Case Information
Before: COLE and GILMAN, Circuit Judges; SCHWARZER, Senior District Judge. [*] *1 those claims as well, having declined to exercise supplemental jurisdiction over them.
For the following reasons, we reverse the judgment of the district court and remand the case for further proceedings Judge for the Northern District of Ca lifornia, sitting b y designation. [*] The Honorable William W Schwarzer, Senior United States District consistent with this opinion.
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
*2
factual inferences as true.
Ziegler v. IBP Hog Market, Inc.
using Smith’s transsexualism and its manifestations as a basis
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,
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
,
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
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.
,
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 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 *4 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 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 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 , 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 *5 No. 03-3399 Smith v. Salem, Ohio, et al. 12 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- 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
Tel. & Tel. Co., Inc.
,
Belleville
,
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,
the discrimination would not occur but for the victim’s sex.
that Defendants’ discrimination was motivated by his
See, e.g., Nichols,
discriminated against him because he did not meet
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 , 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
*7
those assigned a particular sex at birth should act, dress, and
,
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
,
other indices unique to a particular situation. Burlington
Indus., Inc. v. Ellerth
,
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 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 The district court also dismissed Smith’s claims pursuant *8 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. 20 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.
,
F.3d —, No. 03-7058,
municipality must follow when taking official employment *9 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.
,
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
,