           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                         2    Smith v. Salem, Ohio, et al.               No. 03-3399
        ELECTRONIC CITATION: 2004 FED App. 0262A (6th Cir.)
                    File Name: 04a0262a.06                                                    _________________
                                                                                                   COUNSEL
UNITED STATES COURT OF APPEALS
                                                                           ARGUED: Randi A. Barnabee, DEBORAH A. SMITH &
                  FOR THE SIXTH CIRCUIT                                    COMPANY, Northfield, Ohio, for Appellant. Aretta K.
                    _________________                                      Bernard, ROETZEL & ANDRESS, Akron, Ohio, for
                                                                           Appellees. ON BRIEF: Randi A. Barnabee, DEBORAH A.
 JIMMIE L. SMITH,                  X                                       SMITH & COMPANY, Northfield, Ohio, for Appellant.
            Plaintiff-Appellant,    -                                      Aretta K. Bernard, ROETZEL & ANDRESS, Akron, Ohio,
                                    -                                      for Appellees.
                                    -  No. 03-3399
             v.                     -                                                       _____________________
                                     >
                                    ,                                                        AMENDED OPINION
 CITY OF SALEM , OHIO ,             -                                                       _____________________
 THOMAS EASTEK, WALTER              -
 GREENAMYER , BROOKE                -                                        R. GUY COLE, JR., Circuit Judge. Plaintiff-Appellant
 ZELLERS, LARRY D. DE JANE,         -                                      Jimmie L. Smith appeals from a judgment of the United
 JAMES A. ARMENI, JOSEPH            -                                      States District Court for the Northern District of Ohio
                                    -                                      dismissing his claims against his employer, Defendant-
 JULIAN , and HARRY DUGAN ,
                                    -                                      Appellant City of Salem, Ohio, and various City officials, and
         Defendants-Appellees. -                                           granting judgment on the pleadings to Defendants, pursuant
                                   N                                       to Federal Rule of Civil Procedure 12(c). Smith, who
       Appeal from the United States District Court                        considers himself a transsexual and has been diagnosed with
     for the Northern District of Ohio at Youngstown.                      Gender Identity Disorder, alleged that Defendants
    No. 02-01405—Peter C. Economus, District Judge.                        discriminated against him in his employment on the basis of
                                                                           sex. He asserted claims pursuant to Title VII of the Civil
                    Argued: March 19, 2004                                 Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C.
                                                                           § 1983. The district court dismissed those claims pursuant to
              Decided and Filed: August 5, 2004                            Rule 12(c). Smith also asserted state law claims for invasion
                                                                           of privacy and civil conspiracy; the district court dismissed
         Before: COLE and GILMAN, Circuit Judges;                          those claims as well, having declined to exercise pendent
            SCHWARZER, Senior District Judge.*                             jurisdiction over them.
                                                                             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. AMERICAN PSYCHIATRIC                   officials may meet to take employment action against a
ASSOCIATION , DIAGNOSTIC AND STATISTICAL MANUAL OF                 municipal employee – provides that officials “may hold an
MENTAL DISORDERS 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
supervisor, Defendant Thomas Eastek, about his GID                   During the meeting, Greenamyer, DeJane, and Zellers
diagnosis and treatment. He also informed Eastek of the            agreed to arrange for the Salem Civil Service Commission to
likelihood that his treatment would eventually include             require Smith to undergo three separate psychological
complete physical transformation from male to female. Smith        evaluations with physicians of the City’s choosing. They
had approached Eastek in order to answer any questions             hoped that Smith would either resign or refuse to comply. If
Eastek might have concerning his appearance and manner and         he refused to comply, Defendants reasoned, they could
so that Eastek could address Smith’s co-workers’ comments          terminate Smith’s employment on the ground of
and inquiries. Smith specifically asked Eastek, and Eastek         insubordination. Willard, who remained silent during the
promised, not to divulge the substance of their conversation       meeting, telephoned Smith afterwards to inform him of the
to any of his superiors, particularly to Defendant Walter          plan, calling Defendants’ scheme a “witch hunt.”
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
Employment Opportunity Commission (“EEOC”). Four days                                    II. ANALYSIS
after that, on April 26, 2001, Greenamyer suspended Smith
for one twenty-four hour shift, based on his alleged infraction     On appeal, Smith contends that the district court erred in
of a City and/or Fire Department policy.                          holding that: (1) he failed to state a claim of sex stereotyping;
                                                                  (2) Title VII protection is unavailable to transsexuals;
  At a subsequent hearing before the Salem Civil Service          (3) even if he had stated a claim of sex stereotyping, he failed
Commission (the “Commission”) regarding his suspension,           to demonstrate that he suffered an adverse employment
Smith contended that the suspension was a result of selective     action; and (4) he failed to state a claim based on the
enforcement in retaliation for his having obtained legal          deprivation of a constitutional or federal statutory right,
representation in response to Defendants’ plan to terminate       pursuant to 42 U.S.C. § 1983.
his employment because of his transsexualism and its
manifestations. At the hearing, Smith sought to elicit               We review de novo the dismissal of a complaint pursuant
testimony from witnesses regarding the meeting of April 18,       to Rule 12(c). Grindstaff v. Green, 133 F.3d 416, 421 (6th
2001, but the City objected and the Commission’s chairman,        Cir. 1998). A motion for judgment on the pleadings shall be
Defendant Harry Dugan, refused to allow any testimony             granted only where, construing the complaint in the light most
regarding the meeting, despite the fact that Ohio                 favorable to the plaintiff, and accepting all of its factual
Administrative Code § 124-9-11 permitted Smith to introduce       allegations as true, the plaintiff can prove no set of facts in
evidence of disparate treatment and selective enforcement in      support of the claims that would entitle him to relief. Id.
his hearing before the Commission.                                (citation omitted).

   The Commission ultimately upheld Smith’s suspension.           A. Title VII
Smith appealed to the Columbiana County Court of Common
Pleas, which reversed the suspension, finding that “[b]ecause       The parties disagree over two issues pertaining to Smith’s
the regulation [that Smith was alleged to have violated] was      Title VII claims: (1) whether Smith properly alleged a claim
not effective[,] [Smith] could not be charged with violation of   of sex stereotyping, in violation of the Supreme Court’s
it.”                                                              pronouncements in Price Waterhouse v. Hopkins, 490 U.S.
                                                                  228 (1989); and (2) whether Smith alleged that he suffered an
  Smith then filed suit in the federal district court. In his     adverse employment action.
complaint, he asserted Title VII claims of sex discrimination
and retaliation, along with claims pursuant to 42 U.S.C.            Defendants do not challenge Smith’s complaint with
§ 1983 and state law claims of invasion of privacy and civil      respect to any of the other elements necessary to establish
conspiracy. In a Memorandum Opinion and Order dated               discrimination and retaliation claims pursuant to Title VII. In
February 26, 2003, the district court dismissed the federal       any event, we affirmatively find that Smith has made out a
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
408, 420 (6th Cir. 2004) (citation omitted). Smith’s                    1. Sex Stereotyping
complaint satisfies the first two requirements by explaining
how he sought legal counsel after learning of the Salem               Title VII of the Civil Rights Act of 1964 provides, in
executive body’s April 18, 2001 meeting concerning his              relevant part, that “[i]t shall be an unlawful employment
employment; how his attorney contacted Defendant DeJane             practice for an employer . . . to discriminate against any
to advise Defendants of Smith’s representation; and how             individual with respect to his compensation, terms,
Smith filed a complaint with the EEOC concerning                    conditions, or privileges of employment because of such
Defendants’ meeting and intended actions. With respect to           individual’s race, color, religion, sex, or national origin.”
the fourth requirement, a causal connection between the             42 U.S.C. § 2000e-2(a).
protected activity and the adverse employment action,
“[a]lthough no one factor is dispositive in establishing a            In his complaint, Smith asserts Title VII claims of
causal connection, evidence . . . that the adverse action was       retaliation and employment discrimination “because of . . .
taken shortly after the plaintiff’s exercise of protected rights    sex.” The district court dismissed Smith’s Title VII claims on
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.” RICHARD A. POSNER, SEX
created by Price Waterhouse, that is, ‘sex-stereotyping,’” as      AND REASON, 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.
Belleville, 119 F.3d 563, 580-81 (7th Cir. 1997) (holding that       Yet some courts have held that this latter form of
“Title VII does not permit an employee to be treated               discrimination is of a different and somehow more
adversely because his or her appearance or conduct does not        permissible kind. For instance, the man who acts in ways
conform to stereotypical gender roles” and explaining that “a      typically associated with women is not described as engaging
man who is harassed because his voice is soft, his physique is     in the same activity as a woman who acts in ways typically
slight, his hair long, or because in some other respect he         associated with women, but is instead described as engaging
exhibits his masculinity in a way that does not meet his           in the different activity of being a transsexual (or in some
coworkers’ idea of how men are to appear and behave, is            instances, a homosexual or transvestite). Discrimination
harassed ‘because of his sex’”), vacated and remanded on           against the transsexual is then found not to be discrimination
other grounds, 523 U.S. 1001 (1998).                               “because of . . . sex,” but rather, discrimination against the
                                                                   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
the discrimination would not occur but for the victim’s sex.         Such was the case here: despite the fact that Smith alleges
See, e.g., Nichols, 256 F.3d 864 (Title VII sex discrimination     that Defendants’ discrimination was motivated by his
and hostile work environment claim upheld where plaintiff’s        appearance and mannerisms, which Defendants felt were
male co-workers and supervisors repeatedly referred to him         inappropriate for his perceived sex, the district court expressly
as “she” and “her” and where co-workers mocked him for             declined to discuss the applicability of Price Waterhouse.
walking and carrying his serving tray “like a woman”);             The district court therefore gave insufficient consideration to
Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252,          Smith’s well-pleaded claims concerning his contra-gender
261 n.4 (1st Cir. 1999) (“[J]ust as a woman can ground an          behavior, but rather accounted for that behavior only insofar
action on a claim that men discriminated against her because       as it confirmed for the court Smith’s status as a transsexual,
she did not meet stereotyped expectations of femininity, a         which the district court held precluded Smith from Title VII
man can ground a claim on evidence that other men                  protection.
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
stereotyping conditional or provide any reason to exclude             2. Adverse Employment Action
Title VII coverage for non sex-stereotypical behavior simply
because the person is a transsexual. As such, discrimination           Despite having dismissed Smith’s Title VII claim for
against a plaintiff who is a transsexual – and therefore fails to   failure to state a claim of sex stereotyping – a finding we have
act and/or identify with his or her gender – is no different        just rejected – the district court nevertheless addressed the
from the discrimination directed against Ann Hopkins in             merits of Smith’s Title VII claims arguendo. Relying on
Price Waterhouse, who, in sex-stereotypical terms, did not act      White v. Burlington Northern & Sante Fe Ry. Co., 310 F.3d
like a woman. Sex stereotyping based on a person’s gender           443 (6th Cir. 2002), the district court held that Smith’s
non-conforming behavior is impermissible discrimination,            suspension was not an adverse employment action because
irrespective of the cause of that behavior; a label, such as        the Court of Common Pleas, rendering the “ultimate
“transsexual,” is not fatal to a sex discrimination claim where     employment decision,” reversed the suspension, and that
the victim has suffered discrimination because of his or her        accordingly, Smith’s Title VII claim could not lie. Because
gender non-conformity. Accordingly, we hold that Smith has          this Circuit has since vacated and overruled White, 364 F.3d
stated a claim for relief pursuant to Title VII’s prohibition of    789 (6th Cir. 2004) (en banc), and joined the majority of other
sex discrimination.                                                 circuits in rejecting the “ultimate employment decision”
                                                                    standard, we hold that the district court erred in its analysis
   Finally, we note that, in its opinion, the district court        and that Smith has successfully pleaded an adverse
repeatedly places the term “sex stereotyping” in quotation          employment action in support of his employment
marks and refers to it as a “term of art” used by Smith to          discrimination and retaliation claims pursuant to Title VII.
disingenuously plead discrimination because of
transsexualism.      Similarly, Defendants refer to sex                Common to both the employment discrimination and
stereotyping as “the Price Waterhouse loophole.”                    retaliation claims is a showing of an adverse employment
(Appellees’ Brief at 6.) These characterizations are almost         action, which is defined as a “materially adverse change in the
identical to the treatment that Price Waterhouse itself gave        terms and conditions of [plaintiff’s] employment.” Hollins v.
sex stereotyping in its briefs to the U.S. Supreme Court. As        Atlantic Co., 188 F.3d 652, 662 (6th Cir. 1999). A “bruised
we do now, the Supreme Court noted the practice with                ego,” a “mere inconvenience or an alteration of job
disfavor, stating:                                                  responsibilities” is not enough to constitute an adverse
                                                                    employment action. White, 364 F.3d at 797 (quoting Kocsis
  In the specific context of sex stereotyping, an employer          v. Multi-Care Mgmt. Inc., 97 F.3d 876, 886 (6th Cir. 1996)).
  who acts on the basis of a belief that a woman cannot be          Examples of adverse employment actions include firing,
  aggressive, or that she must not be, has acted on the basis       failing to promote, reassignment with significantly different
  of gender. Although the parties do not overtly dispute            responsibilities, a material loss of benefits, suspensions, and
  this last proposition, the placement by Price Waterhouse          other indices unique to a particular situation. Burlington
  of “sex stereotyping” in quotation marks throughout its           Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998); White, 364
  brief seems to us an insinuation either that such                 F.3d at 798. Here, the Fire Department suspended Smith for
  stereotyping was not present in this case or that it lacks        twenty-four hours. Because Smith works in twenty-four hour
  legal relevance. We reject both possibilities.                    shifts, that twenty-four hour suspension was the equivalent of
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.
Civ. P. 8, this allegation, at this phase of the litigation, is                    Accordingly, Smith has stated an adverse employment
sufficient to satisfy the adverse employment requirement of                      action and, therefore, satisfied all of the elements necessary
both an employment discrimination and retaliation claim                          to allege a prima facie case of employment discrimination
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
the suspension’s legality. In White, this Court recently joined                  B. 42 U.S.C. § 1983 Claims
the majority of other circuits in rejecting the “ultimate
employment decision” standard whereby a negative                                   The district court also dismissed Smith’s claims pursuant
employment action is not considered an “adverse employment                       to 42 U.S.C. § 1983 on the ground that he failed to state a
action” for Title VII purposes when the decision is                              claim based on the deprivation of a constitutional or federal
subsequently reversed by the employer, putting the plaintiff                     statutory right.
in the position he would have been in absent the negative
action. White, 364 F.3d 789 (holding that the suspension of                        42 U.S.C. § 1983 provides a civil cause of action for
a railroad employee without pay, followed thirty-seven days                      individuals who are deprived of any rights, privileges, or
later by reinstatement with back pay, was an “adverse                            immunities secured by the Constitution or federal laws by
employment action” for Title VII purposes). Even if the                          those acting under color of state law. Smith has stated a
“ultimate employment decision” standard were still viable,                       claim for relief pursuant to § 1983 in connection with his sex-
the district court erred in concluding that, because the Court                   based claim of employment discrimination. Individuals have
of Common Pleas overturned the suspension, it was not an                         a right, protected by the Equal Protection clause of the
adverse employment action. There is no legal authority for                       Fourteenth Amendment, to be free from discrimination on the
the proposition that reversal by a judicial body – as opposed                    basis of sex in public employment. Davis v. Passman, 442
                                                                                 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
    1
      Smith’s complaint does not state whether he was suspended with or
                                                                                 Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-65
without pay. Bec ause we must construe the com plaint in the light most          (1977). As this Court has noted several times, “the showing
favorable to the plaintiff, Ziegler, 249 F.3d at 512, and given the liberal      a plaintiff must make to recover on a disparate treatment
pleading standards of Federal Rule of Civil Procedure 8, we do not find          claim under Title VII mirrors that which must be made to
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
situation” can co nstitute a “m aterially ad verse chang e” as well.             (citing Kitchen v. Chippewa Valley Schs., 825 F.2d 1004,
Hollins,188 F.3d at 662 . Because no discovery has b een conducted yet,          1011 (6th Cir. 1987); Daniels v. Bd. of Educ., 805 F.2d 203,
we do not know the full contours of the suspension. For now, however,            207 (6th Cir. 1986); Grano v. Dep’t of Dev., 637 F.2d 1073,
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., —
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
   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
County Narcotics Intelligence and Coordination Unit, 507                However, it is well-settled that state law does not ordinarily
U.S. 163, 165-66 (1993) (rejecting heightened pleading               define the parameters of due process for Fourteenth
standard for § 1983 claims); Jones v. Duncan, 840 F.2d 359           Amendment purposes, and that state law, by itself, cannot be
(6th Cir. 1988) (holding that § 1983 claims need not set forth       the basis for a federal constitutional violation. See Purisch v.
in detail all the particularities of a plaintiff’s claim against a   Tennessee Technological Univ., 76 F.3d 1414, 1423 (6th Cir.
defendant). Moreover, legal theories of recovery need not be         1996) (“Violation of a state’s formal [employment grievance]
spelled out as long as the relevant issues are sufficiently          procedure . . . does not in itself implicate constitutional due
implicated in the pleadings; in considering motions pursuant         process concerns.”). Neither Smith’s complaint nor his brief
to Fed. R. Civ. P. 12(c), we ask not whether a complaint             specifies what deprivation of property or liberty allegedly
points to a specific statute, but whether relief is possible         stemmed from the City’s failure to comply with state
under any set of facts that could be established consistent with     procedural and administrative rules concerning his
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.
