Diggs. v. Dep't of Hous. & Urban Dev., No. 10-3193 (Fed. Cir. 2011)Annotate this Case
The agency removed plaintiff from her position based on charges of rude, disruptive, aggressive, or intimidating behavior and misrepresentation. Plaintiff denied the charges and alleged retaliation for prior Equal Employment Opportunity claims of sex discrimination. The Administrative Judge and Merit Systems Protection Board affirmed the removal. Plaintiff petitioned the EEOC for review; that agency found that the evidence supported the conclusion that her removal was not motivated by retaliatory animus. The Federal Circuit dismissed an appeal, finding that it lacked jurisdiction to review the Board's decision on the "mixed case." The case involved both a specific type of action against an agency which may be appealed to the Board 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). Affirmative defenses of retaliation for prior EEO activity are assertions of discrimination under Title VII and within the meaning of 5 U.S.C. 7702.