Vickers v. Fairfield Medical

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0252p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellant, -

CHRISTOPHER VICKERS,

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No. 04-3776

v.

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FAIRFIELD MEDICAL CENTER, STEVE ANDERSON, -

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KORY J. DIXON, JOHN MUELLER, and “JANE DOE”

Defendants-Appellees. -

DIXON,

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Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 03-00858—Gregory L. Frost, District Judge.

Argued: June 8, 2005

Decided and Filed: July 19, 2006

Before: SILER and GIBBONS, Circuit Judges; LAWSON, District Judge.*

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COUNSEL

ARGUED: Randi A. Barnabee, SMITHBARNABEE & CO., LPA, Bedford, Ohio, for Appellant.

William R. Case, THOMPSON HINE, Columbus, Ohio, Lois A. Gruhin, ZASHIN & RICH,

Columbus, Ohio, for Appellees. ON BRIEF: Randi A. Barnabee, SMITHBARNABEE & CO.,

LPA, Bedford, Ohio, for Appellant. William R. Case, THOMPSON HINE, Columbus, Ohio, Lois

A. Gruhin, ZASHIN & RICH, Columbus, Ohio, Helena Oroz, Stephen S. Zashin, ZASHIN & RICH,

Cleveland, Ohio, for Appellees.

GIBBONS, J., delivered the opinion of the court, in which SILER, J., joined. LAWSON,

D. J. (pp. 9-12), delivered a separate dissenting opinion.

*

The Honorable David M. Lawson, United States District Judge for the Eastern District of Michigan, sitting

by designation.

1

No. 04-3776 Vickers v. Fairfield Medical Center, et al. Page 2

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OPINION

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JULIA SMITH GIBBONS, Circuit Judge. Christopher Vickers brought a claim against

Fairfield Medical Center (FMC), three co-workers, and a co-worker’s spouse alleging sex

discrimination, sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e et seq., conspiracy to violate Vickers’ equal protection rights in violation

of 42 U.S.C. § 1985(3), failure to prevent the conspiracy in violation of 42 U.S.C. § 1986, and

twenty-one state law claims. The district court granted defendants’ motion for judgment on the

pleadings pursuant to Federal Rule of Civil Procedure 12(c), finding that Vickers could not prevail

on any of his federal claims as a matter of law. The district court declined to exercise supplemental

jurisdiction over the state law claims. Vickers now appeals.

For the following reasons, we affirm the decision of the district court.

I.

Vickers was employed as a private police officer by Fairfield Medical Center in Lancaster,

Ohio. Kory Dixon and John Mueller were also police officers at FMC and often worked with

Vickers. Steve Anderson was Police Chief of FMC’s police department and was Vickers’

supervisor.

Vickers’ seventy-one page complaint is extremely detailed. It gives a virtually day-by-day

account of Vickers’ allegations of harassment. According to the complaint, Vickers befriended a

male homosexual doctor at FMC and assisted him in an investigation regarding sexual misconduct

that had allegedly occurred against the doctor. Once his co-workers found out about the friendship,

Vickers contends that Dixon and Mueller “began making sexually based slurs and discriminating

remarks and comments about Vickers, alleging that Vickers was ‘gay’ or homosexual, and

questioning his masculinity.” Vickers asserts that following a vacation in April 2002 to Florida with

a male friend, Dixon’s and Mueller’s harassing comments and behavior increased. Vickers asserts

that Anderson witnessed the harassing behavior but took no action to stop it and frequently joined

in the harassment. Vickers asserts that he has never discussed his sexuality with any of his co-

workers.

Vickers contends that he was subject to daily instances of harassment at the hands of his co-

workers from May 2002 through March 2003. The allegations of harassment include impressing

the word “FAG” on the second page of Vickers’ report forms, frequent derogatory comments

regarding Vickers’ sexual preferences and activities, frequently calling Vickers a “fag,” “gay,” and

other derogatory names, playing tape-recorded conversations in the office during which Vickers was

ridiculed for being homosexual, subjecting Vickers to vulgar gestures, placing irritants and

chemicals in Vickers’ food and other personal property, using the nickname “Kiss” for Vickers, and

making lewd remarks suggesting that Vickers provide them with sexual favors.

Vickers also asserts that on several occasions, he was physically harassed by his co-workers.

According to his complaint, on October 20, 2002, Vickers and Mueller were conducting handcuff

training. Dixon handcuffed Vickers and then simulated sex with Vickers while Anderson

photographed this incident. Vickers downloaded the digital picture and placed it in his mailbox,

intending to take it home later, but it was removed from his mailbox. Vickers contends that a few

days later, Dixon’s wife, a nurse at Grant Medical Center, faxed the picture to FMC’s Registration

Center, where several people saw it. Vickers further contends that the picture was hanging up in a

window at FMC on January 15, 2003, where FMC officers, staff and visitors could see it. On other

occasions, Vickers’ co-workers repeatedly touched his crotch with a tape measure, grabbed Vickers’

No. 04-3776 Vickers v. Fairfield Medical Center, et al. Page 3

chest while making derogatory comments, tried to shove a sanitary napkin in Vickers’ face, and

simulated sex with a stuffed animal and then tried to push the stuffed animal into Vickers’ crotch.

Vickers considered reporting the harassment he was experiencing to FMC’s Vice-President

or President but asserts that Anderson confronted Vickers before he reported the harassment, telling

him that reporting the harassment would be futile, as it would not change the work environment.

Vickers spoke with Anderson, Dixon, and Mueller several other times about the harassment, but no

action appears to have been taken. In April 2003, Vickers retained a lawyer to aid him in dealing

with the harassment he was experiencing on the job. Vickers’ attorney met with FMC

representatives, at which time the representatives stated that they would begin investigating Vickers’

complaints immediately. In connection with the investigation, Vickers asserts that Anderson, Dixon

and Mueller, among others, were interviewed.

FMC’s counsel informed Vickers’ attorney at the conclusion of the interview that FMC did

not believe that Vickers had a “legally actionable claim” against them. Shortly thereafter, Vickers

met with the human resources department at FMC, where he learned that Anderson, Dixon and

Mueller had been suspended for staggered periods as a result of FMC’s investigation into Vickers’

complaints. Vickers was told that human resources would attempt to rearrange Vickers’ schedule

in order to minimize his contact with Anderson, Mueller, and Dixon. Vickers was also informed

during this meeting that the investigation had revealed actionable misconduct by Vickers, but that

human resources had elected not to pursue any action against him in light of the harassment Vickers

had experienced. Vickers claims that human resources refused to provide specific information

regarding Vickers’ alleged misconduct despite his request.

Vickers asserts that, contrary to the statements of human resources regarding a schedule shift,

he continued to work closely with Anderson, Dixon and Mueller. Vickers contends that Dixon and

Mueller were openly hostile toward him during this time period. Despite human resources’

instructions to all involved parties to keep Vickers’ complaint confidential, word of the situation

spread. Vickers met with human resources again and was assured that appropriate action would be

taken. A few days later, Anderson informed Vickers that his request to transfer shifts had been

denied. Soon thereafter, Anderson informed Vickers that he was required to meet with the human

resources department. Vickers was told by a co-worker that the meeting was for the purpose of

initiating a personnel action against him “in order to discredit him” if he filed a lawsuit against

FMC. Vickers attempted to discern from human resources whether the meeting was for disciplinary

purposes. He was told that it was in fact a disciplinary meeting and that he was informed that he was

not allowed to have an attorney present at the meeting. Vickers spoke with his attorney and

thereafter decided to resign from his position at FMC.

Vickers filed a charge of discrimination with the Equal Employment Opportunity

Commission (“EEOC”) on June 19, 2003, and the EEOC issued a right to sue letter on July 8, 2003.

Vickers filed the instant action against FMC, Anderson, Dixon, Mueller, and “Jane Doe” Dixon

(Dixon’s wife) on or about September 19, 2003 in the United States District Court for the Southern

District of Ohio. The complaint alleged sex discrimination, sexual harassment, and retaliation in

violation of Title VII, 42 U.S.C. § 2000e et seq., conspiracy to violate Vickers’ equal protection

rights in violation of 42 U.S.C. § 1985(3), failure to prevent the conspiracy in violation of 42 U.S.C.

§ 1986, and twenty-one state law claims.

All defendants-appellees filed a joint motion for judgment on the pleadings pursuant to

Federal Rule of Civil Procedure 12(c) on or about January 21, 2004. On May 5, 2004, the district

court granted defendants-appellees’ motion on the federal claims pursuant to Federal Rule of Civil

Procedure 12(c) and declined to exercise supplemental jurisdiction over Vickers’ state law claims.

The district court granted the motion based on the fact that Title VII does not protect individuals

from discrimination based on sexual orientation and that Supreme Court and Sixth Circuit case law

No. 04-3776 Vickers v. Fairfield Medical Center, et al. Page 4

do not recognize Vickers’ claims of harassment based on being perceived as homosexual as

violations of Title VII. Vickers filed a timely notice of appeal.1

II.

We review the district court’s dismissal of a complaint pursuant to Rule 12(c) de novo.

Smith v. City of Salem, 378 F.3d 566, 570 (6th Cir. 2004). The manner of review under Rule 12(c)

is the same as a review under Rule 12(b)(6); we must “construe the complaint in the light most

favorable to the plaintiff, accept all of the complaint’s factual allegations as true, and determine

whether the plaintiff undoubtedly can prove no set of facts in support of the claims that would entitle

relief.” Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998).

Vickers argues on appeal that the district court erred in finding that he cannot prevail on his

Title VII claims as a matter of law. Vickers contends that while some of the facts alleged in the

complaint establish, as the district court found, that the discrimination Vickers experienced was

motivated by Vickers’ perceived homosexuality, more of the facts suggest that Vickers’ harassers

were motivated by Vickers’ gender non-conformity. As a result, Vickers argues, his claim is

covered under the sex stereotyping theory of liability embraced by the Supreme Court in Price

Waterhouse v. Hopkins, 490 U.S. 228 (1989). Vickers also argues that this circuit’s opinion in Smith

v. City of Salem, 378 F.3d at 566, an opinion released after the district court granted defendants-

appellees’ motion in the current case, sufficiently changes this circuit’s view of same-sex harassment

such that his claim is now viable.

The district court found that Vickers’ allegations, if proven, could not support a finding that

the harassment and discrimination he endured occurred because he was male, and thus his claim

failed as a matter of law. The district court found that Vickers claim could not fit within the sex

stereotyping theory of liability under Price Waterhouse, 490 U.S. at 228. The district court noted

that Vickers had not alleged that the harassers were motivated by sexual desire for Vickers or by

general hostility for men in the workplace, nor was any information presented regarding how

females were treated in comparison at FMC. Although the district court expressed sympathy for

Vickers’ situation, the district court found that Vickers pled no harassment or discrimination claim

under Title VII.

Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against

an individual “with respect to his compensation, terms, conditions, or privileges of employment,

because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-

2(a)(1). As is evident from the above-quoted language, sexual orientation is not a prohibited basis

for discriminatory acts under Title VII. However, the Supreme Court has held that same-sex

harassment is actionable under Title VII under certain circumstances. See Oncale v. Sundowner

Offshore Servs., Inc., 523 U.S. 75, 82 (1998); see also Rene v. MGM Grand Hotel, Inc., 305 F.3d

1061, 1063 (9th Cir. 2002) (en banc) (“[S]exual orientation is irrelevant for purposes of Title VII.

It neither provides nor precludes a cause of action for sexual harassment.”). Likewise, individuals

who are perceived as or who identify as homosexuals are not barred from bringing a claim for sex

discrimination under Title VII. See Smith, 378 F.3d at 574-75.

In order to establish a prima facie case of sex discrimination under Title VII, a plaintiff must

show (1) that he is a member of a protected class, (2) that he was subject to an adverse employment

decision, (3) that he was qualified for the position, and (4) that he was treated differently than a

1

Although Vickers claims in his brief to be appealing the district court’s decision on all of his federal claims,

he fails to make any argument regarding his Title VII retaliation claim and his claims under 42 U.S.C. §§ 1985(3) and

1986. These claims are therefore waived. See Robinson v. Jones, 142 F.3d 905, 906 (6th Cir. 1998) (issues raised before

district court but not raised on appeal are deemed abandoned and are not reviewable on appeal).

No. 04-3776 Vickers v. Fairfield Medical Center, et al. Page 5

similarly situated individual outside the protected class. Humenny v. Genex Corp., 390 F.3d 901,

906 (6th Cir. 2004). In order to bring a hostile work environment sexual harassment claim, a

plaintiff must show the following: (1) the employee was a member of a protected class; (2) the

employee was subject to unwelcome sexual harassment; (3) the harassment complained of was based

on sex; (4) the charged sexual harassment created a hostile work environment; and (5) the existence

of employer liability. Clark v. United Parcel Serv., Inc., 400 F.3d 341, 347 (6th Cir. 2005). Vickers

relies on the theory of sex stereotyping adopted by the Supreme Court in Price Waterhouse, 490

U.S. at 228, to support both his sex discrimination and sexual harassment claims. In Price

Waterhouse, the plaintiff, a senior manager in an accounting firm, was passed over for partnership

in part because she was too “‘macho’” and “‘overcompensated for being a woman.’” Id. at 235.

The plaintiff was told that in order to improve her chances for partnership, she should “‘walk more

femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and

wear jewelry.’” Id. The Supreme Court held that making employment decisions based on sex

stereotyping, i.e., the degree to which an individual conforms to traditional notions of what is

appropriate for one’s gender, is actionable discrimination under Title VII. See id. at 250 (“In the

specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman

cannot be aggressive, or that she must not be, has acted on the basis of gender.”).

Vickers contends that this theory of sex stereotyping supports his claim, and thus, the district

court should be reversed. Vickers argues in his brief that he was discriminated against because his

harassers objected to “those aspects of homosexual behavior in which a male participant assumes

what Appellees perceive as a traditionally female–or less masculine–role.”2 In other words, Vickers

contends that in the eyes of his co-workers, his sexual practices, whether real or perceived, did not

conform to the traditionally masculine role. Rather, in his supposed sexual practices, he behaved

more like a woman.

We conclude that the theory of sex stereotyping under Price Waterhouse is not broad enough

to encompass such a theory. The Supreme Court in Price Waterhouse focused principally on

characteristics that were readily demonstrable in the workplace, such as the plaintiff’s manner of

walking and talking at work, as well as her work attire and her hairstyle. See id. at 235. Later cases

applying Price Waterhouse have interpreted it as applying where gender non-conformance is

demonstrable through the plaintiff’s appearance or behavior. See, e.g., Dawson v. Bumble &

Bumble, 398 F.3d 211, 218 (2d Cir. 2005) (stating that an individual may have a viable Title VII

discrimination claim where the employer acted out of animus toward his or her “exhibition of

behavior considered to be stereotypically inappropriate for their gender”) (emphasis added); id. at

221 (“Generally speaking, one can fail to conform to gender stereotypes in two ways: (1) through

behavior or (2) through appearance.”); Smith, 378 F.3d at 573 (Price Waterhouse was concerned

with protecting women “who failed to conform to social expectations concerning how a woman

should look and behave”); Jespersen v. Harrah’s Operating Co., 392 F.3d 1076, 1082 (9th Cir.

2004); Weinstock v. Columbia Univ., 224 F.3d 33, 57 (2d Cir. 2000). By contrast, the gender non-

conforming behavior which Vickers claims supports his theory of sex stereotyping is not behavior

observed at work or affecting his job performance. Vickers has made no argument that his

appearance or mannerisms on the job were perceived as gender non-conforming in some way and

provided the basis for the harassment he experienced. Rather, the harassment of which Vickers

complains is more properly viewed as harassment based on Vickers’ perceived homosexuality,

rather than based on gender non-conformity.

In considering Vickers’ sex stereotyping argument, the Second Circuit’s recent opinion in

Dawson v. Bumble & Bumble, 398 F.3d at 211, is instructive. In Dawson, a female former employee

2

In support of this theory, Vickers notes that he was only teased about giving, not receiving fellatio, and about

receiving anal sex.

No. 04-3776 Vickers v. Fairfield Medical Center, et al. Page 6

of a hair salon and self-described lesbian attempted to bring a sex discrimination claim against her

employer after she was terminated based on alleged gender stereotyping. Id. at 218. The plaintiff

in that case complained that the discrimination she suffered was based on her non-conforming

appearance. Id. at 221. The Second Circuit noted the faulty logic in viewing what is, in reality, a

claim of discrimination based on sexual orientation as a claim of sex stereotyping:

When utilized by an avowedly homosexual plaintiff, . . . gender stereotyping claims

can easily present problems for an adjudicator. This is for the simple reason that

stereotypical notions about how men and women should behave will often

necessarily blur into ideas about heterosexuality and homosexuality. Like other

courts, we have therefore recognized that a gender stereotyping claim should not be

used to bootstrap protection for sexual orientation into Title VII.

Id. at 218 (internal quotation marks, citations, and alteration omitted). Although Vickers has

declined to reveal whether or not he is, in fact, homosexual, the claim he presents displays precisely

the kind of bootstrapping that the Dawson court warned against.

This court’s opinion in Smith v. City of Salem, 378 F.3d at 566, does not alter this conclusion.

The plaintiff in Smith, a lieutenant in the Salem Fire Department, was a transsexual undergoing a

physical transformation from male to female. Id. at 568. The treatment resulted in a display of “‘a

more feminine appearance on a full-time basis.’” Id. The plaintiff was suspended based, at least

in part, on co-workers’ expressed concerns that “his appearance and mannerisms were not

‘masculine enough.’” Id. In Smith, the court made explicit that a plaintiff cannot be denied

coverage under Title VII for sex discrimination merely based on a classification with a group that

is not entitled to coverage. See id. at 575 (“Sex stereotyping based on a person’s gender non-

conforming behavior is impermissible discrimination, irrespective of the cause of that behavior; a

label, such as ‘transsexual,’ is not fatal to a sex discrimination claim where the victim has suffered

discrimination because of his or her gender non-conformity.”). The point is well-taken; we do not

suggest that Vickers’ claim fails merely because he has been classified by his co-workers and

supervisor, rightly or wrongly, as a homosexual. Rather, his claim fails because Vickers has failed

to allege that he did not conform to traditional gender stereotypes in any observable way at work.

Thus, he does not allege a claim of sex stereotyping. The Smith opinion does nothing to lessen the

requirement that a plaintiff hoping to succeed on a claim of sex stereotyping show that he “fails to

act and/or identify with his or her gender.” Id. See also Barnes v. City of Cincinnati, 401 F.3d 729,

738 (6th Cir. 2005) (affirming district court’s denial of defendant’s motion for judgment as a matter

of law on discrimination claim where pre-operative male-to-female transsexual was demoted based

on his “ambiguous sexuality and his practice of dressing as a woman” and his co-workers’ assertions

that he was “not sufficiently masculine”).

Ultimately, recognition of Vickers’ claim would have the effect of de facto amending Title

VII to encompass sexual orientation as a prohibited basis for discrimination. In all likelihood, any

discrimination based on sexual orientation would be actionable under a sex stereotyping theory if

this claim is allowed to stand, as all homosexuals, by definition, fail to conform to traditional gender

norms in their sexual practices. Indeed, this may be Vickers’ intent; he argues in his brief that the

unique nature of homosexuality entitles it to protection under Title VII sex discrimination law.

Further, at oral argument, Vickers argued that the act of identification with a particular group, in

itself, is sufficiently gender non-conforming such that an employee who so identifies would, by this

very identification, engage in conduct that would enable him to assert a successful sex stereotyping

claim. In making this argument, Vickers relies on a paragraph in Smith, 369 F.3d 912, 921-22 (6th

Cir. 2004). Unfortunately for Vickers, the paragraph he relied on in making this argument was

voluntarily removed by the panel and the opinion was subsequently reissued without this language.

378 F.3d at 566. The decision to omit the language from the Smith opinion strongly indicates that

the law simply does not embrace his claim. While the harassment alleged by Vickers reflects

No. 04-3776 Vickers v. Fairfield Medical Center, et al. Page 7

conduct that is socially unacceptable and repugnant to workplace standards of proper treatment and

civility, Vickers claim does not fit within the prohibitions of the law. See Bibby v. Phila. Coca-Cola

Bottling Co., 260 F.3d 257, 265 (3d Cir. 2001) (“Harassment on the basis of sexual orientation has

no place in our society. Congress has not yet seen fit, however, to provide protection against such

harassment.”) (internal citations omitted).

Nor does the prevailing case law on same-sex sexual harassment provide an avenue for

Vickers’ claim. As noted above, the Supreme Court has stated that Title VII covers hostile work

environment claims based on same-sex harassment. Oncale, 523 U.S. at 79. However, an individual

does not make out a claim of sexual harassment “merely because the words used have sexual content

or connotations.” Id. at 80. Rather, “[t]he critical issue, Title VII’s text indicates, is whether

members of one sex are exposed to disadvantageous terms or conditions of employment to which

members of the other sex are not exposed.” Id. (internal citation and quotation marks omitted). The

Oncale court provided three ways a male plaintiff could establish a hostile work environment claim

based on same-sex harassment: (1) where the harasser making sexual advances is acting out of

sexual desire; (2) where the harasser is motivated by general hostility to the presence of men in the

workplace; and (3) where the plaintiff offers “direct comparative evidence about how the alleged

harasser treated members of both sexes in a mixed-sex workplace.” Id. at 80-81; see King v. Super

Serv., Inc., 68 Fed. Appx. 659, 663 (6th Cir. 2003).

Nothing in Vickers’ complaint indicates that his harassers acted out of sexual desire.

Similarly, the complaint does not support an inference that there was general hostility toward men

in the workplace. Finally, Vickers included no information regarding how women were treated in

comparison to men at FMC. In fact, defendants-appellees maintain that Vickers worked in an all-

male workforce, an assertion that Vickers has apparently not disputed.

The Sixth Circuit has previously rejected hostile work environment claims brought by

plaintiffs in very similar factual scenarios in one published and two unpublished cases. See EEOC

v. Harbert-Yeargin, Inc., 266 F.3d 498, 519-23 (6th Cir. 2001) (hostile work environment claim

rejected where plaintiff experienced frequent inappropriate touching because though harassment was

sexual in nature, it could not be said to be “because of . . . sex” as required by Title VII); King, 68

Fed Appx. at 664 (rejecting hostile work environment claim where plaintiff was subject to verbal

and physical abuse insinuating that plaintiff was a homosexual because his claim did not fit into the

three examples given in Oncale of same sex harassment); Dillon v. Frank, No. 90-2290, 1992 WL

5436, at * 7 (6th Cir. Jan 15, 1992) (rejecting plaintiff’s claim where plaintiff suffered severe verbal

harassment and physical assault based on co-workers’ belief that plaintiff was a homosexual,

because the plaintiff failed to allege that “harassment was directed at [him] for a statutorily

impermissible reason”). Other circuits have also failed to recognize hostile work environment

claims in similar factual situations because the plaintiff could not show that the harassment occurred

because of sex. See e.g., Bibby, 260 F.3d at 264 (hostile work environment claim fails where

plaintiff was subjected to vulgar statements regarding his sexual orientation and practices

accompanied by physical assault and graffiti because the plaintiff “[h]is claim was, pure and simple,

that he was discriminated against because of his sexual orientation.”); Spearman v. Ford Motor Co.,

231 F.3d 1080, 1085 (7th Cir. 2000) (male employee who endured threatening and hostile

statements, taunting, and graffiti did not establish hostile work environment claim because his co-

workers “maligned him because of his apparent homosexuality, and not because of his sex”); see

id. at 1086 (“Title VII is not a ‘general civility code’ for the workplace; it does not prohibit

harassment in general or of one’s homosexuality in particular.”) (quoting Oncale, 523 U.S. at 81);

Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 258 (1st Cir. 1999) (rejecting hostile work

environment claim where plaintiff was verbally harassed and mocked due to his homosexuality

because he failed to show that harassment occurred because of his sex). But see Rene, 305 F.3d at

1066 (finding that male employer who was subject to severe, pervasive, and unwelcome physical

conduct was harassed because of his sex because he was subjected to attacks “which targeted body

No. 04-3776 Vickers v. Fairfield Medical Center, et al. Page 8

parts clearly linked to his sexuality”). Based on the foregoing precedent, Vickers has failed to plead

a hostile work environment claim.

III.

For the foregoing reasons, we affirm the decision of the district court granting defendants-

appellees’ motion for judgment on the pleadings pursuant to Rule 12(c) as well as the district court’s

decision not to exercise supplemental jurisdiction over Vickers’ state law claims.

No. 04-3776 Vickers v. Fairfield Medical Center, et al. Page 9

_________________

DISSENT

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DAVID M. LAWSON, District Judge, dissenting. As the majority correctly states, in Price

Waterhouse v. Hopkins, the Supreme Court held that “making employment decisions based on sex

stereotyping, i.e., the degree to which an individual conforms to traditional notions of what is

appropriate for one’s gender, is actionable under Title VII.” Ante at 5. Because I believe that the

plaintiff in this case has pleaded exactly that, I conclude that he has stated a cognizable claim in his

complaint that should have survived dismissal under the standard of review that applies to motions

under Federal Rule of Civil Procedure 12(c). Since the majority has concluded otherwise, I must

respectfully dissent.

I.

It is beyond debate that Title VII does not prohibit workplace discrimination or harassment

based on sexual preference, sexual orientation, or homosexuality. It is equally clear that

employment decisions or workplace harassment that are based on the perception that the employee

is not masculine enough or feminine enough – that is, he or she fails “to conform to [gender]

stereotypes,” Price Waterhouse v. Hopkins, 490 U.S. 228, 272 (1989), (O’Connor, J. concurring)

– violates Title VII’s declaration that “[i]t shall be an unlawful employment practice for an employer

. . . to discriminate against any individual . . . because of . . . sex.” 42 U.S.C. § 2000e-2(a)(1).

The majority correctly points out that a sexual harassment claim based on a hostile

workplace environment requires the claimant to plead that he was a member of a protected class, he

was subjected to unwelcome sexual harassment, the harassment was based on sex, the conduct

created a hostile environment, and the employer is accountable for the condition. Ante at 5 (citing

Clark v. United Parcel Serv., Inc., 400 F.3d 341, 347 (6th Cir. 2005)). The thrust of the opinion is

that Vickers failed to plead that the harassment was based on sex because it had its roots in the

harassers’ perception that Vickers’s private sexual practices were woman-like. The majority

apparently believes that Price Waterhouse extends only to behavior and appearances that manifest

themselves in the workplace, and not to private sexual conduct, beliefs, or practices that an

employee might adopt or display elsewhere. It concludes, therefore, that Vickers’s tormentors were

motivated by Vickers’s perceived homosexuality rather than an outward workplace manifestation

of less-than-masculine gender characteristics.

However, I believe that such a reading of the complaint in this case is too narrow and

imposes an obligation on the plaintiff that is more exacting at this stage of the proceedings than is

required by the Federal Rules of Civil Procedure. Rule 8(a) requires only that the plaintiff set forth

“a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.

P. 8(a)(2). Vickers’s 71-page, 256-paragraph tome is hardly “short and plain.” However, he does

allege that his claims are “for unlawful discrimination on the basis of sex and/or sex stereotyping”

and “perpetuation of a hostile working environment on the basis of sex.” Compl. at ¶ 10(A) & (B),

J.A. at 10. He then proceeds in excruciating detail to describe the vile and sexually explicit acts that

allegedly were committed against him by defendants Dixon and Mueller, and which allegedly were

approved or condoned by defendant Anderson. In the context of a motion for judgment on the

pleadings, we, like the trial court, must view these allegations as true and “construe the complaint

in the light most favorable to the plaintiff.” Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir. 1998).

“A court may dismiss a complaint only if it is clear that no relief could be granted under any set of

facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S.

69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

No. 04-3776 Vickers v. Fairfield Medical Center, et al. Page 10

I have no quarrel with the proposition that a careful distinction must be drawn between cases

of gender stereotyping, which are actionable, and cases denominated as such that in reality seek

protection for sexual-orientation discrimination, which are not. Nor do I believe that gender

stereotyping is actionable per se under Title VII, although certainly it may constitute evidence of

discrimination on the basis of sex. As Judge Posner of the Seventh Circuit pointed out:

[T]here is a difference that subsequent cases have ignored between, on the one hand,

using evidence of the plaintiff’s failure to wear nail polish (or, if the plaintiff is a

man, his using nail polish) to show that her sex played a role in the adverse

employment action of which she complains, and, on the other hand, creating a

subtype of sexual discrimination called “sex stereotyping,” as if there were a

federally protected right for male workers to wear nail polish and dresses and speak

in falsetto and mince about in high heels, or for female ditchdiggers to strip to the

waist in hot weather.

Hamm v. Weyauwega Milk Products, Inc., 332 F.3d 1058, 1067 (7th Cir. 2003) (Posner, J.

concurring). However, these distinctions can be complicated, and where, as here, the plaintiff has

pleaded facts from which a fact finder could infer that sex (and not simply homosexuality) played

a role in the employment decision and contributed to the hostility of the work environment, drawing

the line should not occur at the pleading stage of the lawsuit. “Claims lacking factual merit are

properly dealt with through summary judgment under Rule 56. . . . This is because under the notice

pleading standard of the Federal Rules, courts are reluctant to dismiss colorable claims which have

not had the benefit of factual discovery.” Evans-Marshall v. Bd. of Educ. of the Tipp City Exempted

Vill. Sch. Dist., 428 F.3d 223, 228 (6th Cir. 2005) (citing Conley, 355 U.S. at 48). Most of the cases

relied on by the majority were decided on summary judgment or after trial. See, e.g., Price

Waterhouse, 490 U.S. 228 (review of decision following bench trial); Dawson v. Bumble & Bumble,

398 F.3d 211 (2d Cir. 2005) (review of summary judgment); Jespersen v. Harrah’s Operating Co.,

392 F.3d 1076 (9th Cir. 2004) (same); Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1063 (9th

Cir. 2002) (en banc) (same); EEOC v. Harbert-Yeargin, Inc., 266 F.3d 498 (6th Cir. 2001) (review

of jury verdict); Bibby v. Phila. Coca-Cola Bottling Co., 260 F.3d 257 (3d Cir. 2001) (review of

summary judgment); Weinstock v. Columbia Univ., 224 F.3d 33 (2d Cir. 2000) (same); Spearman

v. Ford Motor Co., 231 F.3d 1080 (7th Cir. 2000) (same); Higgins v. New Balance Athletic Shoe,

Inc., 194 F.3d 252, 258 (1st Cir. 1999) (same); King v. Super Serv., Inc., 68 Fed. Appx. 659, 663

(6th Cir. 2003) (same). It behooves courts to view the evidence developed during discovery before

declaring that a defendant’s behavior was motivated by hostility to homosexuals rather than

discrimination “because of . . . sex.” 42 U.S.C. § 2000e-2(a)(1).

II.

Looking at the allegations in this case, I cannot conclude that no set of facts could be proved

that would entitle the plaintiff to relief. The allegations permit the conclusion that the defendants

were hostile to the plaintiff because he was not masculine enough, justifying an inference that a

female – or a man with female characteristics – would not be tolerated in the job of private police

officer at the Fairfield Medical Center (FMC).

Vickers asserts that there are some twenty-five incidents of harassment that could be

construed as evidence of the defendants’ perception that Vickers was not masculine enough for

them. To be sure, the conduct that Vickers cites for the most part requires following Vickers’s

argument from point to point, and it is not a crystal-clear statement of sex stereotyping due to the

conflation with homosexual references. However, as the district court noted, Vickers does allege

that he was not perceived as sufficiently masculine. In March of 2002, the complaint alleges,

Vickers began investigating allegations of sexual misconduct against a male doctor at FMC by a

“gay” complainant. Compl. at ¶ 15, J.A. at 23. Vickers ultimately befriended the individual and

No. 04-3776 Vickers v. Fairfield Medical Center, et al. Page 11

assisted him in investigating the matter. Ibid. Fellow police officers Dixon and Mueller, upon

learning of the investigation and that the complainant was a homosexual, suspected Vickers of being

a homosexual “and question[ed] his masculinity.” Compl. at ¶ 16, J.A. at 23 (emphasis added).

Vickers alleges that he was a private person and did not share details of his personal life at work.

In paragraph 250 of the complaint, Vickers states:

Vickers does not make any claim of protected status on the basis of homosexuality

per se – whether real or perceived – with regard to his Title VII claim. Vicker[s]’s

claim is instead grounded in the body of sex-discrimination jurisprudence set forth

by the landmark U.S. Supreme Court decision Price Waterhouse v. Hopkins, 490

U.S. 228 (1989), and its progeny. Although Title VII does not prohibit discrimination

against homosexuals per se – whether real or perceived – the Price Waterhouse line

of cases stands for the proposition, inter alia, that it is improper to discriminate in

employment on the basis of real or perceived nonconformity with gender norms.

J.A. at 77. Vickers cites at least one factual example of this perception: on January 22, 2003, Dixon

informed Mueller that Vickers “might jump your ass. He did me for no reason when I walked in.”

Compl. at ¶ 72, J.A. at 37. According to Vickers, the following ensued:

Dixon then proceeded to explain to Mueller that Vickers was in a bad mood.

Mueller said, “Maybe he is having a heavy (menstrual) flow day, huh?” Mueller

then said to Vickers, “Why don’t you pluck that tampon out and put a new pad in and

lose some of that pressure?”

Mueller walked out of the office momentarily, returning with a sanitary napkin

which he tried to rub in Vickers’ face. Vickers said, “What are you putting a tampon

on me for?” Mueller snapped, “You fucker, it’s a fucking pad,” and continued to try

and put the sanitary napkin in Vickers’ face. Mueller then began making sexual

panting noises, followed by sexual grunts and moans. Mueller finally settled for

taping the sanitary napkin to Vickers’ uniform coat.

Compl. at ¶¶ 71-72, J.A. at 37. When Vickers returned to work on January 25, 2003, Mueller asked

Vickers if his mood had improved. Compl. at ¶ 73, J.A. at 37. Thus, Vickers alleges that he was

subjected to harassment because he was perceived as being insufficiently masculine, Vickers

clarifies in his complaint that the events alleged therein are indicative of the defendants’ perception

that Vickers does not measure up to their stereotypes of masculinity and that he does not wish his

complaint to be construed as suggesting otherwise, the district court recognized that Vickers was

alleging a claim of sex stereotyping, and Vickers cites at least one example where his conduct

incited harassment because the defendants believed him to be acting like a woman.

There are other examples. For instance, on one occasion when Vickers, Dixon, Mueller, and

Anderson were working, Mueller extended a tape measure to touch Vickers’s crotch several times

until Vickers got angry and told Mueller to stop. Anderson remarked that Vickers “must be tired,

he’s not in the mood to play.” Compl. at ¶¶ 65-67, J.A. at 35-36. A few moments later, Dixon

grabbed Vickers’s breast and remarked “Kiss [the defendants’ nickname for the plaintiff] has titties.”

Compl. at ¶ 67, J.A. at 36. At another point, Vickers’s truck was rear-ended causing Dixon to

express that he did not want his “favorite bitch” to get hurt and Anderson, Dixon, and Muller to joke

that Vickers had been “rammed in the ass.” Compl. at ¶¶ 111-12, J.A. at 45. In yet another instance,

Anderson phoned the station, but when Vickers answered Anderson demanded to speak to “a real

officer.” Compl. at ¶ 115, J.A. at 46. The complaint also contains an allegation that a note was left

for the plaintiff in the workplace, purportedly from a woman, asking if he was “interested” but

stating that “I know your plumbing is hooked up wrong.” Compl. at ¶ 124, J.A. at 48.

No. 04-3776 Vickers v. Fairfield Medical Center, et al. Page 12

These allegations, in my view, provide a basis for the inference that the plaintiff was

perceived as effeminate and therefore unworthy to be considered “a real officer.” The permissible

conclusion that emerges is that the plaintiff was not tolerated – and the defendants made the

workplace environment hostile – because the job required only “manly men,” not woman-like ones

or women themselves. The complaint need only contain “direct or inferential allegations respecting

all the material elements to sustain a recovery under some viable legal theory.” Johnson v. City of

Detroit, 446 F.3d 614, 618 (6th Cir. 2006) (emphasis added). Certainly, the complaint is replete

with allegations that the plaintiff also was harassed because of his perceived homosexuality. But

as homosexuality is not a qualifying classification for relief under Title VII, neither is it

disqualifying. That point has been made clear by this court’s precedents. In Smith v. City of Salem,

378 F.3d 566 (6th Cir. 2004), the court reversed a judgment on the pleadings for the defendant in

a claim brought by a transsexual male fireman under Title VII. “Sex stereotyping based on a

person’s gender non-conforming behavior is impermissible discrimination, irrespective of the cause

of that behavior; a label, such as ‘transsexual,’ is not fatal to a sex discrimination claim where the

victim has suffered discrimination because of his or her gender non-conformity.” Smith, 378 F.3d

at 575.

As in Smith, I believe that the plaintiff in this case has “alleged that his failure to conform

to sex stereotypes concerning how a man should look and behave was the driving force behind

Defendants’ actions.” Id. at 572. Following Smith, this court has held that “[s]ex stereotyping based

on a person’s gender non-conforming behavior is impermissible discrimination, irrespective of the

cause of that behavior.” Barnes v. City of Cincinnati, 401 F.3d 729, 737 (6th Cir. 2005) (citations

omitted). Allegations that a plaintiff’s “failure to conform to sex stereotypes concerning how a man

should look and behave was the driving force behind defendant’s actions” has been deemed

sufficient to “state[] a claim for relief pursuant to Title VII’s prohibition of sex discrimination.”

Ibid. Therefore, I must conclude that Vickers “has sufficiently pleaded claims of sex stereotyping

and gender discrimination.” Smith, 378 F.3d at 572.

III.

The plaintiff has set forth sufficient facts in his complaint to support a Title VII claim. I do

not believe we can conclude on the basis of the pleadings alone that the harassment endured by the

plaintiff was motivated solely by the defendants’ perception that he was a homosexual, as

distinguished from a belief that for reasons other than sexual preference the plaintiff did not conform

to the stereotypical image of masculinity, as the plaintiff has alleged in many ways, at least

inferentially. “A motion for judgment on the pleadings under Rule 12(c) may be granted only if all

material issues can be resolved on the pleadings by the district court; otherwise, a summary

judgment motion or a full trial is necessary.” Wright & Miller, Federal Practice and Procedure:

Civil 3d, § 1368 pp. 248-51 (2004). Because the majority believes that the case can be resolved on

the pleadings alone, I respectfully dissent.