ASSOCIATED ATTORNEYS

OF NEW ENGLAND
May 25, 2016
NH Commission for Human Rights
CHARGE OF DISCRIMINATION
2 Industrial Park Drive
Concord, NH 03301

RE:
Ketler Bosse v. New York Life Insurance Company ("NYL")
ERCNO(R) Charge No.:
0105-16
EEOC Charge No.:
6D-2016-00110
REPLY TO ANSWER TO CHARGE
Dear Investigator Burke Cohen,
Ignoring NH RSA 354-A entirely, and citing no case law applicable to the controlling
law, NYL has largely failed to substantively respond to the well-pled allegations of racial
discrimination and instead submitted a mostly jurisdictional argument for dismissal. This letter is
in reply to that Letter Answer of April 26, 2016.
This Commission has jurisdiction over the charge pursuant to NH RSA 354-A simply
because it would be an absurd result to hold otherwise and the text of the legislation provides no
exception for workers employed as "independent contractors." Further, it is argued that NYL
treated Mr. Bosse as an employee and not an independent contractor. Finally, the mere
suggestion that NYL life may treat its employees, whether deemed independent contractors or
not, as chattels in full disregard of all State & Federal civil rights law- is patently offensive and
should be immediately rejected by this Commission.
1. BACKGROUND FACTS - A brief statement of objection to the inflammatory
response by NYL.
Mr. Bosse will let his Charge speak for itself as to the background facts of this racially
motivated set-up and wrongful termination. In rebuttal, however, Mr. Bosse strenuously and
vociferously OBJECTS to the outrageous contention that the email proof of his having
forwarded the email in question is a "cut & paste" job. Furthermore, the undersigned counsel
personally viewed the forwarded email in their office when they interviewed Erika Applegate
while conducting due diligence prior to filing this charge and it did verify it does indeed exist.
NYL has not, and cannot, produced any evidence that the email was not sent
Finally, NYL again misleads this Commission by asserting Mr. Bosse only brought up
discrimination when he was being fired. As stated in the Charge, he had TRIED to assert the
complaints of bias he had been receiving from his agents, but was rebuffed by NYL.
Let the Charge by investigated and prosecuted and stand or fall on its own merits.
587 Union Street, Manchester, New Hampshire 03104
Tel: 603-622-8100 Fax: 888-912-1497

Associated Attorneys of New England

Boss v. New York Life Insurance Company
May 25, 2016
Page 2 of 8

2. NYL's INDEPENDENT CONTRACTOR ARGUMENT IS NOT RELEVANT- NH

RSA 354-A does not provide the same exemption available to NYL under the
Federal ADA case law cited.
Although related, disability protections do not rise to the same level as racial or gender
based discrimination. The State of New Hampshire has provided its own laws for the protections
of minorities and other protected classes and has not built in a special exception to allow those
who employ independent contractors carte blanch to discriminate and mistreat their workers.
Nor has NYL cited any controlling authority directly on point as to RSA 354-A.
There is simply nothing in RSA 354-A or the associated regulations which would
preclude Mr. Bosse's Charge even if he is an "independent contractor" which we dispute and
deny. NYL cannot dispute that they employ more than six (6) employees, and are therefore
subject to the Jurisdiction of this Commission. RSA 354-A:2(VII).
Parsing the controlling statute out further we see that it is an "unlawful discriminatory
practice...for an employer, [NYL] because of the age, sex race, color, marital status physical or
mental disability, religious creed, or national origin of any individual, to refuse to hire or employ
or to bar or to discharge from employment such individual or to discriminate against such
individual in compensation or in terms, conditions or privileges of employment, unless based
upon a bona fide occupational qualification." (emphasis added). RSA 354-A:7(I).
NYL is an employer.
Mr. Bosse is an individual.
NYL has refused to hire or employ Mr. Bosse, (whether as an independent
contractor or "employee") because of his race.
NYL has BARRED Mr. Bosse from being their agent, (whether independent
contractor or "employee"), because of his race.
NYL has discriminated against Mr. Bosse in "COMPENSATION" due to his race.
Whether Mr. Bosse is deemed an employee, as we argue, or an independent contractor, as
NYL argues, the fact remains that by the plain language and text of the applicable law, NYL is
subject to the Jurisdiction of this Commission and they may not discriminate against individuals.
Any contrary interpretation leads to an absurd result.
The long list of EEOC dismissals cited by NYL should only serve to invigorate this
Commission to redouble its efforts to routing out invidious discrimination which clearly exists at
NYL given the sheer number of EEOC complaints they've had to defend. The buck stops herethis is New Hampshire- not New Orleans, or Chicago, or L.A.- the applicable law is RSA 354-A,
and they are subject to it.
587 Union Street, Manchester, New Hampshire 03104
Tel: 603-622-8100 Fax: 888-912-1497

Associated Attorneys of New England

Boss v. New York Life Insurance Company
May 25, 2016
Page 3 of 8

3. EMPLOYEE vs. INDEPENDENT CONTRACTOR - This Commission has

jurisdiction over this case because Mr. Bosse was an employee and NYL is subject to
the laws against Discrimination.
NYL misapplies the right to control analysis put forth by the Supreme Court in
Nationwide Mutual Ins. Co. v. Darden, 502 U.S. 318 (1992) which is recreated below:
In determining whether a hired party is an employee under the general common
law of agency, we consider the hiring partys right to control the manner and
means by which the product is accomplished. Among the other factors relevant to
this inquiry are the skill required; the source of the instrumentalities 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 partys discretion over when and how long to work; the method
of payment; the hired partys 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.
502 U.S. at 323-324.
NYL indicates that NYL had no right to control Mr. Bosses manner and means of selling
insurance, however upon review of the facts this statement is inaccurate.
Throughout his employment with NYL Mr. Bosse was treated as an employee. NYLs
response considers a limited number of the factors listed above. NYL instead relies on the flawed
argument that because other agents of NYL have been considered to be independent contractors
by other Courts then Mr. Bosse should be as well. When the actual facts of Mr. Bosses
employment are applied to the law it is extremely clear that he was treated as an employee of
NYL.
This argument presented by NYL is flawed. Each element of the Supreme Courts test
should be considered against Mr. Bosses actual role with the company. It is not enough to say
that individuals in roles like Mr. Bosses tend to be independent contractors. NYL has not
sufficiently proven that Mr. Bosse should be considered an independent contractor by their reply
and therefore their jurisdictional argument should fail.
A. NYL Had The Right To Control The Manner And Means By Which The Work
Product Is Accomplished.
Under the Darden test, one of the considerations a court must make in order to determine
whether a hired party is an employee is the hiring partys right to control the manner and means
587 Union Street, Manchester, New Hampshire 03104
Tel: 603-622-8100 Fax: 888-912-1497

Associated Attorneys of New England

Boss v. New York Life Insurance Company
May 25, 2016
Page 4 of 8

by which the product is accomplished. Here, Mr. Bosse was an employee because NYL
exercised extensive control over the manner and means by which the product was accomplished.
As an agent of NYL Mr. Bosse was required to be extensively trained in NYL products.
Any client complaints were handled by the general office and the general office of NYL was
responsible for the discipline of Mr. Bosse. The control of the general office over Mr. Bosses
livelihood is made clear under paragraph 17 of the attachment to Mr. Bosses charge. Mr. Bosse
was selling a product but the product itself, and payment of Mr. Bosse, was controlled in full by
the general office of NYL.
It was that control which allowed the general office to discriminate against Mr. Bosse as
described in full in Mr. Bosses charge. The email over which NYL has predicated Mr. Bosses
termination is the result of a NYL mandate requiring the use of email for agreements for the
products in question. Mr. Bosse had no discretion as to the implementation this or like systems.
NYL had full and complete control over the means by which the product was
accomplished. This control was so complete that they used it to discriminate against Mr. Bosse
reducing his income and leading to his eventual termination.
B. Analyzing The Role Of Skill Level Is Not Helpful In Making A Determination
Under These Facts.
Just because Mr. Bosse studied for, and passed exams, at the direction and instruction,
and behest of NYL it must be noted, does not necessarily mean he should be classified as highly
skilled worker and thus a de facto independent contractor. Such analysis is better suited to the
construction trades where we naturally, the Master Plumber, and Master Electrician on the job
are independent contractors. There are much smarter folks employed by NYL whom NYL
would concede are employees with a lot more education and training in than Mr. Bosse. This
analysis is net neutral on the determination of employee or independent contractor.
C. NYL Controlled The Instrumentalities And Tools Of Mr. Bosses Employment.
Mr. Bosse may have had his own computers and office space but NYL was in control of
the software and products he sold. To claim that the purchase of a computer is enough to place
Mr. Bosse in the category of independent contractor ignores that such an item is useless without
the complex NYL system provided entirely by NYL. The true tools and instrumentalities of the
business were all controlled, updated and maintained by NYL.
Mr. Bosse relied on NYL for the instrumentalities of his trade and as such he should be
treated as an employee of NYL.
D. NYL Had Control Over Where Mr. Bosse Performed His Work.

587 Union Street, Manchester, New Hampshire 03104

Tel: 603-622-8100 Fax: 888-912-1497

Associated Attorneys of New England

Boss v. New York Life Insurance Company
May 25, 2016
Page 5 of 8

NYL required Mr. Bosse to keep consistent contact with one of its general offices in
order to do his work. This requirement greatly reduces Mr. Bosses control over where he
worked. He would have to put in a transfer to work out of a different NYL office and has to
report to a NYL general office in order to effectively execute his position. As mentioned above
he would be brought in to the general office for disciplinary or further instruction.
The Agents contract provided by the Defendants as exhibit A states as follows: The
Agent shall conduct the Agents business with New York Life through the General Office named
above until further written notice from New York Life. The requirement that Mr. Bosse conduct
business through the General Office as well as the written notice requirement clearly evidence
that NYL controlled where Mr. Bosse performed his work.
The discrimination described in the charge presented by Mr. Bosse occurred entirely
within the general office, and without contact and support from the general office Mr. Bosse
would be left unable to do his work. To say that Mr. Bosse could work anywhere without NYL
having control over that decision is disingenuous. The importance of the general office to the day
to day of Mr. Bosse is being understated by NYL in order to avoid liability for their
discrimination against him.
E. Mr. Bosse And NYL Had A Long Relationship Lasting 15 Years.
Mr. Bosse has been working at NYL from 2001 until his termination as a result of
discrimination. The relationship between the parties is indicative of Mr. Bosse being treated as
an employee. Mr. Bosse was a model employee and devotee to NYL. The long term nature of
the relationship indicates that it was one of employee/ employer.
F. NYL Had The Right To Assign Additional Projects To Mr. Bosse.
NYL consistently assigned projects to Mr. Bosse. Those projects included teaching
classes and giving speeches. Mr. Bosse would consistently follow through with those requests
and considered doing so part of his employment. Mr. Bosse was required to reach sales goals in
order to keep his benefits and continue his employment with NYL. The entire system that Mr.
Bosse worked under was provided by NYL to make sure that Mr. Bosse would reach sales goals.
Mr. Bosse was treated as an employee and NYL had the right to assign
G. NYL Exercised Control Over The Hours That Mr. Bosse Worked.
Mr. Bosses hours are generally 9-5. His hours are shaped by both the product that NYL
provides him to sell and the hours of the NYL general office. It would be impossible for Mr.
Bosse to perform his position at NYL and not work the same or similar hours to the hours the
General office is open.

587 Union Street, Manchester, New Hampshire 03104

Tel: 603-622-8100 Fax: 888-912-1497

Associated Attorneys of New England

Boss v. New York Life Insurance Company
May 25, 2016
Page 6 of 8

To say that NYL had no control over the hours that Mr. Bosse worked would be
disingenuous. It would be impossible for Mr. Bosse to do his job entirely outside of business
hours.

H. NYL Fully Controlled The Method By Which Mr. Bosse Received Pay.
The control that the general office exercised over Mr. Bosses pay cannot be overstated.
Over the last year the General Office, by changing the way that Mr. Bosses received pay
effectively halved his pay. The General Office single handedly determined when Mr. Bosse
received payment. Mr. Bosse could only control the sales he could make, not the timeframe in
which he would be paid for those sales. On several occasions Mr. Bosses pay was held up for
weeks by the General Office. The General Office exercised control over Mr. Bosses pay as they
would over any employee.
NYL consistently changed the terms of Mr. Bosses pay, offering various incentives and
changes to Mr. Bosses commission. NYL controlled both the method and the amount of Mr.
Bosses pay.
I. NYL Held Full Control To Both Hire And Pay Mr. Bosses Assistant Agents.
Although Mr. Bosse was given authority to hire support staff he did not have the same
authority when it came to hiring agents. All agents hired have to be approved by the NYL
offices. NYL had full authority to reject or accept any agent hire. All agents were paid directly
from the General Office.
Mr. Bosse was allowed to hire basic support staff, as is the case for many employees.
When it came to hiring agents in order to build business for NYL, NYL had full control over the
hiring and pay of those assistants. NYL held full control over the hire and pay of Mr. Bosses
assistant agents.
J. The Work Performed By Mr. Bosse Is In The Regular Business Of NYL.
NYL is a company that both produces and sells insurance. As a salesman of insurance
Mr. Bosse was performing work that is in the regular business of NYL.
K. NYL Provided Mr. Bosse With Benefits That Are Normally Provided To
Employees
Mr. Bosse was provided with employee benefits which would indicate that he was an
employee. NYL provided Mr. Bosse with medical and dental insurance. NYL contributed to Mr.
Bosses 401k and provided a pension for Mr. Bosse. Mr. Bosse was treated as an employee when
it came to the provision of employee benefits by NYL.
587 Union Street, Manchester, New Hampshire 03104
Tel: 603-622-8100 Fax: 888-912-1497

Associated Attorneys of New England

Boss v. New York Life Insurance Company
May 25, 2016
Page 7 of 8

L. Tax Treatment Between The Parties Not Especially Instructive.

Many unscrupulous employers seek to 1099 their employees and avoid payment of
payroll taxes by classifying employees as independent contractors. Thus, the tax treatment is not
necessarily instructive on this issue.
4. CONCLUSION
Based upon the cases cited in their Answer, NYL life appears to have a business model
designed to allow it to discriminate against folks and federally deny them the basic Human
Rights this Commission is charged with defending. However, in New Hampshire a plain reading
of the applicable law, RSA 354-A shows that NYL is not free to continue their past pattern and
practices here in our fair State.
The essential question posed by their jurisdictional defense is whether or not NYL can
discriminate against women and minorities in New Hampshire. The Commission's response to
their April 26, 2016 letter will make that determination.
Whether or not the Claimant is an employee or independent contractor, this Commission
need not decide...he is an INDIVIDUAL and is therefore protected under the law. RSA 354A:7(I). And this Charge should be fully and fairly investigated.

Dated: May 25, 2016

Respectfully submitted, Ketler Bosse
By his attorneys,

_______________________________
Atty. Keith A. Mathews (Bar No. 20997)
Atty. John F. Skinner, III (Bar No. 19886)
ASSOCIATED ATTORNEYS OF N.E.
587 Union Street
Manchester, NH 03104
Tel. 603-622-8100
Fax 888-912-1497
Keith@AAONE.Law
Jake@AAONE.Law
587 Union Street, Manchester, New Hampshire 03104
Tel: 603-622-8100 Fax: 888-912-1497

Associated Attorneys of New England

Boss v. New York Life Insurance Company
May 25, 2016
Page 8 of 8

CERTIFICATE OF SERVICE
I hereby certify that on this 6th day of May, 2016, a copy of the foregoing was mailed and
emailed to counsel of record.

Keith A. Mathews, Esq.

587 Union Street, Manchester, New Hampshire 03104

Tel: 603-622-8100 Fax: 888-912-1497