NOTE: This disposition is nonprecedential.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 decision 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 intention 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 quality 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 disclosures: 

(1) that the laboratory breached an agreement to allow McWilliams to remain in 

the Chemistry department for one additional evaluation cycle; 

(2) that a power line malfunction was potentially dangerous; 

(3) that she was not provided notice of her performance 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 opportunity; and 

(6) that a supervisor had engaged in nepotism by hiring unqualified friends. 

Initial Decision, slip op. at 3. As a result of these disclosures, 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 receiving negative references to potential employers. Id. at 4. 

On June 1, 2010, the administrative judge (“AJ”) issued 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 determinations 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 appellant 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 Veterans 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 demotion under 5 U.S.C. § 7512 should be pursued in a separate 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 determinations 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 applied the “disinterested observer test” to conclude that 

none of those disclosures could be considered protected 

disclosures. In determining whether an employee reasonably 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 information 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,” “reduction 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 disinterested 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 nepotism 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 performance evaluation all occurred in 2006. The other 

alleged personnel actions also took place before September 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.