King, William v. Jackson, Alphonso

487 F.3d 970, 376 U.S. App. D.C. 284, 2007 U.S. App. LEXIS 12341, 89 Empl. Prac. Dec. (CCH) 42,850, 100 Fair Empl. Prac. Cas. (BNA) 1267, 2007 WL 1529479
CourtCourt of Appeals for the D.C. Circuit
DecidedMay 29, 2007
Docket06-5149
StatusPublished
Cited by15 cases

This text of 487 F.3d 970 (King, William v. Jackson, Alphonso) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
King, William v. Jackson, Alphonso, 487 F.3d 970, 376 U.S. App. D.C. 284, 2007 U.S. App. LEXIS 12341, 89 Empl. Prac. Dec. (CCH) 42,850, 100 Fair Empl. Prac. Cas. (BNA) 1267, 2007 WL 1529479 (D.C. Cir. 2007).

Opinion

Opinion for the Court filed by Circuit Judge TATEL.

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]umerieal 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Because MD-714 was due to be superseded in October 2003 by MD-715, which required no numerical goal setting, the district court ordered HUD to file a brief discussing the impact of the EEOC’s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-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 sub-chapter.” 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.

*972 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 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)(l). Subsection e-16(b)(l) 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 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)(l), 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)(l). 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)(l) may not serve as the basis for an opposition clause claim.

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487 F.3d 970, 376 U.S. App. D.C. 284, 2007 U.S. App. LEXIS 12341, 89 Empl. Prac. Dec. (CCH) 42,850, 100 Fair Empl. Prac. Cas. (BNA) 1267, 2007 WL 1529479, Counsel Stack Legal Research, https://law.counselstack.com/opinion/king-william-v-jackson-alphonso-cadc-2007.