Howard R.l. Cook & Tommy Shaw, et al v. James Billington

Filing

OPINION filed [1470268] (Pages: 10) for the Court by Judge Kavanaugh [12-5193]

USCA Case #12-5193

Document #1470268

Filed: 12/13/2013

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 15, 2013

Decided December 13, 2013

No. 12-5193
HOWARD R.L. COOK & TOMMY SHAW FOUNDATION FOR
BLACK EMPLOYEES OF THE LIBRARY OF CONGRESS, INC., ET
AL.,
APPELLANTS
v.
JAMES H. BILLINGTON, LIBRARIAN, LIBRARY OF CONGRESS,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-01315)

David L. Rose argued the cause for appellants. With him
on the briefs was Joshua N. Rose.
Jane M. Lyons, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Ronald C. Machen
Jr., U.S. Attorney, and R. Craig Lawrence, Assistant U.S.
Attorney. Laurie J. Weinstein, Assistant U.S. Attorney,
entered an appearance.
Before: TATEL and KAVANAUGH, Circuit Judges, and
SENTELLE, Senior Circuit Judge.

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Opinion for
KAVANAUGH.

the

Court

filed

by

Circuit

Judge

KAVANAUGH, Circuit Judge: The Cook and Shaw
Foundation is a non-profit organization composed of current
and former employees of the Library of Congress. The
Foundation helps Library employees pursue allegations of
racial discrimination against the Library. Pursuant to Library
policy, the Library recognizes certain employee organizations
and gives them meeting space and other benefits. The Cook
and Shaw Foundation requested recognition as an employee
organization, but the Library refused. As a result, the
Foundation was denied the benefits that are afforded to
recognized employee organizations.
The Library’s denial of recognition transformed the
Foundation’s workplace request into a battle of wills. After
the Library denied recognition to the Foundation, the
Foundation and several individual plaintiffs – who are officers
of the Foundation and employees of the Library – filed suit.
Plaintiffs alleged that the Library’s refusal to recognize the
Foundation constituted retaliation against the Foundation
because of its activities – in particular, the assistance that the
Foundation provides to employees in connection with
discrimination complaints. Plaintiffs did not claim, however,
that the Library violated the First Amendment by retaliating
against and penalizing the Foundation on account of the
Foundation’s speech or viewpoint.
Rather, plaintiffs
advanced a Title VII claim.
The District Court found that the allegations in plaintiffs’
complaint failed to state a claim under Title VII. According
to the District Court, the complaint did not identify any

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employee who engaged in statutorily protected activity such
as filing a discrimination charge and, as a result of engaging
in that activity, suffered retaliation in the form of the
Library’s denial of recognition to the Foundation. Therefore,
the District Court ruled that the complaint did not meet the
basic requirements for a retaliation claim under Title VII. We
agree with the District Court and therefore affirm.
I
The Library of Congress grants official recognition to
Library employee organizations that are “concerned only with
welfare, financial assistance, recreational, cultural, or
professional activities.” Library of Congress Regulation
2022-2 § 3(B). Recognition by the Library confers several
benefits on employee organizations. For example, recognized
organizations are permitted to hold an annual meeting using
Library facilities, and employee members of those
organizations may attend that annual meeting without using
leave.
Recognized organizations may also host other
activities using Library facilities. The organizations may post
materials on the Library’s bulletin boards. And in some
circumstances, the Library will reproduce and distribute
materials to staff and new employees on behalf of recognized
organizations.
The Cook and Shaw Foundation is a non-profit
organization composed of current and former employees of
the Library. The Foundation helps Library employees pursue
allegations of racial discrimination against the Library. The
Foundation sought official recognition from the Library. But
the Library denied the Foundation’s request. The Library
explained that the Foundation’s purpose of helping employees
bring and maintain lawsuits against the Library is inconsistent

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with the Library’s policy that recognized employee
organizations be “concerned only with welfare, financial
assistance, recreational, cultural, or professional activities.”
Id.
The Foundation and several of its individual officers –
who are also employees of the Library – sued in the district
court, asserting that the Library’s denial of recognition
constituted retaliation in violation of Title VII. See 42 U.S.C.
§§ 2000e-16(a), 2000e-3(a).
The Library argued that
plaintiffs lacked standing and that plaintiffs’ complaint failed
to state a claim under Title VII. The District Court concluded
that both the individual plaintiffs and the Foundation had
standing. But the court dismissed plaintiffs’ complaint under
Federal Rule of Civil Procedure 12(b)(6) for failure to state a
claim of retaliation under Title VII. See Howard R.L. Cook &
Tommy Shaw Foundation for Black Employees of the Library
of Congress, Inc. v. Billington, 802 F. Supp. 2d 65 (D.D.C.
2011).1
Plaintiffs then filed a Rule 59(e) motion to alter the
judgment and a Rule 15(a) motion for leave to file an
amended complaint. The District Court denied both motions.
On the latter motion, the District Court held that granting
plaintiffs leave to amend their complaint would be futile,
because plaintiffs’ proposed amended complaint still failed to
state a claim under Title VII.

1

The District Court also dismissed without prejudice
plaintiffs’ claim that the Library had violated Section 2000e-16(b)
of Title 42 by failing to publish annual equal employment
opportunity plans. Plaintiffs do not appeal that aspect of the
District Court’s ruling.

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On appeal, plaintiffs challenge the District Court’s
dismissal of their initial complaint. We review de novo the
District Court’s grant of a motion to dismiss. See Carter v.
Washington Metropolitan Area Transit Authority, 503 F.3d
143, 145 (D.C. Cir. 2007).
II
We first address the jurisdictional question whether
plaintiffs have Article III standing to pursue their Title VII
retaliation claim. To establish Article III standing, plaintiffs
must demonstrate that they have suffered an injury in fact,
that their injury was caused by the challenged conduct of the
defendant, and that the requested relief is likely to redress
their injury. See Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61 (1992). At the motion to dismiss stage, “general
factual allegations of injury resulting from the defendant’s
conduct may suffice” to meet those three requirements. Id. at
561.
The Foundation and the individual plaintiffs allege that
the Library’s denial of recognition to the Foundation has
deprived them of certain benefits. For example, recognition
would permit the Foundation (and its officers and members)
to hold meetings using Library facilities, post materials on the
Library’s bulletin boards, and distribute materials to Library
staff and new employees. The Library argues that plaintiffs
have failed to allege an injury in fact because “the privileges
to employees who participate . . . in recognized organizations
are insubstantial.” Library Br. 22. If the Library views the
privileges of recognition as so insubstantial, perhaps it would
have been better off granting recognition and avoiding
litigation. In fact, however, the benefits of recognition are not
trivial, and denial of those benefits constitutes an injury in

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fact. Plaintiffs further allege that the Library’s refusal to
recognize the Foundation caused the denial of those benefits
to plaintiffs. And plaintiffs allege that a ruling in their favor
would redress their injury by allowing them to attain those
benefits. The Foundation and the individual plaintiffs
therefore have established Article III standing.
The Library also asserts the prudential standing “zone of
interests” requirement as a bar to this suit. But at least the
individual plaintiffs have satisfied the zone of interests
requirement.2
The zone of interests requirement is a way of determining
whether Congress intended that a particular kind of plaintiff
be able to sue for violations of a particular statute. The issue
generally arises when a plaintiff brings a claim under the
Administrative Procedure Act as a party allegedly
“aggrieved” by some agency action that violated a substantive
statute. See 5 U.S.C. § 702. The Supreme Court has stated
that such an APA suit may not proceed unless the interest
asserted by the plaintiff is “arguably within the zone of
interests to be protected or regulated by the statute that he
says was violated.” Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210 (2012)
2

Members of this Court have debated whether the zone of
interests requirement is jurisdictional or merely an element of a
cause of action. See Grocery Manufacturers Association v. EPA,
693 F.3d 169 (D.C. Cir. 2012). That debate has practical
significance in cases where we must consider whether to address
the zone of interests requirement on our own – that is, in cases
when a defendant has otherwise forfeited or waived the argument
that a plaintiff is outside the zone of interests. We need not wade
into that debate to resolve this case, because the Library has
affirmatively raised the zone of interests requirement.

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(quoting Association of Data Processing Service
Organizations, Inc. v. Camp, 397 U.S. 150, 153 (1970))
(internal quotation marks omitted).
To be sure, this is a Title VII suit, not an APA case. But
the zone of interests requirement applies here as well. Title
VII permits a “person claiming to be aggrieved” by an
unlawful employment practice to pursue a charge. 42 U.S.C.
§ 2000e-5(b), (f)(1)(A). In Thompson v. North American
Stainless, LP, the Supreme Court held that the language
“person claiming to be aggrieved” in Title VII is similar to the
APA’s “aggrieved” language and thus incorporates the “zone
of interests” requirement that the Court has found to apply in
the APA context. 131 S. Ct. 863, 870 (2011).
That said, the zone of interests requirement poses a low
bar. A plaintiff with Article III standing satisfies the
requirement unless his “interests are so marginally related to
or inconsistent with the purposes implicit in the statute that it
cannot reasonably be assumed that Congress intended to
permit the suit.” Id. (quoting Clarke v. Securities Industry
Association, 479 U.S. 388, 399 (1987)). As the Supreme
Court has stressed, the zone of interests requirement “is not
meant to be especially demanding.” Match-E-Be-Nash-SheWish Band, 132 S. Ct. at 2210 (quoting Clarke, 479 U.S. at
399).3

3

As this discussion reveals, the term “prudential standing” is
something of a misnomer when discussing the zone of interests
requirement. The zone of interests question focuses on whether
Congress intended to allow certain kinds of plaintiffs to sue under a
particular statute. That is a question of statutory interpretation, not
prudential calculation. And it is also not a standing question, at

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In this case, the individual plaintiffs are employees of the
Library. They claim that they were injured by the Library’s
allegedly retaliatory non-recognition of the Foundation. The
statute at issue here, Title VII, gives injured employees a right
to sue. As employees, the individual plaintiffs’ interests
obviously cannot be deemed “marginally related to or
inconsistent with” the purposes of Title VII. See Thompson,
131 S. Ct. at 870 (allowing Title VII suit by injured employee
over prudential standing objection). The individual plaintiffs
in this case therefore have satisfied the zone of interests
requirement.4 The question, then, is whether plaintiffs have
alleged facts sufficient to constitute a retaliation claim under
Title VII. We turn to that question now.
III
Did plaintiffs’ complaint allege facts sufficient to
constitute a retaliation claim under Title VII? Title VII
provides federal employees the same substantive protections
afforded private-sector employees. See Ponce v. Billington,
679 F.3d 840, 844 (D.C. Cir. 2012). As this Court has said,
“the general provisions of Title VII apply with equal force in
both private and federal-sector cases.” Id.
One provision of Title VII concerns retaliation and makes
it unlawful for an employer to:
discriminate against any of his employees or applicants
for employment . . . because he has opposed any practice
made an unlawful employment practice by this
least not in the Article III sense of whether the plaintiff has suffered
an injury caused by the defendant and redressable by the court.
4
We therefore need not consider whether the Foundation
could satisfy the zone of interests requirement.

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subchapter, or because he has made a charge, testified,
assisted, or participated in any manner in an
investigation, proceeding, or hearing under this
subchapter.
42 U.S.C. § 2000e-3(a). This provision protects employees
who file discrimination charges (or engage in other statutorily
protected activity) from materially adverse retaliation by their
employers. See Burlington Northern & Santa Fe Railway Co.
v. White, 548 U.S. 53 (2006).
Retaliation by an employer is unlawful only if that
retaliation occurred because of actions by “employees or
applicants for employment.” 42 U.S.C. § 2000e-3(a). This
case does not involve applicants for employment. Therefore,
to prove their retaliation claim, plaintiffs must show (1) that
an employee engaged in statutorily protected activity; (2) that
the employee suffered a materially adverse action by the
employee’s employer; and (3) that a causal link connects the
two. See Jones v. Bernanke, 557 F.3d 670, 677 (D.C. Cir.
2009). To survive the Library’s motion to dismiss, plaintiffs’
complaint must “contain sufficient factual matter, accepted as
true,” to plausibly establish those three elements. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
Even accepting the facts recited in their complaint as
true, plaintiffs have failed to allege the first element of a Title
VII retaliation claim: that an employee engaged in statutorily
protected activity. Nowhere does the complaint allege that a
particular Library employee “opposed . . . an unlawful
employment practice” or “made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding,
or hearing.” 42 U.S.C. § 2000e-3(a). The complaint, in other
words, does not allege that a particular employee – such as

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one of the named individual plaintiffs – engaged in one of the
statutorily protected activities and then suffered a materially
adverse action because he or she had engaged in that
statutorily protected activity. Moreover, when seeking a
second chance from the District Court in the form of a Rule
15(a) motion for leave to amend the complaint, plaintiffs still
failed to allege the required facts in their proposed amended
complaint.
To be sure, the complaint does allege that the Foundation
engaged in certain activities that led to retaliation by the
Library. See Complaint at 5, 7, Howard R.L. Cook, No. 1001315 (D.D.C. Aug. 5, 2010). Perhaps such allegations could
have formed the makings of a First Amendment claim by the
Foundation. But plaintiffs advanced a Title VII claim.
Again, Title VII makes discriminatory retaliation by an
employer unlawful only if that retaliation occurred because of
statutorily protected activity by “employees or applicants for
employment.” 42 U.S.C. § 2000e-3(a). The statutory terms
“employees or applicants for employment” do not encompass
the Foundation, an employee organization.
In short, the complaint fails to allege that the Library’s
denial of recognition constituted retaliation for statutorily
protected activity by “employees or applicants for
employment.” Absent such an allegation, the complaint fails
to state a claim under Title VII.
***
We affirm the judgment of the District Court.
So ordered.

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