106 S.Ct. 2505. However, if the evidence submitted by the non-moving party is merely colorable or is not significantly probative, summary judgment may be granted. Id. at 249-50, 106 S.Ct. 2505.

The party opposing summary judgment may not rest upon the allegations set forth in its pleadings, but must produce significant probative evidence demonstrating a genuine issue for trial. Id. at 248-49, 106 S.Ct. 2505. “The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. at 247-48, 106 S.Ct. 2505. If the opposing party fails to carry that burden, summary judgment should be granted. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548. Summary Judgment should “[s]eldom be granted in discrimination cases.” Bassett v. City of Minneapolis, 211 F.3d 1097, 1099 (8th Cir.2000).

B. Legal Analysis

1. Musicians of the Minnesota Sinfo-nía are Independent Contractors

In order for Ms. Hanson to bring a claim against the Sinfonía under the ADA and the MHRA she must be considered an employee. The Sinfonía argues that its musicians are independent contractors and that the local union also considers its musicians independent contractors. Ms. Hanson on the other hand contends she is a Sinfonía employee covered by the ADA and the MHRA.

The American with Disabilities Act and the Minnesota Human Rights Act do not apply to non-employees, therefore independent contractors are excluded from its coverage. See Minn.Stat. § 363.01(16); Birchem v. Knights of Columbus, 116 F.3d 310, 312 (8th Cir.1997); Farrington v. City of Richfield, 488 N.W.2d 13 (Minn.Ct.App.1992). Courts evaluating ADA claims have applied the parallel definition of “employee” from Title VII claims. See Castellano v. City of New York, 142 F.3d 58, 69 (2d. Cir.1998). Title VII defines “employee” as “an individual employed by an employer.” 42 U.S.C. §§ 2000e(f) (Supp.III). Given the absence of any helpful legislative guidance on the breadth of this circular definition, courts have developed tests to distinguish between employees and independent contractors. See Spindes v. Reinhardt, 613 F.2d 826, 829-30 (D.C.Cir.1979). Determining whether an individual is an employee or independent contractor is a question of law, that must be decided by the court after reviewing the particular facts of each case. See Berger Transfer & Storage v. Central States, Southeast and Southwest Areas Pension Fund, 85 F.3d 1374, 1377 (8th Cir.1996). The Supreme Court has directed that the common-law of agency be used to establish whether a hired person is actually an employee. See Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992); see also Schwieger v. Farm Bureau Ins. Co., 207 F.3d 480, 483 (8th Cir.2000). The Supreme Court in Wilde summarized the common-law test as follows:

In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party’s right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skills required; the source of the instrumen-talities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

Id. at 106.

The applicable test that is overwhelmingly used in Minnesota is described as a hybrid of the common-law test and the economic realities test. See Wilde v. County of Kandiyohi, 15 F.3d 103, 105 (8th Cir.1994) (citations omitted). Under this test, the economic realities of the situation and totality of the circumstances surrounding the working relationship are taken into account. Id.

In addition, the economic realities test extends the “agency test” to include: (1) the manner in which the work relationship is terminated; i.e., by one or both parties, with or without notice and explanation; (2) whether the worker accumulates retirement benefits; (3) whether the “employer” pays social security taxes; and (4) whether the worker accrues yearly leave. Wilde, 15 F.3d 103 at 104. Factors used in both tests are nonexhaustive and consideration of the additional economic factors does not broaden the traditional common-law test. Id. Those factors that are equally irrelevant or of indeterminate weight and thus do not favor either party over the other, should be disregarded in light of the particular facts that apply in each case. See Eisenberg v. Advance Relocation & Storage, 237 F.3d 111, 114 (2d Cir.2000).

Applying the relevant factors, this Court concludes that Ms. Hanson is an independent contractor and not an employee of the Sinfonía.

a. Hiring party’s right to control the manner of and means by which the product is accomplished. The U.S. Supreme Court has held that the “the extent of control the hiring party exercises over the details of the product is not disposi-tive.” See Community for Creative Non-Violence v. Reid, 490 U.S. 730, 752, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989) (finding the control element was not established even though enough control to ensure the end result was met); see also, Hilton Int’l Co., v. NLRB, 690 F.2d 318, 320 (2d Cir.1982) (finding that bandleaders and teachers were still independent contractors though the hotel controlled the working hours including overtime, locations, types of music, when music would be played, volume the music could be played and the number of members in the band). Our Court of Appeals has held that the existence of rules and regulations governing conduct are not definitive in determining the relationship between employee and independent contractor because of the necessity for this type of control to establish the functionality of the organization. See Graves v. Women’s Prof'l Rodeo Ass’n, 907 F.2d 71, 72-74 (8th Cir.1990).

The product that the Sinfonía sought to accomplish is a professional orchestra performance and in reaching the desired end, this Court believes that Sinfonía exercised little control over the musicians. Specifically, Sinfonía did not control the musicians preparation until the limited rehearsals before performances, and does not control who is involved in the performances because each musician can elect the concerts to play in and may find substitutes for themselves should they change their minds after committing to the performance. Further, musicians are not precluded from playing with other groups or individually, which is generally forbidden in an employer/employee relationship of this type. Finally, unlike an employee that receives assignments, direction, and orders pertaining to the product on a daily basis, each individual musician controls how the end result will be met by becoming proficient with personal practice. Given the foregoing, this Court concludes that Sinfonía had little control over the means by which the product is accomplished.

b. Skills required. The U.S. Supreme Court has used the skill of an occupation to further assist in the delineation of independent contractor or employee status. See Reid, 490 U.S. at 752, 109 S.Ct. 2166. Professional musicians require a high degree of technical proficiency. They audition to exhibit to others the skill level they have achieved at their own expense prior to being hired. See Schwieger v. Farm Bureau Ins. Co., 207 F.3d 480, 485 (8th Cir.2000). They do not receive “on the job” training to become musicians. As noted earlier, the Sinfonía musicians do not receive individual instruction on how much or how little practice it will take to accomplish the desired level of proficiency. No daily report or log is required to justify time used nor are the individuals compensated for personal practice time. Accordingly, the skill needed is provided by the Sinfonía musicians themselves without training by the Sinfonía. This court concludes that this type of skill is indicative of an independent contractor.

c. Source of the instrumentalities and tools. An individual is considered an independent contractor where the individual is required to provide a majority of the tools necessary to perform his or her duties. Id. In the instant case, although Sinfonía provides the musical scores, rehearsal facilities, music stands and concert schedules, it does not provide the musical instruments, maintenance, insurance, or the attire for the musicians. The individual musician’s investments far exceeds the hiring entity’s. See Florida Gulf Coast Symphony, Inc. v. Dept. of Labor & Employment Sec., 386 So.2d 259, 261 (Fla.Dist.Ct.App.1980). Because the source of the in-strumentalities and tools is provided by the musicians they are more like independent contractors.

d. Location of the work. Personal practices take place at the location of the musicians choice and the Sinfonía does not supervise these practices. Rehearsals and concert locations are only selected by the Sinfonía staff as a part of their regular business obligations to produce the required end result. Therefore, this element can not be factored as the amount of time devoted in either area of “work” is indefinite and cannot be attributed to either employee or independent contractor.

e. Duration of the relationship between the parties, and extent of the hired party’s discretion over when and how long to work. Under this factor the Court observes that the musicians do not commit to a particular number of seasons or a minimum number of concerts with the Sinfonía; however once a musician selects to perform in a particular concert he or she is responsible for performing or finding a substitute. If a more fruitful opportunity presented itself, the musician could leave at will and never perform with the Sinfonía again. Further, as noted earlier, each musician retains complete discretion about practices and maintenance of instruments. Therefore, this Court concludes that the at will relationship lends itself more to the independent contractor status.

f. Whether the hiring party has the right to assign additional projects to the hired party. In the instant ease, the Sin-fonía did not retain the right to assign additional projects because once the individual musician selects the concert he or she wants to perform new music is assigned, the practices to perfect that music are in the hands of the musician. The musicians are not required to write new parts or scores or to learn different instruments parts. Therefore, this Court con-eludes the lack of ability to assign additional projects supports the status of an independent contractor.

g. Method of payment. Payment by the project suggests the performer is an independent contractor. Reid, 490 U.S. at 753, 109 S.Ct. 2166. Here, Sinfonía musicians are paid wages using the union set scale on the “per set” basis. If the individual musician elects to participate he or she is compensated for that specific performance or for the series performances that must be done as a group. Sinfonía musicians are paid per project like independent contractors.

h. Hired party’s role in hiring and paying assistants. This factor does not lend itself to the particulars of this case, because the nature of the work is such that it simply does not contemplate the use of assistants.

i. Whether the work is part of the regular business of the hiring party. In evaluating this factor the Court observes that it is understood that the work musicians perform is part of the Sinfonia’s regular business as the provider of orchestra music. However, much like a temporary agency worker that steps into the clients facility to provide the exact work the clients regular business requires, the hired agency person is not considered an employee of the client that is paying their salary. Similarly, this Court finds this factor is indicative of an independent contractor.

j. Provisions of employee benefits. The hiring party not providing any employment benefits, or contributing to unemployment insurance or workers’ compensation funds is also evidence that an independent contractor relationship. Reid, 490 U.S. at 753, 109 S.Ct. 2166. Here, the Sinfonía does not provide any employee benefits such as health or life insurance, nor does it contribute to workers’ compensation funds for the musicians. Although the Sinfonía paid the musicians union pension benefits for its musicians, Defendant Fishman contends that as a union member himself, it was necessary to keep the Sinfonía in good standing with the local union and the musicians by donating funds into the union pension fund for its musicians. Otherwise, the Sinfonía would find it difficult to work with union musicians and facilities. Accordingly, this Court concludes that the lack of employee benefits contributes to the independent contractor status.

k. Tax treatment of the hired party. That the Sinfonía reports payments to musicians for tax purposes on a form 1099 rather then a W-2, strongly weighs in favor of finding that Hanson was an independent contractor.

l. How work relationship was terminated. In this case, Ms. Hanson did not perform while recovering from injuries she sustained at a Sinfonía rehearsal. Both sides retained the ability to terminate the relationship at any time without cause. It 'is clear that upon plaintiffs return Fish-man terminated her services. Therefore, this factor leads to the independent contractor status.

to. Does worker accrue annual leave. The Sinfonía does not distribute annual leave or sick leave. Consequently, this factor weighs in favor of determining that Ms. Hanson is an independent contractor.

n. Social Security taxes paid. The Sinfonía never paid into the social security fund for any of it’s musicians. Accordingly, this factor contributes to the independent contractor status.

Based on the foregoing and viewing the evidence in the light most favorable to the non-moving party, this Court concludes that the musicians of the Minnesota Sinfo-nía are independent contractors, and Ms. Hanson is an independent contractor. The record reveals that although the Sinfonia exercised some control over Ms. Hanson with respect to scheduled concerts and rehearsals, she maintained a tremendous amount of freedom in electing which concerts to perform, whether to practice, how long to practice, and what level proficiency she chose to attain. She was paid per performance, she earned no benefits or vacation, and her compensation was all reported on Forms 1099 instead of W-2 Forms. As an independent contractor, Ms. Hanson can not maintain a claim of discrimination under the ADA or MHRA. Summary judgment must be granted for the defendant. As plaintiffs only federal claims must be dismissed, the court concludes that plaintiffs state claims should be dismissed without prejudice. Plaintiff can bring these claims in State Court.

III. RECOMMENDATION

Based upon all the files, records and proceedings herein, IT IS HEREBY RECOMMENDED that:

1. Plaintiffs Motion for Partial Summary Judgment [# 29] be DENIED.
2. Defendant’s Motion for Summary Judgment [# 35] be GRANTED.
Dated: Nov. 21, 2001.  