McWilliams v. Merit Systems Protection Board , 430 F. App'x 882 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
GLORIA J. MCWILLIAMS,
Petitioner,
v.
MERIT SYSTEMS PROTECTION BOARD,
Respondent.
__________________________
2011-3075
__________________________
Petition for review of the Merit Systems Protection
Board in case no. SF1221090439-W-2.
____________________________
Decided: July 11, 2011
____________________________
GLORIA J. MCWILLIAMS, of St. Thomas, Virgin Island,
pro se.
MICHAEL A. CARNEY, General Attorney, Office of the
General Counsel, Merit Systems Protection Board, of
Washington, DC, for respondent. With him on the brief
were JAMES M. EISENMANN, General Counsel and KEISHA
DAWN BELL, Deputy General Counsel.
__________________________
MCWILLIAMS v. MSPB 2
Before LINN, DYK, and PROST, Circuit Judges.
PER CURIAM.
Gloria J. McWilliams (“McWilliams”) appeals a deci-
sion of the United States Merit Systems Protection Board
(“Board”) dismissing her complaint for lack of subject
matter jurisdiction. McWilliams v. Dep’t of the Air Force,
No. SF-1221-09-0439-W-2 (Dec. 13, 2010) (“Final Order”);
McWilliams v. Dep’t of the Air Force, MSPB Docket No.
SF-1221-09-0439-W-2 (June 1, 2010) (“Initial Decision”).
We affirm.
BACKGROUND
McWilliams started working as a medical technologist
in the Department of the Air Force (“the agency”) in 2004,
before becoming a Chemistry Supervisor in 2006. On
September 29, 2006, the agency notified her of its inten-
tion to reassign her from the Chemistry department to the
Urinalysis section. The agency informed her that the
action was being taken to correct maintenance and qual-
ity control problems in the Chemistry department. This
move involved a change in duties and responsibilities, but
did not result in a change of grade or pay. McWilliams
reported to the Urinalysis section on October 16, 2006.
On or about October 4, 2006, McWilliams met with
human resources personnel and claimed she “blew the
whistle on the agency’s removal [of her duties from the
Chemistry department] without adherence to proper
personnel procedures.” Resp’t’s App. 69. Soon after, on
October 11, 2006, McWilliams filed a grievance, in which
she allegedly made more protected disclosures of unfair
practices and unprofessional behavior. An investigation
ensued, but the agency concluded that there was no
evidence of such behavior. McWilliams submitted her
3 MCWILLIAMS v. MSPB
resignation on May 11, 2007.
On September 18, 2008, McWilliams submitted a
complaint to the Office of Special Counsel (“OSC”), but the
OSC did not find evidence of any violations. Then, on
April 6, 2009, McWilliams filed an individual right of
action (“IRA”) appeal with the Board, alleging the agency
had violated the Whistleblower Protection Act (“WPA”).
She claimed to have made the following protected disclo-
sures:
(1) that the laboratory breached an agreement to al-
low McWilliams to remain in
the Chemistry department for one additional evalua-
tion cycle;
(2) that a power line malfunction was potentially dan-
gerous;
(3) that she was not provided notice of her perform-
ance deficiencies and given the opportunity to correct
those deficiencies;
(4) that she was not given proper notice of an adverse
action against her before her reassignment;
(5) that she was not selected for a training opportu-
nity; and
(6) that a supervisor had engaged in nepotism by hir-
ing unqualified friends.
Initial Decision, slip op. at 3. As a result of these disclo-
sures, McWilliams claimed she was subjected to the
following personnel actions: being removed from the
Chemistry department; being reassigned to the Urinalysis
section the day after her meeting with human resources
personnel; having a performance evaluation be conducted
out-of-cycle; being accused of medical errors and falsifying
MCWILLIAMS v. MSPB 4
records; being forced to resign involuntarily; 1 and receiv-
ing negative references to potential employers. Id. at 4.
On June 1, 2010, the administrative judge (“AJ”) is-
sued her Initial Decision, dismissing McWilliams’ appeal
for lack of jurisdiction. The full Board denied her petition
for review. Thus, the AJ’s decision became the decision of
the Board. We have jurisdiction pursuant to 28 U.S.C. §
1295(a)(9).
DISCUSSION
We review the Board’s jurisdiction and determina-
tions of law de novo. Coradeschi v. Dep't of Homeland
Sec., 439 F.3d 1329, 1331 (Fed. Cir. 2006); Perry v. Dep't
of the Army, 992 F.2d 1575, 1578 (Fed. Cir. 1993). For the
Board to have jurisdiction over an IRA appeal, the appel-
lant must (1) exhaust her administrative remedies before
the OSC; and (2) make non-frivolous allegations (a) that
she engaged in whistleblowing activity by making a
protected disclosure under 5 U.S.C. § 2302(b)(8); and (b)
that the disclosure 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. § 2032(a). Yunus v. Dep’t of Veter-
ans Affairs, 242 F.3d 1367, 1371 (Fed. Cir. 2001). A
protected disclosure is one which an employee “reasonably
believes evidences . . . a violation of any law, rule, or
regulation, or . . . gross mismanagement, a gross waste of
funds, an abuse of authority, or a substantial and specific
1 Before the Board, McWilliams also alleged she
was constructively removed from her employment because
of harassment by her supervisors. She was advised in a
May 11, 2009, Summary and Order of Status Conference
that her claim for a constructive discharge and/or demo-
tion under 5 U.S.C. § 7512 should be pursued in a sepa-
rate appeal. However, the appellant did not file a
separate appeal, nor did she raise this claim in her appeal
before our court.
5 MCWILLIAMS v. MSPB
danger to public health and safety.” 5 U.S.C. § 2302(b)(8).
The Board first dismissed alleged disclosures 1 and 2
because the claims had not been exhausted before the
OSC. The Board’s jurisdiction in an IRA appeal is limited
to issues raised before the OSC. See Ellison v. Merit Sys.
Prot. Bd., 7 F.3d 1031, 1036 (Fed. Cir. 1993). Because
McWilliams did not raise these alleged disclosures in the
OSC proceedings, we see no error in the Board’s determi-
nations that the allegations had not been exhausted
before the OSC and were not properly on appeal.
With regard to disclosures 3, 4, and 5, the Board ap-
plied the “disinterested observer test” to conclude that
none of those disclosures could be considered protected
disclosures. In determining whether an employee rea-
sonably believed she had made a protected disclosure, the
test is whether a disinterested observer with knowledge of
the essential facts known to and readily ascertainable by
the employee could reasonably conclude that the informa-
tion disclosed evidenced a category of wrongdoing under
the WPA. See Lachance v. White, 174 F.3d 1378, 1380–81
(Fed. Cir. 1999). The Board correctly determined that
disclosure 3 would fail this test. The agency’s failure to
give McWilliams notice of her performance deficiencies
and an opportunity to correct those deficiencies would not
be viewed by a disinterested observer as a category of
wrongdoing under the WPA. With regard to disclosure 4,
the Board correctly determined that the failure to give
proper notification of a reassignment would also not be
viewed by a disinterested observer as a category of
wrongdoing. A reassignment to another department with
duties in the same commuting area and without a change
in grade or pay, is not a “removal,” “suspension,” “reduc-
tion in grade,” “reduction in pay,” or “furlough” for which
a petitioner would be entitled to procedural due process.
See 5 U.S.C. §§ 7512, 7513. With regard to disclosure 5,
MCWILLIAMS v. MSPB 6
McWilliams stated in her OSC complaint that “[i]t was
rumored that if Lt. Col. Green did not go to the training,
nobody would,” and therefore she was unfairly excluded
from the training program. Resp’t’s App. 63. As the
Board correctly determined, such unsubstantiated rumors
are insufficient to non-frivolously allege that a disinter-
ested observer would conclude any wrongdoing had been
committed. See Huffman v. Office of Pers. Mgmt., 92
M.S.P.R. 429, 434 (2002).
Nonetheless, we think the Board properly determined
that disclosure 6, that a supervisor had engaged in nepo-
tism by hiring unqualified friends, may constitute a
protected disclosure. However, a protected disclosure
cannot be a contributing factor in a personnel action if the
action was taken before the protected disclosure was
made. See 5 U.S.C. § 1221(e)(1); Horton v. Dep’t of the
Navy, 66 F.3d 279, 284 (Fed. Cir. 1995). The Board found
that this disclosure allegedly took place when McWilliams
filed her OSC complaint on September 18, 2008. Her
removal from the Chemistry department, reassignment to
the Urinalysis section, and purported out-of-cycle per-
formance evaluation all occurred in 2006. The other
alleged personnel actions also took place before Septem-
ber 18, 2008. Therefore, all of the alleged personnel
actions occurred several months, even years, before the
disclosure about the alleged nepotism in the department.
Nor has McWilliams provided any evidence that the
disclosure was made prior to these alleged events. Thus,
even if this disclosure were protected, it could not have
contributed to any of the alleged personnel actions.
AFFIRMED
COSTS
No costs.