EEOC Appeal 2026000165

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