Redd, Trayon v. Summers, Lawrence H.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 26, 2000 Decided December 1, 2000

No. 99-5329

Trayon Redd,

Appellant

v.

Lawrence H. Summers,

Secretary of the United States Treasury,

Appellee

Appeal from the United States District Court

for the District of Columbia

(No. 97cv01303)

Leizer Z. Goldsmith argued the cause and filed the briefs

for appellant. Karen A. Bower entered an appearance.

Blane A. Workie, Special Assistant United States Attorney,

argued the cause for appellee. With her on the brief were

Wilma A. Lewis, U.S. Attorney, and R. Craig Lawrence,

Assistant U.S. Attorney.

Before: Williams, Randolph and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Williams.

Williams, Circuit Judge: The Treasury Department's Bu-

reau of Engraving and Printing retained Aspen Personnel

Services, Inc., to provide tour services at the Bureau. In

July 1995 Aspen hired Trayon Redd as a tour guide. In

March 1996 Aspen removed Redd from her job at the Bureau.

When Redd complained to Aspen about her dismissal, Aspen

rehired Redd and attempted to reinstate her at the Bureau.

The Bureau refused.

Redd, who is 5'734 tall and weighs about 348 pounds, per-

ceived the Bureau's behavior in these affairs as a response to

her weight. (So far as appears, Redd's weight did not change

between her hiring in 1995 and her dismissal in 1996.) She

has brought claims against the Bureau under ss 501 and 504

of the Rehabilitation Act of 1973 ("RHA"). Section 501

provides for interagency coordination relating to federal em-

ployment of persons with disabilities, and although it does not

explicitly either prohibit federal government disability dis-

crimination in employment, or authorize prohibitory regula-

tions, it is understood to support the Equal Opportunity

Employment Commission's adoption of regulations that do so.

29 U.S.C. s 791; see 29 C.F.R. s 1614.203(b). These regula-

tions alone established the law on disability discrimination in

federal government employment until an RHA amendment in

1978 allowed private litigants to enforce rights under s 501 in

suits employing the "remedies, procedures, and rights set

forth in" the Civil Rights Act of 1964, 42 U.S.C. s 2000e-16.

29 U.S.C. s 794a(a)(1). In 1992 Congress again amended the

RHA to provide that the standards used to judge "nonaffir-

mative action employment discrimination" under s 501 "shall

be the standards applied under" the Americans with Disabili-

ties Act of 1990, 42 U.S.C. s 12111 et seq. and ss 12201-

12204 and 12210. 29 U.S.C. s 791(g). See generally Barth v.

Gelb, 2 F.3d 1180, 1183-84 (D.C. Cir. 1993). Section 504 of

the RHA addresses federal disability discrimination in a

different sphere--the administration of a federal program or

activity. 29 U.S.C. s 794(a). Redd brought claims against

the Bureau under both provisions, claiming for purposes of

s 501 that it was in truth her employer. Her claims against

Aspen under the D.C. Human Rights Act are not before us,

as she has not appealed the district court's grant of summary

judgment on those claims.

The Bureau sought and the district court granted summary

judgment on all counts. Because Redd was never an employ-

ee of the Bureau, we affirm the district court's grant of

summary judgment on Redd's s 501 claims. As to the s 504

claims, we reverse and remand the case, as the district court's

rejection of Redd's claims was based on a misunderstanding

of the relation between ss 501 and 504.

* * *

Under the contract between Aspen and the Bureau, Aspen

was responsible for training all tour guides, paying guides'

wages and providing benefits, including annual leave. Aspen

and the Bureau each had a representative to handle their

relationship--in the Bureau's case a liaison officer, the Con-

tracting Officer's Technical Representative, and in Aspen's an

on-site supervisor for its workers, the Lead Tour Guide. The

Technical Representative and her supervisor at the Bureau

had the right to reject any tour guide, but Aspen did all the

hiring and firing. The Bureau appointed Antoinette Banks as

Technical Representative, and Aspen appointed Henrietta

Walls as the Lead Tour Guide.

Redd's complaint against the Bureau stems from five epi-

sodes involving Banks and Redd between June 1995 and

March 1996. First, Redd alleges that on the occasion of her

hiring Banks told Redd and her mother that the tour guide

job required a lot of walking in the sun, drinking water and

limiting one's consumption of milk. Redd regards these

remarks as obesity-based aspersions on her ability to guide

tours. Second, Redd finds another obesity-based aspersion in

Banks's remark to Redd's mother, in December 1995, that

with all the walking the tour work required Redd would

surely lose some weight.

Third, Redd says that on March 12, 1996, Banks and Walls

said that Redd's tour "spiel" was deficient and temporarily

suspended her from guiding tours. In the next few days

Walls and Banks tested the guides on their spiels and criti-

cized Redd for her pronunciation; on March 20, Banks ac-

companied Redd on a tour and evaluated her performance.

Redd evidently sees the scrutiny as derived from Banks's

perception of her obesity.

Fourth, Redd alleges that in a phone conversation on

March 21, 1996, Redd's mother asked Banks if the latter's

concerns with Redd's performance were related to Banks's

comments in June 1995 (referring to walking in the sun, and

drinking water but not much milk, which Redd perceived as

relating to obesity). In the phone call Redd's mother told

Banks that "full-figured" women are not unable to perform

the job of a tour guide. Redd alleges that later that day,

after a conversation with Banks, Walls told Redd that her

evaluation was sub-standard and that she would be terminat-

ed. Redd's view is that Banks's opposition was behind the

termination, and was driven by obesity concerns and/or a

desire to retaliate for Redd's mother's "full-figured" remarks.

Finally, Redd wrote to Aspen on April 12, 1996, complain-

ing at length about what she saw as her mistreatment by

Aspen and the Bureau. Aspen rehired her on June 3, 1996,

but the Bureau refused to allow her reinstatement as a

Bureau guide. Redd alleges that Banks's superior, Teresa

Brooks, who had the authority to reject Redd, made her

decision solely on the advice of Banks. Again, Redd infers

that Banks's alleged advice was obesity motivated and retalia-

tory (both for the mother's remarks about "full-figured"

women and for the protests in the April 12 letter).

Aspen suggested that Redd fill out applications for jobs on

other Aspen contracts, but she didn't do so and was terminat-

ed by Aspen in July 1996.

* * *

The parties agree that s 501 applies only to disability

discrimination in federal government employment, while

s 504 addresses discrimination in "any program or activity

conducted by any Executive agency." 29 U.S.C. s 794(a).

As Redd was undoubtedly an employee of Aspen, she seeks to

bring herself within s 501 on the theory that Treasury and

Aspen are her joint employers. She argues--and Treasury

accepts--that we should apply the test stated in Spirides v.

Reinhardt, 613 F.2d 826 (D.C. Cir. 1979), a case considering

whether the plaintiff was an employee or an independent

contractor.

Despite the parties' agreement, we doubt whether the

Spirides test is suited to this case. Where the plaintiff is

herself either an employee of only one employer or an

independent contractor, see id. at 827, classification as the

latter leaves her with no protection against employment

discrimination. But Redd, even if not an employee of the

Bureau, clearly enjoyed protection against employment dis-

crimination by Aspen, which was indisputably her employer.

Here, of course, Redd's claims against Aspen lost, in part on

statute of limitations grounds, in part on the merits. But her

classification as Aspen's employee leaves no suggestion of a

gap in the congressionally intended protection against em-

ployment discrimination.

This court has never invoked Spirides to resolve an issue of

joint employment, although the Fifth Circuit has done so, see

Fields v. Hallsville Independent School District, 906 F.2d

1017, 1019-20 (5th Cir. 1990). For a joint employment test, a

fairly standard formulation is that of the Third Circuit, name-

ly, whether "one employer[,] while contracting in good faith

with an otherwise independent company, has retained for

itself sufficient control of the terms and conditions of employ-

ment of the employees who are employed by the other

employer." NLRB v. Browning-Ferris Industries of Penn-

sylvania, Inc., 691 F.2d 1117, 1123 (3d Cir. 1982). Because

the parties have not argued the issue we will not try to

resolve which test is applicable or indeed whether there is a

material difference between the two, but simply note the

possibility of arguments on the point.

Accepting the parties' assumptions arguendo, we proceed

to apply Spirides. The decision identifies one criterion--the

putative employer's "right to control the 'means and manner'

of the worker's performance"--as central to classification as

an employee or independent contractor. 613 F.2d at 831.

Elaborating, it observes that if the putative employer has

"the right to control and direct the work of an individual, not

only as to the result to be achieved, but also as to the details

by which that result is achieved, an employer/employee rela-

tionship is likely to exist." Id. at 831-32. It then proceeds to

list eleven "[a]dditional matters of fact" that may be relevant.

Id. at 832. While the eleven factors should ideally be used to

address the question of control--with both control and the

eleven factors being evaluated simultaneously--we consider

the two in succession.

We take the control test first. In the nine months Redd

worked at the Bureau, there was only one short period in

which Banks involved herself in the "means and manner" of

Redd's work--her tour presentation. That involvement oc-

curred just nine days before Redd's termination. On March

12, 1996, Banks and Walls met with Redd, told her that her

performance was defective, and removed her from her duties.

Between March 12 and March 20, Banks actively helped Redd

improve her tour presentation over the course of five or six

meetings. Walls participated in all but two of these--on

March 14, when Banks, while escorting Redd to the tour post,

reiterated that the latter should memorize her spiel, and on

March 20, when Banks accompanied Redd on an evaluation

tour. But both Banks and Walls made the decision to allow

Redd to do such a trial run. Further, though Walls was not

physically present during Redd's tour, Walls said in her

deposition that she listened to Redd's performance from the

listening booth. Banks's brief and chaperoned intervention

into Redd's routine does not qualify as "control[ling] the

'means and manner' " of her performance.

Moreover, we note a difference between work involving a

performance directed to the putative employer's customers,

and work involving production of a tangible object. In the

latter case, obviously, a party can exercise control over the

"result" without ever laying eyes on the worker; here, by

contrast, control over the "result," the guides' tour presenta-

tions, requires some review of the guides as they give their

spiels. In this context it is telling that Banks did not get

involved in Redd's initial training, the work that produced the

finished product--the performances themselves. Banks's in-

terventions, well into Redd's tenure, amount to little more

than an inspection of the quality of Aspen's services.

None of the other interactions between Banks and Redd

amounts to controlling the "means and manner" of Redd's

routine. Banks's comments to Redd and Redd's mother in

June and December 1995, evidently understood by Redd as

relating to her weight, and Banks's conversation with Redd's

mother in March 1996, are not assertions of control over

Redd. At most they bear on the question of discrimination--

not control.

Spirides's eleven "additional" factors do not alter our con-

clusion:

(1) the kind of occupation, with reference to whether the

work usually is done under the direction of a supervisor

or is done by a specialist without supervision; (2) the

skill required in the particular occupation; (3) whether

the "employer" or the individual in question furnishes the

equipment used and the place of work; (4) the length of

time during which the individual has worked; (5) the

method of payment, whether by time or by the job; (6)

the manner in which the work relationship is terminated;

i.e., by one or both parties, with or without notice and

explanation; (7) whether annual leave is afforded; (8)

whether the work is an integral part of the business of

the "employer"; (9) whether the worker accumulates

retirement benefits; (10) whether the "employer" pays

social security taxes; and (11) the intention of the par-

ties.

613 F.2d at 832.

Rather than simply plow through the eleven factors, we

think it more useful to collect them in groups of items that

seem to perform similar functions in getting to a sound result.

We find four such groups. The first we see as comprised of a

single factor: (11) the intent of the parties, primarily as

reflected in the contract between the "contractor" and its

"client" (here the Bureau). As the Spirides court noted, of

course, the intent of the parties alone cannot "waive protec-

tions granted to an individual under ... any act of Congress."

613 F.2d at 832. Thus, intent to make the individual an

employee of the client is more likely to prove the relationship

than the opposite intent is to disprove it. Here the contract

explicitly states that the contractor's personnel "shall not at

any time during the contract period be employees of the U.S.

Government." Aspen Contract, s H.9(c).

The second group of factors can be seen as addressing

whether contracting out work is justifiable as a prudent

business decision: (1) whether supervision of the contractor

by the client is required; (2) whether the contractor's work

does not require special skills; and (8) whether the work

performed by the contractor is an integral part of the client's

business. An affirmative answer to these questions may call

into question the business bona fides of the decision to hire an

independent contractor, possibly suggesting a purpose to

circumvent rights afforded to employees.

Here, Redd's work required supervision, but Aspen provid-

ed it via the Lead Tour Guide, Walls. While Banks, the

Bureau's Technical Representative, evaluated Redd twice,

Aspen was responsible for all training. Banks appears not to

have supervised Redd before March 12, 1996, and even after

that date, Walls accompanied Banks on all occasions but two:

a brief encounter on March 14, 1996, and the evaluation tour

of March 20, 1996. As Walls and Banks were equals--liaisons

under the terms of the contract--Walls was by no means

Banks's messenger. Finally, the Bureau is a printer of

currency and stamps; tours are part of its public relations,

not an integral part of its business. There is nothing to

suggest that the Bureau's decision to contract out tours was a

sham.

If hiring independent contractors cannot be dismissed as an

implausible business decision, it is sensible to turn to a third

group of factors, which seem to renew the question of the

client's control over the work (which, we recall, is in a sense

the ultimate determinant): (3) whether the client furnishes

the equipment used and place of work; and (6) the manner in

which the work relationship was terminated. Here the inqui-

ry is whether the business is exercising a degree of control

that seems excessive in comparison to a reasonable client-

contractor relationship in the same circumstances.

The evidence on these matters does little to prove Redd an

employee of the Bureau. Of course the Bureau provided

office space and the tour guides worked at the Bureau, but in

context this proves little. That a landscaper's employees

worked at the site of a landscaping job would hardly support

an inference that they were the client's employees; the

nature of the work compels the site. It is true that the

Bureau also provided tour guides with office supplies, two-

way radios and uniforms. But the Bureau presumably would

want continuity in uniforms regardless of who held the tour

guide contract, while Aspen's interest was contract depen-

dent. The office supplies and radios seem de minimis.

As to Redd's termination, while the contract gives the

Bureau the right to reject any guide, under the contract the

decision to terminate the guide's employment with Aspen is

solely within Aspen's power. To pursue the landscape exam-

ple: the client's command to remove a specific worker (say,

on grounds of rudeness or just personal incompatibility)

would hardly render the worker an employee of the client.

Here, in fact, the link of the Bureau to Redd's termination

with Aspen was especially tenuous: Aspen asked her to file

another employment application in July 1996 and Redd did

not.

The final group of factors appears to ask whether the

relationship shares attributes commonly found in arrange-

ments with independent contractors or with employees: (4)

the duration of the engagement; (5) the method of payment;

(7) whether annual leave is afforded; (9) whether the worker

accumulates retirement benefits; and (10) whether the client

pays social security taxes. Employment relationships tend to

be longer or at any rate more likely of indefinite length, to

afford annual leave and retirement payments, and to assign

payment of social security taxes to the employer. Payment

by time period suggests employment; payment by product

suggests an independent contractor relation. Here, of

course, the Spirides factors' misfit with the issue is most

acute: Redd indisputably was the employee of Aspen. It

paid Redd's wages, provided for her vacation time, and paid

the social security taxes due. Her employment appears to

have been at will. Nothing here suggests Redd was the

Bureau's employee.

Cases applying Spirides's multi-factor test add little guid-

ance. The only case Redd cites where the government was

deemed an employer of a government contractor's worker for

purposes of Title VII is an EEOC decision, Oliver v. Albright,

1998 WL 611868, 1998 EEOPUB LEXIS 4962 (EEOC Aug.

31, 1998). But in that case (which of course is not binding)

the employment relation and the job, Resident Manager of

the U.S. Embassy in Moscow, were under direct control by

the State Department, which provided not just workplace but

housing, sick leave, medical benefits, and training.

We conclude that an application of the Spirides test, how-

ever ill-suited to an analysis of whether an employee of a

independent contractor is also an employee of the contractor's

client, suggests that Redd is not an employee of the Bureau.

Earlier we oversimplified a bit in saying that Redd could

prevail under s 501 only by proving herself the employee of

the Bureau. Redd invokes a case under Title VII, Sibley

Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C. Cir. 1973),

for the idea that there may be liability for certain non-

employer parties, such as unions and employment agencies,

who stand between a worker and some potential employers.

Although the case relied explicitly on the language of Title

VII, see id. at 1340-42, the Bureau seems to accept its

applicability under s 501; accordingly we proceed on that

assumption.

In Sibley a male nurse claimed that a hospital had refused

to refer him to female patients and on occasion prevented him

from reporting to female patients who had requested a nurse.

Id. at 1339-40. The court held that even though the hospital

did not directly employ the male nurse, it could be liable for

employment discrimination because it had used its control of

access to potential employers to deny him significant employ-

ment opportunities. Id. at 1342.

But the Sibley structure is absent here. In screening

guides supplied by Aspen, the Bureau was simply a consumer

of Aspen's services, not an intermediary between would-be

guides and services that might employ them. Redd's pro-

posed extension of Sibley would produce a result Congress

certainly did not intend--consumers would be liable under

civil rights laws for their race, gender, age and disability-

based preferences. The Sibley decision would be on point if

the court had found a female patient liable for rejecting the

services of a male nurse, but it plainly did not.

We therefore affirm the district court's grant of summary

judgment for Treasury on all s 501 claims.

* * *

The district court also granted summary judgment on

Redd's s 504 claim, reasoning that Redd had "identified no

evidence that would suggest that the [Bureau] utilized dis-

criminatory administrative methods separate and distinct

from its allegedly discriminatory employment practices."

The court cited our decision in Barth v. Gelb, 2 F.3d 1180,

1183 (D.C. Cir. 1993), and summarized it as suggesting that

s 501 "is the appropriate vehicle for employment discrimina-

tion claims." That is indeed its suggestion, but the issue

before the district court here was whether, s 501 having been

shown to be inapplicable, Redd's s 504 claims had any merit.

That the Bureau was not her employer, as the court had

correctly found, sheds no light on that question. The Bu-

reau's tour guide contract may constitute a federal program

or activity, in which case Redd is entitled to show that she

was unlawfully denied participation in the contract or retaliat-

ed against for protesting such denial. 29 U.S.C. s 794(a); 31

C.F.R. s 17.140. Accordingly, the court's grounds for grant

of summary judgment as to s 504 were unsound.

* * *

We affirm the grant of summary judgment on Redd's s 501

claims; we reverse the grant of summary judgment on s 504

and remand the case for further proceedings.

So ordered.