Are there circumstances where an employee of a government contractor can sue an agency for sexual harassment by an agency employee? The U. S. District Court for the District of Columbia recently addressed just such a situation. (Coles v. Harvey, D.D.C. Civil Action No. 06-223 (RMC), 1/11/07)
Plaintiff Coles worked for Kelly Services and was assigned to a position at Walter Reed Army Medical Center. She got this assignment when she was contacted by Mr. Ansley, an Army supervisory employee, who told her that a job opening for a receptionist at the Infectious Disease Clinic was hers if she was interested. She was told to apply for the job through Kelly Services, which was under contract to Walter Reed to provide clerical workers. Coles did apply and got the job. (Opinion p. 2)
A few months after she began work, a Sergeant Lawrence was put in charge of Coles’ clinic. Coles claims that Sgt. Lawrence began harassing her by sending her several sexually explicit emails and telling her about a sexual encounter he had with another woman. Coles says that when she asked Sgt. Lawrence to stop, he became physically threatening toward her and directed profanity at her. (Id.)
Eventually Coles and Lawrence had a “run-in” that led to her reporting his behavior to Kelly and government personnel. She indicated she did not feel safe working around Lawrence and that she was going to file a sexual harassment report. Meanwhile a government administrative person contacted Kelly Services and said Coles engaged in various improper behaviors and asked that they send a replacement for her. Kelly informed Coles that her job at Walter Reed had been terminated. (pp. 3-4)
Coles unsuccessfully sued Kelly Services for sexual harassment and retaliation. (Coles v. Kelly Services, 287 F.Supp.2d 25 (D.D.C. 2003); Affd Coles v. Kelly Services, 105 Fed.Appx. 275 (D.C. Cir. 2004))
Coles then brought this suit against the Secretary of the Army. The government moved to dismiss since Coles is not a federal employee and the United States has therefore not consented to be sued by her for sexual harassment. The court would hence have no jurisdiction. Coles argued that she was a joint employee of the contractor and the government and therefore there is jurisdiction.
The court determines that there is a factual issue as to whether Coles was a joint employee. If so, the case goes forward: “The Court concludes that it cannot … determine on the current record whether Ms. Coles was jointly employed by the Army and Kelly Services….[Army] had authority to direct Kelly Services to hire Ms. Coles, …Defendant’s employees supervised Ms. Coles on a daily basis, … Ms. Cole’s job duties were ‘normally performed by full-time federal government employees,’ … and Defendant’s employees had authority to terminate Ms. Cole’s employment…” (p. 9) This is enough, says the court, for Ms. Coles to have established subject matter jurisdiction in the case. (Id.)
The Army might see some hope in this from the court: “Defendant is free to raise its lack of jurisdiction argument again after a more complete factual record has been developed through discovery.” (Id.)
This case brings home that agencies can get into problems when they have too much day-to-day authority over contractor employees. If they exercise enough control to meet the joint employment test, then they may find that they will be defending against Title VII cases brought by a contractor employee.