The opinion
UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
MAHMOUD KARIM DIALLO, DOCKET NUMBER
Appellant, DC-0752-24-0215-I-1
v.
ENVIRONMENTAL PROTECTION DATE: April 3, 2026
AGENCY,
Agency.
THIS FINAL ORDER IS NONPRECEDENTIAL 1
Mahmoud K. Diallo , Alexandria, Virginia, pro se.
Nathanael Nichols , Esquire, Bianca Ponce de Leon , Esquire, and
Edward O. Sweeney , Esquire, Washington, D.C., for the agency.
BEFORE
Henry J. Kerner, Vice Chairman
James J. Woodruff II, Member
FINAL ORDER
The appellant has filed a petition for review of the initial decision, which
sustained his removal from his position as an Industrial Hygienist with the
agency’s Office of Chemical Safety and Pollution Prevention. On petition for
review, the appellant reraises his allegations that his supervisor discriminated
against him by forcing him to perform work that she should have assigned to a
1
A nonprecedential order is one that the Board has determined does not add
significantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
Chemical Engineer. He argues that this discrimination, as well as retaliation for
his equal employment opportunity (EEO) activity, was the “root cause” of the
agency’s misconduct allegations. He also argues that the agency ignored his
request for a temporary lateral reassignment to a new supervisor that was
supported by medical documentation. Generally, we grant petitions such as this
one only in the following circumstances: the initial decision contains erroneous
findings of material fact; the initial decision is based on an erroneous
interpretation of statute or regulation or the erroneous application of the law to
the facts of the case; the administrative judge’s rulings during either the course of
the appeal or the initial decision were not consistent with required procedures or
involved an abuse of discretion, and the resulting error affected the outcome of
the case; or new and material evidence or legal argument is available that, despite
the petitioner’s due diligence, was not available when the record closed. Title 5
of the Code of Federal Regulations, section 1201.115 (5 C.F.R. § 1201.115).
After fully considering the filings in this appeal, we conclude that the petitioner
has not established any basis under section 1201.115 for granting the petition for
review. Therefore, we DENY the petition for review. Except as expressly
MODIFIED to clarify the proof frameworks applicable to the appellant’s claims
of Title VII discrimination and retaliation, we AFFIRM the initial decision.
The appellant’s arguments on review are mostly reiterations of his
arguments below and do not identify any particular error in the initial decision.
Petition for Review (PFR) File, Tab 1. Mere disagreement with the
administrative judge’s explained findings does not establish a basis for review.
See Dieter v. Department of Veterans Affairs, 2022 MSPB 32, ¶ 14.
Nevertheless, we take this opportunity to clarify the proof frameworks applicable
to the appellant’s Title VII disparate treatment and retaliation claims. In
Wilson v. Small Business Administration, we explained that the
3
McDonnell Douglas 2 or any other burden-shifting framework does not apply in
determining whether discrimination was a motivating factor in an employment
decision. 2024 MSPB 3, ¶ 13; see also Pridgen v. Office of Management and
Budget, 2022 MSPB 31, ¶ 21 n.4 (stating that the appellant in a motivating factor
regime need not fully rebut the agency’s proffered motives as pretext). Thus, to
the extent that the initial decision in any way suggests otherwise, we expressly
modify the initial decision. Initial Appeal File (IAF), Tab 25, Initial Decision
(ID) at 19, 24. In any event, the administrative judge correctly concluded that the
appellant did not prove that Title VII discrimination or retaliation was a
motivating factor in the agency’s removal action under the methods of proof set
forth in Pridgen, 2022 MSPB 31, ¶¶ 20-25, 30, and the appellant received a fair
and just adjudication of his affirmative defenses. ID at 18-24; IAF, Tab 6 at 2-4.
As noted above, the appellant reasserts on review that the agency ignored
his request for a lateral reassignment that was supported by a letter from his
physician. PFR File, Tab 1 at 5; IAF, Tab 1 at 9, Tab 3 at 346. The
administrative judge did not identify a claim of disability discrimination based on
a failure to accommodate theory in his Order and Summary of the Prehearing
Conference, IAF, Tab 17, nor did he evaluate a claim of disability discrimination
in the initial decision, ID. Rather, he considered the appellant’s requests for a
new supervisor in the context of Title VII disparate treatment. ID at 21. He
noted the testimony of the deciding official that there was no basis to reassign the
appellant because an agency investigation determined that there was no
harassment. Id.
In Thurman v. U.S. Postal Service, 2022 MSPB 21, ¶¶ 17-18, the Board set
forth a nonexhaustive list of factors for consideration when determining whether
an appellant will be deemed to have waived or abandoned a previously raised
2
The U.S. Supreme Court, in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04
(1973), set forth the order and allocation of proof in an employment discrimination case
as a three-stage process, wherein the final stage the appellant must provide evidence
that the agency’s stated reason for its action is a mere pretext for discrimination.
4
affirmative defense such that remand is necessary. 3 After considering those
factors and the facts of this appeal, we conclude that the appellant waived an
affirmative defense of disability discrimination based on a failure to
accommodate theory. The appellant’s pleadings reflect that his request for a new
supervisor, at its core, was a harassment complaint with the only outcome
acceptable to him being a new supervisor. IAF, Tab 1 at 9, Tab 3 at 346, Tab 12
at 6. Although he referenced his mental health condition, he never expressly
alleged a “disability,” and he later characterized his harassment complaint as a
request for religious accommodation. IAF, Tab 1 at 9, Tab 12 at 6. Furthermore,
the appellant did not object to the administrative judge’s prehearing conference
summary construing his affirmative defenses as Title VII disparate treatment and
EEO retaliation despite being afforded the opportunity to do so; and there is no
indication that the appellant’s presumptive abandonment of this affirmative
defense was the product of confusing, misleading, or incorrect information
provided by the agency or the Board. IAF, Tabs 17-18; see Thurman,
2022 MSPB 21, ¶ 18. Therefore, despite his pro se status, we find that the
appellant waived this affirmative defense before the administrative judge, and we
3
Those factors include: (1) the thoroughness and clarity with which the appellant
raised his affirmative defense; (2) the degree to which the appellant continued to pursue
his affirmative defense in the proceedings below after initially raising it; (3) whether
the appellant objected to a summary of the issues to be decided that failed to include the
potential affirmative defense when he was specifically afforded an opportunity to object
and the consequences of his failure were made clear; (4) whether the appellant raised
his affirmative defense or the administrative judge’s processing of the affirmative
defense claim in his petition for review; (5) whether the appellant was represented
during the course of his appeal before the administrative judge and on petition for
review, and if he was not, the level of knowledge of Board proceedings possessed by
the appellant; and (6) the likelihood that the presumptive abandonment of the
affirmative defense was the product of confusion, or misleading or incorrect
information provided by the agency or the Board. Thurman, 2022 MSPB 21, ¶ 18. The
list is not exhaustive, and none of the individual factors identified will be dispositive.
Id. Instead, the applicability and weight of each factor should be determined on a
case-by-case basis. Id.
5
find no reversible error in the administrative judge’s analysis of the appellant’s
affirmative defenses. 4
Accordingly, we affirm the initial decision as modified.
NOTICE OF APPEAL RIGHTS 5
The initial decision, as supplemented by this Final Order, constitutes the
Board’s final decision in this matter. 5 C.F.R. § 1201.113. You may obtain
review of this final decision. 5 U.S.C. § 7703(a)(1). By statute, the nature of
your claims determines the time limit for seeking such review and the appropriate
forum with which to file. 5 U.S.C. § 7703(b). Although we offer the following
summary of available appeal rights, the Merit Systems Protection Board does not
provide legal advice on which option is most appropriate for your situation and
the rights described below do not represent a statement of how courts will rule
regarding which cases fall within their jurisdiction. If you wish to seek review of
this final decision, you should immediately review the law applicable to your
4
The appellant does not reraise a claim of religious discrimination based on a failure to
accommodate theory on review. PFR File, Tab 1; IAF, Tab 12 at 6. As mentioned
above, he also did not object to the administrative judge’s prehearing conference
summary identifying the affirmative defenses to the exclusion of all others. IAF,
Tabs 17-18. Nevertheless, because the appellant received notice of his burden of proof
to establish an affirmative defense of religious discrimination based on a failure to
accommodate, IAF, Tab 6 at 6-7, and the record is sufficiently well-developed on the
issue and would not require new credibility findings, cf. Mahaffey v. Department of
Agriculture, 105 M.S.P.R. 347, ¶ 11 (2007), we will briefly address this claim. The
administrative judge’s well-reasoned findings of fact support the conclusion that the
appellant did not establish a prima facie case, which requires the following showings:
(1) that he holds a bona fide religious belief that conflicts with an employment
requirement; (2) has informed his employer of the conflict; and (3) was discharged or
disciplined for failing to comply with the conflicting requirement. See Reed v.
Department of Transportation, 76 M.S.P.R. 126, 131 (1997). The administrative judge
properly found no evidence that the appellant’s supervisor was harassing the appellant
or creating a hostile work environment. ID at 20-21. Thus, we conclude that the
appellant has not shown that bona fide religious beliefs conflicted with an employment
requirement. See Reed, 76 M.S.P.R. at 131.
5
Since the issuance of the initial decision in this matter, the Board may have updated
the notice of review rights included in final decisions. As indicated in the notice, the
Board cannot advise which option is most appropriate in any matter.
6
claims and carefully follow all filing time limits and requirements. Failure to file
within the applicable time limit may result in the dismissal of your case by your
chosen forum.
Please read carefully each of the three main possible choices of review
below to decide which one applies to your particular case. If you have questions
about whether a particular forum is the appropriate one to review your case, you
should contact that forum for more information.
(1) Judicial review in general . As a general rule, an appellant seeking
judicial review of a final Board order must file a petition for review with the U.S.
Court of Appeals for the Federal Circuit, which must be received by the court
within 60 calendar days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(A).
If you submit a petition for review to the U.S. Court of Appeals for the
Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
7
(2) Judicial or EEOC review of cases involving a claim of
discrimination . This option applies to you only if you have claimed that you
were affected by an action that is appealable to the Board and that such action
was based, in whole or in part, on unlawful discrimination. If so, you may obtain
judicial review of this decision—including a disposition of your discrimination
claims —by filing a civil action with an appropriate U.S. district court ( not the
U.S. Court of Appeals for the Federal Circuit), within 30 calendar days after you
receive this decision. 5 U.S.C. § 7703(b)(2); see Perry v. Merit Systems
Protection Board, 582 U.S. 420 (2017). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the district court no later than 30 calendar days after your representative
receives this decision. If the action involves a claim of discrimination based on
race, color, religion, sex, national origin, or a disabling condition, you may be
entitled to representation by a court-appointed lawyer and to waiver of any
requirement of prepayment of fees, costs, or other security. See
42 U.S.C. § 2000e-5(f) and 29 U.S.C. § 794a.
Contact information for U.S. district courts can be found at their respective
websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
Alternatively, you may request review by the Equal Employment
Opportunity Commission (EEOC) of your discrimination claims only, excluding
all other issues . 5 U.S.C. § 7702(b)(1). You must file any such request with the
EEOC’s Office of Federal Operations within 30 calendar days after you receive
this decision. 5 U.S.C. § 7702(b)(1). If you have a representative in this case,
and your representative receives this decision before you do, then you must file
with the EEOC no later than 30 calendar days after your representative receives
this decision.
If you submit a request for review to the EEOC by regular U.S. mail, the
address of the EEOC is:
8
Office of Federal Operations
Equal Employment Opportunity Commission
P.O. Box 77960
Washington, D.C. 20013
If you submit a request for review to the EEOC via commercial delivery or
by a method requiring a signature, it must be addressed to:
Office of Federal Operations
Equal Employment Opportunity Commission
131 M Street, N.E.
Suite 5SW12G
Washington, D.C. 20507
(3) Judicial review pursuant to the Whistleblower Protection
Enhancement Act of 2012 . This option applies to you only if you have raised
claims of reprisal for whistleblowing disclosures under 5 U.S.C. § 2302(b)(8) or
other protected activities listed in 5 U.S.C. § 2302(b)(9)(A)(i), (B), (C), or (D).
If so, and your judicial petition for review “raises no challenge to the Board’s
disposition of allegations of a prohibited personnel practice described in
section 2302(b) other than practices described in section 2302(b)(8), or
2302(b)(9)(A)(i), (B), (C), or (D),” then you may file a petition for judicial
review either with the U.S. Court of Appeals for the Federal Circuit or any court
of appeals of competent jurisdiction. 6 The court of appeals must receive your
petition for review within 60 days of the date of issuance of this decision.
5 U.S.C. § 7703(b)(1)(B).
6
The original statutory provision that provided for judicial review of certain
whistleblower claims by any court of appeals of competent jurisdiction expired on
December 27, 2017. The All Circuit Review Act, signed into law by the President on
July 7, 2018, permanently allows appellants to file petitions for judicial review of
MSPB decisions in certain whistleblower reprisal cases with the U.S. Court of Appeals
for the Federal Circuit or any other circuit court of appeals of competent jurisdiction.
The All Circuit Review Act is retroactive to November 26, 2017. Pub. L. No. 115-195,
132 Stat. 1510.
9
If you submit a petition for judicial review to the U.S. Court of Appeals for
the Federal Circuit, you must submit your petition to the court at the following
address:
U.S. Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, D.C. 20439
Additional information about the U.S. Court of Appeals for the Federal
Circuit is available at the court’s website, www.cafc.uscourts.gov. Of particular
relevance is the court’s “Guide for Pro Se Petitioners and Appellants,” which is
contained within the court’s Rules of Practice, and Forms 5, 6, 10, and 11.
If you are interested in securing pro bono representation for an appeal to
the U.S. Court of Appeals for the Federal Circuit, you may visit our website at
http://www.mspb.gov/probono for information regarding pro bono representation
for Merit Systems Protection Board appellants before the Federal Circuit. The
Board neither endorses the services provided by any attorney nor warrants that
any attorney will accept representation in a given case.
Contact information for the courts of appeals can be found at their
respective websites, which can be accessed through the link below:
http://www.uscourts.gov/Court_Locator/CourtWebsites.aspx .
FOR THE BOARD: ______________________________
Gina K. Grippando
Clerk of the Board
Washington, D.C.