UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


REDD, TRAYON

v.

SUMMERS, LAWRENCE H.


99-5329a

D.C. Cir. 2000


*	*	*


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


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


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 


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


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


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


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


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 


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


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.