Smith v. City of Salem

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206 2 Smith v. Salem, Ohio, et al. No. 03-3399

ELECTRONIC CITATION: 2004 FED App. 0160P (6th Cir.)

File Name: 04a0160p.06 _________________

COUNSEL

UNITED STATES COURT OF APPEALS

ARGUED: Randi A. Barnabee, DEBORAH A. SMITH &

FOR THE SIXTH CIRCUIT COMPANY, Northfield, Ohio, for Appellant. Aretta K.

_________________ Bernard, ROETZEL & ANDRESS, Akron, Ohio, for

Appellees. ON BRIEF: Randi A. Barnabee, DEBORAH A.

JIMMIE L. SMITH, X SMITH & COMPANY, Northfield, Ohio, for Appellant.

Plaintiff-Appellant, - Aretta K. Bernard, ROETZEL & ANDRESS, Akron, Ohio,

- for Appellees.

- No. 03-3399

v. - _________________

>

, OPINION

CITY OF SALEM , OHIO , - _________________

THOMAS EASTEK, WALTER -

GREENAMYER , BROOKE - R. GUY COLE, JR., Circuit Judge. Plaintiff-Appellant

ZELLERS, LARRY D. DE JANE, - Jimmie L. Smith appeals from a judgment of the United

JAMES A. ARMENI, JOSEPH - States District Court for the Northern District of Ohio

- dismissing his claims against his employer, Defendant-

JULIAN , and HARRY DUGAN ,

- Appellant City of Salem, Ohio, and various City officials, and

Defendants-Appellees. - granting judgment on the pleadings to Defendants, pursuant

N to Federal Rule of Civil Procedure 12(c). Smith, who

Appeal from the United States District Court considers himself a transsexual and has been diagnosed with

for the Northern District of Ohio at Youngstown. Gender Identity Disorder, alleged that Defendants

No. 02-01405—Peter C. Economus, District Judge. discriminated against him in his employment on the basis of

sex. He asserted claims pursuant to Title VII of the Civil

Argued: March 19, 2004 Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C.

§ 1983. The district court dismissed those claims pursuant to

Decided and Filed: June 1, 2004 Rule 12(c). Smith also asserted state law claims for invasion

of privacy and civil conspiracy; the district court dismissed

Before: COLE and GILMAN, Circuit Judges; those claims as well, having declined to exercise

SCHWARZER, Senior District Judge.* supplemental jurisdiction over them.

For the following reasons, we reverse the judgment of the

district court and remand the case for further proceedings

consistent with this opinion.

*

The Honorable William W Schwarzer, Senior United States District

Judge for the Northern District of Ca lifornia, sitting b y designation.

1

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I. BACKGROUND however, Eastek told Greenamyer about Smith’s behavior and

his GID.

In reviewing a motion for judgment on the pleadings

pursuant to Rule 12(c), we construe the complaint in the light Greenamyer then met with Defendant C. Brooke Zellers,

most favorable to the plaintiff and accept the complaint’s the Law Director for the City of Salem, with the intention of

factual inferences as true. Ziegler v. IBP Hog Market, Inc., using Smith’s transsexualism and its manifestations as a basis

249 F.3d 509, 511-12 (6th Cir. 2001). The following facts are for terminating his employment. On April 18, 2001,

drawn from Smith’s complaint. Greenamyer and Zellers arranged a meeting of the City’s

executive body to discuss Smith and devise a plan for

Smith is – and has been, at all times relevant to this action terminating his employment. The executive body included

– employed by the city of Salem, Ohio, as a lieutenant in the Defendants Larry D. DeJane, Salem’s mayor; James A.

Salem Fire Department (the “Fire Department”). Prior to the Armeni, Salem’s auditor; and Joseph S. Julian, Salem’s

events surrounding this action, Smith worked for the Fire service director. Also present was Salem Safety Director

Department for seven years without any negative incidents. Henry L. Willard, now deceased, who was never a named

Smith – biologically and by birth a male – is a transsexual defendant in this action.

and has been diagnosed with Gender Identity Disorder

(“GID”), which the American Psychiatric Association Although Ohio Revised Code § 121.22(G) – which sets

characterizes as a disjunction between an individual’s sexual forth the state procedures pursuant to which Ohio municipal

organs and sexual identity. AMERICAN PSYCHIATRIC officials may meet to take employment action against a

ASSOCIATION , DIAGNOSTIC AND STATISTICAL MANUAL OF municipal employee – provides that officials “may hold an

MENTAL DISORDERS 576-582 (4th ed. 2000). After being executive session to consider the appointment, employment,

diagnosed with GID, Smith began “expressing a more dismissal, discipline, promotion, demotion, or compensation

feminine appearance on a full-time basis” – including at work of a public employee only after a majority of a quorum of the

– in accordance with international medical protocols for public body determines, by a roll call vote, to hold an

treating GID. Soon thereafter, Smith’s co-workers began executive session and only at a regular or special meeting for

questioning him about his appearance and commenting that the sole purpose of [considering such matters],” the City did

his appearance and mannerisms were not “masculine not abide by these procedures at the April 18, 2001 meeting.

enough.” As a result, Smith notified his immediate

supervisor, Defendant Thomas Eastek, about his GID During the meeting, Greenamyer, DeJane, and Zellers

diagnosis and treatment. He also informed Eastek of the agreed to arrange for the Salem Civil Service Commission to

likelihood that his treatment would eventually include require Smith to undergo three separate psychological

complete physical transformation from male to female. Smith evaluations with physicians of the City’s choosing. They

had approached Eastek in order to answer any questions hoped that Smith would either resign or refuse to comply. If

Eastek might have concerning his appearance and manner and he refused to comply, Defendants reasoned, they could

so that Eastek could address Smith’s co-workers’ comments terminate Smith’s employment on the ground of

and inquiries. Smith specifically asked Eastek, and Eastek insubordination. Willard, who remained silent during the

promised, not to divulge the substance of their conversation meeting, telephoned Smith afterwards to inform him of the

to any of his superiors, particularly to Defendant Walter plan, calling Defendants’ scheme a “witch hunt.”

Greenamyer, Chief of the Fire Department. In short order,

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Two days after the meeting, on April 20, 2001, Smith’s claims and granted judgment on the pleadings to Defendants

counsel telephoned DeJane to advise him of Smith’s legal pursuant to Federal Rule of Civil Procedure 12(c). The

representation and the potential legal ramifications for the district judge also dismissed the state law claims without

City if it followed through on the plan devised by Defendants prejudice, having declined to exercise supplemental

during the April 18 meeting. On April 22, 2001, Smith jurisdiction over them pursuant to 28 U.S.C. § 1367(c)(3).

received his “right to sue” letter from the U.S. Equal

Employment Opportunity Commission (“EEOC”). Four days II. ANALYSIS

after that, on April 26, 2001, Greenamyer suspended Smith

for one twenty-four hour shift, based on his alleged infraction On appeal, Smith contends that the district court erred in

of a City and/or Fire Department policy. holding that: (1) he failed to state a claim of sex stereotyping;

(2) Title VII protection is unavailable to transsexuals;

At a subsequent hearing before the Salem Civil Service (3) even if he had stated a claim of sex stereotyping, he failed

Commission (the “Commission”) regarding his suspension, to demonstrate that he suffered an adverse employment

Smith contended that the suspension was a result of selective action; and (4) he failed to state a claim based on the

enforcement in retaliation for his having obtained legal deprivation of a constitutional or federal statutory right,

representation in response to Defendants’ plan to terminate pursuant to 42 U.S.C. § 1983.

his employment because of his transsexualism and its

manifestations. At the hearing, Smith sought to elicit We review de novo the dismissal of a complaint pursuant

testimony from witnesses regarding the meeting of April 18, to Rule 12(c). Grindstaff v. Green, 133 F.3d 416, 421 (6th

2001, but the City objected and the Commission’s chairman, Cir. 1998). A motion for judgment on the pleadings shall be

Defendant Harry Dugan, refused to allow any testimony granted only where, construing the complaint in the light most

regarding the meeting, despite the fact that Ohio favorable to the plaintiff, and accepting all of its factual

Administrative Code § 124-9-11 permitted Smith to introduce allegations as true, the plaintiff can prove no set of facts in

evidence of disparate treatment and selective enforcement in support of the claims that would entitle him to relief. Id.

his hearing before the Commission. (citation omitted).

The Commission ultimately upheld Smith’s suspension. A. Title VII

Smith appealed to the Columbiana County Court of Common

Pleas, which reversed the suspension, finding that “[b]ecause The parties disagree over two issues pertaining to Smith’s

the regulation [that Smith was alleged to have violated] was Title VII claims: (1) whether Smith properly alleged a claim

not effective[,] [Smith] could not be charged with violation of of sex stereotyping, in violation of the Supreme Court’s

it.” pronouncements in Price Waterhouse v. Hopkins, 490 U.S.

228 (1989); and (2) whether Smith alleged that he suffered an

Smith then filed suit in the federal district court. In his adverse employment action.

complaint, he asserted Title VII claims of sex discrimination

and retaliation, along with claims pursuant to 42 U.S.C. Defendants do not challenge Smith’s complaint with

§ 1983 and state law claims of invasion of privacy and civil respect to any of the other elements necessary to establish

conspiracy. In a Memorandum Opinion and Order dated discrimination and retaliation claims pursuant to Title VII. In

February 26, 2003, the district court dismissed the federal any event, we affirmatively find that Smith has made out a

No. 03-3399 Smith v. Salem, Ohio, et al. 7 8 Smith v. Salem, Ohio, et al. No. 03-3399

prima facie case for both claims. To establish a prima facie is relevant to causation.” Nguyen v. City of Cleveland, 229

case of employment discrimination pursuant to Title VII, a F.3d 559, 563 (6th Cir. 2000); see also Oliver v. Digital

plaintiff must show that: (1) he is a member of a protected Equip. Corp., 846 F.2d 103, 110 (1st Cir. 1988) (employee’s

group; (2) he suffered an adverse employment action; (3) he discharge “soon after” engaging in protected activity “is

was qualified for the position in question; and (4) he was indirect proof of a causal connection between the firing and

treated differently from similarly situated members of the the activity because it is strongly suggestive of retaliation.”);

protected class. Gettings v. Bldg. Laborers Local 310 Fringe Miller v. Fairchild Indus., Inc., 797 F.2d 727, 731 (9th Cir.

Benefits Fund, 349 F.3d 300, 305 (6th Cir. 2003). Smith is a 1986) (“Causation sufficient to establish a prima facie case of

member of a protected class. His complaint asserts that he is unlawful retaliation may be inferred from the proximity in

a male with Gender Identity Disorder, and Title VII’s time between the protected action and the allegedly retaliatory

prohibition of discrimination “because of . . . sex” protects discharge.”). Here, Smith was suspended on April 26, 2001,

men as well as women. Newport News Shipbuilding and Dry just days after he engaged in protected activity by receiving

Dock Co. v. E.E.O.C., 462 U.S. 669, 682 (1983). The his “right to sue” letter from the EEOC, which occurred four

complaint also alleges both that Smith was qualified for the days before the suspension, and by his attorney’s contacting

position in question – he had been a lieutenant in the Fire Mayor DeJane, which occurred six days before the

Department for seven years without any negative incidents – suspension. The temporal proximity between the events is

and that he was treated differently from other males in the significant enough to constitute direct evidence of a causal

department because of his non-masculine behavior and GID. connection for the purpose of satisfying Smith’s burden of

demonstrating a prima facie case.

To establish a prima facie case of retaliation pursuant to

Title VII, a plaintiff must show that: (1) he engaged in an We turn now to examining whether Smith properly alleged

activity protected by Title VII; (2) the defendant knew he a claim of sex stereotyping, in violation of the Supreme

engaged in this protected activity; (3) thereafter, the defendant Court’s pronouncements in Price Waterhouse v. Hopkins, 490

took an employment action adverse to him; and (4) there was U.S. 228 (1989), and whether Smith alleged that he suffered

a causal connection between the protected activity and the an adverse employment action.

adverse employment action. DiCarlo v. Potter, 358 F.3d

408, 420 (6th Cir. 2004) (citation omitted). Smith’s 1. Sex Stereotyping

complaint satisfies the first two requirements by explaining

how he sought legal counsel after learning of the Salem Title VII of the Civil Rights Act of 1964 provides, in

executive body’s April 18, 2001 meeting concerning his relevant part, that “[i]t shall be an unlawful employment

employment; how his attorney contacted Defendant DeJane practice for an employer . . . to discriminate against any

to advise Defendants of Smith’s representation; and how individual with respect to his compensation, terms,

Smith filed a complaint with the EEOC concerning conditions, or privileges of employment because of such

Defendants’ meeting and intended actions. With respect to individual’s race, color, religion, sex, or national origin.”

the fourth requirement, a causal connection between the 42 U.S.C. § 2000e-2(a).

protected activity and the adverse employment action,

“[a]lthough no one factor is dispositive in establishing a In his complaint, Smith asserts Title VII claims of

causal connection, evidence . . . that the adverse action was retaliation and employment discrimination “because of . . .

taken shortly after the plaintiff’s exercise of protected rights sex.” The district court dismissed Smith’s Title VII claims on

No. 03-3399 Smith v. Salem, Ohio, et al. 9 10 Smith v. Salem, Ohio, et al. No. 03-3399

the ground that he failed to state a claim for sex stereotyping criterion; concurring separately to clarify the separate issues

pursuant to Price Waterhouse v. Hopkins, 490 U.S. 228 of causation and allocation of the burden of proof). As Judge

(1989). The district court implied that Smith’s claim was Posner has pointed out, the term “gender” is one “borrowed

disingenuous, stating that he merely “invokes the term-of-art from grammar to designate the sexes as viewed as social

created by Price Waterhouse, that is, ‘sex-stereotyping,’” as rather than biological classes.” RICHARD A. POSNER , SEX

an end run around his “real” claim, which, the district court AND REASON, 24-25 (1992). The Supreme Court made clear

stated, was “based upon his transsexuality.” The district court that in the context of Title VII, discrimination because of

then held that “Title VII does not prohibit discrimination “sex” includes gender discrimination: “In the context of sex

based on an individual’s transsexualism.” stereotyping, an employer who acts on the basis of a belief

that a woman cannot be aggressive, or that she must not be,

Relying on Price Waterhouse – which held that Title VII’s has acted on the basis of gender.” Price Waterhouse, 490

prohibition of discrimination “because of . . . sex” bars gender U.S. at 250. The Court emphasized that “we are beyond the

discrimination, including discrimination based on sex day when an employer could evaluate employees by assuming

stereotypes – Smith contends on appeal that he was a victim or insisting that they matched the stereotype associated with

of discrimination “because of . . . sex” both because of his their group.” Id. at 251.

gender non-conforming conduct and, more generally, because

of his identification as a transsexual. We find both bases of Smith contends that the same theory of sex stereotyping

discrimination actionable pursuant to Title VII. applies here. His complaint sets forth the conduct and

mannerisms which, he alleges, did not conform with his

We first address whether Smith has stated a claim for relief, employers’ and co-workers’ sex stereotypes of how a man

pursuant to Price Waterhouse’s prohibition of sex should look and behave. Smith’s complaint states that, after

stereotyping, based on his gender non-conforming behavior being diagnosed with GID, he began to express a more

and appearance. In Price Waterhouse, the plaintiff, a female feminine appearance and manner on a regular basis, including

senior manager in an accounting firm, was denied partnership at work. The complaint states that his co-workers began

in the firm, in part, because she was considered “macho.” commenting on his appearance and mannerisms as not being

490 U.S. at 235. She was advised that she could improve her masculine enough; and that his supervisors at the Fire

chances for partnership if she were to take “a course at charm Department and other municipal agents knew about this

school,” “walk more femininely, talk more femininely, dress allegedly unmasculine conduct and appearance. The

more femininely, wear make-up, have her hair styled, and complaint then describes a high-level meeting among Smith’s

wear jewelry.” Id. (internal quotation marks omitted). Six supervisors and other municipal officials regarding his

members of the Court agreed that such comments bespoke employment. Defendants allegedly schemed to compel

gender discrimination, holding that Title VII barred not just Smith’s resignation by forcing him to undergo multiple

discrimination because Hopkins was a woman, but also sex psychological evaluations of his gender non-conforming

stereotyping – that is, discrimination because she failed to act behavior. The complaint makes clear that these meetings

like a woman. Id. at 250-51 (plurality opinion of four took place soon after Smith assumed a more feminine

Justices); id. at 258-61 (White, J., concurring); id. at 272-73 appearance and manner and after his conversation about this

(O’Connor, J., concurring) (accepting plurality’s sex with Eastek. In addition, the complaint alleges that Smith

stereotyping analysis and characterizing the “failure to was suspended for twenty-four hours for allegedly violating

conform to [gender] stereotypes” as a discriminatory an unenacted municipal policy, and that the suspension was

No. 03-3399 Smith v. Salem, Ohio, et al. 11 12 Smith v. Salem, Ohio, et al. No. 03-3399

ordered in retaliation for his pursuing legal remedies after he given its traditional definition based on the anatomical

had been informed about Defendants’ plan to intimidate him characteristics dividing “organisms” and “living beings” into

into resigning. In short, Smith claims that the discrimination male and female). In this earlier jurisprudence, male-to-

he experienced was based on his failure to conform to sex female transsexuals (who were the plaintiffs in Ulane,

stereotypes by expressing less masculine, and more feminine Sommers, and Holloway) – as biological males whose

mannerisms and appearance. outward behavior and emotional identity did not conform to

socially-prescribed expectations of masculinity – were denied

Having alleged that his failure to conform to sex Title VII protection by courts because they were considered

stereotypes concerning how a man should look and behave victims of “gender” rather than “sex” discrimination.

was the driving force behind Defendants’ actions, Smith has

sufficiently pleaded claims of sex stereotyping and gender However, the approach in Holloway, Sommers, and Ulane

discrimination. – and by the district court in this case – has been eviscerated

by Price Waterhouse. See Schwenk v. Hartford, 204 F.3d

In so holding, we find that the district court erred in relying 1187, 1201 (9th Cir. 2000) (“The initial judicial approach

on a series of pre-Price Waterhouse cases from other federal taken in cases such as Holloway [and Ulane] has been

appellate courts holding that transsexuals, as a class, are not overruled by the logic and language of Price Waterhouse.”).

entitled to Title VII protection because “Congress had a By holding that Title VII protected a woman who failed to

narrow view of sex in mind” and “never considered nor conform to social expectations concerning how a woman

intended that [Title VII] apply to anything other than the should look and behave, the Supreme Court established that

traditional concept of sex.” Ulane v. Eastern Airlines, Inc., Title VII’s reference to “sex” encompasses both the biological

742 F.2d 1081, 1085, 1086 (7th Cir. 1984); see also Holloway differences between men and women, and gender

v. Arthur Andersen & Co., 566 F.2d 659, 661-63 (9th Cir. discrimination, that is, discrimination based on a failure to

1977) (refusing to extend protection of Title VII to conform to stereotypical gender norms. See Price

transsexuals because discrimination against transsexuals is Waterhouse, 490 U.S. at 251; see also Schwenk, 204 F.3d at

based on “gender” rather than “sex”). It is true that, in the 1202 (stating that Title VII encompasses instances in which

past, federal appellate courts regarded Title VII as barring “the perpetrator’s actions stem from the fact that he believed

discrimination based only on “sex” (referring to an that the victim was a man who ‘failed to act like’ one” and

individual’s anatomical and biological characteristics), but that “sex” under Title VII encompasses both the anatomical

not on “gender” (referring to socially-constructed norms differences between men and women, and gender); Rene v.

associated with a person’s sex). See, e.g., Ulane, 742 F.2d at MGM Grand Hotel, Inc., 305 F.3d 1061, 1068 (9th Cir. 2002)

1084 (construing “sex” in Title VII narrowly to mean only (en banc) (Pregerson, J., concurring) (noting that the Ninth

anatomical sex rather than gender); Sommers v. Budget Circuit had previously found that “same-sex gender

Mktg., Inc., 667 F.2d 748, 750 (8th Cir. 1982) (holding that stereotyping of the sort suffered by Rene – i.e. gender

transsexuals are not protected by Title VII because the “plain stereotyping of a male gay employee by his male co-workers”

meaning” must be ascribed to the term “sex” in the absence constituted actionable harassment under Title VII and

of clear congressional intent to do otherwise); Holloway, 566 concluding that “[t]he repeated testimony that his co-workers

F.2d at 661-63 (refusing to extend protection of Title VII to treated Rene, in a variety of ways, ‘like a woman’ constitutes

transsexuals because discrimination against transsexualism is ample evidence of gender stereotyping”); Bibby v.

based on “gender” rather than “sex;” and “sex” should be Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 262-63

No. 03-3399 Smith v. Salem, Ohio, et al. 13 14 Smith v. Salem, Ohio, et al. No. 03-3399

(3d Cir. 2001) (stating that a plaintiff may be able to prove a stereotypical expectations of masculinity.” (internal citation

claim of sex discrimination by showing that the “harasser’s omitted)); see also Rosa v. Park West Bank & Trust Co., 214

conduct was motivated by a belief that the victim did not F.3d 213 (1st Cir. 2000) (applying Price Waterhouse and

conform to the stereotypes of his or her gender”); Nichols v. Title VII jurisprudence to an Equal Credit Opportunity Act

Azteca Rest. Enters., Inc., 256 F.3d 864, 874-75 (9th Cir. claim and reinstating claim on behalf of biologically male

2001) (holding that harassment “based upon the perception plaintiff who alleged that he was denied an opportunity to

that [the plaintiff] is effeminate” is discrimination because of apply for a loan because was dressed in “traditionally

sex, in violation of Title VII), overruling DeSantis v. Pac. feminine attire”).

Tel. & Tel. Co., Inc., 608 F.2d 327 (9th Cir. 1979); Doe v.

Belleville, 119 F.3d 563, 580-81 (7th Cir. 1997) (holding that Yet some courts have held that this latter form of

“Title VII does not permit an employee to be treated discrimination is of a different and somehow more

adversely because his or her appearance or conduct does not permissible kind. For instance, the man who acts in ways

conform to stereotypical gender roles” and explaining that “a typically associated with women is not described as engaging

man who is harassed because his voice is soft, his physique is in the same activity as a woman who acts in ways typically

slight, his hair long, or because in some other respect he associated with women, but is instead described as engaging

exhibits his masculinity in a way that does not meet his in the different activity of being a transsexual (or in some

coworkers’ idea of how men are to appear and behave, is instances, a homosexual or transvestite). Discrimination

harassed ‘because of his sex’”), vacated and remanded on against the transsexual is then found not to be discrimination

other grounds, 523 U.S. 1001 (1998). “because of . . . sex,” but rather, discrimination against the

plaintiff’s unprotected status or mode of self-identification.

After Price Waterhouse, an employer who discriminates In other words, these courts superimpose classifications such

against women because, for instance, they do not wear dresses as “transsexual” on a plaintiff, and then legitimize

or makeup, is engaging in sex discrimination because the discrimination based on the plaintiff’s gender non-conformity

discrimination would not occur but for the victim’s sex. It by formalizing the non-conformity into an ostensibly

follows that employers who discriminate against men because unprotected classification. See, e.g., Dillon v. Frank, No. 90-

they do wear dresses and makeup, or otherwise act 2290, 1992 WL 5436 (6th Cir. Jan. 15, 1992).

femininely, are also engaging in sex discrimination, because

the discrimination would not occur but for the victim’s sex. Such was the case here: despite the fact that Smith alleges

See, e.g., Nichols, 256 F.3d 864 (Title VII sex discrimination that Defendants’ discrimination was motivated by his

and hostile work environment claim upheld where plaintiff’s appearance and mannerisms, which Defendants felt were

male co-workers and supervisors repeatedly referred to him inappropriate for a male, the district court expressly declined

as “she” and “her” and where co-workers mocked him for to discuss the applicability of Price Waterhouse. The district

walking and carrying his serving tray “like a woman”); court therefore gave insufficient consideration to Smith’s

Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, well-pleaded claims concerning his contra-gender behavior,

261 n.4 (1st Cir. 1999) (“[J]ust as a woman can ground an but rather accounted for that behavior only insofar as it

action on a claim that men discriminated against her because confirmed for the court Smith’s status as a transsexual, which

she did not meet stereotyped expectations of femininity, a the district court held precluded Smith from Title VII

man can ground a claim on evidence that other men protection.

discriminated against him because he did not meet

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Such analyses cannot be reconciled with Price Waterhouse, male and this is the basis for his protected class status under

which does not make Title VII protection against sex Title VII even under this formulation of his claim.

stereotyping conditional or provide any reason to exclude

Title VII coverage for non sex-stereotypical behavior simply Finally, we note that, in its opinion, the district court

because the person is a transsexual. As such, discrimination repeatedly places the term “sex stereotyping” in quotation

against a plaintiff who is a transsexual – and therefore fails to marks and refers to it as a “term of art” used by Smith to

act like and/or identify with the gender norms associated with disingenuously plead discrimination because of

his or her sex – is no different from the discrimination transsexualism. Similarly, Defendants refer to sex

directed against Ann Hopkins in Price Waterhouse, who, in stereotyping as “the Price Waterhouse loophole.”

sex-stereotypical terms, did not act like a woman. Sex (Appellees’ Brief at 6.) These characterizations are almost

stereotyping based on a person’s gender non-conforming identical to the treatment that Price Waterhouse itself gave

behavior is impermissible discrimination, irrespective of the sex stereotyping in its briefs to the U.S. Supreme Court. As

cause of that behavior; a label, such as “transsexual,” is not we do now, the Supreme Court noted the practice with

fatal to a sex discrimination claim where the victim has disfavor, stating:

suffered discrimination because of his or her gender non-

conformity. Accordingly, we hold that Smith has stated a In the specific context of sex stereotyping, an employer

claim for relief pursuant to Title VII’s prohibition of sex who acts on the basis of a belief that a woman cannot be

discrimination. aggressive, or that she must not be, has acted on the basis

of gender. Although the parties do not overtly dispute

Even if Smith had alleged discrimination based only on his this last proposition, the placement by Price Waterhouse

self-identification as a transsexual – as opposed to his specific of “sex stereotyping” in quotation marks throughout its

appearance and behavior – this claim too is actionable brief seems to us an insinuation either that such

pursuant to Title VII. By definition, transsexuals are stereotyping was not present in this case or that it lacks

individuals who fail to conform to stereotypes about how legal relevance. We reject both possibilities.

those assigned a particular sex at birth should act, dress, and

self-identify. Ergo, identification as a transsexual is the Price Waterhouse, 490 U.S. at 250.

statement or admission that one wishes to be the opposite sex

or does not relate to one’s birth sex. Such an admission – for 2. Adverse Employment Action

instance the admission by a man that he self-identifies as a

woman and/or that he wishes to be a woman – itself violates Despite having dismissed Smith’s Title VII claim for

the prevalent sex stereotype that a man should perceive failure to state a claim of sex stereotyping – a finding we have

himself as a man. Discrimination based on transsexualism is just rejected – the district court nevertheless addressed the

rooted in the insistence that sex (organs) and gender (social merits of Smith’s Title VII claims arguendo. Relying on

classification of a person as belonging to one sex or the other) White v. Burlington Northern & Sante Fe Ry. Co., 310 F.3d

coincide. This is the very essence of sex stereotyping. 443 (6th Cir. 2002), the district court held that Smith’s

Accordingly, to the extent that Smith also alleges suspension was not an adverse employment action because

discrimination based solely on his identification as a the Court of Common Pleas, rendering the “ultimate

transsexual, he has alleged a claim of sex stereotyping employment decision,” reversed the suspension, and that

pursuant to Title VII. As noted above, Smith’s birth sex is accordingly, Smith’s Title VII claim could not lie. Because

No. 03-3399 Smith v. Salem, Ohio, et al. 17 18 Smith v. Salem, Ohio, et al. No. 03-3399

this Circuit has since vacated and overruled White, 364 F.3d It is irrelevant that Smith’s suspension was ultimately

789 (6th Cir. 2004) (en banc), and joined the majority of other reversed by the Court of Common Pleas after he challenged

circuits in rejecting the “ultimate employment decision” the suspension’s legality. In White, this Court recently joined

standard, we hold that the district court erred in its analysis the majority of other circuits in rejecting the “ultimate

and that Smith has successfully pleaded an adverse employment decision” standard whereby a negative

employment action in support of his employment employment action is not considered an “adverse employment

discrimination and retaliation claims pursuant to Title VII. action” for Title VII purposes when the decision is

subsequently reversed by the employer, putting the plaintiff

Common to both the employment discrimination and in the position he would have been in absent the negative

retaliation claims is a showing of an adverse employment action. White, 364 F.3d 789 (holding that the suspension of

action, which is defined as a “materially adverse change in the a railroad employee without pay, followed thirty-seven days

terms and conditions of [plaintiff’s] employment.” Hollins v. later by reinstatement with back pay, was an “adverse

Atlantic Co., 188 F.3d 652, 662 (6th Cir. 1999). A “bruised employment action” for Title VII purposes). Even if the

ego,” a “mere inconvenience or an alteration of job “ultimate employment decision” standard were still viable,

responsibilities” is not enough to constitute an adverse the district court erred in concluding that, because the Court

employment action. White, 364 F.3d at 797 (quoting Kocsis of Common Pleas overturned the suspension, it was not an

v. Multi-Care Mgmt. Inc., 97 F.3d 876, 886 (6th Cir. 1996)). adverse employment action. There is no legal authority for

Examples of adverse employment actions include firing, the proposition that reversal by a judicial body – as opposed

failing to promote, reassignment with significantly different to the employer – declassifies a suspension as an adverse

responsibilities, a material loss of benefits, suspensions, and employment action.

other indices unique to a particular situation. Burlington

Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998); White, 364 Accordingly, Smith has stated an adverse employment

F.3d at 798. Here, the Fire Department suspended Smith for action and, therefore, satisfied all of the elements necessary

twenty-four hours. Because Smith works in twenty-four hour to allege a prima facie case of employment discrimination

shifts, that twenty-four hour suspension was the equivalent of and retaliation pursuant to Title VII. We therefore reverse the

three eight-hour days for the average worker, or, district court’s grant of judgment on the pleadings to

approximately 60% of a forty-hour work week. Pursuant to Defendants with respect to those claims.

the liberal notice pleading requirements set forth in Fed. R.

Civ. P. 8, this allegation, at this phase of the litigatoin, is B. 42 U.S.C. § 1983 Claims

sufficient to satisfy the adverse employment requirement of

both an employment discrimination and retaliation claim The district court also dismissed Smith’s claims pursuant

pursuant to Title VII.1 to 42 U.S.C. § 1983 on the ground that he failed to state a

1

Smith’s com plaint does not state whether he was suspended with or always the case, and “other indices that might be unique to a particular

without pay. Because we must construe the complaint in the light most situation” can constitute a “materially adverse change” as well.

favorable to the plaintiff, Ziegler, 249 F.3d at 512, and given the liberal Hollins,188 F.3d at 662 . Because no discovery has b een cond ucted yet,

pleading standard s of Federal Rule of Civil Procedure 8, we do not find we do not kno w the full contours of the suspension. For now, however,

this failure dispositive. A “materially adverse change” in employment for the reasons just stated, we find that Smith has sufficiently alleged an

conditions often involves a ma terial loss of pay or benefits, but that is not adverse employment action.

No. 03-3399 Smith v. Salem, Ohio, et al. 19 20 Smith v. Salem, Ohio, et al. No. 03-3399

claim based on the deprivation of a constitutional or federal Defendants urge us to hold otherwise, on the ground that

statutory right. Smith’s complaint fails to refer specifically to the Equal

Protection Clause of the U.S. Constitution. But the Federal

42 U.S.C. § 1983 provides a civil cause of action for Rules of Civil Procedure provide for a liberal system of notice

individuals who are deprived of any rights, privileges, or pleading. Fed. R. Civ. P. 8(a). A plaintiff need only provide

immunities secured by the Constitution or federal laws by “a short and plain statement of the claim showing that the

those acting under color of state law. Smith has stated a pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Such

claim for relief pursuant to § 1983 in connection with his sex- a statement must simply ‘give the defendant fair notice of

based claim of employment discrimination. Individuals have what the plaintiff’s claim is and the grounds upon which it

a right, protected by the Equal Protection clause of the rests.’” Swierkiewicz v. Soremna N.A., 534 U.S. 506, 512

Fourteenth Amendment, to be free from discrimination on the (2002) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

basis of sex in public employment. Davis v. Passman, 442 Claims made pursuant to 42 U.S.C. § 1983 are not subject to

U.S. 228, 234-35 (1979). To make out such a claim, a heightened pleading standards. Leatherman v. Tarrant

plaintiff must prove that he suffered purposeful or intentional County Narcotics Intelligence and Coordination Unit, 507

discrimination on the basis of gender. Vill. of Arlington U.S. 163, 165-66 (1993) (rejecting heightened pleading

Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-65 standard for § 1983 claims); Jones v. Duncan, 840 F.2d 359

(1977). As this Court has noted several times, “the showing (6th Cir. 1988) (holding that § 1983 claims need not set forth

a plaintiff must make to recover on a disparate treatment in detail all the particularities of a plaintiff’s claim against a

claim under Title VII mirrors that which must be made to defendant). Moreover, legal theories of recovery need not be

recover on an equal protection claim under section § 1983.” spelled out as long as the relevant issues are sufficiently

Gutzwiller v. Fenik, 860 F.2d 1317, 1325 (6th Cir. 1988) implicated in the pleadings; in considering motions pursuant

(citing Kitchen v. Chippewa Valley Schs., 825 F.2d 1004, to Fed. R. Civ. P. 12(c), we ask not whether a complaint

1011 (6th Cir. 1987); Daniels v. Bd. of Educ., 805 F.2d 203, points to a specific statute, but whether relief is possible

207 (6th Cir. 1986); Grano v. Dep’t of Dev., 637 F.2d 1073, under any set of facts that could be established consistent with

1081-82 (6th Cir. 1980); Lautermilch v. Findlay City Schs., the allegation. Because Smith’s sex discrimination claim so

314 F.3d 271, 275 (6th Cir. 2003) (“To prove a violation of thoroughly and obviously sounds in a constitutional claim of

the equal protection clause under § 1983, [a plaintiff] must equal protection, Defendants had fair notice of his claim and

prove the same elements as are required to establish a the ground upon which it rests. As such, we hold that Smith

disparate treatment claim under Title VII.”) (quotation and has satisfied the liberal notice pleading requirements set forth

citation omitted). The facts Smith has alleged to support his in Fed. R. Civ. P. 8 with respect to his claim of sex

claims of gender discrimination pursuant to Title VII easily discrimination, grounded in an alleged equal protection

constitute a claim of sex discrimination grounded in the Equal violation, and we therefore reverse the district court’s grant of

Protection Clause of the Constitution, pursuant to § 1983. judgment on the pleadings dismissing Smith’s § 1983 claim.

See Back v. Hastings on Hudson Union Free Sch. Dist., —

F.3d —, No. 03-7058, 2004 WL 739846, at * 5-7 (2d Cir. In his appellate brief, Smith also contends that his

Apr. 7, 2004) (holding that claims premised on Price complaint alleges a violation of his constitutional right to due

Waterhouse sex stereotyping theory sufficiently constitute process, based on the City’s failure to comply with the state

claim of sex discrimination pursuant to § 1983). statutory and administrative procedures that an Ohio

municipality must follow when taking official employment

No. 03-3399 Smith v. Salem, Ohio, et al. 21 22 Smith v. Salem, Ohio, et al. No. 03-3399

action against a public employee. His complaint outlines the REMANDED to the district court for further proceedings

statutory procedures, governed by O.R.C. § 121.22(G), consistent with this opinion.

pursuant to which members of an Ohio municipality may

meet for purposes of taking official employment action

against a public employee, and it alleges that those procedures

were not followed. The complaint also discusses O.A.C.

§ 124-9-11, which would have permitted Smith to call

witnesses at his post-suspension hearing in front of the Salem

Civil Service Commission; and the complaint alleges that he

was barred from calling witnesses. Smith contends that these

allegations implicate his right to due process pursuant to the

Fourteenth Amendment of the U.S. Constitution.

However, it is well-settled that state law does not ordinarily

define the parameters of due process for Fourteenth

Amendment purposes, and that state law, by itself, cannot be

the basis for a federal constitutional violation. See Purisch v.

Tennessee Technological Univ., 76 F.3d 1414, 1423 (6th Cir.

1996) (“Violation of a state’s formal [employment grievance]

procedure . . . does not in itself implicate constitutional due

process concerns.”). Neither Smith’s complaint nor his brief

specifies what deprivation of property or liberty allegedly

stemmed from the City’s failure to comply with state

procedural and administrative rules concerning his

employment. Accordingly, he has failed to state a federal due

process violation pursuant to § 1983.

In sum, we hold that Smith has failed to state a § 1983

claim based on violations of his right to due process.

However, he has stated a § 1983 claim of sex discrimination,

grounded in an alleged equal protection violation, and, for

that reason, we reverse the district court’s grant of judgment

on the pleadings dismissing Smith’s § 1983 claim.

III. CONCLUSION

Because Smith has successfully stated claims for relief

pursuant to both Title VII and 42 U.S.C. § 1983, the judgment

of the district court is REVERSED and this case is