Spirides v. Reinhardt

Decision Date10 July 1979
Docket NumberNo. 78-1105,78-1105
Citation198 U.S.App.D.C. 93,613 F.2d 826
Parties20 Fair Empl.Prac.Cas. 141, 20 Empl. Prac. Dec. P 30,073, 198 U.S.App.D.C. 93 Despina SPIRIDES, Appellant, v. John E. REINHARDT, Director of United States International Communication Agency.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (Civil Action No. 77-0887).

Paul A. Kiefer, Washington, D. C., with whom Eileen M. Stein, Silver Spring, Md., was on brief, for appellant.

Charles L. Hall, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Peter E. George, Robert M. Werdig, Jr., Asst. U. S. Attys., Washington, D. C., and Judith A. Futch, Atty., United States International Communication Agency, Washington, D. C., were on brief, for appellee.

Before McGOWAN and LEVENTHAL, Circuit Judges, and OBERDORFER, * United States District Judge, United States District Court for the District of Columbia.

Opinion for the Court filed by McGOWAN, Circuit Judge.

McGOWAN, Circuit Judge:

This is an appeal from the District Court's order (1) granting appellee's motion to dismiss the complaint for lack of jurisdiction over the subject matter, and (2) denying appellant's cross-motion for partial summary judgment. Both turn on the issue of whether appellant was an employee within the meaning of Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972 (the Act). 42 U.S.C. § 2000e-16 (Supp. II 1972). Because we find that the nature of appellant's employment status requires further evidentiary exploration, we vacate the grant of the motion to dismiss, leave undisturbed in the present state of the record the denial of the cross-motion for summary judgment, and remand the case for further proceedings consistent herewith.

I

From September, 1968 to November 29, 1974, appellant Spirides worked intermittently in the District of Columbia as a foreign language broadcaster for the Greek Service, a division of the Voice of America (VOA). 1 Excepting the periods from (i) 1968 to 1969, (ii) October, 1970 through October, 1971, and (iii) October, 1974 through November 29, 1974, 2 she worked pursuant to Purchase Order Vendor (POV) contracts which indicated, Inter alia, ". . . that the Contractor (Spirides) shall perform such services as an independent contractor, and not as an employee of the (United States International Communication) Agency." 3 Under these renewable yearly contracts, she was paid per assignment, which included four consecutive hours of rehearsals and performances as a mistress of ceremonies of the Greek Service's radio program.

In June, 1974, with the addition of two female foreign nationals to the employee staff of the Greek Service, the Chief of the Service informed Spirides he could no longer justify the expenditure of POV funds for a female voice. Therefore, her contract was not to be renewed after its September, 1974 expiration.

Claiming that this action resulted from sex discrimination, appellant filed a formal complaint with the Equal Employment Opportunity Office (EEOO) of USICA in October, 1974. The following month, without an investigation, EEOO issued a final decision finding no discrimination. Spirides then appealed to the Appeals Review Board of the Civil Service Commission (CSC), which found that USICA had violated civil service regulations by failing to investigate appellant's allegations, See 5 C.F.R. § 713.216 (1978), and remanded the case to USICA for further proceedings.

When EEOO again found no evidence of sex discrimination, appellant requested and received a hearing by an EEOO Complaints Examiner. His finding of sex discrimination and consequent recommendation of back pay and reinstatement were rejected by USICA in January, 1976, principally because Spirides was found to be a contractor instead of an employee. As such, she was determined to be ineligible for retroactive back pay and reinstatement under the Act.

A second appeal to the Appeals Review Board confirmed USICA's decision. The Board found that, because (1) Spirides was not a "federal employee" within the meaning of 5 U.S.C. § 2105(a) (1970), 4 (2) agency officials did not consider her an employee, and (3) her employment contract described her as an independent contractor instead of an employee, she was precluded from seeking redress under the Act or its regulations. See 5 C.F.R. § 713.212 (1978).

Her administrative remedies exhausted, Spirides timely filed a complaint in the District Court alleging unlawful termination of her employment by reason of her sex. 5 She claimed jurisdiction under the Act, and sought declaratory relief, retroactive and prospective injunctions, and damages. 6 USICA filed a motion to dismiss the complaint for lack of subject matter jurisdiction, on the ground that Spirides was not an employee under the Act and hence not protected by its provisions. Spirides opposed this motion, and moved for partial summary judgment on the issue of her status as an employee under the Act. Relying only on these motions and responses, together with affidavits in support of the summary judgment motion, the District Court found that Spirides was at all times under contract as a Purchase Order Vendor, 7 and thus was an independent contractor and not an employee. It therefore denied the partial summary judgment motion and granted the motion to dismiss the complaint. This appeal challenges both actions.

II
A. Scope of Coverage of Title VII

For several years after its enactment, Title VII of the Civil Rights Act of 1964 proscribed only nonfederal employment discrimination. 8 Congress became increasingly concerned, however, about the apparent inability of federal employees to obtain judicial review of employment discrimination cases. 9 Thus, in 1972, Title VII was amended by the Equal Employment Opportunity Act to forbid discrimination by federal government employers, 10 and to permit federal employees to sue those employers in discrimination cases.

Congress emphasized repeatedly that those covered by the 1972 amendments must be "employees," or individuals "employed by an employer." Id. § 2000e(f). For example, the Act states:

All personnel actions affecting Employees or Applicants for employment . . . in executive agencies shall be made free from any discrimination based on . . . sex.

Id. § 2000e-16(a) (emphasis added). In addition, within a certain period of time after filing an initial charge with an agency, department, or unit, or after action by an agency or by the Civil Service Commission,

. . . an Employee or Applicant for employment if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action . . .

Id. § 2000e-16(c) (emphasis added). 11

This statutory language supports the conclusion that the 1972 amendments to Title VII cover only those individuals in a direct employment relationship with a government employer. 12 Individuals who are independent contractors or those not directly employed by such an employer are unprotected. 13 Status as an employee is therefore of crucial significance for those seeking to redress alleged discriminatory actions in federal employment.

That the Greek Service in the present case is an employer is clear, because it is an "executive agency" 14 engaged in the "governmental activity" of broadcasting radio programs overseas. See 42 U.S.C. § 2000e(h). Whether appellant is an employee, or "individual employed by an employer," however, is more difficult to determine, because the Act does not clearly compel consideration of any particular set of factors, nor does it describe precisely the elements of the employment relationship that must exist to trigger equal employment coverage in the public sector.

B. Determination of Employee Status Under Title VII

Appellee argues, and the Civil Service Commission agrees, 15 that the test for employee status should be controlled by the statutory definition of the term in the Civil Service Commission's authorizing legislation. 16 This definition of "employee" is found in 5 U.S.C. § 2105(a) (1970), which states in pertinent part:

(a) For the purpose of This title, "employee", except as otherwise provided by this section or when specifically modified, means an officer and an individual who is

(1) appointed in the civil service by one of the following acting in an official capacity

(A) the President;

(B) a Member or Members of Congress, or the Congress;

(C) a member of a uniformed service;

(D) an individual who is an employee under this section;

(E) the head of a Government controlled corporation; or

(F) the adjutants general designated by the Secretary concerned under section 709(c) of title 32, United States Code;

(2) engaged in the performance of a Federal function under authority of law or an Executive act; and

(3) subject to the supervision of an individual named by paragraph (1) of this subsection while engaged in the performance of the duties of his position.

(Emphasis added).

Appellee points out, correctly to be sure, that appellant has not been "appointed to the civil service." Therefore, appellee argues that appellant cannot be considered an employee for purposes of the instant case. We disagree.

Examining the plain language of the Civil Service statute, we find that the definition of "employee" applies only to "this title," I. e., Title V, which creates the Civil Service Commission. As this court has duly noted in the case of Lodge 1858 v. Webb, 17 an individual must satisfy all subsections of 5 U.S.C. § 1205(a) "to be deemed an employee Within the meaning of the Civil Service laws." 18

In this case, however, the issue to be decided is not whether Spirides is an employee under the civil service laws, but whether she may in any respect be deemed an employee under Title VII as amended. Therefore, resort to the civil...

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