369 F.3d 912 | 6th Cir. | 2004
Before: COLE and GILMAN, Circuit Judges; supplemental jurisdiction over them.
SCHWARZER, Senior District Judge. [*] 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 No. 03-3399 Smith v. Salem, Ohio, et al. 3 4 Smith v. Salem, Ohio, et al. No. 03-3399 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. A MERICAN P SYCHIATRIC officials may meet to take employment action against a A SSOCIATION , D IAGNOSTIC AND S TATISTICAL M ANUAL OF municipal employee – provides that officials “may hold an M ENTAL D ISORDERS 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 During the meeting, Greenamyer, DeJane, and Zellers supervisor, Defendant Thomas Eastek, about his GID agreed to arrange for the Salem Civil Service Commission to diagnosis and treatment. He also informed Eastek of the require Smith to undergo three separate psychological likelihood that his treatment would eventually include evaluations with physicians of the City’s choosing. They complete physical transformation from male to female. Smith hoped that Smith would either resign or refuse to comply. If had approached Eastek in order to answer any questions
he refused to comply, Defendants reasoned, they could Eastek might have concerning his appearance and manner and terminate Smith’s employment on the ground of so that Eastek could address Smith’s co-workers’ comments insubordination. Willard, who remained silent during the and inquiries. Smith specifically asked Eastek, and Eastek meeting, telephoned Smith afterwards to inform him of the promised, not to divulge the substance of their conversation plan, calling Defendants’ scheme a “witch hunt.” to any of his superiors, particularly to Defendant Walter Greenamyer, Chief of the Fire Department. In short order, No. 03-3399 Smith v. Salem, Ohio, et al. 5 6 Smith v. Salem, Ohio, et al. No. 03-3399
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 II. ANALYSIS Employment Opportunity Commission (“EEOC”). Four days after that, on April 26, 2001, Greenamyer suspended Smith
On appeal, Smith contends that the district court erred in for one twenty-four hour shift, based on his alleged infraction holding that: (1) he failed to state a claim of sex stereotyping; of a City and/or Fire Department policy. (2) Title VII protection is unavailable to transsexuals; (3) even if he had stated a claim of sex stereotyping, he failed At a subsequent hearing before the Salem Civil Service to demonstrate that he suffered an adverse employment Commission (the “Commission”) regarding his suspension, action; and (4) he failed to state a claim based on the Smith contended that the suspension was a result of selective deprivation of a constitutional or federal statutory right, enforcement in retaliation for his having obtained legal
pursuant to 42 U.S.C. § 1983. representation in response to Defendants’ plan to terminate his employment because of his transsexualism and its
We review de novo the dismissal of a complaint pursuant manifestations. At the hearing, Smith sought to elicit to Rule 12(c). Grindstaff v. Green , 133 F.3d 416, 421 (6th testimony from witnesses regarding the meeting of April 18, Cir. 1998). A motion for judgment on the pleadings shall be 2001, but the City objected and the Commission’s chairman, granted only where, construing the complaint in the light most Defendant Harry Dugan, refused to allow any testimony favorable to the plaintiff, and accepting all of its factual regarding the meeting, despite the fact that Ohio allegations as true, the plaintiff can prove no set of facts in Administrative Code § 124-9-11 permitted Smith to introduce support of the claims that would entitle him to relief. Id. evidence of disparate treatment and selective enforcement in (citation omitted). his hearing before the Commission. A. Title VII The Commission ultimately upheld Smith’s suspension. Smith appealed to the Columbiana County Court of Common The parties disagree over two issues pertaining to Smith’s Pleas, which reversed the suspension, finding that “[b]ecause Title VII claims: (1) whether Smith properly alleged a claim the regulation [that Smith was alleged to have violated] was of sex stereotyping, in violation of the Supreme Court’s not effective[,] [Smith] could not be charged with violation of pronouncements in Price Waterhouse v. Hopkins , 490 U.S. it.” 228 (1989); and (2) whether Smith alleged that he suffered an adverse employment action.
Smith then filed suit in the federal district court. In his complaint, he asserted Title VII claims of sex discrimination Defendants do not challenge Smith’s complaint with and retaliation, along with claims pursuant to 42 U.S.C. respect to any of the other elements necessary to establish § 1983 and state law claims of invasion of privacy and civil discrimination and retaliation claims pursuant to Title VII. In conspiracy. In a Memorandum Opinion and Order dated any event, we affirmatively find that Smith has made out a February 26, 2003, the district court dismissed the federal 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 1. Sex Stereotyping 408, 420 (6th Cir. 2004) (citation omitted). Smith’s complaint satisfies the first two requirements by explaining
Title VII of the Civil Rights Act of 1964 provides, in how he sought legal counsel after learning of the Salem relevant part, that “[i]t shall be an unlawful employment executive body’s April 18, 2001 meeting concerning his practice for an employer . . . to discriminate against any employment; how his attorney contacted Defendant DeJane individual with respect to his compensation, terms, to advise Defendants of Smith’s representation; and how conditions, or privileges of employment because of such Smith filed a complaint with the EEOC concerning individual’s race, color, religion, sex, or national origin.” Defendants’ meeting and intended actions. With respect to 42 U.S.C. § 2000e-2(a). the fourth requirement, a causal connection between the protected activity and the adverse employment action,
In his complaint, Smith asserts Title VII claims of “[a]lthough no one factor is dispositive in establishing a retaliation and employment discrimination “because of . . . causal connection, evidence . . . that the adverse action was sex.” The district court dismissed Smith’s Title VII claims on taken shortly after the plaintiff’s exercise of protected rights 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.” R ICHARD A. P OSNER , S EX an end run around his “real” claim, which, the district court AND R EASON , 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. Yet some courts have held that this latter form of Belleville , 119 F.3d 563, 580-81 (7th Cir. 1997) (holding that discrimination is of a different and somehow more “Title VII does not permit an employee to be treated permissible kind. For instance, the man who acts in ways adversely because his or her appearance or conduct does not
typically associated with women is not described as engaging conform to stereotypical gender roles” and explaining that “a in the same activity as a woman who acts in ways typically man who is harassed because his voice is soft, his physique is associated with women, but is instead described as engaging slight, his hair long, or because in some other respect he in the different activity of being a transsexual (or in some exhibits his masculinity in a way that does not meet his instances, a homosexual or transvestite). Discrimination coworkers’ idea of how men are to appear and behave, is against the transsexual is then found not to be discrimination harassed ‘because of his sex’”), vacated and remanded on “because of . . . sex,” but rather, discrimination against the other grounds , 523 U.S. 1001 (1998).
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 Such was the case here: despite the fact that Smith alleges the discrimination would not occur but for the victim’s sex. that Defendants’ discrimination was motivated by his See, e.g., Nichols, 256 F.3d 864 (Title VII sex discrimination appearance and mannerisms, which Defendants felt were and hostile work environment claim upheld where plaintiff’s inappropriate for a male, the district court expressly declined male co-workers and supervisors repeatedly referred to him
to discuss the applicability of Price Waterhouse. The district as “she” and “her” and where co-workers mocked him for court therefore gave insufficient consideration to Smith’s walking and carrying his serving tray “like a woman”); well-pleaded claims concerning his contra-gender behavior, Higgins v. New Balance Athletic Shoe, Inc. , 194 F.3d 252, but rather accounted for that behavior only insofar as it 261 n.4 (1st Cir. 1999) (“[J]ust as a woman can ground an confirmed for the court Smith’s status as a transsexual, which action on a claim that men discriminated against her because the district court held precluded Smith from Title VII she did not meet stereotyped expectations of femininity, a protection. man can ground a claim on evidence that other men discriminated against him because he did not meet No. 03-3399 Smith v. Salem, Ohio, et al. 15 16 Smith v. Salem, Ohio, et al. No. 03-3399
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 Finally, we note that, in its opinion, the district court Title VII coverage for non sex-stereotypical behavior simply
repeatedly places the term “sex stereotyping” in quotation because the person is a transsexual. As such, discrimination marks and refers to it as a “term of art” used by Smith to against a plaintiff who is a transsexual – and therefore fails to disingenuously plead discrimination because of act like and/or identify with the gender norms associated with transsexualism. Similarly, Defendants refer to sex his or her sex – is no different from the discrimination stereotyping as “the Price Waterhouse loophole.” directed against Ann Hopkins in Price Waterhouse , who, in (Appellees’ Brief at 6.) These characterizations are almost sex-stereotypical terms, did not act like a woman. Sex identical to the treatment that Price Waterhouse itself gave stereotyping based on a person’s gender non-conforming sex stereotyping in its briefs to the U.S. Supreme Court. As behavior is impermissible discrimination, irrespective of the
we do now, the Supreme Court noted the practice with cause of that behavior; a label, such as “transsexual,” is not disfavor, stating: fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-
In the specific context of sex stereotyping, an employer conformity. Accordingly, we hold that Smith has stated a who acts on the basis of a belief that a woman cannot be claim for relief pursuant to Title VII’s prohibition of sex aggressive, or that she must not be, has acted on the basis discrimination. of gender. Although the parties do not overtly dispute this last proposition, the placement by Price Waterhouse Even if Smith had alleged discrimination based only on his of “sex stereotyping” in quotation marks throughout its self-identification as a transsexual – as opposed to his specific brief seems to us an insinuation either that such appearance and behavior – this claim too is actionable stereotyping was not present in this case or that it lacks pursuant to Title VII. By definition, transsexuals are
legal relevance. We reject both possibilities. individuals who fail to conform to stereotypes about how those assigned a particular sex at birth should act, dress, and
Price Waterhouse , 490 U.S. at 250. self-identify. Ergo , identification as a transsexual is the statement or admission that one wishes to be the opposite sex
2. Adverse Employment Action or does not relate to one’s birth sex. Such an admission – for instance the admission by a man that he self-identifies as a
Despite having dismissed Smith’s Title VII claim for woman and/or that he wishes to be a woman – itself violates failure to state a claim of sex stereotyping – a finding we have the prevalent sex stereotype that a man should perceive just rejected – the district court nevertheless addressed the himself as a man. Discrimination based on transsexualism is merits of Smith’s Title VII claims arguendo . Relying on rooted in the insistence that sex (organs) and gender (social White v. Burlington Northern & Sante Fe Ry. Co. , 310 F.3d classification of a person as belonging to one sex or the other) 443 (6th Cir. 2002), the district court held that Smith’s coincide. This is the very essence of sex stereotyping. suspension was not an adverse employment action because Accordingly, to the extent that Smith also alleges the Court of Common Pleas, rendering the “ultimate discrimination based solely on his identification as a employment decision,” reversed the suspension, and that transsexual, he has alleged a claim of sex stereotyping accordingly, Smith’s Title VII claim could not lie. Because pursuant to Title VII. As noted above, Smith’s birth sex is 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. B. 42 U.S.C. § 1983 Claims Civ. P. 8, this allegation, at this phase of the litigatoin, is sufficient to satisfy the adverse employment requirement of
The district court also dismissed Smith’s claims pursuant both an employment discrimination and retaliation claim pursuant to Title VII. [1] to 42 U.S.C. § 1983 on the ground that he failed to state a 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
NOTES
[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 conducted 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
