The opinion of the court was delivered by: GAWTHROP
Sylvia Golden initiated this suit against A.P. Orleans, Inc. ("Orleans"), under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq. (1985 & Supp. 1987), alleging that Orleans discriminated against her on the basis of her age in discharging her from employment on December 6, 1985. Presently before the Court is defendant's Motion for Summary Judgment in which defendant challenges plaintiff's status as an "employee" under the ADEA.
The material facts are not in dispute.
Orleans is a marketing arm of Orleans Builders and Developers, a local real estate developer engaged principally in the development of residential housing. Orleans initially hired Golden in December of 1983 to sell homes at its Valley Glen project in Elkins Park, Montgomery County, Pennsylvania. At that time, Golden was a licensed Pennsylvania real estate sales agent. Later, in the summer of 1985, Golden obtained her real estate broker's license.
The relationship between the parties was governed by a formal "Pennsylvania Independent Contractor Agreement", which, by its terms, provided that either party could terminate the relationship upon written notice to the other with or without cause. Regarding the relationship between the parties, the contract provided:
It is understood that the sales representative is an independent contractor and not an employee of A.P. Orleans, Inc. and A.P. Orleans, Inc. does not assume any responsibility for actions of the sales representative outside the scope of authority granted in this agreement.
This agreement shall not be construed to constitute the sales representative a partner, employee or agent of A.P. Orleans, Inc., and neither party to this agreement has any authority to bind the other in any respect. It is intended by the parties that each remain an independent contractor responsible for its own actions.
Pennsylvania Independent Contractor Agreement, at 4-5. Golden did not receive paid vacation or retirement benefits at Orleans. She was paid a draw of $ 400 a week against commissions, and received additional compensation for special sales incentives that the company set up on various occasions. Orleans reported the commissions to the Internal Revenue Service on Form 1099-NEC, Statement for Recipients of Non-Employee Compensation, and did not withhold income tax or pay social security tax for Golden.
Golden worked under the supervision of an area sales manager, and was required to attend weekly sales meetings. In addition, Golden was required to submit weekly activity reports both by phone and in writing. Memoranda were sent on a periodic basis to the sales personnel communicating company directives regarding daily work activity. Golden's work schedule was set by Orleans and she was required to be at the office during those hours. In short, Golden's day-to-day work activity was regulated directly by the management of the company.
Under the agreement, Golden was required to sell exclusively for Orleans. It appears that the company maintained an organized sales force and, in fact, management at one point suggested that the salespersons wear a company uniform. Orleans supplied Golden with the necessary materials to perform her work and provided the workplace as well. Orleans concedes that sales was and is an integral part of the business of the company.
In November of 1985, Golden was terminated as part of a plan to restructure the sales effort at Valley Glen. She was replaced by a person in his twenties. A second sales representative over the age of forty was terminated ...