I thought I'd share a recent decision we received from the Office of Federal Operations in the case of Jones v. McHugh (Army), Appeal No. 01-2011-3677. The Agency dismissed Ms. Jones's complaint of sexual harassment in a cursory order stating that she was a contractor, not an employee, and therefore not entitled to the federal EEO complaint process.
The OFO remanded for further investigation. The OFO reviewed the Agency's brief, which applied several of the factors set forth in Nationwide Mutual Insurance Co. v. Darden, 503 U.S. 318, 323-24 (1992), to determine whether Ms. Jones was is in fact an Agency employee. Having reviewed these factors, the OFO stated that she was not a federal employee under that test. HOWEVER, it went on to consider whether Ms. Jones was a de facto government employee, and concluded: "In the instant case, we find significant, and dispositive, the fact that the Program Manager, an Agency management official, was able to exercise his discretion in making the decision to retain or release Complainant from her position as a choreographer, and that no independent corporate entity served as a buffer between Complainant and the Agency on the issue of Complainant's continued association with the Agency. Therefore, upon review of the record, we find that the Agency, through its agent the Program Manager, exerted sufficient control over Complainant for the purpose of establishing her standing to utilize 29 C.F.R. Part 1614 EEO complaints process to pursue her sexual harassment claim."
– submitted by Dennis Chong