Case Information
Before: COLE and GILMAN, Circuit Judges; SCHWARZER, Senior District Judge. [*] *1 those claims as well, having declined to exercise pendent 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,
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.
,
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 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
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 *5 No. 03-3399 Smith v. Salem, Ohio, et al. 12 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
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
stereotypical expectations of masculinity.” (internal citation
Such analyses cannot be reconciled with
Price Waterhouse Price Waterhouse
,
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.”
*7
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.
,
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
,
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 sufficient to satisfy the adverse employment requirement of [1] pursuant to Title VII. both an employment discrimination and retaliation claim prima facie to allege a action and, therefore, satisfied all of the elements necessary case of employment discrimination 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
,
plaintiff must prove that he suffered purposeful or intentional
Ziegler
pleading standards of Federal Rule of Civil Procedure 8, we do not find
this failure dispositive. A “materially adverse change” in employment
, 249 F.3d at 512, and given the liberal
without pay. Bec ause we must construe the com plaint in the light most
favorable to the plaintiff, conditions often involves a ma terial loss of pay or benefits, but that is not
situation” can co nstitute a “m aterially ad verse chang e” as well.
Hollins,
always the case, and “other indices that might be unique to a particular
F.3d —, No. 03-7058,
County Narcotics Intelligence and Coordination Unit
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
,
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.