* 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 . 0160P (6th C ir.) File Name: 04a01 60p.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: June 1, 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.

_________________

OPINION

_________________ 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 thos e cl aims as we ll, having decline d to exerc ise supplemental 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 employment discrimination pursuant to Title VII , a pla intiff must show that: (1) he is a member of a protected group; (2) he suffered an adverse e mployment action; (3) he

was qualified for the position in question; and (4) he wa s treated differently f

rom similarly situa

te d members of the protected class. Gettings v. Bldg. Laborers Local 310 Fringe Benefits Fund, 349 F.3d 3 00, 305 (6 th Cir. 2003 ). Smith is a member of a protected

class. Hi s complain

t asserts that he is

a male with Gender Ide ntity Disorder, and Title VI I’s prohibition of discrimination “ because of . . . sex” prote cts

menas well as women. Newport News Shipbuilding

and Dry Do ck Co. v. E.E

.O.C. , 462 U.S. 669, 682 (198 3). Th e complaint also alleges both that Smith was qualified for the position in question – he had been a lieutenant in the Fire Department

for seve n ye ars witho

ut any negati ve incide nts –

a nd tha t he was treated differently from other males in the department

because of his non-masculine behavior and GI D.

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

equireme 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 befor e t he suspension, and by his attorney ’s 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 trans se xual. We find both bases of di scr im in ati on a cti ona bl e pu rsu ant to Tit le V II.

We first address whether Smith has stated a claim for relief, pursuant to Price Waterhouse’ s p rohibition of sex stere otyping, based on his gender non-conforming behavior and appearance. In Price W

aterhouse , the plaintiff, a female senior manage r in an ac counting

firm, was denied

partnership inthe firm, in part, b ecause she wa s 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,” “w al k m or e f

em in in el y, talk more

feminine ly, dress

more feminine ly, wear ma ke-up, h ave her

hair sty le d, and

wear jewelry.” Id. (internal quotation marks omit ted). Six members of the C ourt agreed that such comments bespoke gen der discrimination, hol ding tha t Title VI I ba rred not jus t disc rim ination because Hopkins was a woman, but also sex stereotyping

– that is, discri mination be cause 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 plura lity’s sex stere o typing

analy sis and characte

rizing the

“failur e to conform to [gende

r] stereo typ es” as a

disc rimin atory 10 Smith v. S alem, Ohi o, et al. No. 03-3399

criteri on; concu

rring s eparat

ely to clarify the se

parate issues of causation and allocation of the burden of proof). As Judge Posner has pointed ou t, the t erm “gender” is one “bor rowed fromgrammar to designate the sexesas vie wed as social rather than biological classes.” R ICHA RD A. P OSN ER , S EX
AND R EASON , 24-25 (1 992). The Supreme Court made clear that in the context of Title VII , discrimination becaus e of “sex ” includes gender discrimination: “I n the context of sex stere otyping, a n em ployer who ac ts on the basis of a belief th at a woman c annot be a

ggre ssive, or

that she mu st not b e , has ac ted on the basis of gender.” Price W aterhouse , 4 9 0 U.S. at 250. The Court emphasized that “we are bey

ond the day when an employer c ould evaluate employe es by assuming

or insisting that

they matched the

stereotype

associa ted with their group.” Id. at 251.

Smith contends th at the same theory of

sex stereotyping applies here. His complaint sets forth the conduct and

manner isms which, he

allege s, did not c onform wi th his employ ers’ and co-workers’ sex stereoty pes of how a man should look and behave. Smith’s complaint states that, after being diagnosed with GID, he b egan 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 appearance and mannerisms as not being masculine e nough; and that his supervisors at the Fire Department

and other

municipa

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

municipa

l officia ls rega rding hi s employ ment. Defendants allegedly schem ed to compel Smith’s re si gn at io n b y for cing him to undergo multiple psychologic al ev a luations of his gender non-conforming beh avior. The complaint makes clear that these meeting s took place soon after Smith assumed a mo re feminine appearanceand

manner and

after h is conversation ab out this wit h Eastek. I

n addition , the comp laint alle ges tha t Smith

was suspended for twenty-four hours for al l egedly violating

anunenacted municipal policy , and that the suspen sion wasNo. 03-3399 Smith v. S alem, Ohi o, et al. 11

ordered in retaliationfor his pursuing legal remedies after he had been informed about De fendant s’ plan to intimidate

him into res ign in g. In short, Smith claims that the discrimination he experienced was based on his failur e to co nform to sex stereotypes

by expressing less masc

uline, and more feminine mannerisms and appearance.

Having al leged that his failure to conform to sex stereotypes

concerning how a man s hould look and behave

was the drivin

g forc e behind D efenda

nts’ acti ons, Smith has sufficie ntly ple aded claims of sex stereotyping and gender discrimination.

Inso holding, we find

that the district court erred in rely ing

on a series of pre-

Price W aterhouse 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 int ended that [Title VII] apply

to anything other

than t h e traditional con cept of

sex.” Ulane v. Eastern Airlines, Inc.

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

v. Arthur And

erse n & Co. , 566 F.2d 659, 661-63 (9th Cir. 1977) (refusing to extend protection o f Titl e VI I to transse xuals because

discrimination ag ainst tra nssexuals is based on “gender” rather

th an “sex”). It is true that, in the p ast, f ederal appellate courts reg arded Title VII as barring discrimination ba se d o nl y on “sex” (referring to an individual’s anatomical and biological characte ristics), but noton “gender” (ref

erring to socially-construct ed no rms 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 anatomi ca l sex rather than gender) ; Sommers v. Budget Mktg., Inc. , 667 F.2d 748, 750 (8th Cir. 1982) ( hold ing that transse xuals are notprotect ed by Title VI I be cause th e “plain meani ng” must be ascribed to the term “sex” in t he absence of clear congressional intent to do otherwise); Holloway, 566 F.2d at 661-6 3 (refus ing to exte nd protec tion of Titl e VI I to transse xuals beca

use d iscr imina tion a gai nst tr anss exu a lism is based on “gender” rather tha

n “sex;” and “sex” sho u ld be 12 Smith v. S alem, Ohi o, et al. No. 03-3399

given its traditi onal def

inition bas e d on the anatomical characteristics dividing “organisms” and “living beings” into male and fem ale ). In th is earlier jurisprudence, male-tofemale transse xuals (who were the plaintiffs in Ulane, Sommers, and

Holloway ) –

as biological male s whose outward behavior and emotional identity did not conform to

s ocially-pre scribed

expectat ions of ma sculinity

– were d enie d Title VII protect ion by courts b ecause

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 – ha s been eviscerated by P rice W

aterhouse

. See Sch wenk v. H artford , 204 F. 3 d 1187, 1201 (9th C ir

. 2000) (“The initial judicial approach taken in cases such as Holloway [and Ulane ] has b een
overru led by the logic a nd lan guage of Price Waterhouse. ”). By holding that Title V II protect ed a woma

n who fai led to conform to social expe ctati ons concerning how a woman should look and behave, the Supreme Court established that Title VII ’s reference to “sex” encompas ses b oth the biological d i fferences between men and women, and gende r discrimination, that is, discrimination bas ed on a fa ilure to conform to ster eoty

pical gender norms. See Price Wate rhouse

, 490 U.S. at 251 ; see also Schwenk, 204 F.3d at 1202 (stating that Title VI I e ncompasses 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 bo th the anatomical differences betwee

n men and women, and

gende r); Rene v. MGM Grand Hotel

, Inc. , 305 F.3d 1061, 1068 (9th Cir. 2002) (en banc) (Pregerson, J., concurring ) (not ing that

the Ninth Circuit had prev

iously found tha

t “sa me-s ex gender stereotyping

of th e s or t s uf

fe re d b y R ene – i. e. gender stereotyping

of a male gay employ ee by his male co- workers” constituted

actionable harassment under Title VI I and concluding that “[t]he repeated testimony that his co-workers treated Rene, ina variety of

ways, ‘like a

woman’ constitutes ample evidenc e of ge nder ste reoty ping”) ; Bibby v. Philadelp hia Coca Cola Bottling Co. , 260 F.3d 257, 262-63No. 03-3399 Smith v. S alem, Ohi o, et al. 13

(3d Cir. 2001) (stating that a plaintiff may be able to prove a claim of sex discrim in ation by showing that the “ harasser’s

co nduct was motiva

ted by a belief that the victim d id no t conform to the stereotypes of

his or her ge nder”) ; Nichols v. Azt eca Rest. Ente

rs. , Inc. , 256 F.3d 864, 874-75 (9th C ir

. 2001) (holdi ng tha t harassment “based upon the perception that [the plaintiff

] is effem inate” is discrimination bec ause of
sex, in v iolation of Title VII), overruling DeSantis v. Pac. Tel. & Tel. Co., Inc. , 608 F.2d 327 (9th Cir. 1979); Doe v. Bellevi lle

, 119 F.3d

563, 580-81 (7th Cir. 1997) (holding that “TitleVII

does not permit an employee to b e treate d adversely because his or her appearanc e or conduct does not conform to stereotypical g ender roles” and explaining that “a

manwho is harassed because his voice is soft, his

phy sique is slight, his hair long

, or because in some other respect he exhibits his mascu

linity in a way

that does not meet his coworke rs’ idea of how men a

re to appear a

nd behav e, is harassed ‘because of h i s sex’”), vacated and remanded on other grounds , 523 U.S. 1001 (1998).

After Price W

aterhouse , an employer w ho discri m inates agains twomen because, for instance, they do

not wear dresses

or makeup, i s engag ing in sex discrimination because the discrimination would not o ccur but for the victim ’ s s ex . It follows that employe

rs who disc

rim inate ag ainst men b ecause they do w ear dresses and makeup, or otherwise a ct fe mi ni ne ly, are also engaging in sex discr

imination, because the discrimination would not occur but for t he vi ctim’ s sex. See, e.g., Nichols, 256 F.3d 864 (Title VII sex discrimination and hostile work envir

onment cl aim

upheld where plaintiff’s

ma le co-wor

kers and supervis ors repe atedly

refer red to him

as “she” and “her” and wh ere co-workers mocked him for walking and carry

ing 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 actionon a claim that men discriminated ag ainst

her bec ause she did not meet stereotyped expec tations of femininity, a

mancan gr

ound a cla

im on evide

nce that oth er men disc riminated

agains t him beca

use he did

not m ee t 14 Smith v. S alem, Ohi o, et al. No. 03-3399

stereotypica

l expectations of masculinity.” (interna l cit ation omitted)); see also Rosa v. Park West Bank & Trust Co. , 214 F.3d 213 (1 st Ci r. 200 0) (app lying Price Waterhouse and Title V II jurisprudence to an Equal Credit Opportunity Act claim and rein stating

claim on b ehalf of

biologic all y ma

le plaintiff who alleged that he

was den ied an opp ortunity to apply for a loa

n becau se was dr

essed in “

traditionally feminine attire”).

Yet some cour

ts have h eld that this latter form of discrimination is of a different and somehow more permissib le kind. For instance , the ma n w ho ac ts in wa ys typ ically associated with women is not described as engaging inthe same

activit y as a woman who

acts in wa

ys t ypi cally associated

with women, but is instead described as engag ing inthe diffe

rent ac ti vity of

being a transse xual (or in s ome instance s, a homosexual ortransvestite). Discrimination agains tthe transsexual is then found not to be discrimination “be cause of . . . sex,” but rather, discrimination against the plaintiff’s unprotected status or mode of s elf-identification. Inother wo rds, these courts superimpose classifications such

as “transsexual” on a p laint iff, and t hen l egitimize discrimination bas ed on t

he plaint iff’s g ender 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 t

he case here: despite the fact that Smith alleges that Defend ants’ disc

rimination was motiv ate d by h is appea r ance and mannerisms, which Defendants felt were inappropriatefor a male, the district court expressly declined to discuss the applicability of Price Waterhouse. The district court therefor e gave insufficient consideration to Smith’s wel l-pleaded

claims concerning his contra-g ender behavior

, butrather acc ounted for that be havior on

ly in sofar a s it confirmed

for the court

Smith’s status as a transsexual, which the district court held preclude d Sm it h fr om 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 like and/ or identif y with the gende r norms a ssociate d with his or her se

x – is no di fferent from the discrimination directed agains t Ann Hopk

ins i n Price W

aterhouse , who, in sex-stereotypical

terms, did not act

l ike a woman. Sex stereotyping b ased on a person’s gender non- conforming behavior is impermissible discrimination, irrespective of the

cause of th at behavior; a label, such as “transsexual,” is not fatal to asex dis crimination claim where the victim has suffered discri mination because of his or her gendernonco nf or mi ty. Accordingly , we hold that Smith has stat ed a
c laimfor relief pursuant to Title VI I’s prohibition of sex discrimination.

Even if Smith had alleged discrimination based only on his self-identification

as a tra nssexual –

as opposed

to his spec ific appearanceand behavior – this c laim too is a ctionabl e pursuant to Title VII

. By def inition, transsexuals are i ndiv iduals who fail to conform to stereoty pes about how those assigne d a parti cular se x at birth sho

uld act, dress, and self-ide nti fy. E rgo , identification as a transsexual is the statement or admission that one wishes to be the opposite sex

or does not r

elateto one ’s bir

th sex. Such an admission – for instance the a dm ission by a man tha

t he self- identifie s as a
womanand/or that he wishes to be a woman – itself violates t he p revalent sex stereotype that a man should perceive himself as a man. Dis criminat

ion based on transs exualism

is rooted in the insistence that sex (organs) and gen der (social classification

of a person as belonging

to one sex or the other) coincide. This is the very essenc e of sex stere o typing. Ac co rd in gl y, to the exten t that Smith a

ls o alle ges discrimination based sol ely on his i dentif

ication a s a transse xual, he has alleged a claim of sex stere oty pin g purs ua ntto Title VI

I. As noted above, Smith’ s birth sex is 16 Smith v. S alem, Ohi o, et al. No. 03-3399

male and this is the basis for his protected class status under Title VI I ev en under

this formu

lation of h

is claim.

Fi na 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 dising enuously

plead discriminat ion because o f transsexual ism. Similarly, Defendants re fer to sex stereotyping

as “the Price Waterho use loophole. ” (Appelle es’ Bri e f at 6.) T hese cha racter izations ar

e almost i dentical to the treatment that Price Waterhouse itself gav e sex stereo typ ing in its briefs to t he U.S. Supreme Court. As

we do now, the Supreme Court noted the practice wi t h disfavor , stating :

Inthe specific con

text of sex stereotyping, a

n employer who acts on the basis of

a belief that a woman

cannot be aggressive, or that she must not be, has acte d on the ba sis of gender. Although the parties d o not over

tly d ispute this last proposition, the placement by Price Wate

rhouse of “se x s tereoty

ping” in quotation

marks thr

oughout its brief seems to us an insinuation either that such stereotyping

was not p r esent in this case or that it lacks legal r elevanc e. We rej ect both p ossibilitie s.

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

2. Adverse Employment Action
Despite h av ing dismissed Smith’s Title VII claim for failure to state

a claim of sex stereotyping – a finding we have just rejected – the district co urt n evertheless addressed the merits of Smith’s Title VII clai ms arguendo . Relying on White v. Burlington Northern & Sante Fe Ry . C o

. , 310 F.3d 443 (6th Cir. 2 002), the distric t court held that Smith’s suspension was not a

n advers e employ

ment acti on beca

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

ultimate employ me ntdecision,” reversed the suspension, and that

ac co rd in gl y, Smith’s T it le VI I cla im could no t lie. Be causeNo. 03-3399 Smith v. S alem, Ohi o, et al. 17

1 Smith ’s com plaint d oes n ot state whether he was sus pended wi th or without pay. Because we must construe the complaint in the light most favor able to the p laintiff

, Ziegl er , 249 F.3d at 512, and giventhe l iberal pleading sta ndard s of Federal Rule of Civil Procedure 8, we do not find this fai lure di sposit ive. 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 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 th at the dist rict cou rt erre d in its ana

lys is and that Smith ha s su c cessful ly p leaded a n advers e employment

action in

s upport 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.

Com mon to both the employment discrimination a n d retaliation

claims is a showing of an adver se employment action, which is defined

as a “ma terially 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 a lteration of job responsi bilities” is not enough to constitut e 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)). Example s of

advers e empl oyment ac tion s incl ude fi ring, failing to promote, reassignment wi th si gnificantly different responsi bilities, a materia l loss of benefits, suspensions, and other indices u

nique to a

particu lar sit uati on. Burlington Indus., I nc. v. El lerth , 524 U.S. 742, 761 (1998); White , 364 F.3d at 798. Here, the Fire Department suspende d Smith for twenty-four

hours. Becau se Smith

works in twenty-four

hour shifts, that twenty-four hour suspension was the equivalent of three e i ght-hour day s for the average worke r, or, approxima

tely 60% o f a forty

-hour work week . Pursuan t to the liber al not ice pl eadin g r equir ements se t forth in F ed. R. Ci v. P. 8, this al legati on, at this phase of the litig atoin, is suffi cie ntto satisfy the adverse 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 18 Smith v. S alem, Ohi o, et al. No. 03-3399

always the case, and “o ther indices t hatmi ght be uni que to a part icul ar situat ion” can const itu te a “ materi ally ad verse chan ge” a s well. Ho llins, 188 F.3d at 662

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

we do n ot kno w the fu ll cont ou rs of the s uspension. 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. It is irrele vant that Smith’s susp ension wa s ultimate ly

r eversed 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” stan da rd whereby a negative employment

action is not considere d an “adver se e mployment action” for Tit le V II p urpo ses when the deci sion is subs equ ently

reversed by

the employer, putting

the plaintiff inthe position he would have been in absent the negative action. White , 364 F.3d 7 89 (holding that the suspension of

a railroad employe e wi th ou t p ay, fo ll ow ed th ir ty- se ve n d ays later by r ein statemen

t with back pay , was an “ adverse employment

action ” for Title VII

purposes). Even if the “ultimate employment decision”

stan dard were still viable, the district court erred in concluding that, because the Court of Common Plea s overtur

ned the su spensio n, it was not an

a dverse em pl oym en t a ct io n. Th er e i s n o l eg al au th or it y fo r the proposition that reversal by a judicial body – as opposed to the e m ployer – dec lassifie s a suspen sion as an adverse employment action.

Ac co rd in gl y, Sm it h h as st at ed an ad ve rs e e mp lo ym e nt actionand, therefore, satisfied a ll of the elements necessary to allege a prima faci

e case of employ ment dis crimina tion and retaliation pursuant to Title VII

. We therefore reverse the districtco urt ’s gra

nt of judg

ment on the

pleading s to Defendants with respect to those claims.

B. 42 U .S.C . § 1 983Clai

ms

The district c ourt also

dismissed Sm

ith’s cla ims pu rsuant to 42 U.S.C . § 1983 on the ground that he failed to state aNo. 03-3399 Smith v. S alem, Ohi o, et al. 19

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 i mmu nities 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 connec tion with hi s sexbased claim of employment discrimination. Indiv iduals have

a right, protected by

the Equal Protection claus e of the Fourtee nth Amendment, to be free from discrimination on the basis of sex in public employment. D avis 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 discrimina tio n 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 u nder Titl e VI I mir

rors tha t which mus t be made

to

r ecover on an equal protection claim under section § 1983

. ” Gutzwiller

v. Fenik , 860 F.2d 1317 , 1 325 (6th Cir. 1988) (citing Kitchen v

. Chip pewa Va lley Sch

s. , 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, 1081-82 (6th Cir. 1 980); Lautermilch v . Findlay C ity Schs.

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

otection clause u nder § 19 83, [a plai

nti ff] mus t prove the same elements as are required to es tablis h a dispara te treatment cl aim under Title VII .”) (quotation and citation omitted). The facts Smith has alleged

to support

his claims of gender discrimination purs u ant to Title VII easily constitute a claim of sex discrimination grounded in the Equal ProtectionClause of

the Const

itutio n, pursuant to § 1983. See Back v. Hastings on

Hudso n U

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

. Apr. 7, 2 0 04) (holding that claims premised on Price Wate rhouse sex s tereot yping the ory sufficie ntly constitute claim of sex discrimination pursuant to § 1983). 20 Smith v. S alem, Ohi o, et al. No. 03-3399

Defend ants urge us to hold otherwise, on the ground that Smith’s complaint fails to refer spe c ifically to the Equal ProtectionClause of the U.S. Constitut ion

. But the Federal Rules of Civil Procedure provide for a liberal sy stem of notice plead ing. Fed. R. Civ. P. 8(a). A plaintiff need only provide “a short and

plain stat

ement of th e claim showing that the ple ader is e ntitled to relief.” Fed. R. Civ. P. 8(a)(2). “Such

a statement must simply ‘give the de fendant fair notice of what the plaint iff’ s claim is a nd the g rounds up on which i

t rests.’” S

wierkie wicz v. Soremna N.A. , 534 U.S. 506, 512 (2002) (quot ing C

o nley v. Gibson , 355 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 Nar cotics In telligenc e and Coord ination Uni t , 507 U.S. 163, 165-66 (1993) (rejecting heig htened pleading standard for § 1983 clai

ms); Jones v. Duncan , 840 F.2d 359 (6th Cir. 1988) (holding that

§ 1983 claims ne ed not set forth indetail al l the par

ticulari ties of a p laintiff

’s claim a gainst a defendant). Moreover, legal theoriesof recovery need not be spell edo ut as long

as the re levant iss

ues are sufficie ntly implicated

in the pleadings; in considering motions pursuant to Fed. R. Civ. P. 12(c), we a sk not whe ther a complaint points to a specifi c statute, but w hether r elief is p ossible under any set of fa

cts that could be established consiste nt with the allega tion. Be cause

Smith’s sex discrimination cla im so thoroug hly and obvio

usly sounds in a

constituti onal cla

im of equal protection, Defendants had fair notice of his claim and the ground upon which it rests. As such, we hold that Smith has satisfie d the libe

ral notic e pleadi

ng req uiremen ts set for th inFed. R. Civ. P. 8 with r espect to his claim of sex discriminati on, g rounded in an alleged equal protection violation, and we therefore reverse the district cour t’s grant of judgment on the pleadings dismissing Smith’s § 1983 claim.

Inhis appellate brief, Smith also c onte nds that hi s complaint alleges a violation of

his constitutional right to due process , based on

the City ’s failure to comply with the st

ate statutory and admin

istrativ e procedu

res that a

n Ohio munic ipality

must follow when taking official employ mentNo. 03-3399 Smith v. S alem, Ohi o, et al. 21

actionagains t a

public employee. His complaint outlinesthe statutory procedures, governed by O.R.C. § 121

. 22(G), pursuant to which members of an Ohio muni cipalit y may meet for pu rposes of taking official employ ment action agains ta public em

ployee, and

it alleges that those procedures

were not followed . Th e compla int also dis cusses O .A.C. § 124-9-11 , which wo

uld have p ermitted

Smith to cal l witnesses at his post- suspension hearin g in front of the Salem Civil Service Commission; and the complaint alleges that he

was barred from

calling witnesses. Smith conte nds that th ese allega tions implic ate his ri ght to due process pursuant to the Fourteenth Amendment of the U.S. Constitution.

However, it is well-settled that state law does not ordinar ily 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 federalconstitutional 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 . . . does not in itself imp licate constitutional due process concerns.”). Neither

Smith’s com

plaint nor his brief specifies what deprivat i on of prop erty or libert y a lleged ly st emmed from the City’s failure to c omply with s tat e procedural and administrative rule s concer ning his employ ment. Accordingly , he has failed to state a federal due process violation pursuant to § 1983.

Insum, we ho ld th at Smi th has failed to state a § 1983 claim based on

violations

of his rig

ht to due pr

ocess. However, he has stated a § 1983 claim of sex discrimination, grounded in an alle ged eq

ual prote cti on vio lation, 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 bot h Ti tl e VII and 42 U.S.C. § 1983, the judgment of the distri ct cour t is REVERSED and this c ase is 22 Smith v. S alem, Ohi o, et al. No. 03-3399

REMANDED to the district court for fur ther p roceed ings consistent with this opinion.