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NOTE: This disposition is nonprecedential.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
2 SCOTT GREEN-DOYLE v. DHS
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
1 “S.A.” refers to the Supplemental Appendix at-
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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SCOTT GREEN-DOYLE v. DHS 3
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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4 SCOTT GREEN-DOYLE v. DHS
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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SCOTT GREEN-DOYLE v. DHS 5
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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6 SCOTT GREEN-DOYLE v. DHS
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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SCOTT GREEN-DOYLE v. DHS 7
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.
