232 F.3d 933 (D.C. Cir. 2000)
Trayon Redd, Appellantv.Lawrence H. Summers, Secretary of the United States Treasury, Appellee
No. 99-5329
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 26, 2000Decided December 1, 2000

[Copyrighted Material Omitted][Copyrighted Material Omitted]
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:


1
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.


2
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.


3
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.


4
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5
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 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.


6
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.


7
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.


8
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.


9
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).


10
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.


11
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12
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.


13
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 intended protection against employment discrimination.


14
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, namely, 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 employment of the employees who are employed by the other  employer."  NLRB v. Browning-Ferris Industries of Pennsylvania, 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.


15
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 relationship 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.


16
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 occurred 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.


17
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 presentations, 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 interventions, well into Redd's tenure, amount to little more  than an inspection of the quality of Aspen's services.


18
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.


19
Spirides's eleven "additional" factors do not alter our conclusion:


20
(1) the kind of occupation, with reference to whether the work usually is done under the direction of a supervisoror 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.


21
613 F.2d at 832.


22
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 protections 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).


23
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.


24
Here, Redd's work required supervision, but Aspen provided 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.


25
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 inquiry 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.


26
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, twoway 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 dependent.  The office supplies and radios seem de minimis.


27
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 example:  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.


28
The final group of factors appears to ask whether the  relationship shares attributes commonly found in arrangements 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.


29
Cases applying Spirides's multi-factor test add little guidance.  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.


30
We conclude that an application of the Spirides test, however 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.


31
Earlier we oversimplified a bit in saying that Redd could  prevail under § 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 § 501;  accordingly we proceed on that  assumption.


32
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 employment opportunities.  Id. at 1342.


33
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 proposed 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 dis-ability 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.


34
We therefore affirm the district court's grant of summary  judgment for Treasury on all § 501 claims.


35
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36
The district court also granted summary judgment on  Redd's § 504 claim, reasoning that Redd had "identified no  evidence that would suggest that the [Bureau] utilized discriminatory 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  § 501 "is the appropriate vehicle for employment discrimination claims."  That is indeed its suggestion, but the issue  before the district court here was whether, § 501 having been  shown to be inapplicable, Redd'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 Bureau'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 retaliated against for protesting such denial.  29 U.S.C. § 794(a);  31  C.F.R. § 17.140.  Accordingly, the court's grounds for grant  of summary judgment as to § 504 were unsound.


37
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38
We affirm the grant of summary judgment on Redd's § 501  claims;  we reverse the grant of summary judgment on § 504  and remand the case for further proceedings.


39
So ordered.

