Contractor Considered Agency Employee in EO Case Says Court

A recent case demonstrates that when the federal government gets too involved in personnel decisions affecting contract employees, it could open the door to equal employment opportunity complaints just as if the individual is in fact a government employee.


When government agencies have personal service contracts, they have to be very careful not to put government employees in the position of "supervising" co-located contract employees. If they step over the line, the government has to face the potential consequences.
A recent case demonstrates that when the government gets too involved in personnel decisions affecting contract employees, it could open the door to EO complaints just as if the individual is in fact a government employee. And of all places, it was the Executive Office for United States Attorneys (EOUSA) of the Department of Justice that stepped over the line. (Harris v. Attorney General of the United States, D.D.C. Civil Action No. 04-220-3 (JDB))
According to the court’s opinion, Harris worked for Integrated Management Services, Inc. (IMSI), an EOUSA contractor. IMSI provided security support services to the agency, including furnishing staff to serve as Personnel Security Specialists. These individuals did background investigations and prepared reports of those investigations. (Opinion, pp. 1-2)
Harris was hired by IMSI to serve as a Personnel Security Specialist supporting the agency. The IMSI contract provided that EOUSA would screen and interview IMSI employees before they could be deployed on the agency’s contract with IMSI.
Harris was therefore sent to interview with an agency employee, Gloria Harbin, Chief of the Preemployment Security Division of EOUSA.
Harbin testified in a deposition that her duties included interviewing contractors’ employee candidates, checking their references, coming up with procedures for contractors’ employees once they were hired, and evaluating their work. (p. 2)
When Harbin interviewed Harris, there was no outward sign that Harris was pregnant. After interviewing her and checking Harris’ references, Harbin approved her to work at EOUSA. Harris said that by the time she reported for work 2 months later, she was visibly pregnant. (p. 3)
Here’s where the evidence becomes conflicting. Harris claims that when the Harbin discovered that she was pregnant, her services were terminated. The agency claims that Harris behaved badly from the start, complaining about her working conditions, her chair, desk location, and so forth, and this is the reason they asked IMSI to pull Harris from the EOUSA contract. What is agreed on is that Harris was terminated the very day she reported.
In any event, Harris filed an EO complaint against the EOUSA for unlawful sex discrimination. The case worked its way to the district court and the agency has filed a motion for summary judgment, arguing that Harris, as a contract employee, may not invoke Title VII of the Civil Rights Act against a federal agency, and hence there is no jurisdiction. (Opinion p. 1)
Seems pretty straightforward and should be a clear win for the government, right?
Not so fast, says the court. The court indicates that it turns on whether Harris was an "employee" within the context of Title VII. The court then examines the role EOUSA had in Harris’ employment with IMSI and concludes that Harris was indeed an "employee" for purposes of Title VII. Notwithstanding the clear language in the agency’s contract with IMSI that there was no employer-employee relationship between the contractor’s employees and the government, the facts suggest otherwise. Harris has an assigned supervisor at IMSI, however the agency (Hardin) in fact supervised the co-located IMSI employees. She approved their hire, assigned their work, overviewed their work, set their schedules and duties, and evaluated their performance. The court indicated this added up to Harris being "hired to do a specialized job that was part of the EOUSA’s mission under Harbin’s express supervision." (p. 16)
In short, the court concludes that Harris was an employee of the agency for Title VII purposes, and denies the government’s motion for summary judgment. (p. 17) As for the conflicting evidence surrounding the reason for Harris’ termination, the court leaves that for a jury to sort out at trial.
Personal service contracts, especially where contractor employees are co-located with agency employees, can be tricky. And, as this case shows they can lead to liabilities the agency never anticipated. The contract documents may be carefully written to draw a line between the agency and the contractor employees, but disputes like this one will turn on the actual practices of agency officials in day-to-day interaction with these individuals.


About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.