15‐3392‐cv
Cooper v. N.Y. State Dep’t of Labor
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM 2015
No. 15‐3392‐cv
WINIFRED COOPER,
Plaintiff‐Appellant,
v.
NEW YORK STATE DEPARTMENT OF LABOR,
Defendant‐Appellee.*
________
Appeal from the United States District Court
for the Northern District of New York
________
ARGUED: APRIL 5, 2016
DECIDED: APRIL 26, 2016
________
Before: KEARSE, CABRANES, and CHIN, Circuit Judges.
________
* The Clerk of Court is directed to amend the official caption to conform
with the caption above.
2 No. 15‐3392‐cv
Plaintiff‐appellant Winifred Cooper appeals an October 9,
2015 judgment of the United States District Court for the Northern
District of New York (Glenn T. Suddaby, Chief Judge) dismissing,
under Federal Rule of Civil Procedure 12(b)(6), claims based on Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title
VII”), and the New York State Human Rights Law, N.Y. Exec. Law
§§ 290 et seq. (“NYSHRL”). Cooper’s complaint alleges that her
former employer, defendant‐appellee New York State Department
of Labor, unlawfully retaliated against her for opposing an
employment practice proscribed by Title VII and the NYSHRL.
Concluding, as did the District Court, that Cooper could not
reasonably have believed that the conduct she opposed violated
either statute, we AFFIRM.
________
CHRISTOPHER D. WATKINS, Sussman & Watkins,
Goshen, NY, for Plaintiff‐Appellant.
BRIAN D. GINSBERG, Assistant Solicitor General
(Barbara D. Underwood, Solicitor General, and
Andrew B. Ayers, Senior Assistant Solicitor
General, on the brief), for Eric T. Schneiderman,
Attorney General of the State of New York, for
Defendant‐Appellee.
Julie Salwen, Harrison, Harrison & Assoc., Ltd.,
Red Bank, NJ, for Amicus Curiae National
Employment Lawyers Association/New York, in
support of Plaintiff‐Appellant.
________
3 No. 15‐3392‐cv
PER CURIAM:
Plaintiff‐appellant Winifred Cooper appeals an October 9,
2015 judgment of the United States District Court for the Northern
District of New York (Glenn T. Suddaby, Chief Judge) dismissing,
under Federal Rule of Civil Procedure 12(b)(6), claims based on Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title
VII”), and the New York State Human Rights Law, N.Y. Exec. Law
§§ 290 et seq. (“NYSHRL”). Cooper’s complaint alleges that her
former employer, defendant‐appellee New York State Department
of Labor (“defendant” or “DOL”), unlawfully retaliated against her
for opposing an employment practice proscribed by Title VII and the
NYSHRL. Concluding, as did the District Court, that Cooper could
not reasonably have believed that the conduct she opposed violated
either statute, we AFFIRM.
BACKGROUND
This case arises out of defendant’s decision, in April 2013, to
remove Cooper from her position as Director of Equal Opportunity
Development (“DEOD”) for the DOL.1 Prior to her removal,
Cooper’s responsibilities as DEOD included “ensur[ing] that [the
DOL] complied with federal Equal Opportunity rules and
1 We draw the facts from Cooper’s amended complaint, accepting them as
true and viewing them in the light most favorable to Cooper. Galper v. JP Morgan
Chase Bank, N.A., 802 F.3d 437, 443‐44 (2d Cir. 2015).
4 No. 15‐3392‐cv
regulations.” J.A. 13.2 In December 2012, she learned that the
Governor’s Office of Employee Relations (“GOER”) had developed a
plan to “alter the means by which internal [Equal Employment
Opportunity (“EEO”)] complaints were to be handled by state
agencies, including the” DOL. Id.
Cooper believed that the proposed changes “materially
conflicted with federal regulations” because they would “subject the
EEO complaint response process to political pressure,” increasing
the likelihood that workplace discrimination would go unredressed.
Id. In a series of communications with her supervisors, Cooper
brought these concerns to light. J.A. 13‐14.
Cooper’s position carried the day—the GOER plan was
altered to take account of her views—but, in April 2013, she was
fired, allegedly in retaliation for having lobbied against GOER’s
proposal. J.A. 14‐15. On that basis Cooper filed this lawsuit, seeking
recovery under Title VII and the NYSHRL.3 The District Court
granted defendant’s Rule 12(b)(6) motion to dismiss, see Cooper v.
N.Y. State Dep’t of Labor, No. 1:14 Civ. 717 (GTS) (CFH), 2015 WL
5918263 (N.D.N.Y. Oct. 9, 2015), and Cooper appealed.
2 References to “J.A.” are to the joint appendix.
3 “Employment discrimination claims brought under the NYSHRL are
analyzed identically to claims under . . . Title VII,” Brennan v. Metro. Opera Ass’n,
Inc., 192 F.3d 310, 316 n.2 (2d Cir. 1999); thus, our analysis does not distinguish
between Cooper’s federal and state causes of action.
5 No. 15‐3392‐cv
DISCUSSION
Reviewing the question de novo, Cohen v. S.A.C. Trading Corp.,
711 F.3d 353, 358 (2d Cir. 2013), we conclude that the District Court
did not err in dismissing Cooper’s complaint. Title VII’s anti‐
retaliation provision prohibits employers from “discriminat[ing]
against any individual . . . because he has opposed any practice
made an unlawful employment practice by this subchapter.” 42
U.S.C. § 2000e‐3(a). A plaintiff seeking to demonstrate that he
engaged in protected activity need not show that the behavior he
opposed in fact violated Title VII; he must, however, show that he
“possessed a good faith, reasonable belief,” Summa v. Hofstra Univ.,
708 F.3d 115, 126 (2d Cir. 2013), that the employer’s conduct
qualified as an “unlawful employment practice” under the statute,
see 42 U.S.C. § 2000e‐3(a).
Title VII is a “precise, complex, and exhaustive” statute, Univ.
of Tex. Sw. Med. Ctr. v. Nassar, ‐‐‐ U.S. ‐‐‐, 133 S. Ct. 2517, 2530 (2013),
and it defines the term “unlawful employment practice” with
characteristic exactitude. An “unlawful employment practice” is
“discrimination on the basis of any of seven prohibited criteria: race,
color, religion, sex, national origin, opposition to employment
discrimination, and submitting or supporting a complaint about
employment discrimination.” Id. at 2532; see also 42 U.S.C. § 2000e‐
2(a)‐(d) (enumerating as an “unlawful employment practice” status‐
based discrimination by various entities); id. § 2000e‐2(l)
(enumerating as an “unlawful employment practice” status‐based
discrimination in “employment related tests”); id. § 2000e‐3(a)
6 No. 15‐3392‐cv
(enumerating as an “unlawful employment practice” retaliating
against an individual for opposing conduct made unlawful by, or
participating in a proceeding under, Title VII); id. § 2000e‐3(b)
(enumerating as an “unlawful employment practice” the advertising
of a preference for applicants based on “race, color, religion, sex, or
national origin”). Thus, a plaintiff alleging unlawful retaliation may
not recover unless he reasonably believed that the conduct he
opposed ran afoul of one of these particular statutory proscriptions.
See, e.g., Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons,
842 F.2d 590, 594 (2d Cir. 1988) (objecting to an employer’s failure to
adhere to its own affirmative‐action program is not protected
activity, because such a failure is not an “unlawful employment
practice” under Title VII).
For this reason, Cooper is not entitled to relief. The conduct
she opposed—the amendment of internal procedures in a manner
that, she believed, would permit political considerations to influence
the evaluation of discrimination claims—is not a “practice made an
unlawful employment practice” by Title VII. 42 U.S.C. § 2000e‐3(a).
Nor could Cooper reasonably have believed otherwise. In defining
with great care and precision those behaviors that qualify as
“unlawful employment practices,” the statute lays on employers no
obligation to maintain any particular procedures for handling
7 No. 15‐3392‐cv
internal complaints. Indeed, the relevant provisions do not touch on
the subject at all.4
Cooper contends that her activity was protected because she
opposed a practice that, if adopted, would have increased the
likelihood of future unredressed Title VII violations. We cannot
agree. The same argument might be (indeed, has been) made about
the abandonment of voluntary affirmative action programs, but
opposing an employer’s failure to engage in affirmative action is
nevertheless unprotected under the statute. See Manoharan, 842 F.2d
at 594. For instance, in King v. Jackson, the plaintiff alleged that the
Department of Housing and Urban Development (“HUD”) had
violated Title VII by forcing him to resign because he had opposed
HUD’s decision to discontinue its Affirmative Employment Plan
(“AEP”), a program calculated to rectify the “manifest imbalance or
conspicuous absence of minorities and women in the agency’s work
force.” 487 F.3d 970, 971 (D.C. Cir. 2007) (internal quotation marks
omitted). Contending that the AEP functioned as a “structural
safeguard against discriminatory hiring,” the plaintiff urged that
HUD’s decision to scrap the program would increase the likelihood
of future discrimination and should therefore itself be viewed as an
unlawful employment practice. Id. at 973 (internal quotation marks
omitted). The court disagreed. “Even if . . . HUD used its AEP to
4 In view of this conclusion, we need not reach defendant’s remaining
argument in support of affirmance: that Cooper failed to plausibly allege that she
reasonably believed that GOER’s proposed procedures would increase the risk
that political pressures would compromise the fair handling of discrimination
claims.
8 No. 15‐3392‐cv
prevent discrimination,” it reasoned, “that does not convert the
Department’s refusal to extend the AEP into an act of discriminatory
hiring.” Id.
So too here. That Cooper sought to ensure that hypothetical
victims of discrimination received a fair shake does not mean that
she “possessed a good faith, reasonable belief,” Summa, 708 F.3d at
126, that accepting GOER’s proposal would have qualified as an
“unlawful employment practice” under the statute, see 42 U.S.C. §
2000e‐3(a). Simply put, her argument stretches our precedents and
the text of Title VII well past their breaking points.
Perhaps tellingly, Cooper urges us to construe Title VII’s
retaliation clause “broadly” with an eye toward promoting the
statute’s “broad remedial purposes.” Appellant’s Br. 11. We are
mindful that when an employer punishes an employee for conduct
intended to secure equality in the workplace, it does little to
further—and may hinder—Title VII’s primary objective of
eradicating invidious discrimination in employment. But “no
legislation pursues its purposes at all costs.” CTS Corp. v.
Waldburger, ‐‐‐ U.S. ‐‐‐, 134 S. Ct. 2175, 2185 (2014) (internal quotation
marks omitted). We may not, in the name of advancing general
aims, ignore Congress’s choice to carefully circumscribe the universe
of “unlawful employment practices”—and thus to circumscribe the
universe of conduct protected from retaliation. See id. (“The Court
of Appeals supported its interpretation . . . by invoking the
proposition that remedial statutes should be interpreted in a liberal
manner. The Court of Appeals was in error when it treated this as a
9 No. 15‐3392‐cv
substitute for a conclusion grounded in the statute’s text and
structure.”). Because Cooper did not engage in any such conduct,
we must affirm the judgment of the District Court.
CONCLUSION
In sum, Cooper could not reasonably have believed that in
lobbying against GOER’s proposal, she was opposing conduct that
qualified as an “unlawful employment practice” under Title VII. We
thus AFFIRM the October 9, 2015 judgment of the District Court.