Seth F. Lucherini v. Department of Transportation

UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

SETH FRANCIS LUCHERINI, DOCKET NUMBER

Appellant, AT-1221-24-0404-W-1

v.

DEPARTMENT OF DATE: March 5, 2026

TRANSPORTATION,

Agency.

THIS ORDER IS NONPRECEDENTIAL 1

Seth Francis Lucherini , Key Largo, Florida, pro se.

Marquitta Robinson , Fort Worth, Texas, for the agency.

Robert Espy , Esquire, College Park, Georgia, for the agency.

BEFORE

Henry J. Kerner, Vice Chairman

James J. Woodruff II, Member

REMAND ORDER

The appellant has filed a petition for review of the initial decision, which

dismissed his individual right of action (IRA) appeal for lack of jurisdiction. For

the reasons discussed below, we GRANT the appellant’s petition for review,

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A nonprecedential order is one that the Board has determined does not add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 Parties may cite nonprecedential orders,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

VACATE the initial decision, and REMAND the case to the Atlanta Regional

Office for further adjudication in accordance with this Remand Order.

BACKGROUND

The appellant is employed as an Air Traffic Control Specialist (ATCS)

at the Federal Aviation Administration’s Miami, Florida Air Tower Control

Center (ARTCC). Initial Appeal File (IAF), Tab 1 at 1. On October 30, 2023, he

filed a complaint with the Office of Special Counsel (OSC) alleging that he was

issued a letter of reprimand (LOR) in retaliation for his protected disclosures or

activities. Id. at 10-16. On February 21, 2024, OSC advised the appellant that it

was terminating its inquiry and provided him with notice of his right to file an

IRA appeal and seek corrective action from the Board. Id. at 17. In the close-out

letter, OSC identified the claims that it reviewed as the appellant’s allegation that

agency officials improperly targeted him with offensive and improper personnel

actions, failed to discipline another coworker’s misbehavior, and disciplined him

with an LOR in retaliation for his filing of an equal employment opportunity

(EEO) complaint against agency officials. Id.

On March 17, 2024, the appellant timely filed the instant Board appeal and

requested a hearing. Id. at 1-4. The administrative judge issued a jurisdictional

order in which she apprised the appellant of the applicable law and burden of

proof requirements for an IRA appeal and ordered him to submit evidence and

argument establishing Board jurisdiction over his appeal. IAF, Tab 3. In

response, the appellant identified that he raised the following protected

disclosures or activities with OSC: (1) on or around January 25, 2022, he

reported to an Occupational Safety and Health Administration (OSHA)

representative that some dead trees needed to be cut down; and (2) on January 12,

2023, he filed an EEO complaint regarding management officials unfairly

targeting him for discipline. IAF, Tab 4 at 4. In retaliation for these disclosures,

3

the appellant alleged that he was issued a letter of conversation in January 2022,

and an LOR on March 8, 2023. 2 Id.

After the record on jurisdiction closed, the administrative judge issued an

initial decision dismissing the appeal for lack of Board jurisdiction without

holding the appellant’s requested hearing. IAF, Tab 12, Initial Decision (ID) at 1,

11-12. She found that the appellant exhausted his administrative remedies before

OSC regarding his report to the OSHA representative. ID at 4-6. Nevertheless,

she concluded that he failed to nonfrivolously allege that he made a protected

disclosure under 5 U.S.C. § 2302(b)(8) in connection with this claim. ID at 7-8.

Alternatively, she concluded that even assuming he had nonfrivolously alleged

that his reporting of the dead trees to OSHA was a protected disclosure, he

nevertheless failed to nonfrivolously allege that this disclosure was a contributing

factor in the agency’s decision to issue the LOR—the only covered personnel

action that he had exhausted with OSC. ID at 8-11. Consequently, she dismissed

the appeal for lack of jurisdiction.

The appellant has filed a petition for review. Petition for Review (PFR)

File, Tab 1. The agency has filed a response in opposition to the petition. PFR

File, Tab 3.

DISCUSSION OF ARGUMENTS ON REVIEW

On petition for review, the appellant reargues that the dead trees were a

dangerous situation and that he received a letter of conversation in retaliation for

reporting the issue to the OSHA representative. PFR File, Tab 1 at 4. He also

provides additional background regarding his January 2023 EEO complaint,

stating that he filed the complaint following an October 15, 2022 disagreement

2

As the administrative judge acknowledged in the initial decision, although the LOR is

dated March 7, 2022, the appellant asserts that this is a typographical error and the

document was actually issued on March 7, 2023, and delivered to him on March 8,

2023. IAF, Tab 12, Initial Decision (ID) at 9 n.2; IAF, Tab 1 at 6; Tab 4 at 4. The

agency has not disputed this point. IAF, Tab 7 at 5.

4

with several agency officials, and reasserts that he received the LOR in March 7,

2023, in retaliation for his EEO complaint. Id. He also points to statements from

agency supervisors regarding the issuance of the LOR that he argues evidence

retaliatory intent. Id. Finally, the appellant includes copies of emails during the

period from January 2022 through August 2023 that he argues show that the

agency treated him more harshly than it did other employees when it issued the

LOR. 3 Id. at 4-9.

The appellant failed to nonfrivolously allege that he made a protected disclosure

in connection with his reporting of the dead trees to the OSHA representative.

To establish Board jurisdiction over an IRA appeal, an appellant must

exhaust his administrative remedies before OSC and make nonfrivolous

allegations that (1) he made a disclosure described under 5 U.S.C. § 2302(b)(8) or

engaged in protected activity described under 5 U.S.C. § 2302(b)(9)(A)(i), (B),

(C), or (D); and (2) the disclosure or activity was a contributing factor in the

agency’s decision to take or fail to take a personnel action as defined by 5 U.S.C.

§ 2302(a)(2)(A). See Chambers v. Department of Homeland Security,

2022 MSPB 8, ¶¶ 5, 10, 14. An appellant in an IRA appeal must prove by

preponderant evidence that he exhausted his administrative remedies by seeking

corrective action from OSC before seeking corrective action from the Board. Id.,

¶¶ 10-11; 5 U.S.C. § 1214(a)(3); 5 C.F.R. § 1201.57(c)(1).

3

Regarding the emails the appellant has provided for the first time with his petition for

review, the Board generally will not consider evidence submitted for the first time on

review absent a showing that it was unavailable before the record was closed despite the

party’s due diligence. See Avansino v. U.S. Postal Service, 3 M.S.P.R. 211, 214 (1980);

5 C.F.R. § 1201.115(d). All of the emails are dated before the record on jurisdiction

closed below, and so none of them are new. PFR File, Tab 1 at 5-9; see Okello v. Office

of Personnel Management, 112 M.S.P.R. 563, ¶ 10 (2009) (concluding that under

5 C.F.R. § 1201.115(d), the Board will not consider evidence submitted for the first

time with a petition for review absent a showing that it is both new and material).

Additionally, as the appellant notes, all of the emails concern incidents of other

employees causing a distraction that he alleges resulted in less severe discipline than he

received, and so they are not relevant to the jurisdictional question at issue in this

appeal. Accordingly, they are also not material, and so we have not considered them.

PFR File, Tab 1 at 4; see Okello, 112 M.S.P.R. 563, ¶ 10.

5

A nonfrivolous allegation of a protected whistleblowing disclosure is an

allegation of facts that, if proven, would show that the appellant disclosed a

matter that a reasonable person in his position would believe evidenced one of the

categories of wrongdoing specified in 5 U.S.C. § 2302(b)(8). Salerno v.

Department of the Interior, 123 M.S.P.R. 230, ¶ 6 (2016). The test to determine

whether a putative whistleblower has a reasonable belief in the disclosure is an

objective one: whether a disinterested observer with knowledge of the essential

facts known to and readily ascertainable by the employee could reasonably

conclude that the actions of the agency evidenced a violation of law, rule, or

regulation, gross mismanagement, a gross waste of funds, an abuse of authority,

or a substantial and specific danger to public health or safety. Id. The

disclosures must be specific, not vague allegations of wrongdoing. Id.; see El v.

Department of Commerce, 123 M.S.P.R. 76, ¶ 6 (2015) (stating that vague,

conclusory, unsupported, and pro forma allegations of alleged wrongdoing do not

meet the nonfrivolous pleading standard needed to establish the Board’s

jurisdiction over an IRA appeal), aff’d, 663 F. App’x 921 (Fed. Cir. 2016).

In the initial decision, the administrative judge concluded that the appellant

exhausted with OSC his disclosure that there were dead trees that needed to be

cut down, noting that OSC had acknowledged this allegation in its preliminary

determination letter, describing the appellant’s claim that he informed the OSHA

representative that the dead trees posed a safety risk outside of the control center

building. ID at 7; IAF, Tab 4 at 4, Tab 10 at 5. The administrative judge

nevertheless determined that the appellant had failed to nonfrivolously allege that

he made a protected disclosure in connection with his statements to the OSHA

official, noting that he had failed to offer any specific allegation or evidence of

past or future likely harm in relation to the dead trees. ID at 7-8. Quoting the

U.S. Court of Appeals for the Federal Circuit, the administrative judge noted that

to show whether an identified danger was sufficiently substantial and specific to

constitute a protected disclosure under 5 U.S.C. § 2302(b)(8), the court has

6

required parties to show “specific allegations or evidence either of actual past

harm or of detailed circumstances giving rise to a likelihood of impending harm,”

and she concluded that the appellant failed to make such a showing. ID at 7-8

(quoting Chambers v. Department of the Interior, 602 F.3d 1370, 1376 (Fed. Cir.

2010)).

On review, the appellant has provided some additional context for this

claim, alleging that he told the OSHA official about the dead trees because of

their proximity to the walking path. PFR File, Tab 1 at 4. However, the

appellant’s argument provides no basis to disturb his findings. We agree that the

appellant’s vague and nonspecific allegation that the dead trees could pose a

potential danger is insufficient to constitute a nonfrivolous allegation of a

protected disclosure under 5 U.S.C. § 2302(b)(8). See Herman v. Department of

Justice, 193 F.3d 1375, 1379 (Fed. Cir. 1999) (determining that the disclosure of

a danger only potentially arising in the future is not a protected disclosure),

abrogated on other grounds by Yunus v. Department of Veterans Affairs , 242 F.3d

1367, 1372 n.1 (Fed. Cir. 2001); Rzucidlo v. Department of the Army,

101 M.S.P.R. 616, ¶ 13 (2006) (stating that a protected disclosure must be

specific and detailed, not a vague allegation of wrongdoing regarding broad or

imprecise matters); Sazinski v. Department of Housing and Urban Development ,

73 M.S.P.R. 682, 686 (1997) (acknowledging that “revelation of a negligible,

remote, or ill-defined peril that does not involve any particular person, place, or

thing” does not constitute a protected disclosure). Accordingly, we agree that the

appellant has failed to nonfrivolously allege that he made a protected disclosure

in connection with his reporting of dead trees near the control center building to

an OSHA official on January 25, 2022.

The appellant nonfrivolously alleged that he engaged in protected activity in

connection with his EEO complaint.

After the appellant responded to the administrative judge’s initial IRA

jurisdiction order, the administrative judge issued a second jurisdiction order

7

finding that the Board lacked jurisdiction to consider the appellant’s claim that he

was retaliated against for filing an EEO complaint. She reasoned that allegations

of retaliation for exercising rights under Title VII do not fall within the scope of

section 2302(b)(8) and that therefore this claim was not a proper subject for

inclusion in the appellant’s IRA appeal. IAF, Tab 9 at 2. Because she concluded

that the Board lacked jurisdiction over this claim, she did not address it in the

initial decision. ID at 2 However, following the issuance of the initial decision

in this case, the Board issued decisions in Reese v. Department of the Navy,

2025 MSPB 1, ¶¶ 44-51, and Holman v. Department of the Army, 2025 MSPB 2,

¶¶ 12-13, in which the Board clarified that an agency’s EEO office may constitute

an agency “component responsible for internal investigation or review,” such that

filing a complaint with the EEO office constitutes protected activity under

5 U.S.C. § 2302(b)(9)(C). In finding that the appellant’s EEO complaint was not

protected, the administrative judge and the parties did not have the benefit of the

Board’s decisions in Resse and Holman. Accordingly, we will analyze the

appellant’s claim that he engaged in protected activity in connection with his

January 2023 EEO complaint and that agency officials issued the LOR in

retaliation for his complaint in the first instance, applying Reese and Holman.

The appellant exhausted his claim that he engaged in protected

activity by filing his EEO complaint.

As previously noted, the first jurisdictional element in an IRA appeal is

exhaustion. See Chambers, 2022 MSPB 8, ¶ 5. In OSC’s February 21, 2024

close-out letter, it identified the appellant’s claim that agency officials disciplined

him by issuing the LOR after he filed an EEO complaint against the involved

officials. IAF, Tab 4 at 16. However, in OSC’s preliminary determination letter

issued the same day, it noted that the appellant had raised this claim but that OSC

had not investigated it because, as a matter of policy, OSC “does not investigate

retaliation claims that are reviewed under the agency’s EEO process,” and it

informed the appellant that this claim “must also be addressed through your

8

agency’s EEO process.” Id. at 17. In response to OSC’s preliminary

determination letter, the appellant reiterated his belief that he received the March

2023 letter of reprimand in retaliation for his EEO complaint. Id. at 5.

To satisfy the exhaustion requirement of 5 U.S.C. § 1214(a)(3), an

appellant must provide OSC with a sufficient basis to pursue an investigation into

his allegations of whistleblower reprisal. Ward v. Merit Systems Protection

Board, 981 F.2d 521, 526 (Fed. Cir. 1992); Chambers, 2022 MSPB 8, ¶ 10. To

do so, an appellant need only show that he advised OSC of the “core of his

retaliation claim,” thus giving “OSC sufficient basis to pursue an investigation.”

Briley v. National Archives and Records Administration , 236 F.3d 1373, 1377-78

(Fed. Cir. 2001); see Chambers, 2022 MSPB 8, ¶ 10 (explaining that the appellant

may give a more detailed account of his whistleblowing activities before the

Board than he did to OSC (citing Briley, 236 F.3d at 1378)). Although it appears

that OSC declined to investigate this potential protected activity, we nevertheless

conclude that the appellant exhausted this claim by providing OSC with a

sufficient basis to pursue an investigation into this claim.

The appellant nonfrivolously alleged that his EEO complaint

constituted protected activity under 5 U.S.C. § 2302(b)(9)(C).

In concluding in the second IRA jurisdictional order that the appellant’s

EEO complaint was not protected, the administrative judge noted that the

appellant’s allegation of retaliation for exercising his rights under Title VII by

filing his EEO complaint did not fall within the scope of 5 U.S.C. § 2302(b)(8),

and instead alleged activity protected by section 2302(b)(9)(A)(ii), over which

the Board lacks jurisdiction in an IRA appeal. IAF, Tab 9 at 2 (citing Serrao v.

Merit Systems Protection Board, 95 F.3d 1569, 1575–76 (Fed. Cir. 1996); Spruill

v. Merit Systems Protection Board, 978 F.2d 679, 689 (Fed. Cir. 1992)). We

agree. In Edwards v. Department of Labor, 2022 MSPB 9, ¶¶ 24-25, aff’d,

No. 2022-1967, 2023 WL 4398002 (Fed. Cir. July 7, 2023), the Board held that

an employee’s complaint through an agency’s EEO office that seeks to remedy

9

reprisal only for matters covered by Title VII does not constitute protected

activity under 5 U.S.C. § 2302(b)(9)(A)(i). Additionally, we note that the Board

also clarified in Reese that an appellant’s own EEO complaint does not constitute

the protected activity under 5 U.S.C. § 2302(b)(9)(B) of “testifying for or

otherwise lawfully assisting any individual” in “the exercise of any appeal,

complaint, or grievance right granted by any law, rule, or regulation[.]” Reese,

2025 MSPB 1, ¶ 33. Accordingly, we conclude that the Board does not have IRA

jurisdiction as it relates to either of these provisions.

We nevertheless find that the appellant nonfrivolously alleged that he

engaged in protected activity under 5 U.S.C. § 2302(b)(9)(C) in connection with

his EEO complaint. As previously noted, in Holman, the Board found that an

agency EEO office constituted an agency “component responsible for internal

investigation or review,” such that filing a complaint with the EEO office is

protected activity under 5 U.S.C. § 2302(b)(9)(C). Holman, 2025 MSPB 2,

¶¶ 12-13. In Reese, the Board concluded that the level of formality of the

complaint process is of no consequence when analyzing whether a complaint is

protected under section 2023(b)(9)(C); instead, the key question was whether the

activity was directed to a covered investigatory entity. Reese, 2025 MSPB 1,

¶¶ 47-48. Finally, the Boad also found that the subject matter of the appellant’s

activity with the EEO office does not preclude it from coverage under

section 2302(b)(9)(C), because the language of that provision, unlike

section 2302(b)(8), is devoid of explicit content-based limitations. Reese,

2025 MSPB 1, ¶ 46; see Holman, 2025 MSPB 2, ¶ 12; Fisher v. Department of

the Interior, 2023 MSPB 11, ¶ 8 (finding that, under the language of 5 U.S.C.

§ 2302(b)(9)(C), disclosures to an agency’s Office of Inspector General or to

OSC are protected regardless of their content). Here, the appellant filed an

informal EEO complaint on January 12, 2023, and a formal complaint on

March 13, 2023. IAF, Tab 4 at 4, Tab 7 at 11. Accordingly, he has made a

nonfrivolous allegation that he engaged in activity protected under 5 U.S.C.

10

§ 2302(b)(9)(C) when he filed his informal and formal EEO complaints on those

respective dates.

The appellant nonfrivolously alleged that his EEO activity was a contributing

factor in the agency’s decision to issue the LOR, and he is entitled to a hearing on

the merits of that claim.

The next jurisdictional element in an IRA appeal requires that an appellant

nonfrivolously allege that his disclosure or activity was a contributing factor in a

personnel action. See Chambers, 2022 MSPB 8, ¶ 14. To satisfy the contributing

factor criterion at the jurisdictional stage, an appellant need only raise a

nonfrivolous allegation that the fact of, or content of, the protected disclosure or

activity was one factor that tended to affect the personnel action in any way. Id.

One way to establish this factor is the knowledge/timing test, under which an

employee may nonfrivolously allege that the disclosure was a contributing factor

in a personnel action through circumstantial evidence, such as evidence that the

official taking the personnel action knew of the disclosure and that the personnel

action occurred within a period of time such that a reasonable person could

conclude that the disclosure was a contributing factor in the personnel action.

Abernathy v. Department of the Army, 2022 MSPB 37, ¶ 15.

As the administrative judge correctly determined, an informal letter of

counseling—such as the letter of conversation the appellant received—does not

itself constitute a covered personnel action, and so the only allegedly retaliatory

11

action at issue in this appeal is the LOR. 4 ID at 9 (citing Johnson v. Department

of Health and Human Services, 87 M.S.P.R. 204, ¶ 11 (2000)); see 5 U.S.C.

§ 2302(a)(2)(A).

The appellant failed to nonfrivolously allege that he was issued the

LOR in retaliation for his March 13, 2023 formal EEO complaint.

With respect to his March 13, 2023 formal EEO complaint, we conclude

that the appellant has failed to nonfrivolously allege that this complaint was a

contributing factor in the agency’s decision to issue the LOR for two reasons.

First, the appellant does not appear to allege that his formal EEO complaint was a

protected activity in his pleadings, focusing instead on the date that he filed his

informal complaint. For example, in his complaint to OSC, the appellant argues

that he received the LOR in retaliation for his EEO activity, but he identifies the

January 12, 2023 informal complaint as the date that he engaged in his protected

activity. IAF, Tab 4 at 4. In his Board appeal, he generally alleged that the LOR

was issued in retaliation for his EEO activity without differentiating between his

informal and formal complaints. IAF, Tab 1 at 2. Finally, in his response to

OSC’s preliminary determination letter, he again identified January 12, 2023, as

the date of his protected EEO activity. IAF, Tab 4 at 4. Accordingly, the only

activity the appellant appears to be arguing is protected is his initial EEO

counseling and informal complaint filed on or around January 12, 2023.

4

We note, however, that the Board has held that a threatened personnel action does

constitute a covered personnel action under the whistleblower protection statutes, and

so a counseling memorandum that warns of or threatens future discipline may rise to the

level of a covered personnel action. See Rebstock Consolidation v. Department of

Homeland Security, 122 M.S.P.R. 661, ¶ 10 (2015) (explaining that the term “threaten”

in 5 U.S.C. § 2302 should be interpreted broadly and can encompass warnings of

possible future discipline); Campo v. Department of the Army, 93 M.S.P.R. 1, ¶¶ 7-8

(2002) (finding that a counseling memorandum was a threatened personnel action when

it warned of specific future charges and discipline if the behavior continued). The

appellant has not included a copy of the January 2022 letter of counseling in the record.

Nevertheless, he has not alleged that it warned of any potential future discipline and

thus constituted a threatened personnel action.

12

Second, the LOR predates the formal EEO complaint and therefore could

not have contributed to the agency’s decision to take that action. The appellant

acknowledged in his pleadings that he was issued the LOR on March 7, 2023, and

that he received it the following day. IAF, Tab 4 at 4. A copy of the final agency

decision (FAD) included in the record identifies March 13, 2023, as the date that

the appellant filed his formal complaint and also identifies the issuance of the

LOR as one of the claims for investigation. IAF, Tab 7 at 10-11, 14-17. The

Board has held that in such circumstances, when the allegedly retaliatory

personnel action predates the protected disclosure or activity, contributing factor

cannot be established. See Rumsey v. Department of Justice, 120 M.S.P.R. 259,

¶ 27 (2013) (observing that, when alleged personnel actions predate an

appellant’s disclosures, the appellant cannot prove contributing factor under any

theory); Davis v. Department of Defense, 106 M.S.P.R. 560, ¶ 12 (2007) (noting

that, because the personnel actions complained about by the appellant predate his

protected disclosures, there was no way that the disclosures could have in any

way contributed to the personnel actions complained about by the appellant),

aff’d, 278 F. App’x 1009 (Fed. Cir. 2008). Accordingly, we conclude that the

appellant has failed to nonfrivolously allege that his March 13, 2023 formal EEO

complaint was a contributing factor in the agency’s decision to issue the LOR on

March 7, 2023.

The appellant nonfrivolously alleged that he was issued the LOR in

retaliation for his January 12, 2023 informal EEO complaint, and we

remand the appeal for adjudication on the merits of that claim.

With respect to the appellant’s January 12, 2023 informal complaint,

however, we conclude that he has nonfrivolously alleged that his filing of that

complaint was a contributing factor in the agency’s decision to issue the LOR.

As previously noted, the most common way of establishing contributing factor is

the knowledge/timing test. Abernathy, 2022 MSPB 37, ¶ 15; see 5 U.S.C.

§ 1221(e). Under that test, the Board has held that personnel actions occurring

13

within 1 to 2 years after the protected disclosures are sufficient to meet the timing

portion of the test. Abernathy, 2022 MSPB 37, ¶ 15. The issuance of the LOR on

March 7, 2023, within 3 months of the appellant initiating EEO counseling and

filing his informal complaint on January 12, 2023, satisfies the temporal

proximity element of the test. See Swanson v. General Services Administration,

110 M.S.P.R. 278, ¶ 12 (2008) (finding an interval of 2 to 3 months sufficiently

close to satisfy the timing element of the knowledge/timing test).

Turning to the knowledge prong of the test, the official who issued the

LOR, the Executive Officer (previously, Supervisory ATCS), was named as a

responsible management official and interviewed as a part of the appellant’s EEO

complaint in advance of the issuance of a FAD. IAF, Tab 1 at 6-9, Tab 7

at 12-15. Additionally, in his response to OSC’s preliminary determination letter,

the appellant alleged that although he filed his formal EEO complaint in

March 2023, several agency management officials were aware of his EEO activity

in February 2023, and he asserts that the Executive Officer specifically informed

the appellant that he was aware of his EEO activity at the time he issued the LOR.

IAF, Tab 4 at 15.

In addition to proving actual knowledge, an appellant may satisfy the

knowledge prong of the test with allegations of constructive knowledge.

Abernathy, 2022 MSPB 37, ¶ 15. An appellant may establish an official’s

constructive knowledge of a protected disclosure by demonstrating that an

individual with actual knowledge of the disclosure influenced the official accused

of taking the retaliatory action. Id. Additionally, at the jurisdictional stage, an

appellant may be able to establish the knowledge prong of the test even if he did

not specifically identify the agency official responsible for a personnel action.

See Cahill v. Merit Systems Protection Board, 821 F.3d 1370, 1373-76 (Fed. Cir.

2016) (finding that, given the contextual clues in the record, the appellant made a

nonfrivolous allegation of contributing factor even though he did not specifically

identify the agency officials who heard his disclosures); see also Bradley v.

14

Department of Homeland Security, 123 M.S.P.R. 547, ¶¶ 15-16 (2016) (finding

that, at the jurisdictional stage of an IRA appeal, an appellant can meet his burden

of proof regarding contributing factor without specifically identifying which

management official was responsible for the reprisal).

In his petition for review, the appellant asserts that the events that became

the basis for his EEO complaint occurred on October 15, 2022, when he was

initially accused of causing a distraction within the control tower. PFR File,

Tab 1 at 4; IAF, Tab 1 at 4. He states that after being investigated for causing the

distraction, he filed the EEO complaint in January 2023, and thereafter met with

the first-level supervisor of the Air Traffic Manager of the Miami ARTCC to

discuss his EEO complaint and to attempt mediation. PFR File, Tab 1 at 4. He

states that 2 months later, he received the LOR issued by the Executive Officer,

who directly reported to the Miami Air Traffic Manager. Id. Continuing, the

appellant states that the Executive Officer could not make a decision without the

Air Traffic Manager’s permission and alleges that “[i]n this case the decision was

from [the Air Traffic Manager].” Id. Accordingly, the appellant appears to be

suggesting that even if the Executive Officer did not have actual knowledge of his

EEO complaint, he had constructive knowledge of the complaint because he was

influenced by the Air Traffic Manager, who the appellant suggests was aware of

his EEO complaint. See Karnes v. Department of Justice, 2023 MSPB 12,

¶ 19-20 (acknowledging that an appellant may be able to prove contributing

factor by showing that an individual with actual or constructive knowledge of the

protected activity influenced an official taking a personnel action). This

characterization is consistent with the appellant’s allegations to OSC, including

his identifying the Air Traffic Manager as the retaliating official in his OSC

complaint, and, in his response to OSC’s preliminary determination letter, naming

the Air Traffic Manager as the official who was actually responsible for issuing

the LOR and complaining that OSC’s letter did not reference his role. IAF, Tab 4

at 8-9, 12, 15. It is also consistent with his pleadings before the administrative

15

judge. Id. at 4 (“Also, I would like to note that the letter of reprimand is from

[the Executive Officer] but [the Air Traffic Manager] has final authority on it”).

Taking the appellant’s allegations as true, and recognizing that his burden

at the jurisdictional stage is a low one, we conclude that he has nonfrivolously

alleged that his protected activity of filing an informal EEO complaint on

January 12, 2023, was a contributing factor in the decision to issue him an LOR

on March 7, 2023. See Usharauli v. Department of Health and Human Services ,

116 M.S.P.R. 383, ¶ 19 (2011) (stating that any doubt or ambiguity as to whether

the appellant made a nonfrivolous jurisdictional allegation should be resolved in

favor of finding jurisdiction); Jessup v. Department of Homeland Security,

107 M.S.P.R. 1, ¶ 10 (2007) (observing that the appellant’s burden of making a

nonfrivolous allegation is low and requires only a minimally sufficient

allegation). Accordingly, remand of this appeal for a hearing on the merits of this

claim is appropriate. Although the appellant’s allegations are sufficient to meet

his jurisdictional burden, we emphasize that, on remand, he must prove by

preponderant evidence that this protected activity was a contributing factor in the

single covered personnel action. See generally Salerno, 123 M.S.P.R. 230, ¶ 5.

16

ORDER

For the reasons discussed above, we remand this case to the Atlanta

Regional Office for further adjudication in accordance with this Remand Order.

FOR THE BOARD: ______________________________

Gina K. Grippando

Clerk of the Board

Washington, D.C.