232 F.3d 933 (D.C. Cir. 2000), 99-5329, Redd v. Summers

Docket Nº:99-5329
Citation:232 F.3d 933
Party Name:Trayon Redd, Appellant v. Lawrence H. Summers, Secretary of the United States Treasury, Appellee
Case Date:December 01, 2000
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

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232 F.3d 933 (D.C. Cir. 2000)

Trayon Redd, Appellant


Lawrence H. Summers, Secretary of the United States Treasury, Appellee

No. 99-5329

United States Court of Appeals, District of Columbia Circuit

December 1, 2000

Argued September 26, 2000

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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 Bureau 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, perceived 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 §§ 501 and 504 of the Rehabilitation Act of 1973 ("RHA"). Section 501 provides for interagency coordination relating to federal employment of persons with disabilities, and although it does not explicitly either prohibit federal government disability discrimination in employment, or authorize prohibitory regulations, it is understood to support the Equal Opportunity Employment Commission's adoption of regulations that do so.29 U.S.C. § 791; see 29 C.F.R. § 1614.203(b). These regulations alone established the law on disability discrimination in federal government employment until an RHA amendment in 1978 allowed private litigants to enforce rights under § 501 in suits employing the "remedies, procedures, and rights set forth in" the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16.29 U.S.C. § 794a(a)(1). In 1992 Congress again amended the RHA to provide that the standards used to judge "non-affirmative action employment discrimination" under § 501 "shall be the standards applied under" the Americans with Disabilities Act of 1990, 42 U.S.C. § 12111 et seq. and §§ 1220112204 and 12210. 29 U.S.C. § 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. § 794(a). Redd brought claims against the Bureau under both provisions, claiming for purposes of § 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 employee of the Bureau, we affirm the district court's grant of summary judgment on Redd's § 501 claims. As to the § 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 §§ 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 Contracting 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

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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 episodes 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 criticized Redd for her pronunciation; on March 20, Banks accompanied 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 terminated. 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, complaining 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 retaliatory (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 terminated by Aspen in July 1996.

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The parties agree that § 501 applies only to disability discrimination in federal government employment, while § 504 addresses discrimination in "any program or activity conducted by any Executive agency." 29 U.S.C. § 794(a).As Redd was undoubtedly an employee of Aspen, she seeks to bring herself within § 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 discrimination 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

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intended protection against employment 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,...

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