Gabrielle Martin, President

EEOC- Suite 510

303 E.17th Avenue

Denver, CO 80203


February 11, 2003


Cari Dominguez
Equal Employment Opportunity Commission

1801 L Street, N.W.

Washington, D.C. 20507


Dear Chairwoman Dominguez:


This letter serves as an appeal by the American Federation of Government Employees (AFGE), National Council of EEOC Locals No. 216 (the National Council) of the EEOC’s adverse decision of this Union's FAIR Act challenge, dated January 8, 2003.  That letter requested the removal of positions from the Agency's commercial activities inventory. Specifically, it offered numerous examples of the inherently governmental activities performed by the following four categories:


1.       35 positions under Activity Code No. D0000, located in OFP, ORIP, EXEC SEC, OGC OIRM – Program Assistants with assignments throughout the nation, including Headquarters.

2.       48 positions under Activity Code No W0000, located in OFP, OCFOAS, OGC, ORIP – Administrative Support (Office Automation Assistant/clerk and Management Information) with assignments throughout the nation, including Headquarters.

3.       35 positions under Activity Code W999, located in the Office of Field Programs –Other ADP Functions (Management Information), with assignments throughout the nation, including headquarters.

4.       29 positions under Activity Function Code No. Y415, located in the Office of Field Programs –Legal Services or Support, with assignments throughout the nation.

A copy of the National Council’s challenge is attached.


The EEOC’s reply to that letter clearly violates the FAIR Act challenge process and policy guidance relating to inherently governmental functions.   Essentially, the EEOC asserts that, consistent with its authority, it has made a determination that the positions are inherently governmental, providing little other information.

The problem with that determination is that the work performed by the employees in these four categories of positions involves is of a highly sensitive and confidential nature.  Employees in the first category, the 35 program assistants, are involved in the contract determination process for the mediation program.  As such, confidential bid information is subject to being revealed and conflicts of interest created.


For the second category of employees, the 48 administrative support positions involve the initial handling of confidential documents.  Due to the confidential nature of the documents these employees handle, which range from the proprietary information of companies, to the individual personnel and medical records of non-charging parties, the businesses under investigation often are reluctant to provide the documents to our employees based on privacy concerns.  While the Commission’s procedural regulations allow for the enforcement of subpoenas in court, once the business community becomes aware that individuals who are not loyal employees are handling such documents, there will be an increase in the number of investigations which involve subpoena enforcement actions.  After all, one of the inherently governmental functions is to safeguard the identity of entities and other confidential information for those entities under investigation. 


For the third category of employees, the 35 Management Information positions involve computer infrastructure work which impacts on the decisions made.  Employees in this category often handle both contract information, as well as confidential data.


For the final categories of employees, the 27 legal support positions, inherent to the agency’s litigation program is the need to protect confidential documents as well as to safeguard the agency’s internal policies and procedures.  Since the legal units also engage expert witnesses and/or statisticians, these employees initially receive and play a role in the bid process.   The potential for conflict of interest between contractors is readily apparent.


However, it is very clear that these activities are inherently governmental. Employees in the various cited functions codes perform duties defined as inherently governmental under section 7(a) and Appendix A of the Office of Federal Procurement Policy Letter 92-1, "Inherently Governmental Functions".  On behalf of the members of the National Council whom I represent, I request that these positions be removed from the commercial activities inventory and that a revised commercial activities inventory be submitted to the Office of Management and Budget as well as Congress.


Please fax a copy of the decision to me at 303.866.1900. Additionally, please mail a hard copy to me at the address above. 


Thank you for your time and attention to this matter.




Gabrielle Martin, President



cc:      AFGE National Office


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