2026000165•EEOC Appeal 2026000165
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Sector P.O. Box 77960 Washington, DC 20013 Samuel R.,1 Complainant, v. Robert F. Kennedy, Jr., Secretary, Department of Health and Human Services (National Institutes of Health), Agency. Appeal No. 2026000165 Agency No. HHS-NIH-CC-083-24 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 23, 2025, final decision concerning his equal employment opportunity (EEO) complaint of employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. For the following reasons, the Commission AFFIRMS the Agency’s final decision. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Nurse Manager, GS-14, Neurological, Mental, and Behavioral Health at an Agency facility located in Bethesda, Maryland. On May 8, 2024, he filed a complaint alleging that he was discriminated against based on race (African American), color 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website.
2026000165 2 (black), national origin (Kenyan), and sex (male) when, on March 5, 2024, management did not contact him for a second-round Panel interview for a Service Chief, Clinical Center Nursing Department position. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge. In accordance with Complainant’s request, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected him to discrimination as alleged. S1, who supervised Complainant, served as the Selecting Official for the position. Complainant was among those who were deemed minimally qualified and granted preliminary interviews. S1’s notes for Complainant and Selectees 1 and 2 indicate that Complainant received a score of 29; Selectee 1 received a score of 35; and Selectee 2 received a score of 31. They were each forwarded to Panel 1 for a first- round interview. Panel 1 interviewed Complainant and six other applicants. They were asked various questions regarding their vision, financial acumen, leadership principles, research support, and other matters. The seven panelists individually scored each applicant based on his or her responses on a scale of 1 to 5 and added these scores to determine the overall score for each applicant, which was tallied with the other panelists. The record indicates that management did not contact Complainant for a second- round interview because he received the lowest score during the first-round interviews based on his responses. Complainant received a score of 163 points while the other four applicants who progressed to second-round interviews received higher scores. The applicants ultimately selected for the position, i.e., Selectee 1 (White; white; national origin unavailable; female) and Selectee 2 (White; white; national origin unavailable; female), received first-round scores of 247 and 196, respectively. S1 noted that, in making the final selection decision, she also considered the applicants’ respective experience and education. Although Complainant’s name was not forwarded for a second interview, he served as a member of second-round Panel, and asked questions.
2026000165 3 Complainant alleged that management should have contacted him for a second- round interview and selected him instead of Selectee 1 or 2 for a position. He felt that he had more advanced education and/or comprehensive “hospital-wide” knowledge than Selectees 1 and 2. He noted that, unlike Selectees 1 and 2, he, among other things, performed the duties outlined in the vacancy announcement for four months as an Acting Service Chief (ASC) and four years as a Nurse Manager. He felt that he had institutional knowledge regarding clinical and administrative operations and, more specifically, was versed in the programmatic needs based on his experience. Complainant also maintained that there was an unfair selection process. He cited, among other things, that Panel 1 lacked adequate minority representation, because it consisted of five white females, one white male, and one black female. He also noted that S1 directly supervised the white females who served on Panel 1 and had known them for several years. In contrast, he indicated that the second-round panel consisted of a more diverse group of panelists (including himself) who were “neutral” and “fair” and that S1 had no “direct influence” over them. In his opinion, Selectees 1 and 2 performed “very poorly” during second-round interviews. The record contains statements from several coworkers who supported Complainant’s contention that he was more qualified than Selectees 1 and 2. They felt that Complainant had more relevant experience, including serving as a Nurse Manager, Deputy Chief, and ASC, and that he possessed deep institutional knowledge of the Agency and its behavioral health programs. Some felt that there was a pattern of discrimination in hiring, especially regarding candidates of color, and that management’s decision not to advance or select Complainant was influenced by race, implicit bias, or historical hiring patterns favoring white female candidates. According to the Agency, the evidence did not show that Complainant was clearly better qualified than the two selected candidates. Although Complainant and several witnesses emphasized his prior experience as an ASC and Nurse Manager, the Agency argued that these positions did not automatically make him more qualified or limit the pool only to those with such experience. The Agency maintained that a review of all three résumés showed that the qualifications of Selectees 1 and 2 were substantial and comparable.
2026000165 4 Both selectees had extensive leadership experience in nursing roles across pediatrics, mental health, and other clinical areas, which contradicted the assertions that their backgrounds were weaker. All three candidates held relevant master’s degrees, and Selectee 2 was pursuing a doctorate. Overall, the Agency found that any differences in qualifications were not significant enough to conclude that no reasonable person would have chosen Selectee 1 or 2 over Complainant. As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency's decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 9-16 (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the Commission examine the record without regard to the factual and legal determinations of the previous decision maker,” and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the law”). To prevail in a disparate treatment claim, a complainant must satisfy the three-part evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). A complainant must initially establish a prima facie case by demonstrating that he/she was subjected to an adverse employment action under circumstances that would support an inference of discrimination. Furnco Constr. Co. v. Waters, 438 U.S. 567, 576 (1978). Proof of a prima facie case will vary depending on the facts of the case. McDonnell Douglas, 441 U.S. at 802 n.13. The burden then shifts to the agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). To ultimately prevail, a complainant must prove, by a preponderance of the evidence, that the agency’s explanation is a pretext for discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary’s Honor Ctr v. Hicks, 509 U.S. 502, 519 (1993). We find that, assuming, arguendo, Complainant established a prima facie case of discrimination based on his race, color, national origin and sex, he failed to establish that the Agency’s articulated legitimate, nondiscriminatory reason for its actions were pretextual. According to the record, management did not refer Complainant for a second-round interview because he received the lowest total score during the first-round interviews based on his responses.
2026000165 5 Upon review of the arguments raised by Complainant, we find that he provided insufficient evidence of discriminatory motive such that management’s reasons for denying him a second-round interview and ultimately not selecting him for the Service Chief position were shown to be false or unworthy of belief. Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the agency’s final decision. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M1125) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests for reconsideration must be filed with EEOC’s Office of Federal Sector (OFS) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit their request for reconsideration, and any statement or brief in support of their request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit their request and arguments to the Director, Office of Federal Sector, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507.
2026000165 6 In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFS receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files their request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(f). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0124) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by their full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency” or “department” means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests.
2026000165 7 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: T. Gimbrere Acting Director's signature T. Gimbrere, Acting Director Office of Federal Sector September 14, 2026 Date
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