NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition is not citable as precedent. It is a public record. 

## United States Court of Appeals for the Federal Circuit

04-3244 ANDY STEPHENSON, Petitioner,

v. DEPARTMENT OF DEFENSE, Respondent.

__________________ _________ DECIDED: December 13, 2004

__________________ _________ Before RADER, Circuit Judge , ARCHER, Senior Circuit Judge , and BRYSON, Circuit Judge

. PER CURIAM. Andy Stephenson appeals the final decisi on of the Merit Systems Protection Board (Board), denying his petition for review of the initial decisi on finding that his termination was permissible. Stephenson v. Dep’t of Defense , No. DA-1221-02-0530- W-1 (MSPB Mar. 10, 2004). Because the Boar d’s decision is supported by substantial evidence, this court affirms

.BACKGROUND Between J une 4 and August 30, 2001, Mr. Stephens on worked as a Materials Handler for the Department of Defense (DOD ), subject to a one-year probationar y period. The record reflects that during this time, Mr. S t ephenson and another Materials Handler, Bonita Tackett, ex perienced a strai ned working relationsh ip. On August 24, 2001, Mr. Stephenson alleged to Norma Welch, a second-level supervisor, that Ms. Tackett had attacked him. Six days later, a fter conducting an inv e stigation, Ms. Welch terminated Mr. Stephenson’s employment. Mr. Stephenson filed an individual-right -of-action (IRA) with the Board on June 18, 2002, claiming that he was improperly terminated in retaliation for making a protected disclosure u nder the W h istleblower Protection Act (WPA). After conducting a hearing, the Board determined that no reasonable pers on wo uld v i ew Mr. Stephenson’s disclos ure as reporting a viol ation of the law. Moreover , the Bo ard found t h at even if Mr. Stephenson’s disc losure were protected under the WPA, that the DOD would hav e terminated his employment in the absenc e of his disclosure. Accordingly, the Board denied Mr. Stephens on’s IRA in its initial determination. Stephenson v

. Dep’t of Defense , No. DA-1221-02-0530-W-1 (MSPB May. 1, 2003). Subsequently, the Board denied Mr. Stephens on’s petition for review in a final determination. Mr. Stephenson timely appeals to this court. DISCUSSI ON By statute, this court’s review of a fi nal decision from the Board is limited. A Board dec ision may not be set aside unless it is : (1) arbitrary or capricious, an abuse of discretion, or otherwis e not in accordance wit h law; (2) obtaine d without procedure

04-3 244 2required by law, rule, or regulation hav ing been followed; or (3) unsupported by substantial evidenc e. 5 U.S.C. § 7703(c). Under the WPA, no adverse action may be taken against an individual who has disclos ed what he reasonably believ e s is evidence of either 1) a violation of law, rule, o r regulation; or 2) gross mism anagement, gross waste of funds, abuse of authority, or a substantial and spec ific danger to public health or safety. 5 U.S.C. § 2302(b)(8). Here, Mr. Stephenson alleges that Ms. Tackett’s behavior constituted a violation of the law. Reasonable belief, however, is viewed objec tively: [T]he proper test is this: could a disinterested observe r with knowledge of the essential facts known to and read ily ascertainable by the employee reasonably conclude that the actions of the government evidence [a violation of law, rule or regulation]? A purely subjective perspective of an employee is not sufficient even if shared by other employees. Lachance v

. White , 174 F.3d 1378, 1381 (Fed. Cir. 1999). The Board considered Mr. S t ephenson’s testim ony in addition to that of his first supervisor, Harold Geurrin, his second su pervisor, Amy Scott, Ms. Tackett, and Ms. Welch. Based on the sum total of the test imony before it combin ed with the requisite credibility determinations, t he Board found that an obj ectiv e observer would not reasonably believe that Ms. Tackett’s alleged ac ts constituted a violation of the law. This court recognizes that credibility determination s are “virtually unreviewable.” Hambsch v. Dep’t of Treasury , 796 F.2d 430, 436 (Fed. Cir. 1986). Because this cour t finds that substantial evidenc e supports the Board’s finding t hat Mr. Stephenson’s disclos ure was not protected, it i s unneces s a ry to address whether the DOD terminated his employment without regard to his disclos ure. Accord ingly, the Board’s final determination is affirmed.

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