378 F.3d 566 | 6th Cir. | 2004
Before: COLE and GILMAN, Circuit Judges; 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, F.3d 559, 563 (6th Cir. 2000); see also Oliver v. Digital Smith must show that: (1) he is a member of a protected class; Equip. Corp. , 846 F.2d 103, 110 (1st Cir. 1988) (employee’s (2) he suffered an adverse employment action; (3) he was discharge “soon after” engaging in protected activity “is qualified for the position in question; and (4) he was treated indirect proof of a causal connection between the firing and differently from similarly situated individuals outside of his the activity because it is strongly suggestive of retaliation.”); protected class. Perry v. McGinnis, 209 F.3d 597, 601 (6th Miller v. Fairchild Indus., Inc. , 797 F.2d 727, 731 (9th Cir. Cir. 2000). Smith is a member of a protected class. His 1986) (“Causation sufficient to establish a prima facie case of complaint asserts that he is a male with Gender Identity unlawful retaliation may be inferred from the proximity in Disorder, and Title VII’s prohibition of discrimination time between the protected action and the allegedly retaliatory “because of . . . sex” protects men as well as women. discharge.”). Here, Smith was suspended on April 26, 2001, Newport News Shipbuilding and Dry Dock Co. v. E.E.O.C. , just days after he engaged in protected activity by receiving 462 U.S. 669, 682 (1983). The complaint also alleges both his “right to sue” letter from the EEOC, which occurred four that Smith was qualified for the position in question – he had days before the suspension, and by his attorney contacting been a lieutenant in the Fire Department for seven years Mayor DeJane, which occurred six days before the without any negative incidents – and that he would not have suspension. The temporal proximity between the events is been treated differently, on account of his non-masculine significant enough to constitute direct evidence of a causal behavior and GID, had he been a woman instead of a man. 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 of causation and allocation of the burden of proof). As Judge pursuant to Price Waterhouse v. Hopkins , 490 U.S. 228 Posner has pointed out, the term “gender” is one “borrowed (1989). The district court implied that Smith’s claim was from grammar to designate the sexes as viewed as social disingenuous, stating that he merely “invokes the term-of-art rather than biological classes.” R ICHARD A. P OSNER , S EX created by Price Waterhouse , that is, ‘sex-stereotyping,’” as AND R EASON , 24-25 (1992). The Supreme Court made clear an end run around his “real” claim, which, the district court that in the context of Title VII, discrimination because of stated, was “based upon his transsexuality.” The district court “sex” includes gender discrimination: “In the context of sex then held that “Title VII does not prohibit discrimination stereotyping, an employer who acts on the basis of a belief based on an individual’s transsexualism.” that a woman cannot be aggressive, or that she must not be,
has acted on the basis of gender.” Price Waterhouse , Relying on Price Waterhouse – which held that Title VII’s 490 U.S. at 250. The Court emphasized that “we are beyond prohibition of discrimination “because of . . . sex” bars gender the day when an employer could evaluate employees by discrimination, including discrimination based on sex
assuming or insisting that they matched the stereotype stereotypes – Smith contends on appeal that he was a victim associated with their group.” Id. at 251. of discrimination “because of . . . sex” both because of his gender non-conforming conduct and, more generally, because Smith contends that the same theory of sex stereotyping of his identification as a transsexual. 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 criterion; concurring separately to clarify the separate issues ordered in retaliation for his pursuing legal remedies after he No. 03-3399 Smith v. Salem, Ohio, et al. 11 12 Smith v. Salem, Ohio, et al. No. 03-3399 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 given its traditional definition based on the anatomical (3d Cir. 2001) (stating that a plaintiff may be able to prove a No. 03-3399 Smith v. Salem, Ohio, et al. 13 14 Smith v. Salem, Ohio, et al. No. 03-3399 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 his perceived sex, the district court expressly male co-workers and supervisors repeatedly referred to him declined to discuss the applicability of Price Waterhouse. as “she” and “her” and where co-workers mocked him for
The district court therefore gave insufficient consideration to walking and carrying his serving tray “like a woman”); Smith’s well-pleaded claims concerning his contra-gender Higgins v. New Balance Athletic Shoe, Inc. , 194 F.3d 252, behavior, but rather accounted for that behavior only insofar 261 n.4 (1st Cir. 1999) (“[J]ust as a woman can ground an as it confirmed for the court Smith’s status as a transsexual, action on a claim that men discriminated against her because which 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 stereotypical expectations of masculinity.” (internal citation 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 , Price Waterhouse , 490 U.S. at 250. which does not make Title VII protection against sex 2. Adverse Employment Action stereotyping conditional or provide any reason to exclude Title VII coverage for non sex-stereotypical behavior simply
Despite having dismissed Smith’s Title VII claim for because the person is a transsexual. As such, discrimination failure to state a claim of sex stereotyping – a finding we have against a plaintiff who is a transsexual – and therefore fails to just rejected – the district court nevertheless addressed the act and/or identify with his or her gender – is no different merits of Smith’s Title VII claims arguendo . Relying on from the discrimination directed against Ann Hopkins in White v. Burlington Northern & Sante Fe Ry. Co. , 310 F.3d Price Waterhouse , who, in sex-stereotypical terms, did not act 443 (6th Cir. 2002), the district court held that Smith’s like a woman. Sex stereotyping based on a person’s gender suspension was not an adverse employment action because non-conforming behavior is impermissible discrimination, the Court of Common Pleas, rendering the “ultimate irrespective of the cause of that behavior; a label, such as employment decision,” reversed the suspension, and that “transsexual,” is not fatal to a sex discrimination claim where accordingly, Smith’s Title VII claim could not lie. Because the victim has suffered discrimination because of his or her this Circuit has since vacated and overruled White , 364 F.3d gender non-conformity. Accordingly, we hold that Smith has 789 (6th Cir. 2004) (en banc), and joined the majority of other stated a claim for relief pursuant to Title VII’s prohibition of circuits in rejecting the “ultimate employment decision” sex discrimination. standard, we hold that the district court erred in its analysis and that Smith has successfully pleaded an adverse Finally, we note that, in its opinion, the district court employment action in support of his employment repeatedly places the term “sex stereotyping” in quotation discrimination and retaliation claims pursuant to Title VII. marks and refers to it as a “term of art” used by Smith to disingenuously plead discrimination because of
Common to both the employment discrimination and transsexualism. Similarly, Defendants refer to sex retaliation claims is a showing of an adverse employment stereotyping as “the Price Waterhouse loophole.” action, which is defined as a “materially adverse change in the (Appellees’ Brief at 6.) These characterizations are almost terms and conditions of [plaintiff’s] employment.” Hollins v. identical to the treatment that Price Waterhouse itself gave Atlantic Co. , 188 F.3d 652, 662 (6th Cir. 1999). A “bruised sex stereotyping in its briefs to the U.S. Supreme Court. As ego,” a “mere inconvenience or an alteration of job we do now, the Supreme Court noted the practice with responsibilities” is not enough to constitute an adverse disfavor, stating: employment action. White, 364 F.3d at 797 (quoting Kocsis v. Multi-Care Mgmt. Inc., 97 F.3d 876, 886 (6th Cir. 1996)). In the specific context of sex stereotyping, an employer Examples of adverse employment actions include firing, who acts on the basis of a belief that a woman cannot be failing to promote, reassignment with significantly different aggressive, or that she must not be, has acted on the basis
responsibilities, a material loss of benefits, suspensions, and of gender. Although the parties do not overtly dispute other indices unique to a particular situation. Burlington this last proposition, the placement by Price Waterhouse Indus., Inc. v. Ellerth , 524 U.S. 742, 761 (1998); White , 364 of “sex stereotyping” in quotation marks throughout its F.3d at 798. Here, the Fire Department suspended Smith for brief seems to us an insinuation either that such twenty-four hours. Because Smith works in twenty-four hour stereotyping was not present in this case or that it lacks shifts, that twenty-four hour suspension was the equivalent of legal relevance. We reject both possibilities.
No. 03-3399 Smith v. Salem, Ohio, et al. 17 18 Smith v. Salem, Ohio, et al. No. 03-3399 three eight-hour days for the average worker, or, to the employer – declassifies a suspension as an adverse approximately 60% of a forty-hour work week. Pursuant to employment action. the liberal notice pleading requirements set forth in Fed. R. Accordingly, Smith has stated an adverse employment Civ. P. 8, this allegation, at this phase of the litigation, is
action and, therefore, satisfied all of the elements necessary sufficient to satisfy the adverse employment requirement of to allege a prima facie case of employment discrimination both an employment discrimination and retaliation claim pursuant to Title VII. [1]
and retaliation pursuant to Title VII. We therefore reverse the district court’s grant of judgment on the pleadings to
It is irrelevant that Smith’s suspension was ultimately Defendants with respect to those claims. reversed by the Court of Common Pleas after he challenged B. 42 U.S.C. § 1983 Claims the suspension’s legality. In White , this Court recently joined the majority of other circuits in rejecting the “ultimate
The district court also dismissed Smith’s claims pursuant employment decision” standard whereby a negative to 42 U.S.C. § 1983 on the ground that he failed to state a employment action is not considered an “adverse employment claim based on the deprivation of a constitutional or federal action” for Title VII purposes when the decision is statutory right. subsequently reversed by the employer, putting the plaintiff in the position he would have been in absent the negative
42 U.S.C. § 1983 provides a civil cause of action for action. White , 364 F.3d 789 (holding that the suspension of individuals who are deprived of any rights, privileges, or a railroad employee without pay, followed thirty-seven days immunities secured by the Constitution or federal laws by later by reinstatement with back pay, was an “adverse those acting under color of state law. Smith has stated a employment action” for Title VII purposes). Even if the claim for relief pursuant to § 1983 in connection with his sex- “ultimate employment decision” standard were still viable, based claim of employment discrimination. Individuals have the district court erred in concluding that, because the Court a right, protected by the Equal Protection clause of the of Common Pleas overturned the suspension, it was not an Fourteenth Amendment, to be free from discrimination on the adverse employment action. There is no legal authority for basis of sex in public employment. Davis v. Passman , 442 the proposition that reversal by a judicial body – as opposed U.S. 228, 234-35 (1979). To make out such a claim, a plaintiff must prove that he suffered purposeful or intentional discrimination on the basis of gender. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp. , 429 U.S. 252, 264-65 [1] Smith’s complaint does not state whether he was suspended with or
(1977). As this Court has noted several times, “the showing without pay. Bec ause we must construe the com plaint in the light most a plaintiff must make to recover on a disparate treatment favorable to the plaintiff, Ziegler , 249 F.3d at 512, and given the liberal claim under Title VII mirrors that which must be made to pleading standards of Federal Rule of Civil Procedure 8, we do not find this failure dispositive. A “materially adverse change” in employment recover on an equal protection claim under section § 1983.” conditions often involves a ma terial loss of pay or benefits, but that is not
Gutzwiller v. Fenik , 860 F.2d 1317, 1325 (6th Cir. 1988) always the case, and “other indices that might be unique to a particular (citing Kitchen v. Chippewa Valley Schs. , 825 F.2d 1004, situation” can co nstitute a “m aterially ad verse chang e” as well. 1011 (6th Cir. 1987); Daniels v. Bd. of Educ. , 805 F.2d 203, Hollins, 188 F.3d at 662 . Because no discovery has b een conducted yet, 207 (6th Cir. 1986); Grano v. Dep’t of Dev. , 637 F.2d 1073, we do not know the full contours of the suspension. For now, however, for the reasons just stated, we find that Smith has sufficiently alleged an 1081-82 (6th Cir. 1980); Lautermilch v. Findlay City Schs. , adverse employment action. No. 03-3399 Smith v. Salem, Ohio, et al. 19 20 Smith v. Salem, Ohio, et al. No. 03-3399 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. , — In his appellate brief, Smith also contends that his F.3d —, No. 03-7058, 2004 WL 739846, at * 5-7 (2d Cir. complaint alleges a violation of his constitutional right to due Apr. 7, 2004) (holding that claims premised on Price process, based on the City’s failure to comply with the state Waterhouse sex stereotyping theory sufficiently constitute
statutory and administrative procedures that an Ohio claim of sex discrimination pursuant to § 1983). municipality must follow when taking official employment Defendants urge us to hold otherwise, on the ground that action against a public employee. His complaint outlines the Smith’s complaint fails to refer specifically to the Equal statutory procedures, governed by O.R.C. § 121.22(G), Protection Clause of the U.S. Constitution . But the Federal pursuant to which members of an Ohio municipality may Rules of Civil Procedure provide for a liberal system of notice meet for purposes of taking official employment action pleading. Fed. R. Civ. P. 8(a). A plaintiff need only provide against a public employee, and it alleges that those procedures “a short and plain statement of the claim showing that the were not followed. The complaint also discusses O.A.C. pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Such § 124-9-11, which would have permitted Smith to call a statement must simply ‘give the defendant fair notice of witnesses at his post-suspension hearing in front of the Salem what the plaintiff’s claim is and the grounds upon which it Civil Service Commission; and the complaint alleges that he rests.’” Swierkiewicz v. Soremna N.A. , 534 U.S. 506, 512 was barred from calling witnesses. Smith contends that these (2002) (quoting Conley v. Gibson , 355 U.S. 41, 47 (1957)). allegations implicate his right to due process pursuant to the Claims made pursuant to 42 U.S.C. § 1983 are not subject to Fourteenth Amendment of the U.S. Constitution. heightened pleading standards. Leatherman v. Tarrant However, it is well-settled that state law does not ordinarily County Narcotics Intelligence and Coordination Unit , 507 define the parameters of due process for Fourteenth U.S. 163, 165-66 (1993) (rejecting heightened pleading Amendment purposes, and that state law, by itself, cannot be standard for § 1983 claims); Jones v. Duncan , 840 F.2d 359 the basis for a federal constitutional violation. See Purisch v. (6th Cir. 1988) (holding that § 1983 claims need not set forth
Tennessee Technological Univ. , 76 F.3d 1414, 1423 (6th Cir. in detail all the particularities of a plaintiff’s claim against a 1996) (“Violation of a state’s formal [employment grievance] defendant). Moreover, legal theories of recovery need not be procedure . . . does not in itself implicate constitutional due spelled out as long as the relevant issues are sufficiently process concerns.”). Neither Smith’s complaint nor his brief implicated in the pleadings; in considering motions pursuant specifies what deprivation of property or liberty allegedly to Fed. R. Civ. P. 12(c), we ask not whether a complaint stemmed from the City’s failure to comply with state points to a specific statute, but whether relief is possible procedural and administrative rules concerning his under any set of facts that could be established consistent with the allegation. Because Smith’s sex discrimination claim so No. 03-3399 Smith v. Salem, Ohio, et al. 21 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 REMANDED to the district court for further proceedings consistent with this opinion.
