Case: 19-1955 Document: 30 Page: 1 Filed: 06/16/2020
`
`NOTE: This disposition is nonprecedential.
`
`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`T'NORA SCOTT GREEN-DOYLE,
`Petitioner
`
`v.
`
`DEPARTMENT OF HOMELAND SECURITY,
`Respondent
`______________________
`
`2019-1955
`______________________
`
`Petition for review of the Merit Systems Protection
`Board in No. DC-0432-18-0711-I-1.
`______________________
`
`Decided: June 16, 2020
`______________________
`
`T'NORA SCOTT GREEN-DOYLE, Dumfries, VA, pro se.
`
`
` DOUGLAS GLENN EDELSCHICK, Commercial Litigation
`Branch, Civil Division, United States Department of Jus-
`tice, Washington, DC, for respondent. Also represented by
`JOSEPH H. HUNT, ROBERT EDWARD KIRSCHMAN, JR.,
`FRANKLIN E. WHITE, JR.
` ______________________
`
`Before PROST, Chief Judge, DYK and WALLACH, Circuit
`Judges.
`
`

`

`Case: 19-1955 Document: 30 Page: 2 Filed: 06/16/2020
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`2
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`SCOTT GREEN-DOYLE v. DHS
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`PER CURIAM.
`Petitioner T’Nora Scott Green-Doyle seeks review of a
`Merit Systems Protection Board (“MSPB”) final decision
`sustaining her removal from Respondent Department of
`Homeland Security (“DHS”). See Green-Doyle v. DHS, No.
`DC-0432-18-0711-I-1, 2019 WL 1780468 (M.S.P.B. Apr. 18,
`2019) (S.A. 5–36).1 Because Ms. Green-Doyle presents us
`with a “mixed case” involving an action against DHS ap-
`pealable to the MSPB and an affirmative defense of dis-
`crimination, we dismiss for lack of jurisdiction.
`BACKGROUND
`Prior to her removal in 2018, Ms. Green-Doyle was em-
`ployed as an education specialist with the U.S. Coast
`Guard (“USCG”) Child Development Center (“CDC”) in
`Washington, D.C. S.A. 40–41. In June 2016, the CDC pro-
`vided Ms. Green-Doyle with a performance plan, outlining
`the “[C]ore [C]ompetencies that would be used to evaluate
`[her] performance[.]” S.A. 44. The Core Competencies in-
`cluded: (1) customer service; (2) communication; and
`(3) timeliness and quantity of work. S.A. 44. In July 2017,
`Ms. Green-Doyle was notified that she received a “Fails to
`Meet” rating in all three Core Competencies. S.A. 55 (No-
`tice of Unsatisfactory Performance and Opportunity to Im-
`prove).2 As a result of her “unacceptable performance,”
`S.A. 63 (Declaration of Ms. Green-Doyle’s Supervisor), Ms.
`Green-Doyle was placed on a Performance Improvement
`Plan (“PIP”) in July 2017, S.A. 55. Ms. Green-Doyle was
`
`
`“S.A.” refers to the Supplemental Appendix at-
`1
`tached to the Respondent’s Brief.
`2 Ms. Green-Doyle was required to maintain a com-
`petency rating of at least “Meets.” S.A. 55. A “Fails to
`Meet” rating constitutes “unacceptable performance,”
`which, if received in any one of the three Core Competen-
`cies, may result in removal from Federal service. S.A. 44.
`
`

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`Case: 19-1955 Document: 30 Page: 3 Filed: 06/16/2020
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`SCOTT GREEN-DOYLE v. DHS
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`3
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`notified that the PIP would continue for ninety days from
`receipt of the notice, during which time she was required
`to achieve at least a “Meets” level in each the Core Compe-
`tencies. S.A. 55.3 While Ms. Green-Doyle was on the PIP,
`she met with her supervisor weekly to review her work,
`discuss upcoming assignments, and address improvements
`to the Core Competencies. S.A. 64. Following the PIP pe-
`riod, Ms. Green-Doyle failed to achieve a “Meets” rating in
`the communication and timeliness and quantity of work el-
`ements, although she did receive an acceptable rating in
`the customer service element. S.A. 6; see S.A. 45–50 (No-
`tice of Proposed Removal) (summarizing Ms. Green-Doyle’s
`work performance during the PIP and extension), 66 (Dec-
`laration of Ms. Green-Doyle’s Supervisor) (providing that
`Ms. Green-Doyle still failed to “complet[e] her assignments
`by the deadline date”). In November 2017, Ms. Green-
`Doyle was placed on administrative leave as a result of fail-
`ing to meet an acceptable rating level in two of the three
`Core Competencies, S.A. 52–53, and was issued a notice of
`proposed removal, S.A. 44; see S.A. 44–51. Three months
`later, Ms. Green-Doyle was removed from her position.
`S.A. 40–41 (Removal Decision); see S.A. 39 (Notification of
`Personnel Action).
`During the same timeframe, from 2014 to 2017, Ms.
`Green-Doyle had contacted Equal Employment Oppor-
`tunity Commission (“EEOC”) counselors several times,
`“seeking counseling, information, and help.” S.A. 25. At
`some point “[b]etween 2017 and 2018[,]” Ms. Green-Doyle
`filed an EEOC complaint against her supervisor, but the
`supervisor “was not named or involved in the complaint.”
`S.A. 25.
`In July 2018, Ms. Green-Doyle appealed the decision to
`remove her from her position to the MSPB. S.A. 5. In
`
`3 A fourteen-day extension was granted, due to
`Ms. Green-Doyle’s absences from work. S.A. 6.
`
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`Case: 19-1955 Document: 30 Page: 4 Filed: 06/16/2020
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`SCOTT GREEN-DOYLE v. DHS
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`April 2019, the MSPB’s administrative judge (“AJ”) sus-
`tained Ms. Green-Doyle’s removal. S.A. 28. The MSPB
`stated that the DHS communicated performance standards
`to Ms. Green-Doyle, S.A. 10, that Ms. Green-Doyle “was
`given a reasonable opportunity to improve her perfor-
`mance,” S.A. 10 (underline omitted), and that the USCG
`“ha[d] established [that Ms. Green-Doyle] failed to meet at
`least one critical element of her position during the PIP[,]”
`S.A. 16 (underline omitted). The MSPB concluded that, be-
`cause “[DHS] ha[d] shown by substantial evidence that
`[Ms. Green-Doyle]’s performance was unacceptable,” its
`“choice of action was permissible, and [wa]s not subject to
`further review[.]” S.A. 24; see 5 U.S.C. § 7701(c)(1)(A)
`(“[T]he decision of the agency shall be sustained . . . only if
`the agency’s decision . . . in the case of an action based on
`unacceptable performance described in [5 U.S.C.] [§] 4303,
`is supported by substantial evidence[.]”). The MSPB also
`addressed Ms. Green-Doyle’s affirmative defense that she
`was removed from Federal service as retaliation for her
`contact with the EEOC. S.A. 25–26. The MSPB “f[ou]nd
`no direct or circumstantial evidence . . . from which an in-
`ference of discriminatory intent might be drawn, to support
`[Ms. Green-Doyle’s] claims of retaliation.” S.A. 26. The
`MSPB concluded that Ms. Green-Doyle’s “theory is totally
`uncorroborated and . . . falls well short of establishing that
`her EEO[C] activity played any part in [DHS’s] decision to
`remove her from [F]ederal service.” S.A. 26.
`In May 2019, Ms. Green-Doyle filed a petition with this
`court to review her removal. Notice of Docketing at 1,
`Green-Doyle v. DHS, No. 19-1955 (Fed. Cir. Sept. 9, 2019),
`ECF No. 1. Provided in her initial Statement Concerning
`Discrimination (“Form 10”), Ms. Green-Doyle stated that “I
`am not sure of these questions[,]” in response to inquiries
`about whether she had filed discrimination cases with a
`district court or with the EEOC. Form 10 at 1, Green-
`Doyle v. DHS, No. 19-1955 (Fed. Cir. Sept. 9, 2019), ECF
`No. 15. In May 2020, we directed Ms. Green-Doyle to file
`
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`Case: 19-1955 Document: 30 Page: 5 Filed: 06/16/2020
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`SCOTT GREEN-DOYLE v. DHS
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`an amended Form 10 to confirm whether she is abandoning
`her discrimination claims. Order at 1–2, Green-Doyle v.
`DHS, No. 19-1955 (Fed. Cir. May 12, 2020), ECF No. 27
`(“Order”). Ms. Green-Doyle responded, stating that she
`“ha[s] not stated [that she] want[s] to discontinue any part
`of [her] Individual Complaint of Employment Discrimina-
`tion and [she is] not sure why [she was] asked to confirm
`[her] discrimination claims.” Letter at 1, Green-Doyle v.
`DHS, No. 19-1955 (Fed. Cir. May 21, 2020), ECF No. 28
`(“Green-Doyle Letter”).
`DISCUSSION
`I. Subject Matter Jurisdiction
`Before reaching the merits of a case, we must assess
`whether we may exercise subject matter jurisdiction over
`it, even if neither party raises the issue. See Diggs v. HUD,
`670 F.3d 1353, 1355 (Fed. Cir. 2011) (providing for sua
`sponte subject matter jurisdiction review). “[S]ubject mat-
`ter jurisdiction cannot be conferred by waiver, estoppel, or
`consent.” Id.
`We have limited jurisdiction over appeals from the
`MSPB. Relevant here, we lack jurisdiction over “mixed
`cases”—those involving both “a specific type of action
`against an employee which may be appealed to the [MSPB]
`and an allegation in the nature of an affirmative defense
`that a basis for the action was discrimination within one of
`the categories” listed in 5 U.S.C. § 7702(a)(1)(B). Williams
`v. Dep’t of Army, 715 F.2d 1485, 1487 (Fed. Cir. 1983) (en
`banc) (emphasis omitted); see Perry v. Merit Sys. Protection
`Bd., 137 S. Ct. 1975, 1979 (2017) (“If the MSPB dismisses
`a mixed case on the merits, . . . review authority lies in the
`district court, not in the Federal Circuit.”).
` Sec-
`tion 7702(a)(1)(B) provides categories of discrimination, in-
`cluding “discrimination prohibited by . . . [§] 717 of the
`Civil Rights Act of 1964 (42 U.S.C. § 2000e-16).” An “af-
`firmative defense[] of reprisal for prior EEO[C] activity” is
`considered an “assertion of discrimination under Title VII
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`Case: 19-1955 Document: 30 Page: 6 Filed: 06/16/2020
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`SCOTT GREEN-DOYLE v. DHS
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`and within the meaning of 5 U.S.C. § 7702.” Diggs, 570
`F.3d at 1358. In such circumstances, we must “dismiss
`[the] appeal for lack of jurisdiction because it presents a
`‘mixed case’ [under the Civil Service Reform Act of 1978
`and Title VII of the Civil Rights Act of 1964] which we may
`not review.” Id.
`II. We Lack Jurisdiction to Review This Mixed Case
` Ms. Green-Doyle’s removal from the agency was an ac-
`tion appealable to the MSPB. S.A. 6; see 5 U.S.C. § 7701
`(“An employee . . . may submit an appeal to the [MSPB]
`from any action which is appealable to the [MSPB] under
`any law, rule, or regulation.”); id. § 4303(a) (“Subject to the
`provisions of this section, an agency may . . . remove an em-
`ployee for unacceptable performance.”). Accordingly,
`whether we have jurisdiction in this case hinges upon
`whether Ms. Green-Doyle alleged a form of discrimination
`provided in § 7702(a)(1)(B) as the basis for her removal,
`which would present us with a mixed case that we lack ju-
`risdiction to review. We conclude that she did.
`Ms. Green-Doyle has not abandoned her affirmative
`defense of discrimination. On appeal, Ms. Green-Doyle ar-
`gues that the MSPB erred by “fail[ing] to look [at] evidence
`relative to retaliation [and] harassment[.]” Pet’r’s Br. 1.
`The retaliation, according to Ms. Green-Doyle, is that she
`was removed from Federal service based on her contact
`with the EEOC. S.A. 25. Moreover, in her initial Form 10,
`Ms. Green-Doyle stated that she was “not sure of these
`questions[,]” in response to inquiries about whether she
`had filed discrimination cases with a district court or with
`the EEOC. Form 10 at 1. In response to this court’s re-
`quest for clarification on whether she intended to abandon
`her discrimination claims, see Order at 1–2, Ms. Green-
`Doyle stated that she “ha[s] not stated [that she] want[s] to
`discontinue any part” of her discrimination claims, see
`Green-Doyle Letter at 1. As we determined in Diggs, this
`affirmative defense does constitute an “assertion of
`
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`Case: 19-1955 Document: 30 Page: 7 Filed: 06/16/2020
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`SCOTT GREEN-DOYLE v. DHS
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`discrimination under Title VII and [is] within the meaning
`of 5 U.S.C. § 7702.” Diggs, 570 F.3d at 1358. As Ms. Green-
`Doyle does not abandon her discrimination claim, she pre-
`sents us with a mixed case, which we may not review for
`lack of jurisdiction. Id. at 1358.4
`CONCLUSION
`Accordingly, the Final Decision of the Merit Systems
`Protection Board is
`
`DISMISSED
`
`
`4 As we stated in Diggs, “while we understand how a
`pro se claimant might be surprised that a jurisdictional bar
`could be raised for the first time long after her appeal was
`docketed, it is the job of the panel who assesses the merits
`of an action, and not the Clerk’s office on intake or the par-
`ties in their briefing, to police its own jurisdiction.” 570
`F.3d at 1357.
`
`