IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

EQUAL EMPLOYMENT 

OPPORTUNITY COMMISSION,

Plaintiff,

v.

R.G. & G.R. HARRIS FUNERAL 

HOMES INC.,

Defendant.

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CIVIL ACTION NO. 

2:14-CV-13710

Hon. Sean F. Cox

_________________________________ )

LAURIE A. YOUNG JOEL J. KIRKPATRICK

KENNETH BIRD JOEL J. KIRKPATRICK, P.C.

DALE PRICE (P55578) Attorney for Defendant

MILES SHULTZ 843 Penniman Ave. Ste. 201 

EMPLOYMENT Plymouth, MI 48170

 OPPORTUNITY COMMISSION (734) 404-5170

Attorneys for Plaintiff Joel@JoelKirkpatrick.com

477 Michigan Ave., Room 865

Detroit, MI 48226

(313) 226-7808

dale.price@eeoc.gov

PLAINTIFF’S RESPONSE TO DEFENDANT’S 

MOTION TO DISMISS

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TABLE OF CONTENTS

Questions Presented ................................................................................................. iii

Table of Authorities................................................................................................. iv

Most Appropriate Authority .................................................................................... vi

I. Introduction.............................................................................................................1

II. Motion to Dismiss Standard..................................................................................3

III. Argument .............................................................................................................4

A. Summary of the Argument ..............................................................................4

B. The Complaint States a Claim of Sex Discrimination Under Title VII...........6

1. Discrimination Against an Employee Because She is Transgender 

or is Transitioning from Male to Female is, by Definition, 

Sex Discrimination....................................................................................6

2. Adverse Actions Motivated by Sex Stereotyping are Prohibited by 

Title VII...................................................................................................10

3. Defendant’s Dress Code Facts and Defense Must be Disregarded. .......14

C. Defendant’s Case Law Does Not Authorize Dismissal. ................................15

IV. Conclusion .....................................................................................................19

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QUESTIONS PRESENTED

1. Title VII prohibits taking adverse employment actions motivated by sexbased considerations. Has the Commission stated a claim of sex 

discrimination under Title VII by alleging that Defendant discharged Amiee 

Stephens because she is transgender and was transitioning from male to 

female?

The Commission Answers: Yes

2. Does Title VII protect employees from adverse employment actions because 

they fail to conform to their employer’s sex- or gender-based stereotypes?

The Commission Answers: Yes

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TABLE OF AUTHORITIES

CASES

Ashcroft v. Iqbal, 556 U.S. 662 (2009)................................................................3, 13

Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir. 2005) ................................8, 13

Bassett v. National Collegiate Athletic Ass’n, 528 F.3d 426 (6th Cir. 2008)......3, 14

Caminetti v. United States, 242 U.S. 470 (1917).......................................................8

Edwards v. City of Goldsboro, 178 F.3d 231 (4th Cir. 1999) .............................4, 14

Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011)......................................6, 7, 8, 15

Gunasekera v. Irwin, 551 F.3d 461 (6th Cir. 2009) ................................................15

In re Burlington Coat Factory Securities Litigation, 114 F.3d 1410 (3rd Cir. 

1997) ...................................................................................................................14

International Union, UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991) ............9

Myers v. Cuyahoga Cty., 182 Fed. Appx. 510 (6th Cir. 2006)................................13

Newport News Shipbuilding and Dry Dock Co. v. EEOC, 462 U.S. 669 

(1983)..................................................................................................................11

Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998)...................11, 18

Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633 (1990)...............................17

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)............................................6, 10

Rondigo, L.L.C. v. Township of Richmond, 641 F.3d 673 (6th Cir. 2011)................3

Schroer v. Billington, 424 F. Supp. 2d 203 (D.D.C. 2006) (“Schroer I”)...............16

Schroer v. Billington

577 F. Supp. 2d 293 (D.D.C. 2008) (“Schroer II”) ..............................6, 8, 16, 17

Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. 2000)..............................................12

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Shaw v. Digital Equipment Corp., 82 F.3d 1194 (1st Cir. 1996) ............................14

Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004)..............................8, 11, 12, 13

Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002)...................................................3

United States v. Ron Pair Enters., 489 U.S. 235 (1989) ...........................................8

Vickers v. Fairfield Medical Ctr., 453 F.3d 757 (6th Cir. 2006).............................18

Weiner v. Klais & Co., 108 F.3d 86 (6th Cir. 1997)..................................................3

STATUTES

42 U.S.C. § 2000e-2(a) .....................................................................................passim

RULES AND REGULATIONS

Fed. R. Civ. P. 12(b)(6)..............................................................................3, 4, 14, 15

Fed. R. Civ. P. 12(c).................................................................................................12

Fed. R. Civ. P. 12(d) ................................................................................................15

Fed. R. Civ. P. 56...............................................................................................14, 15

OTHER AUTHORITIES

Chad Livengood, Anti-Bias Proposal for Gays Stalls, DETROIT NEWS, 

Dec. 4, 2014 ........................................................................................................17

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MOST APPROPRIATE AUTHORITY

CASES

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)

Smith v. City of Salem, 378 F.3d 566 (6th Cir. 2004)

Barnes v. City of Cincinnati, 401 F.3d 729 (6th Cir.2005)

Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011)

STATUTES

42 U.S.C. § 2000e-2(a)

RULES AND REGULATIONS

Fed. R. Civ. P. 12(b)(6)

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I. Introduction

Plaintiff Equal Employment Opportunity Commission (“EEOC” or “the 

Commission”) alleges that Defendant R.G. & G.R. Harris Funeral Homes Inc. 

(“RGGR”) violated Title VII when it fired Amiee Stephens1

8. Amiee Stephens had been employed by Defendant as a Funeral 

Director/Embalmer since October 2007.

because she is 

transgender, because of her transition from male to female, and/or because she did 

not conform to RGGR’s “sex- or gender-based preferences, expectations, or 

stereotypes.” Dkt. 1, Complaint at 4-5. The relevant portions of the Complaint are 

as follows:

9. Stephens adequately performed the duties of her position.

10. Stephens is a transgender woman. On or about July 31, 2013, Stephens 

informed Defendant Employer and her co-workers in a letter that she was 

undergoing a gender transition from male to female and intended to dress in 

appropriate business attire at work as a woman from then on, asking for their 

support and understanding.

11. On or about August 15, 2013, Defendant Employer’s owner fired 

Stephens, telling her that what she was “proposing to do” was unacceptable.

12. Since at least September 13, 2011, the Defendant Employer has provided 

a clothing allowance to male employees but not female employees. 

Defendant Employer provides work clothes to male employees but provides 

no such assistance to female employees....

 

1 RGGR refers to Ms. Stephens by her former first name, Anthony, throughout its 

motion. Although Anthony was her name before she announced her transition, 

consistent with the standards of courtroom decorum, the Commission refers to Ms. 

Stephens by her last name.

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14. Defendant engaged in unlawful employment practices at its Garden City, 

Michigan facility, in violation of Section 703(a)(1) of Title VII, 42 U.S.C. § 

2000e-2(a)(1), by terminating Stephens because of sex.

15. Defendant Employer’s decision to fire Stephens was motivated by sexbased considerations. Specifically, Defendant Employer fired Stephens 

because Stephens is transgender, because of Stephens’s transition from male 

to female, and/or because Stephens did not conform to the Defendant 

Employer’s sex- or gender-based preferences, expectations, or stereotypes.

16. The effect of the practices complained of in paragraphs 8 through 11 and 

14 through 15 above has been to deprive Stephens of equal employment 

opportunities and otherwise adversely affect her status as an employee 

because of her sex.

17. Defendant engaged in unlawful employment practices at its Garden City, 

Michigan facility, in violation of Section 703(a)(1) of Title VII, 42 U.S.C. § 

2000e-2(a)(1), by providing a clothing allowance/work clothes to male 

employees but failing to provide such assistance to female employees 

because of sex.2

18. The effect of the practices complained of in paragraphs 12 and 17 above 

has been to deprive a class of female employees of equal employment 

opportunities and otherwise adversely affect their status as employees 

because of their sex.

Complaint, Dkt. 1.

In its Motion to Dismiss, RGGR improperly relies on facts that are not set 

forth in the complaint, including allegations about a dress code. All such facts must 

 

2 The Defendant has not challenged this allegation in its motion and therefore the 

Commission has not offered an argument regarding it. The Commission intends to 

pursue its claim regarding the discriminatory clothing allowance. Consequently, 

the complaint should not be dismissed with prejudice even if the Court finds in 

favor of the Defendant with respect to its challenge to the individual claims 

involving Ms. Stephens.

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be disregarded for purposes of this motion. The Court should deny the motion 

because the Commission has alleged a viable claim of sex discrimination under 

Title VII. 

II. Motion to Dismiss Standard

A court should deny a motion to dismiss the complaint pursuant to Fed. R. 

Civ. P. 12(b)(6) for failure to state a claim “when the plaintiff pleads factual 

content that allows the court to draw the reasonable inference that the defendant is 

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In 

ruling on a motion to dismiss, the court must accept the facts pleaded in the 

complaint as true and construe them in the light most favorable to the plaintiff. 

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002). 

“Assessment of the facial sufficiency of the complaint must ordinarily be 

undertaken without resort to matters outside the pleadings.” Rondigo, L.L.C. v. 

Township of Richmond, 641 F.3d 673, 681 (6th Cir. 2011); see also Weiner v. Klais 

& Co., 108 F.3d 86, 88–89 (6th Cir.1997) (“Matters outside of the pleadings are 

not to be considered by a court in ruling on a 12(b)(6) motion to dismiss.”). A 

court “may consider the Complaint and any exhibits attached thereto, public 

records, items appearing in the record of the case and exhibits attached to 

defendant’s motion to dismiss so long as they are referred to in the Complaint and 

are central to the claims contained therein.” Bassett v. National Collegiate Athletic 

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Ass’n, 528 F.3d 426, 430 (6th Cir. 2008) (emphasis added).

Crucially, 12(b)(6) motions are not vehicles for the resolution of defenses or 

disputed facts:

The purpose of a 12(b)(6) motion is to test the sufficiency of a complaint; 

importantly, [a Rule 12(b)(6) motion] does not resolve contests surrounding 

the facts, the merits of a claim or the applicability of defenses.

Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999) (internal 

quotation marks omitted).

III. Argument 

A . Summary of the Argument

The Commission’s allegations, which must be accepted as true on this 

motion to dismiss, are that RGGR discharged Stephens because she told her 

employer she was transgender, because she would be transitioning from male to 

female and presenting herself as female, and/or because she did not conform to 

RGGR’s sex and/or gender-based stereotypes. RGGR’s actions were motivated by 

the fact that a person who previously presented as one sex is now presenting as 

another sex. These are sex-based considerations, which are not permissible bases 

for employment decisions. Title VII prohibits the discharge of employees “because 

of...sex.” 42 U.S.C. § 2000e-2(a)(1). The Complaint alleges that RGGR’s conduct 

was motivated by considerations of Stephens’s sex, and so it states a claim for 

relief.

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RGGR’s Motion to Dismiss simply misses the mark. The question properly 

before this Court is whether the Commission states a claim for relief under the 

facts as alleged in the complaint. 

The Defendant’s attempt to shoehorn in a defense based upon a dress code 

should be rejected out of hand, since the facts Defendant relies on for that 

purported defense are outside the Complaint. Defenses are not susceptible of 

resolution under a 12(b)(6) motion. All facts set forth in Defendant’s motion that 

are not set forth in the Complaint must be disregarded for the purposes of this 

motion.

Discrimination against an employee because she is transgender and is 

transitioning from male to female is, by definition, discrimination because of sex. 

Further, Supreme Court and Sixth Circuit precedent support a Title VII claim 

where a transgender employee suffers an adverse action because is transgender, is 

transitioning, and/or failed to conform to her employer’s sex- or genderstereotypes. Therefore, the Commission respectfully requests that the Court deny 

RGGR’s motion. 

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B. The Complaint States a Claim of Sex Discrimination Under Title 

VII.

1. Discrimination Against an Employee Because She is 

Transgender or is Transitioning from Male to Female is, by 

Definition, Sex Discrimination.

The Supreme Court made clear in Price Waterhouse v. Hopkins, 490 U.S. 

228 (1989), that employment decisions that rely on “sex-based considerations” or 

which “take gender into account” are sex discrimination under Title VII. See

490 U.S. at 241-42 (to support sex discrimination claim, a plaintiff need only 

“prove that the employer relied upon sex-based considerations in coming to its 

decision”).

That an individual is transgender or is transitioning from male to female 

involves, by definition, sex-based considerations. “A person is defined as 

transgender precisely because of the perception that his or her behavior 

transgresses gender stereotypes.” Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 

2011). As another court recognized, “discrimination on the basis of gender identity 

is literally discrimination ‘because of ... sex.’” Schroer v. Billington, 577 F. Supp. 

2d 293, 302 (D.D.C. 2008) (“Schroer II”). As will be discussed in more detail 

infra, Defendant relies upon outdated, inapposite or incomplete case law in support 

of its claim that individuals such as Ms. Stephens are not protected under Title VII.

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In Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011), a unanimous 

Eleventh Circuit panel was presented with and answered the following question:

The question here is whether discriminating against someone on the basis of 

his or her gender non-conformity constitutes sex-based discrimination under 

the Equal Protection Clause. For the reasons discussed below, we hold that it 

does. 

In that case, Glenn was transitioning from male to female. After she started 

to present as a female, her employer fired her because her “transition was 

inappropriate...would be disruptive ...some people would view it as a moral issue, 

and...[it] would make Glenn’s co-workers uncomfortable.” 663 F.3d at 1314.

Glenn then sued her employer for sex discrimination. 

Although Glenn was an Equal Protection Clause case, the Eleventh Circuit 

made clear that its conclusion that the plaintiff’s discharge was sex discrimination 

would have been the same under Title VII. See id. at 1321 (concluding that 

evidence established that defendant acted on the basis of sex and noting that “[i]f 

this were a Title VII case, the analysis would end here”). Thus, in reaching its 

conclusion that transgender persons are protected against sex discrimination, Glenn

relied heavily upon Title VII precedents, including cases from the Supreme Court 

and Sixth Circuit. First, Glenn noted that Price Waterhouse “held that

discrimination on the basis of gender stereotype is sex-based discrimination.” Id. at 

1316. Further, “[a] person is defined as transgender precisely because of the 

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perception that his or her behavior transgresses gender stereotypes.” Id. Thus, 

Glenn held that “[a]ccordingly, discrimination against a transgender individual 

because of her gender-nonconformity is sex discrimination, whether it’s described 

as being on the basis of sex or gender.” Id. at 1317. 

In its analysis, Glenn recognized that the Sixth Circuit has held that 

“discrimination against a transgender individual because of his or her gender nonconformity is gender stereotyping prohibited by Title VII.” Id. (citing Smith v. City 

of Salem, 378 F.3d 566 (6th Cir. 2004) and Barnes v. City of Cincinnati, 401 F.3d 

729 (6th Cir. 2005)).

Importantly, Glenn noted that older cases which flatly refused to consider 

the claims of transgender plaintiffs under Title VII have been “eviscerated” by 

Price Waterhouse. Glenn, 663 F.3d at 1318 n.5. Thus, the EEOC’s complaint 

states a claim of sex discrimination under Title VII because Stephens is 

transgender and RGGR fired her for that reason. 

It is also clear that it is sex discrimination under Title VII to discharge an 

employee because she is transitioning to a different gender presentation. In Schroer 

v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008), the Library of Congress 

expressed interest in hiring a candidate who was undergoing a gender transition 

from male to female. However, that interest lasted only “until she disclosed her 

transsexuality. The Library revoked the offer when it learned a man named David 

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intended to become, legally, culturally and physically, a woman named Diane.” 

Schroer II, 577 F. Supp. 2d at 306. The court held that this constituted 

discrimination “because of ... sex,” and that the plain language of Title VII 

required it. Id. (citing United States v. Ron Pair Enters., 489 U.S. 235, 241 (1989) 

and Caminetti v. United States, 242 U.S. 470, 485 (1917)). 

Furthermore, the court found that judicial attempts to “carve out” 

transgender persons from protection were illegitimate, “allow[ing] their focus on 

the label ‘transexual’ to blind them to the statutory language itself.” Id. at 307. 

Ultimately, the court analogized the position of transgender persons to those who 

experienced hostility because they had converted to another religion, holding that 

an employer that was biased against those who changed their religion would 

clearly fall afoul of Title VII. Id. (“no court would take seriously the notion that 

‘converts’ are not protected by the statute”).

Stephens was regarded as a competent employee until she announced her 

transition to her employer in a letter. Three weeks later, she was fired. While 

Defendant may not have any problem with men as men or women as women, it 

reacted negatively to one of its employees announcing a transition in gender from 

one to the other. See International Union, UAW v. Johnson Controls, Inc., 499 U.S. 

187, 199 (1991) (holding that whether an employment practice is based on sex 

“does not depend on why the employer discriminates”). An adverse action 

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motivated by the fact that an employee is transgender or transitioning to another 

gender is, by definition, motivated by sex-based considerations prohibited by Title 

VII.

2. Adverse Actions Motivated by Sex Stereotyping are Prohibited 

by Title VII.

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 ... sex.” 42 U.S.C. § 

2000e-2(a). An employer discriminates on the basis of sex when it fires an 

employee for failing to conform to the employer’s notions of the employee’s sex. 

The seminal case on this issue is Price Waterhouse v. Hopkins, 490 U.S. 228 

(1989). Ann Hopkins was a senior manager at the defendant accounting firm who 

was proposed for partnership status by partners in her office. Id. at 233. She was 

rejected after a vote, and the evidence showed that many were hostile to her 

because she was a woman who acted like a man. See id. at 235 (Hopkins regarded 

as “macho,” “overcompensated for being a woman,” needed to take “a course at 

charm school,” used profanity, “somewhat masculine,” and needed “to walk more 

femininely, talk more femininely, dress more femininely, wear make-up, have her 

hair styled, and wear jewelry”).

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The Court held that this was sufficient evidence of stereotype-based bias, 

and was impermissible under Title VII.

As to the existence of sex stereotyping in this case, we are not inclined to 

quarrel with the District Court’s conclusion that a number of the partners’ 

comments showed sex stereotyping at work. As for the legal relevance of 

sex stereotyping, we are beyond the day when an employer could evaluate 

employees by assuming or insisting that they matched the stereotype 

associated with their group, for [i]n forbidding employers to discriminate 

against individuals because of their sex, Congress intended to strike at the 

entire spectrum of disparate treatment of men and women resulting from sex 

stereotypes. An employer who objects to aggressiveness in women but 

whose positions require this trait places women in an intolerable and 

impermissible catch 22: out of a job if they behave aggressively and out of a 

job if they do not. Title VII lifts women out of this bind.

Id. at 250-51 (citations and internal quotation marks omitted).

That the law does not expressly mention transgender individuals does not 

mean they are not subject to protection if the law is otherwise violated. See Oncale 

v. Sundowner Offshore Services, Inc., 523 U.S. 75, 79 (1998) (“statutory 

prohibitions often go beyond the principal evil to cover reasonably comparable 

evils”); Newport News Shipbuilding and Dry Dock Co. v. EEOC, 462 U.S. 669 , 

679-80 (1983) (that “congressional discussion focused on the needs of female 

members of the work force ... does not create a ‘negative inference’ limiting the 

scope of the act to the specific problem that motivated its enactment”); id. at 681 

(“[p]roponents of [Title VII] stressed throughout the debates that Congress had 

always intended to protect all individuals from sex discrimination in 

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employment”).

In Smith v. City of Salem, 378 F.3d 566, 575 (6th Cir. 2004) the Sixth Circuit 

explained that, after Price Waterhouse, an employer violates Title VII when it 

takes action against an employee based on “[s]ex stereotyping,” that is, “based on a 

person’s gender non-conforming behavior.” This includes penalizing an employee 

for adopting dress and mannerisms that, in the employer’s mind, conform to the 

wrong sex stereotypes. See id.; Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 

2000) (“What matters, for purposes of this part of the Price Waterhouse analysis, is 

that in the mind of the perpetrator the discrimination is related to the sex of the 

victim: here, for example, the perpetrator’s actions stem from the fact that he 

believed that the victim was a man who ‘failed to act like’ one.”).

The Sixth Circuit applied the Price Waterhouse analysis to reverse the Rule 

12(c) dismissal of a transgender firefighter’s Title VII suit. Smith noted that the 

employee alleged “that Defendants’ discrimination was motivated by his 

appearance and mannerisms, which Defendants felt were inappropriate for his 

perceived sex.” Smith, 378 F.3d at 574. 

The Court held that this was sufficient to state a stereotyping claim under 

Price Waterhouse. Id. at 575 (“Sex stereotyping based on a person’s gender nonconforming behavior is impermissible discrimination, irrespective of the cause of 

that behavior; a label, such as ‘transsexual,’ is not fatal to a sex discrimination 

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claim where the victim has suffered discrimination because of his or her gender 

non-conformity.”).

In the instant case, to survive the motion to dismiss, the Commission must 

only show “factual content that allows the court to draw the reasonable inference 

that the defendant is liable for the misconduct alleged.” See Ashcroft v. Iqbal, 556 

U.S. 662, 678 (2009). The complaint alleges that RGGR fired Stephens for failure 

to conform to RGGR’s gender-based expectations and stereotypes. Pursuant to 

Smith, the claim is viable under Title VII’s prohibition of sex discrimination.

Not only is Smith controlling law in this circuit, its reasoning was expressly 

affirmed by the Sixth Circuit in Barnes v. City of Cincinnati, 401 F.3d 729, 737 

(6th Cir. 2005) (quoting Smith); see also Myers v. Cuyahoga Cty., 182 Fed. Appx. 

510, 519 (6th Cir. 2006) (“Title VII protects transsexual persons from 

discrimination for failing to act in accordance and/or identify with their perceived 

sex or gender”) (citing Smith and Barnes).

Thus, an employee who alleges that failure to conform to sex stereotypes 

concerning how a man or woman should look and behave was the “driving force” 

behind the employer’s adverse employment actions “state[s] a claim for relief 

pursuant to Title VII’s prohibition of sex discrimination.” Smith, 378 F.3d at 575.

In particular, an employer may not fire a transgender woman for failing to comport 

with the employer’s gender expectations. Such an act is discrimination “because of 

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... sex,” which Title VII prohibits. But that is precisely what the Commission 

alleges RGGR did when it fired Stephens for failing to conform to RGGR’s 

perceptions of how Stephens should look and act. 

3. Defendant’s Dress Code Facts and Defense Must be 

Disregarded.

No document outside of the pleadings should be considered under 12(b)(6) 

unless it is directly invoked by the complaint. See Bassett v. National Collegiate 

Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008) (to be considered, material 

outside of the pleadings must be “referred to in the Complaint and [] central to the 

claims contained therein”); In re Burlington Coat Factory Securities Litigation, 

114 F.3d 1410, 1426 (3rd Cir. 1997) (material must be “integral to or explicitly 

relied upon in the complaint”) (quoting Shaw v. Digital Equipment Corp., 82 F.3d 

1194, 1220 (1st Cir. 1996)). The Commission is not basing its claims upon 

Defendant’s dress code, and does not reference a dress code in its Complaint. 

Essentially, Defendant is injecting a defense into a 12(b)(6) motion and 

asking the court to accept the defense as true in order to find the complaint legally 

deficient. This is not the proper use of a motion to challenge a complaint. As noted 

above, a 12(b)(6) motion is not a vehicle “to resolv[e] ...the applicability of 

defenses.” Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). 

Instead, Rule 12(b)(6) by its terms provides for a defendant to move to dismiss a 

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complaint for “failure to state a claim upon which relief can be granted.”

Rule 12 does not mandate that the Court treat a Rule 12(b)(6) motion as a 

Rule 56 summary judgment motion if the court chooses to consider material 

outside the pleadings. However, RGGR has not actually presented anything to the 

court to invoke this rule—it did not attach a copy of its dress code, and so even if 

the motion were treated as a Rule 56 motion, it should be denied because 

Defendant’s statements of fact are entirely unsupported by evidence.

If the Court were to convert RGGR’s motion to a Rule 56 motion, then the 

Commission, pursuant to Rule 56(d), asks that the court provide time to conduct 

necessary discovery in defending against a summary judgment motion. 

Fed.R.Civ.P. 12(d) and 56(d). See Gunasekera v. Irwin, 551 F.3d 461, 466 n.1 (6th 

Cir. 2009) (Rule 12(b)(6) motion could not be converted to Rule 56 because 

opposing party was not afforded opportunity to obtain requested discovery). 

C. Defendant’s Case Law Does Not Authorize Dismissal.

Defendant’s sole argument which is cognizable under a 12(b)(6) analysis is 

that transgender persons are per se excluded from the protections of Title VII. 

Defendant cites several pre-Price Waterhouse cases and a few after that seminal 

decision in making its argument. See Dkt. 7 at Pg ID 30-31. As noted above in 

Glenn, the reasoning behind the blanket bar spelled out by the pre-Price 

Waterhouse cases has been stripped of any legal merit. See Glenn, 663 F.3d at 

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1318 n.5.

With respect to the handful of post-Price Waterhouse cases, none are from 

the Sixth Circuit and are not controlling here. Consequently, Smith and Barnes

must control here.

Moreover, Defendant even misstates the import of one of the cases it quotes 

from extensively, Schroer v. Billington, 424 F. Supp. 2d 203 (D.D.C. 2006) 

(“Schroer I”). See Dkt. 7 at Pg ID 35-36. Namely, the court in Schroer I denied the 

employer’s 12(b)(6) motion, holding that the plaintiff’s gender or sexual identity 

may be protected under Title VII. Id. at 213 (“There are facts that Schroer could 

prove which would support her claim that the Library refused to hire her solely 

because of her sexual identity, and that in so doing, the Library discriminated 

against her ‘because of...sex’”). 

But the case did not stop there. It went to trial, and the post-trial opinion 

shows that the court permitted Diane Schroer to proceed on a sex-stereotypes 

claim, and revised any qualms on the scope of Smith in light of the evidence:

In my 2006 memorandum denying the Library’s motion to dismiss, in this 

case, I expressed reservations about the Sixth Circuit’s broad reading of 

Price Waterhouse. ...That was before the development of the factual record 

that is now before me.

Schroer II, 577 F. Supp. 2d at 304 (emph. added). If nothing else, the example of 

the Schroer litigation argues strongly against the resolution of these types of cases 

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on the pleadings.

Nor is there any merit to Defendant’s argument that Congress’ failure to 

pass legislation specifically identifying transgender persons as a protected class 

under Title VII means that they are “expressly rejected” from Title VII protection. 

Dkt. 7 at Pg ID 32-33. The exact same argument was also disposed of in Schroer II

with the following quote:

[S]ubsequent legislative history is a hazardous basis for inferring the intent 

of an earlier Congress. It is a particularly dangerous ground on which to rest 

an interpretation of a prior statute when it concerns, as it does here, a 

proposal that does not become law. Congressional inaction lacks persuasive 

significance because several equally tenable inferences may be drawn from 

such inaction, including the inference that the existing legislation already 

incorporated the offered change. 

Pension Ben. Guar. Corp. v. LTV Corp., 496 U.S. 633, 650 (1990) (internal 

citation and quotation marks omitted) (quoted in Schroer II, 577 F. Supp. 2d at 

308)).3

 

3 That legislators might believe the law already protects transgender persons is not 

far-fetched. Similar arguments were recently made in debates over the current 

scope of Michigan’s civil rights law. See Chad Livengood, Anti-Bias Proposal for 

Gays Stalls, DETROIT NEWS, Dec. 4, 2014 at 

http://www.detroitnews.com/story/news/politics/2014/12/03/mich-housecommittee-vote-lgbt-legislation/19838895/ (“[Michigan House Speaker Jase] 

Bolger, R-Marshall, has opposed Democratic demands that ‘gender identity or 

expression’ be added to the Elliott-Larsen Civil Rights Act, arguing transgender 

individuals are already protected from discrimination under the classification of 

‘sex’”).

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Defendant’s suggestion that Congress did not intend Title VII to cover 

gender identity discrimination is also without merit. In recognizing that same-sex 

harassment is actionable sex discrimination under Title VII, the Supreme Court 

rejected precisely the argument that RGGR makes: “[S]tatutory prohibitions often 

go beyond the principal evil [they were passed to combat] to cover reasonably 

comparable evils, and it is ultimately the provisions of our laws rather than the 

principal concerns of our legislators by which we are governed.” Oncale v. 

Sundowner Offshore Services, Inc., 523 U.S. 75, 79-80 (1998). Thus, Defendant’s 

arguments as to the significance of perceived legislative inaction lack substance.

Finally, Defendant cites to a case on sexual orientation, Vickers v. Fairfield 

Medical Ctr., 453 F.3d 757 (6th Cir. 2006). However, in addition to being a 

sexual-orientation case, Vickers also expressly distinguished Smith by noting that it 

is behavior and expression which occurs in the workplace which is relevant:

By contrast, the gender non-conforming behavior which Vickers claims 

supports his theory of sex stereotyping is not behavior observed at work or 

affecting his job performance. Vickers has made no argument that his 

appearance or mannerisms on the job were perceived as gender nonconforming in some way and provided the basis for the harassment he 

experienced. Rather, the harassment of which Vickers complains is more 

properly viewed as harassment based on Vickers’ perceived homosexuality, 

rather than based on gender non-conformity.

Vickers, 453 F.3d at 763. Vickers is distinguishable from the allegations here, 

wherein Stephens expressly indicated that she intended to present herself in the 

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workplace with gender-nonconforming appearance and mannerisms.

IV. Conclusion

The Commission’s complaint, alleging that RGGR fired Stephens because 

Stephens is transgender, because of Stephens’ transition from male to female, and 

because Stephens did not conform to RGGR’s sex stereotypes and gender-based 

preferences, expectations or stereotypes, is supported by Supreme Court and Sixth 

Circuit precedent, along with the growing trend of courts outside the Circuit. These 

allegations are all sex-based considerations. Under Price Waterhouse, Smith, and 

Barnes, the complaint states a claim for sex discrimination for which relief can be 

granted. Defendant’s motion for judgment on the pleadings should be denied.

Respectfully submitted, 

Dated: December 10, 2014 s/ Dale Price 

Dale Price (P55578)

Trial Attorney

EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION

Detroit Field Office

477 Michigan Ave., Suite 865

Detroit, MI 48226

Phone: (313) 226-7808

Fax: (313) 226-6584

E-mail: dale.price@eeoc.gov 

Case 2:14-cv-13710-SFC-DRG ECF No. 9 filed 12/10/14 PageID.141 Page 25 of 26
Certificate of Service

I hereby certify that on December 10, 2014, a true and accurate copy of the 

foregoing Notice of Appearance was filed electronically. Notice of this filing will 

be sent to the counsel of record by operation of the Court’s electronic filing 

system:

Respectfully submitted, 

Dated: December 10, 2014 s/ Dale Price 

Dale Price (P55578)

Trial Attorney

EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION

Detroit Field Office

477 Michigan Ave., Suite 865

Detroit, MI 48226

Phone: (313) 226-7808

Fax: (313) 226-6584

E-mail: dale.price@eeoc.gov 

Case 2:14-cv-13710-SFC-DRG ECF No. 9 filed 12/10/14 PageID.142 Page 26 of 26