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        NOTE: This disposition is nonprecedential.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.
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 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.
