*

The Honorable William W Schwarzer, Senior United States District

Judge for the Northern District of California, sitting by designation. 

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0262A (6th Cir.)

File Name: 04a0262a.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

JIMMIE L. SMITH,

Plaintiff-Appellant,

v.

CITY OF SALEM, OHIO,

THOMAS EASTEK, WALTER

GREENAMYER, BROOKE

ZELLERS, LARRY D. DEJANE,

JAMES A. ARMENI, JOSEPH

JULIAN, and HARRY DUGAN,

 Defendants-Appellees.

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No. 03-3399

Appeal from the United States District Court

for the Northern District of Ohio at Youngstown.

No. 02-01405—Peter C. Economus, District Judge.

Argued: March 19, 2004

Decided and Filed: August 5, 2004 

Before: COLE and GILMAN, Circuit Judges;

SCHWARZER, Senior District Judge.*

2 Smith v. Salem, Ohio, et al. No. 03-3399

_________________

COUNSEL

ARGUED: Randi A. Barnabee, DEBORAH A. SMITH &

COMPANY, Northfield, Ohio, for Appellant. Aretta K.

Bernard, ROETZEL & ANDRESS, Akron, Ohio, for

Appellees. ON BRIEF: Randi A. Barnabee, DEBORAH A.

SMITH & COMPANY, Northfield, Ohio, for Appellant.

Aretta K. Bernard, ROETZEL & ANDRESS, Akron, Ohio,

for Appellees.

_____________________

AMENDED OPINION

_____________________

R. GUY COLE, JR., Circuit Judge. Plaintiff-Appellant

Jimmie L. Smith appeals from a judgment of the United

States District Court for the Northern District of Ohio

dismissing his claims against his employer, DefendantAppellant City of Salem, Ohio, and various City officials, and

granting judgment on the pleadings to Defendants, pursuant

to Federal Rule of Civil Procedure 12(c). Smith, who

considers himself a transsexual and has been diagnosed with

Gender Identity Disorder, alleged that Defendants

discriminated against him in his employment on the basis of

sex. He asserted claims pursuant to Title VII of the Civil

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

Rule 12(c). Smith also asserted state law claims for invasion

of privacy and civil conspiracy; the district court dismissed

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

consistent with this opinion.
No. 03-3399 Smith v. Salem, Ohio, et al. 3

I. BACKGROUND

In reviewing a motion for judgment on the pleadings

pursuant to Rule 12(c), we construe the complaint in the light

most favorable to the plaintiff and accept the complaint’s

factual inferences as true. Ziegler v. IBP Hog Market, Inc.,

249 F.3d 509, 511-12 (6th Cir. 2001). The following facts are

drawn from Smith’s complaint. 

Smith is – and has been, at all times relevant to this action

– employed by the city of Salem, Ohio, as a lieutenant in the

Salem Fire Department (the “Fire Department”). Prior to the

events surrounding this action, Smith worked for the Fire

Department for seven years without any negative incidents.

Smith – biologically and by birth a male – is a transsexual

and has been diagnosed with Gender Identity Disorder

(“GID”), which the American Psychiatric Association

characterizes as a disjunction between an individual’s sexual

organs and sexual identity. AMERICAN PSYCHIATRIC

ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF

MENTAL DISORDERS 576-582 (4th ed. 2000). After being

diagnosed with GID, Smith began “expressing a more

feminine appearance on a full-time basis” – including at work

– in accordance with international medical protocols for

treating GID. Soon thereafter, Smith’s co-workers began

questioning him about his appearance and commenting that

his appearance and mannerisms were not “masculine

enough.” As a result, Smith notified his immediate

supervisor, Defendant Thomas Eastek, about his GID

diagnosis and treatment. He also informed Eastek of the

likelihood that his treatment would eventually include

complete physical transformation from male to female. Smith

had approached Eastek in order to answer any questions

Eastek might have concerning his appearance and manner and

so that Eastek could address Smith’s co-workers’ comments

and inquiries. Smith specifically asked Eastek, and Eastek

promised, not to divulge the substance of their conversation

to any of his superiors, particularly to Defendant Walter

Greenamyer, Chief of the Fire Department. In short order,

4 Smith v. Salem, Ohio, et al. No. 03-3399

however, Eastek told Greenamyer about Smith’s behavior and

his GID.

Greenamyer then met with Defendant C. Brooke Zellers,

the Law Director for the City of Salem, with the intention of

using Smith’s transsexualism and its manifestations as a basis

for terminating his employment. On April 18, 2001,

Greenamyer and Zellers arranged a meeting of the City’s

executive body to discuss Smith and devise a plan for

terminating his employment. The executive body included

Defendants Larry D. DeJane, Salem’s mayor; James A.

Armeni, Salem’s auditor; and Joseph S. Julian, Salem’s

service director. Also present was Salem Safety Director

Henry L. Willard, now deceased, who was never a named

defendant in this action.

Although Ohio Revised Code § 121.22(G) – which sets

forth the state procedures pursuant to which Ohio municipal

officials may meet to take employment action against a

municipal employee – provides that officials “may hold an

executive session to consider the appointment, employment,

dismissal, discipline, promotion, demotion, or compensation

of a public employee only after a majority of a quorum of the

public body determines, by a roll call vote, to hold an

executive session and only at a regular or special meeting for

the sole purpose of [considering such matters],” the City did

not abide by these procedures at the April 18, 2001 meeting.

During the meeting, Greenamyer, DeJane, and Zellers

agreed to arrange for the Salem Civil Service Commission to

require Smith to undergo three separate psychological

evaluations with physicians of the City’s choosing. They

hoped that Smith would either resign or refuse to comply. If

he refused to comply, Defendants reasoned, they could

terminate Smith’s employment on the ground of

insubordination. Willard, who remained silent during the

meeting, telephoned Smith afterwards to inform him of the

plan, calling Defendants’ scheme a “witch hunt.”
No. 03-3399 Smith v. Salem, Ohio, et al. 5

Two days after the meeting, on April 20, 2001, Smith’s

counsel telephoned DeJane to advise him of Smith’s legal

representation and the potential legal ramifications for the

City if it followed through on the plan devised by Defendants

during the April 18 meeting. On April 22, 2001, Smith

received his “right to sue” letter from the U.S. Equal

Employment Opportunity Commission (“EEOC”). Four days

after that, on April 26, 2001, Greenamyer suspended Smith

for one twenty-four hour shift, based on his alleged infraction

of a City and/or Fire Department policy.

At a subsequent hearing before the Salem Civil Service

Commission (the “Commission”) regarding his suspension,

Smith contended that the suspension was a result of selective

enforcement in retaliation for his having obtained legal

representation in response to Defendants’ plan to terminate

his employment because of his transsexualism and its

manifestations. At the hearing, Smith sought to elicit

testimony from witnesses regarding the meeting of April 18,

2001, but the City objected and the Commission’s chairman,

Defendant Harry Dugan, refused to allow any testimony

regarding the meeting, despite the fact that Ohio

AdministrativeCode § 124-9-11 permitted Smith to introduce

evidence of disparate treatment and selective enforcement in

his hearing before the Commission.

The Commission ultimately upheld Smith’s suspension.

Smith appealed to the Columbiana County Court of Common

Pleas, which reversed the suspension, finding that “[b]ecause

the regulation [that Smith was alleged to have violated] was

not effective[,] [Smith] could not be charged with violation of

it.” 

Smith then filed suit in the federal district court. In his

complaint, he asserted Title VII claims of sex discrimination

and retaliation, along with claims pursuant to 42 U.S.C.

§ 1983 and state law claims of invasion of privacy and civil

conspiracy. In a Memorandum Opinion and Order dated

February 26, 2003, the district court dismissed the federal

6 Smith v. Salem, Ohio, et al. No. 03-3399

claims and granted judgment on the pleadings to Defendants

pursuant to Federal Rule of Civil Procedure 12(c). The

district judge also dismissed the state law claims without

prejudice, having declined to exercise supplemental

jurisdiction over them pursuant to 28 U.S.C. § 1367(c)(3).

II. ANALYSIS

On appeal, Smith contends that the district court erred in

holding that: (1) he failed to state a claim of sex stereotyping;

(2) Title VII protection is unavailable to transsexuals;

(3) even if he had stated a claim of sex stereotyping, he failed

to demonstrate that he suffered an adverse employment

action; and (4) he failed to state a claim based on the

deprivation of a constitutional or federal statutory right,

pursuant to 42 U.S.C. § 1983.

We review de novo the dismissal of a complaint pursuant

to Rule 12(c). Grindstaff v. Green, 133 F.3d 416, 421 (6th

Cir. 1998). A motion for judgment on the pleadings shall be

granted only where, construing the complaint in the light most

favorable to the plaintiff, and accepting all of its factual

allegations as true, the plaintiff can prove no set of facts in

support of the claims that would entitle him to relief. Id.

(citation omitted).

A. Title VII

The parties disagree over two issues pertaining to Smith’s

Title VII claims: (1) whether Smith properly alleged a claim

of sex stereotyping, in violation of the Supreme Court’s

pronouncements in Price Waterhouse v. Hopkins, 490 U.S.

228 (1989); and (2) whether Smith alleged that he suffered an

adverse employment action.

Defendants do not challenge Smith’s complaint with

respect to any of the other elements necessary to establish

discrimination and retaliation claims pursuant to Title VII. In

any event, we affirmatively find that Smith has made out a
No. 03-3399 Smith v. Salem, Ohio, et al. 7

prima facie case for both claims. To establish a prima facie

case of employment discrimination pursuant to Title VII,

Smith must show that: (1) he is a member of a protected class;

(2) he suffered an adverse employment action; (3) he was

qualified for the position in question; and (4) he was treated

differently from similarly situated individuals outside of his

protected class. Perry v. McGinnis, 209 F.3d 597, 601 (6th

Cir. 2000). Smith is a member of a protected class. His

complaint asserts that he is a male with Gender Identity

Disorder, and Title VII’s prohibition of discrimination

“because of . . . sex” protects men as well as women.

Newport News Shipbuilding and Dry Dock Co. v. E.E.O.C.,

462 U.S. 669, 682 (1983). The complaint also alleges both

that Smith was qualified for the position in question – he had

been a lieutenant in the Fire Department for seven years

without any negative incidents – and that he would not have

been treated differently, on account of his non-masculine

behavior and GID, had he been a woman instead of a man.

To establish a prima facie case of retaliation pursuant to

Title VII, a plaintiff must show that: (1) he engaged in an

activity protected by Title VII; (2) the defendant knew he

engaged in this protected activity; (3) thereafter,the defendant

took an employment action adverse to him; and (4) there was

a causal connection between the protected activity and the

adverse employment action. DiCarlo v. Potter, 358 F.3d

408, 420 (6th Cir. 2004) (citation omitted). Smith’s

complaint satisfies the first two requirements by explaining

how he sought legal counsel after learning of the Salem

executive body’s April 18, 2001 meeting concerning his

employment; how his attorney contacted Defendant DeJane

to advise Defendants of Smith’s representation; and how

Smith filed a complaint with the EEOC concerning

Defendants’ meeting and intended actions. With respect to

the fourth requirement, a causal connection between the

protected activity and the adverse employment action,

“[a]lthough no one factor is dispositive in establishing a

causal connection, evidence . . . that the adverse action was

taken shortly after the plaintiff’s exercise of protected rights

8 Smith v. Salem, Ohio, et al. No. 03-3399

is relevant to causation.” Nguyen v. City of Cleveland, 229

F.3d 559, 563 (6th Cir. 2000); see also Oliver v. Digital

Equip. Corp., 846 F.2d 103, 110 (1st Cir. 1988) (employee’s

discharge “soon after” engaging in protected activity “is

indirect proof of a causal connection between the firing and

the activity because it is strongly suggestive of retaliation.”);

Miller v. Fairchild Indus., Inc., 797 F.2d 727, 731 (9th Cir.

1986) (“Causation sufficient to establish a prima facie case of

unlawful retaliation may be inferred from the proximity in

time between the protected action and the allegedly retaliatory

discharge.”). Here, Smith was suspended on April 26, 2001,

just days after he engaged in protected activity by receiving

his “right to sue” letter from the EEOC, which occurred four

days before the suspension, and by his attorney contacting

Mayor DeJane, which occurred six days before the

suspension. The temporal proximity between the events is

significant enough to constitute direct evidence of a causal

connection for the purpose of satisfying Smith’s burden of

demonstrating a prima facie case. 

We turn now to examining whether Smith properly alleged

a claim of sex stereotyping, in violation of the Supreme

Court’s pronouncements in Price Waterhouse v. Hopkins, 490

U.S. 228 (1989), and whether Smith alleged that he suffered

an adverse employment action.

1. Sex Stereotyping

Title VII of the Civil Rights Act of 1964 provides, in

relevant part, that “[i]t shall be an unlawful employment

practice for an employer . . . to discriminate against any

individual with respect to his compensation, terms,

conditions, or privileges of employment because of such

individual’s race, color, religion, sex, or national origin.”

42 U.S.C. § 2000e-2(a). 

In his complaint, Smith asserts Title VII claims of

retaliation and employment discrimination “because of . . .

sex.” The district court dismissed Smith’s Title VII claims on
No. 03-3399 Smith v. Salem, Ohio, et al. 9

the ground that he failed to state a claim for sex stereotyping

pursuant to Price Waterhouse v. Hopkins, 490 U.S. 228

(1989). The district court implied that Smith’s claim was

disingenuous, stating that he merely “invokes the term-of-art

created by Price Waterhouse, that is, ‘sex-stereotyping,’” as

an end run around his “real” claim, which, the district court

stated, was “based upon his transsexuality.” The district court

then held that “Title VII does not prohibit discrimination

based on an individual’s transsexualism.”

Relying on Price Waterhouse – which held that Title VII’s

prohibition of discrimination “because of . . . sex” bars gender

discrimination, including discrimination based on sex

stereotypes – Smith contends on appeal that he was a victim

of discrimination “because of . . . sex” both because of his

gender non-conforming conduct and, more generally, because

of his identification as a transsexual. 

We first address whether Smith has stated a claim for relief,

pursuant to Price Waterhouse’s prohibition of sex

stereotyping, based on his gender non-conforming behavior

and appearance. In Price Waterhouse, the plaintiff, a female

senior manager in an accounting firm, was denied partnership

in the firm, in part, because she was considered “macho.”

490 U.S. at 235. She was advised that she could improve her

chances for partnership if she were to take “a course at charm

school,” “walk more femininely, talk more femininely, dress

more femininely, wear make-up, have her hair styled, and

wear jewelry.” Id. (internal quotation marks omitted). Six

members of the Court agreed that such comments bespoke

gender discrimination, holding that Title VII barred not just

discrimination because Hopkins was a woman, but also sex

stereotyping – that is, discrimination because she failed to act

like a woman. Id. at 250-51 (plurality opinion of four

Justices); id. at 258-61 (White, J., concurring); id. at 272-73

(O’Connor, J., concurring) (accepting plurality’s sex

stereotyping analysis and characterizing the “failure to

conform to [gender] stereotypes” as a discriminatory

criterion; concurring separately to clarify the separate issues

10 Smith v. Salem, Ohio, et al. No. 03-3399

of causation and allocation of the burden of proof). As Judge

Posner has pointed out, the term “gender” is one “borrowed

from grammar to designate the sexes as viewed as social

rather than biological classes.” RICHARD A. POSNER, SEX

AND REASON, 24-25 (1992). The Supreme Court made clear

that in the context of Title VII, discrimination because of

“sex” includes gender discrimination: “In the context of sex

stereotyping, an employer who acts on the basis of a belief

that a woman cannot be aggressive, or that she must not be,

has acted on the basis of gender.” Price Waterhouse,

490 U.S. at 250. The Court emphasized that “we are beyond

the day when an employer could evaluate employees by

assuming or insisting that they matched the stereotype

associated with their group.” Id. at 251.

Smith contends that the same theory of sex stereotyping

applies here. His complaint sets forth the conduct and

mannerisms which, he alleges, did not conform with his

employers’ and co-workers’ sex stereotypes of how a man

should look and behave. Smith’s complaint states that, after

being diagnosed with GID, he began to express a more

feminine appearance and manner on a regular basis, including

at work. The complaint states that his co-workers began

commenting on his appearance and mannerisms as not being

masculine enough; and that his supervisors at the Fire

Department and other municipal agents knew about this

allegedly unmasculine conduct and appearance. The

complaint then describes a high-level meeting among Smith’s

supervisors and other municipal officials regarding his

employment. Defendants allegedly schemed to compel

Smith’s resignation by forcing him to undergo multiple

psychological evaluations of his gender non-conforming

behavior. The complaint makes clear that these meetings

took place soon after Smith assumed a more feminine

appearance and manner and after his conversation about this

with Eastek. In addition, the complaint alleges that Smith

was suspended for twenty-four hours for allegedly violating

an unenacted municipal policy, and that the suspension was

ordered in retaliation for his pursuing legal remedies after he
No. 03-3399 Smith v. Salem, Ohio, et al. 11

had been informed about Defendants’ plan to intimidate him

into resigning. In short, Smith claims that the discrimination

he experienced was based on his failure to conform to sex

stereotypes by expressing less masculine, and more feminine

mannerisms and appearance. 

Having alleged that his failure to conform to sex

stereotypes concerning how a man should look and behave

was the driving force behind Defendants’ actions, Smith has

sufficiently pleaded claims of sex stereotyping and gender

discrimination. 

In so holding, we find that the district court erred in relying

on a series of pre-Price Waterhouse cases from other federal

appellate courts holding that transsexuals, as a class, are not

entitled to Title VII protection because “Congress had a

narrow view of sex in mind” and “never considered nor

intended that [Title VII] apply to anything other than the

traditional concept of sex.” Ulane v. Eastern Airlines, Inc.,

742 F.2d 1081, 1085, 1086 (7th Cir. 1984); see also Holloway

v. Arthur Andersen & Co., 566 F.2d 659, 661-63 (9th Cir.

1977) (refusing to extend protection of Title VII to

transsexuals because discrimination against transsexuals is

based on “gender” rather than “sex”). It is true that, in the

past, federal appellate courts regarded Title VII as barring

discrimination based only on “sex” (referring to an

individual’s anatomical and biological characteristics), but

not on “gender” (referring to socially-constructed norms

associated with a person’s sex). See, e.g., Ulane, 742 F.2d at

1084 (construing “sex” in Title VII narrowly to mean only

anatomical sex rather than gender); Sommers v. Budget

Mktg., Inc., 667 F.2d 748, 750 (8th Cir. 1982) (holding that

transsexuals are not protected by Title VII because the “plain

meaning” must be ascribed to the term “sex” in the absence

of clear congressional intent to do otherwise); Holloway, 566

F.2d at 661-63 (refusing to extend protection of Title VII to

transsexuals because discrimination against transsexualism is

based on “gender” rather than “sex;” and “sex” should be

given its traditional definition based on the anatomical

12 Smith v. Salem, Ohio, et al. No. 03-3399

characteristics dividing “organisms” and “living beings” into

male and female). In this earlier jurisprudence, male-tofemale transsexuals (who were the plaintiffs in Ulane,

Sommers, and Holloway) – as biological males whose

outward behavior and emotional identity did not conform to

socially-prescribed expectations of masculinity – were denied

Title VII protection by courts because they were considered

victims of “gender” rather than “sex” discrimination.

However, the approach in Holloway, Sommers, and Ulane

– and by the district court in this case – has been eviscerated

by Price Waterhouse. See Schwenk v. Hartford, 204 F.3d

1187, 1201 (9th Cir. 2000) (“The initial judicial approach

taken in cases such as Holloway [and Ulane] has been

overruled by the logic and language of Price Waterhouse.”).

By holding that Title VII protected a woman who failed to

conform to social expectations concerning how a woman

should look and behave, the Supreme Court established that

Title VII’s reference to “sex” encompasses both the biological

differences between men and women, and gender

discrimination, that is, discrimination based on a failure to

conform to stereotypical gender norms. See Price

Waterhouse, 490 U.S. at 251; see also Schwenk, 204 F.3d at

1202 (stating that Title VII encompasses instances in which

“the perpetrator’s actions stem from the fact that he believed

that the victim was a man who ‘failed to act like’ one” and

that “sex” under Title VII encompasses both the anatomical

differences between men and women and gender); Rene v.

MGM Grand Hotel, Inc., 305 F.3d 1061, 1068 (9th Cir. 2002)

(en banc) (Pregerson, J., concurring) (noting that the Ninth

Circuit had previously found that “same-sex gender

stereotyping of the sort suffered by Rene – i.e. gender

stereotyping of a male gay employee by his male co-workers”

constituted actionable harassment under Title VII and

concluding that “[t]he repeated testimony that his co-workers

treated Rene, in a variety of ways, ‘like a woman’ constitutes

ample evidence of gender stereotyping”); Bibby v.

Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 262-63

(3d Cir. 2001) (stating that a plaintiff may be able to prove a
No. 03-3399 Smith v. Salem, Ohio, et al. 13

claim of sex discrimination by showing that the “harasser’s

conduct was motivated by a belief that the victim did not

conform to the stereotypes of his or her gender”); Nichols v.

Azteca Rest. Enters., Inc., 256 F.3d 864, 874-75 (9th Cir.

2001) (holding that harassment “based upon the perception

that [the plaintiff] is effeminate” is discrimination because of

sex, in violation of Title VII), overruling DeSantis v. Pac.

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

“Title VII does not permit an employee to be treated

adversely because his or her appearance or conduct does not

conform to stereotypical gender roles” and explaining that “a

man who is harassed because his voice is soft, his physique is

slight, his hair long, or because in some other respect he

exhibits his masculinity in a way that does not meet his

coworkers’ idea of how men are to appear and behave, is

harassed ‘because of his sex’”), vacated and remanded on

other grounds, 523 U.S. 1001 (1998).

After Price Waterhouse, an employer who discriminates

against women because, for instance, they do not wear dresses

or makeup, is engaging in sex discrimination because the

discrimination would not occur but for the victim’s sex. It

follows that employers who discriminate against men because

they do wear dresses and makeup, or otherwise act

femininely, are also engaging in sex discrimination, because

the discrimination would not occur but for the victim’s sex.

See, e.g., Nichols, 256 F.3d 864 (Title VII sex discrimination

and hostile work environment claim upheld where plaintiff’s

male co-workers and supervisors repeatedly referred to him

as “she” and “her” and where co-workers mocked him for

walking and carrying his serving tray “like a woman”); 

Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252,

261 n.4 (1st Cir. 1999) (“[J]ust as a woman can ground an

action on a claim that men discriminated against her because

she did not meet stereotyped expectations of femininity, a

man can ground a claim on evidence that other men

discriminated against him because he did not meet

stereotypical expectations of masculinity.” (internal citation

14 Smith v. Salem, Ohio, et al. No. 03-3399

omitted)); see also Rosa v. Park West Bank & Trust Co., 214

F.3d 213 (1st Cir. 2000) (applying Price Waterhouse and

Title VII jurisprudence to an Equal Credit Opportunity Act

claim and reinstating claim on behalf of biologically male

plaintiff who alleged that he was denied an opportunity to

apply for a loan because was dressed in “traditionally

feminine attire”). 

Yet some courts have held that this latter form of

discrimination is of a different and somehow more

permissible kind. For instance, the man who acts in ways

typically associated with women is not described as engaging

in the same activity as a woman who acts in ways typically

associated with women, but is instead described as engaging

in the different activity of being a transsexual (or in some

instances, a homosexual or transvestite). Discrimination

against the transsexual is then found not to be discrimination

“because of . . . sex,” but rather, discrimination against the

plaintiff’s unprotected status or mode of self-identification.

In other words, these courts superimpose classifications such

as “transsexual” on a plaintiff, and then legitimize

discrimination based on the plaintiff’s gender non-conformity

by formalizing the non-conformity into an ostensibly

unprotected classification. See, e.g., Dillon v. Frank, No. 90-

2290, 1992 WL 5436 (6th Cir. Jan. 15, 1992).

Such was the case here: despite the fact that Smith alleges

that Defendants’ discrimination was motivated by his

appearance and mannerisms, which Defendants felt were

inappropriate for his perceived sex, the district court expressly

declined to discuss the applicability of Price Waterhouse.

The district court therefore gave insufficient consideration to

Smith’s well-pleaded claims concerning his contra-gender

behavior, but rather accounted for that behavior only insofar

as it confirmed for the court Smith’s status as a transsexual,

which the district court held precluded Smith from Title VII

protection. 
No. 03-3399 Smith v. Salem, Ohio, et al. 15

Such analyses cannot be reconciled with Price Waterhouse,

which does not make Title VII protection against sex

stereotyping conditional or provide any reason to exclude

Title VII coverage for non sex-stereotypical behavior simply

because the person is a transsexual. As such, discrimination

against a plaintiff who is a transsexual – and therefore fails to

act and/or identify with his or her gender – is no different

from the discrimination directed against Ann Hopkins in

Price Waterhouse, who, in sex-stereotypicalterms, did not act

like a woman. Sex stereotyping based on a person’s gender

non-conforming behavior is impermissible discrimination,

irrespective of the cause of that behavior; a label, such as

“transsexual,” is not fatal to a sex discrimination claim where

the victim has suffered discrimination because of his or her

gender non-conformity. Accordingly, we hold that Smith has

stated a claim for relief pursuant to Title VII’s prohibition of

sex discrimination.

Finally, we note that, in its opinion, the district court

repeatedly places the term “sex stereotyping” in quotation

marks and refers to it as a “term of art” used by Smith to

disingenuously plead discrimination because of

transsexualism. Similarly, Defendants refer to sex

stereotyping as “the Price Waterhouse loophole.”

(Appellees’ Brief at 6.) These characterizations are almost

identical to the treatment that Price Waterhouse itself gave

sex stereotyping in its briefs to the U.S. Supreme Court. As

we do now, the Supreme Court noted the practice with

disfavor, stating: 

In the specific context of sex stereotyping, an employer

who acts on the basis of a belief that a woman cannot be

aggressive, or that she must not be, has acted on the basis

of gender. Although the parties do not overtly dispute

this last proposition, the placement by Price Waterhouse

of “sex stereotyping” in quotation marks throughout its

brief seems to us an insinuation either that such

stereotyping was not present in this case or that it lacks

legal relevance. We reject both possibilities.

16 Smith v. Salem, Ohio, et al. No. 03-3399

Price Waterhouse, 490 U.S. at 250.

2. Adverse Employment Action

Despite having dismissed Smith’s Title VII claim for

failure to state a claim of sex stereotyping – a finding we have

just rejected – the district court nevertheless addressed the

merits of Smith’s Title VII claims arguendo. Relying on

White v. Burlington Northern & Sante Fe Ry. Co., 310 F.3d

443 (6th Cir. 2002), the district court held that Smith’s

suspension was not an adverse employment action because

the Court of Common Pleas, rendering the “ultimate

employment decision,” reversed the suspension, and that

accordingly, Smith’s Title VII claim could not lie. Because

this Circuit has since vacated and overruled White, 364 F.3d

789 (6th Cir. 2004) (en banc), and joined the majority of other

circuits in rejecting the “ultimate employment decision”

standard, we hold that the district court erred in its analysis

and that Smith has successfully pleaded an adverse

employment action in support of his employment

discrimination and retaliation claims pursuant to Title VII.

Common to both the employment discrimination and

retaliation claims is a showing of an adverse employment

action, which is defined as a “materially adverse change in the

terms and conditions of [plaintiff’s] employment.” Hollins v.

Atlantic Co., 188 F.3d 652, 662 (6th Cir. 1999). A “bruised

ego,” a “mere inconvenience or an alteration of job

responsibilities” is not enough to constitute an adverse

employment action. White, 364 F.3d at 797 (quoting Kocsis

v. Multi-Care Mgmt. Inc., 97 F.3d 876, 886 (6th Cir. 1996)).

Examples of adverse employment actions include firing,

failing to promote, reassignment with significantly different

responsibilities, a material loss of benefits, suspensions, and

other indices unique to a particular situation. Burlington

Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998); White, 364

F.3d at 798. Here, the Fire Department suspended Smith for

twenty-four hours. Because Smith works in twenty-four hour

shifts, that twenty-four hour suspension was the equivalent of
No. 03-3399 Smith v. Salem, Ohio, et al. 17

1

Smith’s complaint does not state whether he was suspended with or

without pay. Because we must construe the complaint in the light most

favorable to the plaintiff, Ziegler, 249 F.3d at 512, and given the liberal

pleading standards of Federal Rule of Civil Procedure 8, we do not find

this failure dispositive. A “materially adverse change” in employment

conditions often involves a material loss of pay or benefits, but that is not

always the case, and “other indices that might be unique to a particular

situation” can constitute a “materially adverse change” as well.

Hollins,188 F.3d at 662. Because no discovery has been conducted yet,

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

adverse employment action.

three eight-hour days for the average worker, or,

approximately 60% of a forty-hour work week. Pursuant to

the liberal notice pleading requirements set forth in Fed. R.

Civ. P. 8, this allegation, at this phase of the litigation, is

sufficient to satisfy the adverse employment requirement of

both an employment discrimination and retaliation claim

pursuant to Title VII.1 

It is irrelevant that Smith’s suspension was ultimately

reversed by the Court of Common Pleas after he challenged

the suspension’s legality. In White, this Court recently joined

the majority of other circuits in rejecting the “ultimate

employment decision” standard whereby a negative

employment action is not considered an “adverse employment

action” for Title VII purposes when the decision is

subsequently reversed by the employer, putting the plaintiff

in the position he would have been in absent the negative

action. White, 364 F.3d 789 (holding that the suspension of

a railroad employee without pay, followed thirty-seven days

later by reinstatement with back pay, was an “adverse

employment action” for Title VII purposes). Even if the

“ultimate employment decision” standard were still viable,

the district court erred in concluding that, because the Court

of Common Pleas overturned the suspension, it was not an

adverse employment action. There is no legal authority for

the proposition that reversal by a judicial body – as opposed

18 Smith v. Salem, Ohio, et al. No. 03-3399

to the employer – declassifies a suspension as an adverse

employment action.

Accordingly, Smith has stated an adverse employment

action and, therefore, satisfied all of the elements necessary

to allege a prima facie case of employment discrimination

and retaliation pursuant to Title VII. We therefore reverse the

district court’s grant of judgment on the pleadings to

Defendants with respect to those claims. 

B. 42 U.S.C. § 1983 Claims

The district court also dismissed Smith’s claims pursuant

to 42 U.S.C. § 1983 on the ground that he failed to state a

claim based on the deprivation of a constitutional or federal

statutory right.

42 U.S.C. § 1983 provides a civil cause of action for

individuals who are deprived of any rights, privileges, or

immunities secured by the Constitution or federal laws by

those acting under color of state law. Smith has stated a

claim for relief pursuant to § 1983 in connection with his sexbased claim of employment discrimination. Individuals have

a right, protected by the Equal Protection clause of the

Fourteenth Amendment, to be free from discrimination on the

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

Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-65

(1977). As this Court has noted several times, “the showing

a plaintiff must make to recover on a disparate treatment

claim under Title VII mirrors that which must be made to

recover on an equal protection claim under section § 1983.”

Gutzwiller v. Fenik, 860 F.2d 1317, 1325 (6th Cir. 1988)

(citing Kitchen v. Chippewa Valley Schs., 825 F.2d 1004,

1011 (6th Cir. 1987); Daniels v. Bd. of Educ., 805 F.2d 203,

207 (6th Cir. 1986); Grano v. Dep’t of Dev., 637 F.2d 1073,

1081-82 (6th Cir. 1980); Lautermilch v. Findlay City Schs.,
No. 03-3399 Smith v. Salem, Ohio, et al. 19

314 F.3d 271, 275 (6th Cir. 2003) (“To prove a violation of

the equal protection clause under § 1983, [a plaintiff] must

prove the same elements as are required to establish a

disparate treatment claim under Title VII.”) (quotation and

citation omitted). The facts Smith has alleged to support his

claims of gender discrimination pursuant to Title VII easily

constitute a claim of sex discrimination grounded in the Equal

Protection Clause of the Constitution, pursuant to § 1983.

See Back v. Hastings on Hudson Union Free Sch. Dist., —

F.3d —, No. 03-7058, 2004 WL 739846, at * 5-7 (2d Cir.

Apr. 7, 2004) (holding that claims premised on Price

Waterhouse sex stereotyping theory sufficiently constitute

claim of sex discrimination pursuant to § 1983).

Defendants urge us to hold otherwise, on the ground that

Smith’s complaint fails to refer specifically to the Equal

Protection Clause of the U.S. Constitution. But the Federal

Rules of Civil Procedure provide for a liberal system of notice

pleading. Fed. R. Civ. P. 8(a). A plaintiff need only provide

“a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Such

a statement must simply ‘give the defendant fair notice of

what the plaintiff’s claim is and the grounds upon which it

rests.’” Swierkiewicz v. Soremna N.A., 534 U.S. 506, 512

(2002) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

Claims made pursuant to 42 U.S.C. § 1983 are not subject to

heightened pleading standards. Leatherman v. Tarrant

County Narcotics Intelligence and Coordination Unit, 507

U.S. 163, 165-66 (1993) (rejecting heightened pleading

standard for § 1983 claims); Jones v. Duncan, 840 F.2d 359

(6th Cir. 1988) (holding that § 1983 claims need not set forth

in detail all the particularities of a plaintiff’s claim against a

defendant). Moreover, legal theories of recovery need not be

spelled out as long as the relevant issues are sufficiently

implicated in the pleadings; in considering motions pursuant

to Fed. R. Civ. P. 12(c), we ask not whether a complaint

points to a specific statute, but whether relief is possible

under any set of facts that could be established consistent with

the allegation. Because Smith’s sex discrimination claim so

20 Smith v. Salem, Ohio, et al. No. 03-3399

thoroughly and obviously sounds in a constitutional claim of

equal protection, Defendants had fair notice of his claim and

the ground upon which it rests. As such, we hold that Smith

has satisfied the liberal notice pleading requirements set forth

in Fed. R. Civ. P. 8 with respect to his claim of sex

discrimination, grounded in an alleged equal protection

violation, and we therefore reverse the district court’s grant of

judgment on the pleadings dismissing Smith’s § 1983 claim.

In his appellate brief, Smith also contends that his

complaint alleges a violation of his constitutional right to due

process, based on the City’s failure to comply with the state

statutory and administrative procedures that an Ohio

municipality must follow when taking official employment

action against a public employee. His complaint outlines the

statutory procedures, governed by O.R.C. § 121.22(G),

pursuant to which members of an Ohio municipality may

meet for purposes of taking official employment action

against a public employee, and it alleges that those procedures

were not followed. The complaint also discusses O.A.C.

§ 124-9-11, which would have permitted Smith to call

witnesses at his post-suspension hearing in front of the Salem

Civil Service Commission; and the complaint alleges that he

was barred from calling witnesses. Smith contends that these

allegations implicate his right to due process pursuant to the

Fourteenth Amendment of the U.S. Constitution. 

However, it is well-settled that state law does not ordinarily

define the parameters of due process for Fourteenth

Amendment purposes, and that state law, by itself, cannot be

the basis for a federal constitutional violation. See Purisch v.

Tennessee Technological Univ., 76 F.3d 1414, 1423 (6th Cir.

1996) (“Violation of a state’s formal [employment grievance]

procedure . . . does not in itself implicate constitutional due

process concerns.”). Neither Smith’s complaint nor his brief

specifies what deprivation of property or liberty allegedly

stemmed from the City’s failure to comply with state

procedural and administrative rules concerning his
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.