* The Honora ble Will iam W Schwarzer, Senior Unit ed States Distr ict Jud ge for th e N orthe rn D istrict of Ca lifornia, sitting b y design ation.

1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0262A (6th C ir.) File Name: 04a02 62a.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________

J IMMIE L. S MITH ,

Plaintiff- Appellant

,

v.

C ITY OF S ALEM , O HIO , T HOM AS E ASTEK , W ALTER G REENAMYER , B ROOKE Z ELLERS , L ARRY D. D E J ANE , J AMES A. A RMENI , J OSEPH J ULI AN , and H ARRY D UGAN , Defenda nts-Appe llees. X - - - -

> , - - - - - - - - N 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

Befor e: COLE and GI

LMAN , Circuit Jud

ges; SCHWARZER, Senior District Judge. * 2 Smith v. S alem, Ohi o, et al. No. 03-3399

_________________ COUNSEL

ARGUED: Randi A. Barnab ee , DEBORAH A. SMITH & COMPANY, Northf

ield, Ohio, for Appellant. Aretta K. Be rnard, ROETZEL & ANDRESS, Akron, Ohio, f o r Appellee s. ON BRI EF: Randi A. Barnabee, DEBORAH A. SMITH & COMPANY , Northfi eld, Ohio , for App ellant. Arett a K. Bernard, ROETZEL & ANDRESS, Akron, Ohio, for Appe llees.

_____________________

AMENDED O PINION

_____________________ R. GUY COLE, JR., Circuit Judge. Plai ntiff-Appellant Jimmie L. Smith

appeals from a judgment of the United Stat es D istrict Cou

rt for the

Norther n Distric t of Ohio dismissing his claims

agains t his employ

er, DefendantAppellant City of Salem, Oh

io, and va rious City officials, and granting judgment

on t he pleadings to Defendants, pursuant
to F ederal Rule of Civil Procedure 12(c). Smith, who considers himself

a transsexual and has b een diag nosed with Gender Ide ntity

Diso rder, a llege d that Defendant s discriminated

agains t him in

his employ

ment on the

basis of

se x. He asserted claims pursuant to Title VI I of theCivi l Rights Act of 1964, 42 U.S.C. § 2000e et seq ., and 42 U.S .C. § 1983. The district

court dismissed

those cla ims pursua

nt to Rule 12(c). Sm

ith also asserted

state law claims for invasion of pr iv ac y an d c iv il co ns pi ra cy; t he district court dismissed th ose cl aims as well, having declined to exercise pendent jurisdiction over them.

For the follow

ing rea sons, we reverse thejudgment of the districtcourt an

d remand th e case fo r furt her pro ceedin gs consistent with this opinion.No. 03-3399 Smith v. S alem, Ohi o, et al. 3

I. BACKGROUND

Inreview ing a mo tion for ju dgm ent on the pl eadin gs pursuant to Rule 12(c), we construe the complaint in the light
most favora ble to the

plaintiff and acc ept t

he complaint’s fac tu al 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

– employ ed 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 ye ars witho

ut any negati ve incide nts. Smith – biologically a

nd by birth a mal e – is a transsexual and has been diagnosed with Gender I dentity Disorder (“GID”)

, wh ich the American Psy chiatric Association characterizes as a disjunction between an individual’s sexual
organs and sexual

identit y. A MERI CAN P SYC HIA TRIC A SSOC IATI ON , D IAGNOS TIC A ND S TAT ISTICAL M ANUAL OF M ENTAL D ISORDERS 576-582 (4th ed. 20 00) . After being diagnosed

with GI D , Smith began “expressing a more feminine appear

ance on a full-ti me basis” – including at work

– in accordance with international medical prot oc ols for treatingGID. Soon thereafter, Smith’s co-workers began questioning him about h

is ap pearance and commenting that h is appearance and mannerisms wer e not “masculine enough.” As a result, Smith notified his immed ia te supervisor, Defendant Th oma s Ea st ek, abo ut hi s GID diagno sis and treatment. He also inf orm ed Eastek of the likelihoodtha t h is treatment would eventually inc lude complet e phy si cal tran sformati on from ma le to fema le. Smith had approached Eastek in order to answer any questions Eastek might have concerning his appea rance and manner and

so that Eastek c ould

address Smith’s co-worker s’ commen ts and inquiries. Smith specifically asked Ea stek, and Eastek promised, not to divulge the sub stan ce of their conversation
to any of his superiors, pa rticularly to Def

endant Walter Greenamy

er, Chief of the Fire Department. I n short or der, 4 Smith v. S alem, Ohi o, et al. No. 03-3399

howeve r, Eastek told Greenamy er about Smith’s behav ior an d his GID.

Greenamy

er then met with Defendant C. B roo ke Zel lers, the Law Director

for the City of Salem, with the intention of using Smith’s tra

nssexualism

and its man

ifestati ons as a ba sis for terminat ing hi s employment. On April 18, 2001, Greenamy

er and Zel lers a rranged a meet ing o f th e City’s executive body

to d iscuss Smith and devise a plan for terminating his employment. The executive body included Defendan ts Lar ry D. DeJane, Salem’s ma yor; James A. A rm eni, Salem’s auditor; and Joseph S. Julian, Salem’s service director. Also present was Salem Safety Director Henry L. Willard, now deceased, who wa s ne v er a named defendant in this action.

Alth ough Ohio Revised Code § 121. 22(G) – w hich sets forth the state pro cedure s pursuan t to which Ohi o municipal offi cials may

meet to ta

ke employ

ment acti on aga

in st a municipal employ

ee – prov ides t hat officials “may

hold an executive session to conside r the app ointment, e

mploy ment, dismissal, discipline, promotion, demotion, or compensation of a public e

mploy ee only after a majority

of a quorum

of the public b ody determines, by a roll call vote, to hold a n executive session a

nd only at a regular or special meeting for the sole purpose of [considering such matters],” theCity did
notabide by

these proced ures at the Ap ril 18 , 2001 meeti ng.
During the meeting, G reenamy er, DeJane, and Zellers agreed to arrange for the Salem Civil Service Commission to require Smith to undergo three separate ps yc hological evaluations with physicians of the Ci ty’s choosing. T hey hoped that Smith w ould

either resign or

ref use to com pl y. If he refused to comply, D efen dant s reasoned, they could terminat e Smith’s emp loy me nt on the ground o f insubordination. Willard, who remained s ilent during the meeti ng, telephoned Smith a fterw ards to inform him of the plan, calling Defendants’ scheme a “witch hunt.”No. 03-3399 Smith v. S alem, Ohi o, et al. 5

Two days afte

r the meeting, on April 20, 2001, Smith’s counsel telephoned DeJane to a dvise him of Smith’s legal representation

and the po tential le gal ra mifications for the City if it followed through on the pla

n devised by D efenda

nts d uring th e April 18 meeting . On April 22, 2001, Sm

ith received his “rig ht to sue”

letter f rom the U. S. Equa l Employment

Opportun

ity C ommission ( “EEOC” ). Fou r d ays after that, on April 26, 2001, Greenamy er s uspen ded Smith for one twen ty- four hour

shift, based on his alleged infraction of a C it y an d/ or Fi re De pa rt me nt po li cy.

At a subsequ

ent hear ing bef ore the Sa

lem Civil Se

rv ice Com mission (the “Com

mission”)regar

ding his s uspensio n , Smith contended that

the suspension was a result of selective enforcement

in retaliation for his having obtained legal
repres e ntatio n in respon se to Def endants’ plan to te

rminate his employment

be cause of

his transs exualism an

d its manifest ations. At the hea

ring, Smi

th sough t to elicit testimony from witnesses regarding the meeting of April 18, 2001, but the City objected and the Commission’s chairman, Defendant

Harry Dugan, refuse d to allow a ny t e stim ony regarding the meeting, despite the fact that Ohi o Admini strative Co de § 124-9-11 permitted Smith to introduce evidence of

disparate treatment and selective enforc ement in his hearing before the Commission.

The Co mm is si on ul ti ma te ly up held Smith’s suspension. Smith appealed to the Columbiana County Court of Common Pleas, which reversed the suspension, finding that “[b]ecau se the reg ulation [tha

t Smith was alleged to have violated] was
noteffective[,] [Smith] could not be charged with violation of it.”

Smith then filed s uitin the fe deral di strict co urt. I n his complain t, he asser ted Title VII claims of sex discrimination and retaliation, along with clai ms pursua

nt to 42 U.S. C. § 1983 and state law claims of invasion o f privac

y a nd civil

co ns pi ra cy. In a Memorandum Opini on and Order dated February 26, 2003, the district court dismissed the federal 6 Smith v. S alem, Ohi o, et al. No. 03-3399

claims and gr

anted jud gment on the plea dings to D efenda

nts pursuan tto Federal Rule of Civil Procedure 12(c). T h e districtjudge also d i smissed the state law claims without prejudice, having declined t o exercise supplemental jurisdiction over them pursuant to 28 U.S.C. § 1367(c)(3).

II. ANALYSIS

Onappeal, Smith conte

nds t hat the di strict co

urt erre d in holding that: (1) he failed

to state a clai m of se x st ereotypi ng; (2) Title VI

I protection is

unavaila ble to tra

nssexuals; (3) even if he had st ated a c laim of sex stere otyping, he failed
to demonstrate that he suffered an ad verse employment action; and (4) he failed to state a claim b ased on the depriva tio n of a constitu

tional or f

ederal statutory right, pursuant to 42 U.S.C. § 1983.

We review de novo the dismissal of a compl ain t pursuant to Rule 12(c). Grindstaff v. Green , 133 F.3d 416 , 421 (6 th Cir. 1998). A motion for judgment on the pleadings shall be granted only where, c onstruing the complaint in the light most favora ble to the plaintiff, and accepting all of its factual allegations as true, the plai ntiff can prov e no set of facts in support of the claims that would entitle him to relief. Id. (citation omitted).

A. Title V

II
The parties disagree over two issues pertainingto Smith’s Title VII claims: (1) whether

Smith prope

rly allege d a claim of sex stereotyping, in violation of the Supre me Cou rt’s prono unceme nts in Price Waterhouse v. Hopk ins , 490 U.S. 228 (1989); and

(2) whether Smith alleged that he suffered an adverse employ

ment action.

Defend ants do not challenge Smith’s com pla int with respect to any of the oth er eleme

nts nece ssary

to establi sh discrimination and

retaliation

cla im s pu rsu ant to Tit le V II. In

a ny event, we affirmatively

find that Smith has made out aNo. 03-3399 Smith v. S alem, Ohi o, et al. 7

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

caseof e mp lo ymen t d is cri mi nat io n pu rsu ant to Tit le V II, Smith must show that: (1) he is a member of a protected class; (2) he s uffered an adverse employ ment action; (3) he was qualified for

the position in question; and (4) he was treated differe ntly from simila

rly situated i ndividual s o utside of

his prot ected class. Perry v. McGinnis, 209 F.3d 597, 60 1 (6t h Cir. 2000). Smith is a member of a protect ed class. His complaint as serts tha

t he is a ma

le with Ge

nder I dentity Disorder, and Title

VII ’s prohib itio n o f discrimination

“ because of . . . sex” protects men as well as women. Newport News Shipb uildin g and Dry D ock Co. v . E.E.O.C.

, 462 U.S. 669, 6 82 (1983) . The com plaint als o alleg es both that Smith was qualified for the position in question – he had been a lieutenant in the Fire Department for seve n years without any neg ative incident s – and that he would not have been treated differently , on account of his no n-masculine behavior and GID, ha

d he been a woman instead of a man.

To establish a prima faci e case of retaliation purs uan t to Title VII , a plaint

iff must show that: ( 1) he engaged in an activity protected by Title VII ; (2) the defendant knew he engaged in this protected activity; (3) ther eaft er, the defendant took an employment

action adverse to him; and (4) there was

a causal connection between the pr o tected activity a

nd the adverse employment action. DiCarl o v. Po tter , 358 F.3d 408, 420 (6th Ci

r. 2004 ) (citation omitted). Smith’s complaint satisfies the first two r equirements by e xplaining how he sought legal

c ounsel after learning of the Salem executive body’s April 18, 2001 me eting c oncerni ng his

e mpl oyment; how his attorney conta cted Defendant DeJane
to advise Defendants of Smith’s representation; and how Smith filed a c omplain

t wit h the EEOC concerning Defend ants’ mee tin g and in

tended a ctions. With

respect to the fourth r

equirem e nt, a causal connection between the protected activity and the adve rse employment ac

tion, “[a] ltho ugh no one fa

ctor is di spos itiv e in es tabli shin g a

ca usal connection, evidence . . . that the adverse a ction was taken shortly afte

r the plaintiff’s exercise of protected rights 8 Smith v. S alem, Ohi o, et al. No. 03-3399

is relevant to ca

usation.” 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 disch arge “soon after” engagin g in p rotecte d activity “is i ndi rect proof of a causal connection betwee n the firing and the activity

because it is strongly

suggestive of retaliation.”); Mill er v. Fairchild Indus., Inc. , 797 F.2d 727, 731 ( 9th Cir

. 1986) (“Causa

tion suffi cient to e stablish a prima facie case of unlawful retaliation may be inf erred from the p rox imity in time betwe en the protected action and the allege dly retaliatory discharge.”). Here, Smith was suspended on April 26, 2001, just days afte r he e ngaged in protected ac tivity by receiving his “right to sue” letter from the EEOC, which occurred four da ys before the suspension, an d b y his attorney contacting Mayor DeJane, which occurre d six days befor e the suspension. The temporal proximity between the events is significant

e nough to constitute direct evidence of a causal connection

for the purpose o f sa tisfying Smith’s burden of demonstrating a prima facie case.

We turn now to

examining

whether Smith properly a

lleged

a claim of sex ster eot ypi ng, in vio lation of t

he Supre me Court’s pron ouncements in Price Waterhouse v. Hopk ins , 490 U.S. 228 (1989), and whether Smith alleged that

he suffered an adverse employ

ment action.

1. Sex Stereo typing

Title VII of the Civi l Rights Act of 19 64 provide s, in relevant part, that “[i]t shall be an unlawful employment practice for an e

mploy er . . . to discriminate against any individual with r es pect to hi s compens ation, te rms, condition s, or pr ivileg es of employment bec ause of such individual ’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a).

Inh is complaint, Smith asserts Title VII c laims of retaliation

an d employment discrimination “beca use of . . . sex.” The district

court dismissed

Smith’s Title VII c laims onNo. 03-3399 Smith v. S alem, Ohi o, et al. 9

the ground that

he failed to state a

claim for sex stereotyping pursuant to Price W

aterhouse v. Hopkins , 490 U .S. 22 8 (1989). The district court i mplied that Smith’s claim was disinge nuous, stating that he merely “ invokes the term-of-art created by Price W

aterhouse , that i s , ‘sex-stereotyping ,’” as

anend run aro und his “real” claim, which, the district court stated, was “based upon his transsexuality.” The district court thenheld that “Title VII does not prohibit discrimination based on an individual’s transsexualism.”
Relying on Price Waterhouse – whichheld that Title VII ’s prohibition of discrimination “because of

. . . sex” bars gender discrimination, including discrimi nation based on sex stereoty pes – Smith c ontends on

appeal t hat he wa s a victim of discr imina tion “ beca use o f . . . sex”both because of his
g ender non-conforming conduct and, more g enerally, be caus e of his identification as a transsexual.

We first add

ress whe ther Smith

has stated a

claim for relief, pursuant to Price W

aterhouse ’ s prohibition of sex
stere otyping, based on his gender non-conforming behavior and appearance. I

n Price W aterhouse

, the plain

tiff, a f emale senior manage r in an acco unting f irm, was d

enied pa rtnersh ip inthe firm, in part, because she was cons idered “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 mor

e femininely , talk

more fe mininely , dress

mor e femininely, wea

r make-up, have her hair sty led, and

wear jewe lry.” Id. (interna

l quotation

marks omit

ted). Six members of the Cou

rt ag reed that such comments bespoke gender discrimina tion, holding t hat Title V

II barred not just discrimination bec ause 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., concurr ing); id. at 272-73 (O’Connor, J., c oncurring) (accepting plurality’s sex stereotyping

ana l ysi s and cha

racter izing the “failur e to conform to [gende

r] stereo typ es” as a

discriminato ry criterion; concurring

separa tely to clarif y th e separ

ate issues 10 Smith v. S alem, Ohi o, et al. No. 03-3399

of causation and allocation of the burden of proof). As Ju dge Posner has po inted out, the te rm “ge nder” is one “borrowed fromgrammar to designate the sexes as viewe d as so cial rath er than biological classes.” R ICHA RD A. P OSNER , S EX
AND R EASON , 24-25 (1992). The Supreme Court made clear that inthe c ontext of Title VII, discr imination because of “sex” includes gender dis crimination: “In the context of sex
stere otyping, an employer w ho ac ts o n the basis of a belief that a woman ca

nno t be aggressive, or that she must not be, has acted on the bas is of gender.” Price W aterhouse

, 490 U.S. at 250. The Court emphasized that “we are beyond the day when

a n employer could e

valuate employe es by

assum in g or insisting that they matche d the stereotype associated with their group.” Id. at 251.

Smith contends that the sa

me theo ry of sex stereoty ping applies here. Hi s comp laint sets forth the conduct and manneri sms wh ich, he alleg es, did not conform with his emplo ye rs’ and co-workers’ sex stereotyp es of how a ma n should look and behave . Smith’s complaint sta tes that, after being diagnosed with GID, he bega n to express a more feminine appearance and manner on a regular basis, including
at work. The complaint states that his co-workers bega n commenting on his appearanceand manne risms as not being masculine enough ; and th at his supervisors at the Fire Department

and other

municipa

l agent s knew ab out this allege dly unmasculine conduct an d appearance. The complaint then describes a high-level meeting among Smith’s supervisors and other

municipa

l officia ls rega rding hi s employ ment. Defend

ants alle gedly

scheme d to compel Smith’s resignation by

forcinghi m to under

go multip le psychologic al evaluat

io n s of his gender non-conforming behavior. The compl aint m akes cl ear tha t thes e meet ings took place soon after Smith assumed a mor e feminine
appearanceand manner and after his conversation

about this with Eastek. In add ition, the c omplaint a lleges that Smith

w as suspended for twenty-four hours for allegedly violating

anunen acte d municipal policy, and that the suspension was ordered inretaliation for his pursuing legal remedies after heNo. 03-3399 Smith v. S alem, Ohi o, et al. 11

had been informed about De fendant s’ plan to inti midate him into resign ing. In short, Smith claims that the discrimination he experien

ced was based on his failur

e to conf orm to se x stereotypes

by expressing less masculine, and more feminine mannerisms and appearance.
Having allege d that his f ailure to conform

to se x stereotypes

concerning how a man should loo k andbehave

was the driving force behind Defend ants’ actions, Smith has sufficie ntly pleaded claims of sex stereotyping and g ender discrimination.

Inso hol ding, we find that the dist rict cou rt erre d in relying

on a series of pre-

Price Wate

rhouse cases from

other federal appella te courts ho lding tha

t 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 [Ti tle VII ] apply to any thing other than the traditional concept of sex.” Ulane v. Easter n Airlines, Inc.

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

v. Arthur Andersen &Co. , 56 6 F.2d 659, 661-63 (9th Cir. 1977) (refusing to extend protection of T itle V II to transse xuals because

discrimination ag ainst tra nssexuals is based on “ge nder” r ather th an “sex”) . It is

tr ue that, in the past, federa

l appell ate co urts regarded Title VI I as barring discrimination based only on “s ex” (referring to an individual’s anatomical and biological characte ristics), but
noton “ gende

r” (re ferring

to sociall

y- constructed norms associated

with a person’s sex). See, e.g.

, Ulane , 742 F.2d at 1084 (constr

uing “se x” in Title V

II narrowly to

mean only anatomical sex r ather than gender) ; Sommers v. Budget Mktg., Inc. , 66 7 F.2d 748, 750 (8th Cir. 1982) (holding that
transse xuals are not protected by Title VII because the “plain meani ng ” 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 p rotection of Title

VII to transse xuals b ecause

discrimination ag ainst tra nssexualism

is based on “gender” rather tha n “sex;” and “sex” should be given its traditional definition based on the anat omica l 12 Smith v. S alem, Ohi o, et al. No. 03-3399

characteristics dividing “orga nisms” and “living

beings” into male and female). In this ea rlier j uri sprudence, male-tofemale transsexuals ( who we re the plaintiffs in Ulane, Sommers, and

Hollowa y ) – as biolog

ical male s whose outward behavior

and emotional identity did not conform to socially-presc

ribed ex pectations of masculinity – wer e denied Title VII protection by cour

ts because they

were consid ered victims of “gender” rather than “ sex” discrimination.

However, the appr

oach in Holloway, Sommers, and Ulane

– and by the district court in this cas e – has been eviscerated by Pric e Wat

erhouse

. See Sch wenk v. H artford , 204 F.3d 1187, 1201 (9th Cir. 2000) (“The i n itial judicial approach
t aken in cases such as Holloway [and Ulane ] has bee n overruled by t he logic and language of Price Waterhouse. ”). By holding that Title VII

protected a w oman who f ailed to conform to social e

xpectati ons c oncerning how a woman should look and behave, the Supreme Court established that Titl e VII ’s reference to “sex” encompasse s both the biological differences between men and women, a nd gender dis crimination, that is, discrimination based on a failure t o conform to s tere otypical g ender norms. See Price Wate rhouse , 490 U.S. a

t 251; see also Schwenk, 204 F.3d at 1202 (stating that Title VII encompasses ins tan ces 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 th at “sex” unde

r Title VI I encompasse s both the a natomic a l differences betwee

n men and women and gender) ; Rene v. MGM Grand Hotel

, Inc. , 305 F.3d 1061, 1068 (9th Cir. 2002) (e n banc) (Pregerson, J., concurring ) (noting that the Nint h Circuit had previously found that “ s ame- sex gender

s tereotyping

of the sort suffered by Rene – i.e . gende r stereotyping

of a male gay

employee

by h is male co- workers” constituted

actionable harassment under Title VI I and concluding that “[t]he repeat ed testimony t

hat his co-workers treated Rene, in a variety of

ways, ‘like a

woman’ constitutes ample evidenc e of ge nder ste reoty ping”) ; 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 aNo. 03-3399 Smith v. S alem, Ohi o, et al. 13

claim of sex discriminatio n by showin g that the “harasser’s conduct was mo tivated by a belief that the victim did not conform to the ster

eoty pes of his or her g ender” ); Nicholsv. Azteca Rest. Ente rs. , Inc. , 256 F.3d 864, 874-75 (9th Cir. 2001) (holding that haras sment “based upon the perception that [the plaintiff] is effeminate” is discrimination because of
sex, in violation of Ti tle V II), overruling DeSantis v. Pac. Tel. & Tel. C

o., Inc. , 608 F.2d

327 (9th Cir . 1979); Doe v. Bellevi lle

, 119 F.3d 5 63, 580-8 1 (7th Cir. 1997) (holding that “Ti tle VII

does not permit an employee to be t reate d adversely because his or her

appearance or conduct

does not conform to stereotypical g ender

roles” and explaining that “a

manwho is har

assed be cause

his voice is soft, his

phy sique is slight, his hair long, or b ecause in some other respect he exh ibits his masculinity in a way that does not meet hi s coworke rs’ idea of how men are to app ear and behave , is harassed ‘because of his sex’”), v acated and remanded on other grounds , 523 U.S. 1001 (1998).

After Price W

aterhouse , an employer w ho discriminat e s agains twomenbecause, for instance, they do not wear dresses

or makeu p, is engagin g in sex discrimination because the discrimi n ation wou ld not occ ur b ut for th e vi cti m’s sex . It follows that employe

rs who disc

riminate agains t men

because they d o wear dresses and makeup, or otherwise act fe mi ni ne ly, are also engaging in sex discrimination, be cause the discrimination wou

ld not occ ur but for the victi m’s s ex. See, e.g., Nichols, 256 F.3d 864 (Title VII sex discrimination and hostilework

environment claim upheld where plaintiff’s male co-wor

kers a nd supervis ors repe atedly refer red to him

as “she” and “her” and w here co- workers mocked him for walking and carry

ing his serving tray

“like a w oma n”); 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 actionon a clai

m that mendiscriminated ag ainst her because she did not mee

t stereot ype d expecta

tions o f femi ninity, a

mancan gr

ound a cla

im on evide

nce that oth er men d iscriminated

against him because he did no t mee t stereotypica

l expectat ions of masculinity.” (interna l citation 14 Smith v. S alem, Ohi o, et al. No. 03-3399

omitted)); see also Rosa v. Pa rk We st Bank & Trust Co. , 214 F.3d 213 (1 st Ci r. 200 0) (app lying Price Waterhouse and Title VII jurispruden c e to an Equal Credit Opportunity Ac t claim andreinstat

ing cla im on beha

lf of biolo gicall

y ma le plaintiff who alleged that he was denied an oppor tun ity t o apply for a loa

n becau se was dr

essed in “

traditionally feminine attire”).

Yet some court s have held that this latter form of discrimination is of a different and somehow more permissib le kind. For instance, the man who acts in wa ys typ ically associated

with women is not described as engag ing inthe same activity as a

woman wh o acts in ways ty pically associated

with women, but

is instead described as engaging inthe different activity

of being a tra

nssexua l (or in some instance s, a homosexua

l or transvest ite ). Discrimination agains tthe transsexual is then found not to be discrimination “becau se of . . . sex,” bu t rather, discrimination against the plai ntiff’s unprotected status or mode of self-identification. Inother wo rds, thes e courts superimpose classifications such

as “transsexual” on a plai ntiff , and then leg itimiz e discrimination based on

the plain tiff’s gende r non-conformity by formalizin

g the non-conformity

into an ost

ensibly unprotected

classification. See, e.g., Dillon v. Frank , No. 90- 2290, 1992 WL 5436 (6th Cir. Jan. 15, 1992).

Such was the case he

re: desp ite the fa

ct that Smit

h alleges that Defendants’ discrimination was motivated b y his
appearance and mannerisms, which Defendants felt were inappropriatef

or his percei ved sex, the

district c ourt expre ssly declined to discuss the applicability of Pri ce W aterhouse. The district court therefore gave insufficient consideration to S mith’s well-pleaded claims concerning his contra -gender behavior, but rather

accounted for that

behavior only insofar

a s it confir

med for the court Sm

ith’s stat us as a tr anss exual

, which the district court

held precluded Smith from Tit le V II protection.No. 03-3399 Smith v. S alem, Ohi o, et al. 15

Such analy

ses cann ot be rec onciled w

ith Price Wate

rhouse

, whichdoes not mak e Tit le VII protection against sex stereotyping

conditional or provide any reason to e xc lude Title VII covera ge for non se x-stereot ypi cal beha

vior simply because the person is

a transsexual. As such, discrimination agains ta plaintiff who is a transsexual – and ther efore f ails to act and/or id

entify wit h his or her gender – is no different from the discr

imination d

irected agains t Ann Hopk

ins i n Price Wate

rhouse , who, in se

x-stereot ypi c al te rms, did not act like a woman. Sex stereotyping based on a pe rson’s gender non-conforming

behavior is impermissible di sc rimination, irrespective of the cause of that behavior; a label, such as “transsexual,” is not fata

l to a sex discr

imination c laim

where the victim

has suf fered discrimination because of his or her gender non-conformity. Ac cordingly , we hold that Smith has stated a claim for relief pursuant to Title VII’s prohibition of sex discrimination.

Fin a ll y, we note that, in its opinion, the district court repeat edly places the term “sex stereoty ping” in quotation marks and ref

ers to it a s a “ter

m of art” used by Smith to disinge nuously plead discrimination becau se o f transsexual ism. Similarly, Defendants re fer to sex stereotyping

as “the Pric e Wa terhouse loophole. ” (Appelle es’ Brief at 6.) Thes e charac terizatio ns are a

lmost identical t o th e treatment that Price Waterhouse itself gave sex stereotyping in its briefs to the U.S. Supreme

Court. As

we do now, the

Supreme C ourt note d th e pract ice with disfavor , stating :

Inthe 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 bas is of gender. Although the parties do not over tly disput e this last proposition, the placement by Price Wate

rhouse of “sex stereotyping”

in quotation m ark s throug hout its brief seems to us an i ns inuation either that such stereotyping

was not present in thi s case or that it lacks legal r elevanc e. We rej ect both p ossibilitie s. 16 Smith v. S alem, Ohi o, et al. No. 03-3399

Price W aterhouse , 490 U.S. at 250.

2. Adverse Employment Action
Despite havi ng dismissed Smith’s Title VII claim for failure to state a claim of

sex stereotyping – a

finding we have just rejected – the district court neve rthel ess addressed the meri ts of Smith’s T itle VII cla ims arguendo . R el yi ng o n Whi t e v. Burlington Northern & Sante Fe Ry . Co. , 310 F.3d 443 (6th Cir. 2 002), the district c ourt held

th at Smit

h’s suspension was not a

n advers e employ

ment acti on beca

use the Court of Co mmon Pleas , render ing the “

ultimate employment

decision ,” reve

rsed the suspensi on , and that

ac co rd in gl y, Smith’s Titl e VI I cla im could no t li e. Becau se 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 employ ment decision” standard, we hold that the district cou rt erred i n its analy

sis and that Smith has succ essfully pleaded an adve

rse employment

action in support of his employment di scr im in ati on a nd r eta li ati on c lai ms pur sua nt to Tit le V II.

Common to both the employment discr imin ation and retaliation

claim s is a s howin g of an adverse employ ment action, which is de fined as a “mate rially adverse chang e in the
terms and conditions of [plainti ff’s] employment.” Hollins v. Atlantic Co. , 188 F.3d 652, 662 (6th Cir. 1999). A “bruised ego,” a “mere inconvenience or an a lteration of job responsi bilities” is not enough t o con stitute an adverse employment

action. White, 364 F.3d at 797 (quot ing Kocsis

v. Multi-Care Mgmt. Inc., 97 F.3d 876, 886 (6th Cir. 1996)). Ex ampl es of adv erse em ployment actio ns in clude firin g, failing to promote, reassignmen t wit h significantly diff

erent responsi bilities, a materi al loss of benef its, suspe nsions, and other indices uni que to a particular situation. Burlington Indus., Inc. v. Ellert

h , 524 U.S. 7 42, 761 (1 998); White , 364 F.3d at 798. Here, the Fire Department suspende d Smith for twenty-four

hours. Becau se Smith wor ks in twenty-four hour shifts, that twenty-four hour suspension was the equivalent ofNo. 03-3399 Smith v. S alem, Ohi o, et al. 17

1 Smith ’s complaint

does not s tate whether

he was sus pended wi th or without pay. Bec ause we m ust const r ue the com plaint in the light most favor able to the p laintiff, Ziegler , 249 F.3 d at 51 2, and gi ven the liber al pl eading standards of Federal Rule of Civil Procedure 8, we do not find this fai lur e dispositive. A “materiall y adverse change” in employment conditions often involves a ma terial loss of pay or ben efits, but tha t i s not always the case , an d “ot her i ndice s t hat migh t be uni qu e to a part icul ar sit uat ion” c an co nstitute a “m aterially ad verse chang e” as w ell. Ho llins, 188 F.3d at 662

. Be cause no d iscov ery has b een c ond ucted yet,

we do n ot k now the f

ull contours of the suspension. For now, however, forth e re ason s j ust

st ate d, w e f

in d th at Smi th h as suf

fici entl y all eged an adverse employment action. three eight-hour day s for the average wor k er, or, appr oxi mately

60% of a f

orty-hour work week . Pursuan t to the liberal n

oti ce pl eading

require ments set f

orth in Fe d. R. Civ. P. 8, this alleg ation, at this phase

of the liti gation, is sufficient to satisfy the ad

ver se employment require ment of both an employ

ment discr

imination a

nd retal iation cla

im
pur sua nt to Tit le V II. 1

It is irrele vant that Smith’s susp ension wa s ultimate ly

revers edby t

h e Court of Common Pleas after he challenged the su sp en si on ’s le ga li ty. In White

, this Court recently joined the majority

of other circuits in rejecting the

“ultimate employment

decisio n” standard whereby a negative employment

action is n

ot considered an

“adverse employ

ment action” for Title V II p urposes w hen the de cision is subseque ntly reversed by the employer, putting

the plaintiff inthe position he would have been in absent the negative action. White , 364 F.3d

789 (holdi

ng that the suspension of

a railroad employe e without pay, followed th ir ty- se ve n d ays la ter by reinstatement with bac k pay, was a

n “adver s e employment

act io n” f

or T it le V II p urpose s). Even if the “ultimate employ ment decis ion” standard were still viable, the district c ourt err

ed in concluding that, because the Court

o f C ommon Pleas overturned the suspension, it was not an adverse employment action. The re is no legal authority

for the proposition that reversal by a judicial body – as opposed 18 Smith v. S alem, Ohi o, et al. No. 03-3399

to th e e mp lo ye r– declas sifies a s uspension as an adv erse employment action.

Ac co rd in gl y, Sm i th has stated an adverse employ ment actionand, th erefore, satisfied all of the elements nec essary to allege a prima faci

e case of employ ment discr

imin atio n and retaliation pursuant

to Title VII . We therefore reverse the districtcourt’s grant of judgme nt on the pl eading s to Defendants with respect to those claims.

B. 42 U .S.C . § 1 983Clai

ms

T he district c ourt also

dismissed Sm

ith’s cla ims pursu an t to 42 U.S.C. § 1 983 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 individua ls who are deprived of any rights, privileges, or immunities se cured 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

conn ecti on wit

h his s exbased claim of employment discrimination. Indiv iduals have

a ri gh t, pr ot ec te d b y the E qual Protection clause of the Fourtee nth Amendmen

t, to be free from discrimination on the basis of sex in public employment. Davis v. P assma n , 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 Arli ngt on 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 recove r on a disparate treatment claim under Tit

le VI I mir

rors tha t which m ust be mad

e to

recover on an equ

al pr otection claim under section § 1983.” Gutzwiller

v. Fe nik , 860 F.2d 1317, 1325 (6th Cir. 1988) (c iting K itchen v . Chippewa V

alley Schs. , 825 F.2d 1004, 1011 (6th C ir. 1987) ; Daniels v. Bd. of Educ.

, 805 F.2d 203, 207 (6th Cir . 1986); Grano v. Dep’t of Dev. , 637 F.2d 1073, 10 81-82 (6th Cir. 1 980); Lautermilch v. Findlay City Schs.

,No. 03-3399 Smith v. S alem, Ohi o, et al. 19

314 F.3d 271, 275 (6th Cir. 2003) (“T o p rove a violation of the eq ual prote ction cla

use unde r § 1983, [a

plaintiff ] mu s t prove the same elemen ts as are required to establish a dispara te treatment claim under Title VII .”) (qu otation and citation omitted). The facts Smit h has alle ged to su

pport his claims of gender discriminatio n pursuan t t o Title VI

I ea sily constitute a claim of sex discrimination grounded in the Equal ProtectionClaus e of the Constitution, pursuant to § 1983. See Back v. Hastings on Hudson Union Free Sch . D ist. , — F.3d —, No. 03-7058, 2004 W L 739846, at * 5-7 (2d Cir. Apr. 7, 2004) (holding that claims premised on Price Waterhou se sex stereotyp ing theory sufficie ntly constitute claim of sex discrimination pursuant to § 1983).

Defend ants urge us to hold otherwise, on the ground that Smith’s complaint fails to refer specifically to the E qual Pr otecti on Clause of the U.S. Constitution

. But the Federal Rules of Civil Procedure provide for a liberal sy stem of notice plead ing. Fed. R. Civ. P. 8(a). Aplaintiff need only provide “a short and pl ain st ateme nt of t he clai m sho wing t hat th e pleader is entitled to rel ief.” Fe d. R. Civ. P. 8(a)(2). “Such

a statement must simply ‘give the de fendant fair notice of what t he p laintiff

’s claim i s and the g

rounds up on which i

t

res ts.’” Swierkiewicz v. Soremna N.A. , 534 U.S. 506 , 51 2 (2002) (quot ing Conley v. Gibson

, 3 55 U.S. 41, 47 (1957)). Claims made pursuant

to 42 U.S.C. § 1983 are not s ubject to heightened

pleading standards. Leatherman v. Tarrant County Narcot ics Intellige

nce and Co ordinationUnit , 507 U.S. 163, 165-66 (1993) (rejecting hei g htened pleading standard for § 1983 clai

ms); Jones v. Duncan , 840 F.2d 359 (6th Cir. 1988) (holding that § 1983 claims need not set forth indetail al l the par

ticulari ties of a p laintiff

’s claim a gainst a defendant). Moreover, legal theories of re covery need not be

s pelled out as long

as the re levant iss

ues are sufficie ntl y implicated

in the pleadings; in considering motions pursuant to Fed. R. Ci

v. P. 12(c ), we as k not whether a complaint points to a specific statute, but whether relie f is possibl e under any set of facts tha t could be established consis tent with the allegation. Because Smith’s sex discrim ination c laim so 20 Smith v. S alem, Ohi o, et al. No. 03-3399

thoroug hly and obvio

usly sounds in aconstitutional claim of equal protection, Defendants had fair notice of his claim and the ground upon which

it rests. As such, w e hold tha t Smith has satisfie d the libe

ral notic e pleadi

ng req uiremen ts set for th inFed. R. Civ. P. 8 with respect to his clai m of sex discrimination, g round ed in an alleged equal protection violation, and we therefore reverse the district court’s grant of judgment on the pleading s dismissing Smith’s § 19 83 claim.

Inhis appe llate bri ef, Smith a lso conte nds that hi s complaint alleges a violation of his constitutiona l right to due
proce ss, bas ed on the C ity’ s failure to comply

with the st

ate statutory and admin

istrative procedu res that a

n Ohio

m unicipal ity

must follow

when tak

ing off icial emp lo ymen

t actionagainst a public employ ee. His complaintoutlines the statutory procedures, governed by O.R.C. § 121.22(G), pursuant to which me

mbers o f an Oh io municipality may
meet for purp ose s of taking official employ ment action agains ta public employee, a

nd it alleges that those procedures

were not followed. The complaint also discus ses O .A.C. § 124-9-11 , which wo

uld have p ermitted

Smith to cal l 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 or

dinarily define the para

meters of

due proc ess for F ourteen th 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 [employ ment grievance] procedure . . . d oes not in itself implicate constitutional due
process concerns.”). Neither

Smith’s com

plaint nor his brief specifi e s what deprivation o f proper ty or liberty

allege dly stemmed from the C ity’ s f

ailure to comply with state procedural and administrative rul es co ncernin g hisNo. 03-3399 Smith v. S alem, Ohi o, et al. 21

employ ment. Accord

ingly , he has f

ailed to st ate a federal due process violation pursuant to § 1983.

Insum, we ho ld that Smith has failed to state a § 1983 claim based on

violations

of his rig

ht to due pr

ocess. However, he has state d a § 1983 c laim of sex discrimination, grounded in an alleged equal protection vi olatio n, and, for that reason, we reverse the district court’s grant of judgment on the pleadings dismissing Smith’s § 1983 claim.

III. CONCL USION

Becau se Smith has successfully stated claims for r elief pursuant to both Title VII

and 42 U.S.C. § 1983, the judgment of the district court is REVERSED and this case i s REM ANDED to th e dist rict c ourt f or furt her pro ceedin gs consistent with this opinion.