United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 27, 2007 Decided May 29, 2007
No. 06-5149
WILLIAM C. KING,
APPELLANT
v.
ALPHONSO R. JACKSON, SECRETARY OF HOUSING AND URBAN
DEVELOPMENT,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 05cv01074)
Robert C. Seldon argued the cause for appellant. With
him on the briefs was Molly E. Buie.
Teal Luthy Miller, Attorney, U.S. Department of Justice,
argued the cause for appellee. With her on the brief were
Peter D. Keisler, Assistant Attorney General, and Marleigh
D. Dover, Special Counsel.
Before: SENTELLE, HENDERSON, and TATEL, Circuit
Judges.
Opinion for the Court filed by Circuit Judge TATEL.
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TATEL, Circuit Judge: Appellant alleges that the
Department of Housing and Urban Development (HUD)
violated Title VII of the Civil Rights Act of 1964 by forcing
him to resign for having opposed the Department’s refusal to
renew its 2003 Affirmative Employment Plan. The district
court granted HUD’s motion to dismiss for failure to state a
claim on the grounds that Title VII only protects an
employee’s opposition to an “unlawful employment practice.”
42 U.S.C. § 2000e-3(a). Because we agree with the district
court that Title VII’s definition of an “unlawful employment
practice” does not include the Department’s failure to renew
its Affirmative Employment Plan, we affirm.
I.
The events giving rise to this case began when a white
male HUD employee sued the Department, alleging that its
Affirmative Employment Plan (AEP) violated Title VII’s
prohibition on sex and race discrimination in employment.
Worth v. Jackson, 377 F. Supp. 2d 177, 179 (D.D.C. 2005).
HUD adopted its AEP in accordance with the Equal
Employment Opportunity Commission’s (EEOC)
Management Directive 714 (MD-714), which provided for
“[n]umerical goal setting where there [was] a manifest
imbalance or conspicuous absence of minorities and women
in the agency’s work force.” King v. Jackson, 468 F. Supp.
2d 33, 35 (D.D.C. 2006) (alterations in original) (internal
quotation marks omitted).
Because MD-714 was due to be superseded in October
2003 by MD-715, which required no numerical goal setting,
the district court ordered HUD to file a brief discussing the
impact of the EEOC’s “revocation/modification of MD-714
on the claims asserted by the plaintiffs.” Worth v. Martinez,
No. 02 Civ. 1576 (D.D.C. Aug. 20, 2003). In response, then-
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Deputy Secretary Alphonso Jackson ordered Appellant
William C. King—director of HUD’s Office of Departmental
Equal Employment Opportunity and principal advisor to the
Secretary on HUD’s equal employment program—to sign a
declaration stating the following:
Pursuant to EEOC Management Directive 714
(‘MD-714’), HUD’s Fiscal Year (‘FY’) 2003
Affirmative Employment Plan (‘AEP’) expires on
September 30, 2003.
The FY 2003 HUD AEP will not be renewed or
reissued.
King, 468 F. Supp. 2d at 35 (quoting Compl. ¶ 28). Believing
that “HUD’s failure to have an affirmative employment plan
in place would violate Title VII,” King refused to sign the
declaration. Compl. ¶ 6.
In his subsequently filed district court complaint, King
alleged that HUD forced him to resign for refusing to sign
the declaration and that by doing so the Department violated
Title VII’s “opposition clause.” 42 U.S.C. § 2000e-3(a).
That clause makes it “an unlawful employment practice for
an employer to discriminate against any of his employees . . .
because he has opposed any practice made an unlawful
employment practice by this subchapter.” Id. Pursuant to
Federal Rule of Civil Procedure 12(b)(6), the district court
dismissed the complaint, holding that HUD’s failure to renew
its AEP did not amount to an “unlawful employment
practice” within the meaning of the subchapter.
King now appeals. Our review is de novo. Stewart v.
Nat’l Educ. Ass’n, 471 F.3d 169, 173 (D.C. Cir. 2006)
(applying de novo standard to the district court’s decision
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granting a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6)).
II.
Although Title VII’s opposition clause itself has no
applicability to federal agencies, see 42 U.S.C. § 2000e(b)
(defining “employer” to exclude federal agencies), we have
held that a provision of the statute that does apply to federal
agencies, 42 U.S.C. § 2000e-16(a), incorporates the statutory
prohibitions that apply to private employers. See George v.
Leavitt, 407 F.3d 405, 410–11, 417 (D.C. Cir. 2005) (“Title
VII places the same restrictions on federal and District of
Columbia agencies as it does on private employers, and so
we may construe the latter provision in terms of the former.”)
(quoting Singletary v. Dist. of Columbia, 351 F.3d 519,
523–24 (D.C. Cir. 2003)) (internal quotation marks omitted).
To recover under the opposition clause, the plaintiff
must have been discriminated against for opposing a practice
“made an unlawful employment practice by this subchapter.”
42 U.S.C. § 2000e-3(a). King argues that the term “unlawful
employment practice” includes a violation of any provision
of Title VII and that HUD’s failure to renew its AEP violated
subsection e-16(b)(1). Subsection e-16(b)(1) provides that:
The Equal Employment Opportunity Commission
shall—
. . . be responsible for the annual review and
approval of a national and regional equal
employment opportunity plan which each
department . . . shall submit in order to maintain an
affirmative program of equal employment
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opportunity for all such employees and applicants
for employment.
According to King, this subsection obligates federal agencies
to maintain AEPs even when not required to do so by the
EEOC.
Even if King has correctly interpreted subsection
e-16(b)(1), his argument fails because, as the district court
held, actions that violate subsection e-16(b)(1) are not
“unlawful employment practices” as defined in the statute.
Title VII carefully defines that term in two sections, e-2 and
e-3. Entitled “Unlawful employment practices,” section e-2
describes numerous actions qualifying for that label, such as
firing or refusing to hire an individual “because of such
individual’s race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-2(a)(1). Section e-3, entitled “Other
unlawful employment practices,” lists additional employer
actions that qualify. Neither section mentions a refusal to
renew an affirmative action plan. Moreover, subsection
e-16(b)(1) concerns only the EEOC’s annual review of
agency equal employment opportunity plans and, unlike
sections e-2 and e-3, nowhere characterizes a violation of its
terms as an “unlawful employment practice.” Given this, and
given Title VII’s carefully constructed definition of
“unlawful employment practice,” subsection e-16(b)(1) may
not serve as the basis for an opposition clause claim.
Alternatively, King argues that even if a subsection
e-16(b)(1) violation fails to qualify as an unlawful
employment practice, his opposition to such a violation
nonetheless deserves protection because he reasonably
believed that HUD’s action was an unlawful employment
practice. In support, King cites Parker v. Baltimore & Ohio
Railroad, 652 F.2d 1012, (D.C. Cir. 1981), in which we held
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that Title VII protects opposition to employer conduct that
the plaintiff incorrectly—though reasonably—believes falls
within the statute’s definition of an “unlawful employment
practice.” Id. at 1019–20; see also Moyo v. Gomez, 40 F.3d
982, 985 (9th Cir. 1994) (stating that a plaintiff “would be
able to state a retaliation claim if he could show that his
belief that an unlawful employment practice occurred was
‘reasonable.’”).
This case is a far cry from Parker. There, the plaintiff
contended that his employer’s affirmative action plan
amounted to unlawful discrimination in hiring—a
characterization that, if correct, would have placed the
employer’s conduct squarely within the definition of an
unlawful employment practice. See 42 U.S.C. §
2000e-2(a)(1) (making it an unlawful employment practice to
“refuse to hire . . . any individual . . . because of such
individual’s race”). Reversing the denial of the plaintiff’s
motion for leave to amend his complaint, we held that even
were the plan lawful—an issue we left unresolved—that
would not extinguish the plaintiff’s opposition clause claim
because he reasonably believed the plan to be unlawful.
Parker, 652 F.2d at 1020. Elsewhere in the opinion, we
described the ambiguities in the case law, explaining that
“the law of affirmative action under Title VII” was in an
“unsettled state.” Id. at 1020. Here, by contrast, nothing is
unsettled. Because Title VII’s extensive definition of the
term “unlawful employment practice” never mentions an
agency’s failure to renew an affirmative action plan and
because subsection e-16(b)(1) never uses that term, the legal
principles at issue here, unlike in Parker, are entirely
unambiguous. We thus think it quite unreasonable for King
to have believed that a subsection e-16(b)(1) violation
qualified as an unlawful employment practice.
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Finally, King argues that by discontinuing the 2003 AEP
HUD removed a “structural safeguard” against
discriminatory hiring and thus committed an unlawful
employment practice under the subsection that bans
discriminatory hiring, 42 U.S.C. § 2000e-2(a). Appellant’s
Br. 24. But even if, as King suggests, HUD used its AEP to
prevent discrimination, that does not convert the
Department’s refusal to extend the AEP into an act of
discriminatory hiring. Therefore, because King does not
allege that he opposed an act of discriminatory hiring, he
may not use subsection e-2(a) as the basis for his opposition
clause claim.
We affirm the district court’s order dismissing the
complaint.
So ordered.