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Because MD-714 was due to be superseded in October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.