Jimmie L. Smith v. City of Salem, Ohio, Thomas Eastek, Walter Greenamyer, Brooke Zellers, Larry D.…

*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of Ca lifornia, sitting b y designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0262A (6th Cir.)
File Name: 04a0262a.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JIMMIE L. SMITH,
Plaintiff-Appellant,
v.
CITY OF SALEM, OHIO,
THOMAS EASTEK, WALTER
GREENAMYER, BROOKE
ZELLERS, LARRY D. DEJANE,
JAMES A. ARMENI, JOSEPH
JULIAN, and HARRY DUGAN,
Defendants-Appellees.
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No. 03-3399
Appeal from the United States District Court
for the Northern District of Ohio at Youngstown.
No. 02-01405—Peter C. Economus, District Judge.
Argued: March 19, 2004
Decided and Filed: August 5, 2004
Before: COLE and GILMAN, Circuit Judges;
SCHWARZER, Senior District Judge.*
2 Smith v. Salem, Ohio, et al. No. 03-3399
_________________
COUNSEL
ARGUED: Randi A. Barnabee, DEBORAH A. SMITH &
COMPANY, Northfield, Ohio, for Appellant. Aretta K.
Bernard, ROETZEL & ANDRESS, Akron, Ohio, for
Appellees. ON BRIEF: Randi A. Barnabee, DEBORAH A.
SMITH & COMPANY, Northfield, Ohio, for Appellant.
Aretta K. Bernard, ROETZEL & ANDRESS, Akron, Ohio,
for Appellees.
_____________________
AMENDED OPINION
_____________________
R. GUY COLE, JR., Circuit Judge. Plaintiff-Appellant
Jimmie L. Smith appeals from a judgment of the United
States District Court for the Northern District of Ohio
dismissing his claims against his employer, Defendant-
Appellant City of Salem, Ohio, and various City officials, and
granting judgment on the pleadings to Defendants, pursuant
to Federal Rule of Civil Procedure 12(c). Smith, who
considers himself a transsexual and has been diagnosed with
Gender Identity Disorder, alleged that Defendants
discriminated against him in his employment on the basis of
sex. He asserted claims pursuant to Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C.
§ 1983. The district court dismissed those claims pursuant to
Rule 12(c). Smith also asserted state law claims for invasion
of privacy and civil conspiracy; the district court dismissed
those claims as well, having declined to exercise pendent
jurisdiction over them.
For the following reasons, we reverse the judgment of the
district court and remand the case for further proceedings
consistent with this opinion.

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No. 03-3399 Smith v. Salem, Ohio, et al. 3
I. BACKGROUND
In reviewing a motion for judgment on the pleadings
pursuant to Rule 12(c), we construe the complaint in the light
most favorable to the plaintiff and accept the complaint’s
factual inferences as true. Ziegler v. IBP Hog Market, Inc.,
249 F.3d 509, 511-12 (6th Cir. 2001). The following facts are
drawn from Smith’s complaint.
Smith is – and has been, at all times relevant to this action
– employed by the city of Salem, Ohio, as a lieutenant in the
Salem Fire Department (the “Fire Department”). Prior to the
events surrounding this action, Smith worked for the Fire
Department for seven years without any negative incidents.
Smith – biologically and by birth a male – is a transsexual
and has been diagnosed with Gender Identity Disorder
(“GID”), which the American Psychiatric Association
characterizes as a disjunction between an individual’s sexual
organs and sexual identity. AMERICAN PSYCHIATRIC
ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF
MENTAL DISORDERS 576-582 (4th ed. 2000). After being
diagnosed with GID, Smith began “expressing a more
feminine appearance on a full-time basis” – including at work
– in accordance with international medical protocols for
treating GID. Soon thereafter, Smith’s co-workers began
questioning him about his appearance and commenting that
his appearance and mannerisms were not “masculine
enough.” As a result, Smith notified his immediate
supervisor, Defendant Thomas Eastek, about his GID
diagnosis and treatment. He also informed Eastek of the
likelihood that his treatment would eventually include
complete physical transformation from male to female. Smith
had approached Eastek in order to answer any questions
Eastek might have concerning his appearance and manner and
so that Eastek could address Smith’s co-workers’ comments
and inquiries. Smith specifically asked Eastek, and Eastek
promised, not to divulge the substance of their conversation
to any of his superiors, particularly to Defendant Walter
Greenamyer, Chief of the Fire Department. In short order,
4 Smith v. Salem, Ohio, et al. No. 03-3399
however, Eastek told Greenamyer about Smith’s behavior and
his GID.
Greenamyer then met with Defendant C. Brooke Zellers,
the Law Director for the City of Salem, with the intention of
using Smith’s transsexualism and its manifestations as a basis
for terminating his employment. On April 18, 2001,
Greenamyer and Zellers arranged a meeting of the City’s
executive body to discuss Smith and devise a plan for
terminating his employment. The executive body included
Defendants Larry D. DeJane, Salem’s mayor; James A.
Armeni, Salem’s auditor; and Joseph S. Julian, Salem’s
service director. Also present was Salem Safety Director
Henry L. Willard, now deceased, who was never a named
defendant in this action.
Although Ohio Revised Code § 121.22(G) – which sets
forth the state procedures pursuant to which Ohio municipal
officials may meet to take employment action against a
municipal employee – provides that officials “may hold an
executive session to consider the appointment, employment,
dismissal, discipline, promotion, demotion, or compensation
of a public employee only after a majority of a quorum of the
public body determines, by a roll call vote, to hold an
executive session and only at a regular or special meeting for
the sole purpose of [considering such matters],” the City did
not abide by these procedures at the April 18, 2001 meeting.
During the meeting, Greenamyer, DeJane, and Zellers
agreed to arrange for the Salem Civil Service Commission to
require Smith to undergo three separate psychological
evaluations with physicians of the City’s choosing. They
hoped that Smith would either resign or refuse to comply. If
he refused to comply, Defendants reasoned, they could
terminate Smith’s employment on the ground of
insubordination. Willard, who remained silent during the
meeting, telephoned Smith afterwards to inform him of the
plan, calling Defendants’ scheme a “witch hunt.”

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No. 03-3399 Smith v. Salem, Ohio, et al. 5
Two days after the meeting, on April 20, 2001, Smith’s
counsel telephoned DeJane to advise him of Smith’s legal
representation and the potential legal ramifications for the
City if it followed through on the plan devised by Defendants
during the April 18 meeting. On April 22, 2001, Smith
received his “right to sue” letter from the U.S. Equal
Employment Opportunity Commission (“EEOC”). Four days
after that, on April 26, 2001, Greenamyer suspended Smith
for one twenty-four hour shift, based on his alleged infraction
of a City and/or Fire Department policy.
At a subsequent hearing before the Salem Civil Service
Commission (the “Commission”) regarding his suspension,
Smith contended that the suspension was a result of selective
enforcement in retaliation for his having obtained legal
representation in response to Defendants’ plan to terminate
his employment because of his transsexualism and its
manifestations. At the hearing, Smith sought to elicit
testimony from witnesses regarding the meeting of April 18,
2001, but the City objected and the Commission’s chairman,
Defendant Harry Dugan, refused to allow any testimony
regarding the meeting, despite the fact that Ohio
Administrative Code § 124-9-11 permitted Smith to introduce
evidence of disparate treatment and selective enforcement in
his hearing before the Commission.
The Commission ultimately upheld Smith’s suspension.
Smith appealed to the Columbiana County Court of Common
Pleas, which reversed the suspension, finding that “[b]ecause
the regulation [that Smith was alleged to have violated] was
not effective[,] [Smith] could not be charged with violation of
it.”
Smith then filed suit in the federal district court. In his
complaint, he asserted Title VII claims of sex discrimination
and retaliation, along with claims pursuant to 42 U.S.C.
§ 1983 and state law claims of invasion of privacy and civil
conspiracy. In a Memorandum Opinion and Order dated
February 26, 2003, the district court dismissed the federal
6 Smith v. Salem, Ohio, et al. No. 03-3399
claims and granted judgment on the pleadings to Defendants
pursuant to Federal Rule of Civil Procedure 12(c). The
district judge also dismissed the state law claims without
prejudice, having declined to exercise supplemental
jurisdiction over them pursuant to 28 U.S.C. § 1367(c)(3).
II. ANALYSIS
On appeal, Smith contends that the district court erred in
holding that: (1) he failed to state a claim of sex stereotyping;
(2) Title VII protection is unavailable to transsexuals;
(3) even if he had stated a claim of sex stereotyping, he failed
to demonstrate that he suffered an adverse employment
action; and (4) he failed to state a claim based on the
deprivation of a constitutional or federal statutory right,
pursuant to 42 U.S.C. § 1983.
We review de novo the dismissal of a complaint pursuant
to Rule 12(c). Grindstaff v. Green, 133 F.3d 416, 421 (6th
Cir. 1998). A motion for judgment on the pleadings shall be
granted only where, construing the complaint in the light most
favorable to the plaintiff, and accepting all of its factual
allegations as true, the plaintiff can prove no set of facts in
support of the claims that would entitle him to relief. Id.
(citation omitted).
A. Title VII
The parties disagree over two issues pertaining to Smith’s
Title VII claims: (1) whether Smith properly alleged a claim
of sex stereotyping, in violation of the Supreme Court’s
pronouncements in Price Waterhouse v. Hopkins, 490 U.S.
228 (1989); and (2) whether Smith alleged that he suffered an
adverse employment action.
Defendants do not challenge Smith’s complaint with
respect to any of the other elements necessary to establish
discrimination and retaliation claims pursuant to Title VII. In
any event, we affirmatively find that Smith has made out a

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No. 03-3399 Smith v. Salem, Ohio, et al. 7
prima facie case for both claims. To establish a prima facie
case of employment discrimination pursuant to Title VII,
Smith must show that: (1) he is a member of a protected class;
(2) he suffered an adverse employment action; (3) he was
qualified for the position in question; and (4) he was treated
differently from similarly situated individuals outside of his
protected class. Perry v. McGinnis, 209 F.3d 597, 601 (6th
Cir. 2000). Smith is a member of a protected class. His
complaint asserts that he is a male with Gender Identity
Disorder, and Title VII’s prohibition of discrimination
“because of . . . sex” protects men as well as women.
Newport News Shipbuilding and Dry Dock Co. v. E.E.O.C.,
462 U.S. 669, 682 (1983). The complaint also alleges both
that Smith was qualified for the position in question – he had
been a lieutenant in the Fire Department for seven years
without any negative incidents – and that he would not have
been treated differently, on account of his non-masculine
behavior and GID, had he been a woman instead of a man.
To establish a prima facie case of retaliation pursuant to
Title VII, a plaintiff must show that: (1) he engaged in an
activity protected by Title VII; (2) the defendant knew he
engaged in this protected activity; (3) thereafter, the defendant
took an employment action adverse to him; and (4) there was
a causal connection between the protected activity and the
adverse employment action. DiCarlo v. Potter, 358 F.3d
408, 420 (6th Cir. 2004) (citation omitted). Smith’s
complaint satisfies the first two requirements by explaining
how he sought legal counsel after learning of the Salem
executive body’s April 18, 2001 meeting concerning his
employment; how his attorney contacted Defendant DeJane
to advise Defendants of Smith’s representation; and how
Smith filed a complaint with the EEOC concerning
Defendants’ meeting and intended actions. With respect to
the fourth requirement, a causal connection between the
protected activity and the adverse employment action,
“[a]lthough no one factor is dispositive in establishing a
causal connection, evidence . . . that the adverse action was
taken shortly after the plaintiff’s exercise of protected rights
8 Smith v. Salem, Ohio, et al. No. 03-3399
is relevant to causation.” Nguyen v. City of Cleveland, 229
F.3d 559, 563 (6th Cir. 2000); see also Oliver v. Digital
Equip. Corp., 846 F.2d 103, 110 (1st Cir. 1988) (employee’s
discharge “soon after” engaging in protected activity “is
indirect proof of a causal connection between the firing and
the activity because it is strongly suggestive of retaliation.”);
Miller v. Fairchild Indus., Inc., 797 F.2d 727, 731 (9th Cir.
1986) (“Causation sufficient to establish a prima facie case of
unlawful retaliation may be inferred from the proximity in
time between the protected action and the allegedly retaliatory
discharge.”). Here, Smith was suspended on April 26, 2001,
just days after he engaged in protected activity by receiving
his “right to sue” letter from the EEOC, which occurred four
days before the suspension, and by his attorney contacting
Mayor DeJane, which occurred six days before the
suspension. The temporal proximity between the events is
significant enough to constitute direct evidence of a causal
connection for the purpose of satisfying Smith’s burden of
demonstrating a prima facie case.
We turn now to examining whether Smith properly alleged
a claim of sex stereotyping, in violation of the Supreme
Court’s pronouncements in Price Waterhouse v. Hopkins, 490
U.S. 228 (1989), and whether Smith alleged that he suffered
an adverse employment action.
1. Sex Stereotyping
Title VII of the Civil Rights Act of 1964 provides, in
relevant part, that “[i]t shall be an unlawful employment
practice for an employer . . . to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment because of such
individual’s race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e-2(a).
In his complaint, Smith asserts Title VII claims of
retaliation and employment discrimination “because of . . .
sex.” The district court dismissed Smith’s Title VII claims on

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No. 03-3399 Smith v. Salem, Ohio, et al. 9
the ground that he failed to state a claim for sex stereotyping
pursuant to Price Waterhouse v. Hopkins, 490 U.S. 228
(1989). The district court implied that Smith’s claim was
disingenuous, stating that he merely “invokes the term-of-art
created by Price Waterhouse, that is, ‘sex-stereotyping,’” as
an end run around his “real” claim, which, the district court
stated, was “based upon his transsexuality.” The district court
then held that “Title VII does not prohibit discrimination
based on an individual’s transsexualism.”
Relying on Price Waterhouse – which held that Title VII’s
prohibition of discrimination “because of . . . sex” bars gender
discrimination, including discrimination based on sex
stereotypes – Smith contends on appeal that he was a victim
of discrimination “because of . . . sex” both because of his
gender non-conforming conduct and, more generally, because
of his identification as a transsexual.
We first address whether Smith has stated a claim for relief,
pursuant to Price Waterhouse’s prohibition of sex
stereotyping, based on his gender non-conforming behavior
and appearance. In Price Waterhouse, the plaintiff, a female
senior manager in an accounting firm, was denied partnership
in the firm, in part, because she was considered “macho.”
490 U.S. at 235. She was advised that she could improve her
chances for partnership if she were to take “a course at charm
school,” “walk more femininely, talk more femininely, dress
more femininely, wear make-up, have her hair styled, and
wear jewelry.” Id. (internal quotation marks omitted). Six
members of the Court agreed that such comments bespoke
gender discrimination, holding that Title VII barred not just
discrimination because Hopkins was a woman, but also sex
stereotyping – that is, discrimination because she failed to act
like a woman. Id. at 250-51 (plurality opinion of four
Justices); id. at 258-61 (White, J., concurring); id. at 272-73
(O’Connor, J., concurring) (accepting plurality’s sex
stereotyping analysis and characterizing the “failure to
conform to [gender] stereotypes” as a discriminatory
criterion; concurring separately to clarify the separate issues
10 Smith v. Salem, Ohio, et al. No. 03-3399
of causation and allocation of the burden of proof). As Judge
Posner has pointed out, the term “gender” is one “borrowed
from grammar to designate the sexes as viewed as social
rather than biological classes.” RICHARD A. POSNER, SEX
AND REASON, 24-25 (1992). The Supreme Court made clear
that in the context of Title VII, discrimination because of
“sex” includes gender discrimination: “In the context of sex
stereotyping, an employer who acts on the basis of a belief
that a woman cannot be aggressive, or that she must not be,
has acted on the basis of gender.” Price Waterhouse,
490 U.S. at 250. The Court emphasized that “we are beyond
the day when an employer could evaluate employees by
assuming or insisting that they matched the stereotype
associated with their group.” Id. at 251.
Smith contends that the same theory of sex stereotyping
applies here. His complaint sets forth the conduct and
mannerisms which, he alleges, did not conform with his
employers’ and co-workers’ sex stereotypes of how a man
should look and behave. Smith’s complaint states that, after
being diagnosed with GID, he began to express a more
feminine appearance and manner on a regular basis, including
at work. The complaint states that his co-workers began
commenting on his appearance and mannerisms as not being
masculine enough; and that his supervisors at the Fire
Department and other municipal agents knew about this
allegedly unmasculine conduct and appearance. The
complaint then describes a high-level meeting among Smith’s
supervisors and other municipal officials regarding his
employment. Defendants allegedly schemed to compel
Smith’s resignation by forcing him to undergo multiple
psychological evaluations of his gender non-conforming
behavior. The complaint makes clear that these meetings
took place soon after Smith assumed a more feminine
appearance and manner and after his conversation about this
with Eastek. In addition, the complaint alleges that Smith
was suspended for twenty-four hours for allegedly violating
an unenacted municipal policy, and that the suspension was
ordered in retaliation for his pursuing legal remedies after he

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No. 03-3399 Smith v. Salem, Ohio, et al. 11
had been informed about Defendants’ plan to intimidate him
into resigning. In short, Smith claims that the discrimination
he experienced was based on his failure to conform to sex
stereotypes by expressing less masculine, and more feminine
mannerisms and appearance.
Having alleged that his failure to conform to sex
stereotypes concerning how a man should look and behave
was the driving force behind Defendants’ actions, Smith has
sufficiently pleaded claims of sex stereotyping and gender
discrimination.
In so holding, we find that the district court erred in relying
on a series of pre-Price Waterhouse cases from other federal
appellate courts holding that transsexuals, as a class, are not
entitled to Title VII protection because “Congress had a
narrow view of sex in mind” and “never considered nor
intended that [Title VII] apply to anything other than the
traditional concept of sex.” Ulane v. Eastern Airlines, Inc.,
742 F.2d 1081, 1085, 1086 (7th Cir. 1984); see also Holloway
v. Arthur Andersen & Co., 566 F.2d 659, 661-63 (9th Cir.
1977) (refusing to extend protection of Title VII to
transsexuals because discrimination against transsexuals is
based on “gender” rather than “sex”). It is true that, in the
past, federal appellate courts regarded Title VII as barring
discrimination based only on “sex” (referring to an
individual’s anatomical and biological characteristics), but
not on “gender” (referring to socially-constructed norms
associated with a person’s sex). See, e.g., Ulane, 742 F.2d at
1084 (construing “sex” in Title VII narrowly to mean only
anatomical sex rather than gender); Sommers v. Budget
Mktg., Inc., 667 F.2d 748, 750 (8th Cir. 1982) (holding that
transsexuals are not protected by Title VII because the “plain
meaning” must be ascribed to the term “sex” in the absence
of clear congressional intent to do otherwise); Holloway, 566
F.2d at 661-63 (refusing to extend protection of Title VII to
transsexuals because discrimination against transsexualism is
based on “gender” rather than “sex;” and “sex” should be
given its traditional definition based on the anatomical
12 Smith v. Salem, Ohio, et al. No. 03-3399
characteristics dividing “organisms” and “living beings” into
male and female). In this earlier jurisprudence, male-to-
female transsexuals (who were the plaintiffs in Ulane,
Sommers, and Holloway) – as biological males whose
outward behavior and emotional identity did not conform to
socially-prescribed expectations of masculinity – were denied
Title VII protection by courts because they were considered
victims of “gender” rather than “sex” discrimination.
However, the approach in Holloway, Sommers, and Ulane
– and by the district court in this case – has been eviscerated
by Price Waterhouse. See Schwenk v. Hartford, 204 F.3d
1187, 1201 (9th Cir. 2000) (“The initial judicial approach
taken in cases such as Holloway [and Ulane] has been
overruled by the logic and language of Price Waterhouse.”).
By holding that Title VII protected a woman who failed to
conform to social expectations concerning how a woman
should look and behave, the Supreme Court established that
Title VII’s reference to “sex” encompasses both the biological
differences between men and women, and gender
discrimination, that is, discrimination based on a failure to
conform to stereotypical gender norms. See Price
Waterhouse, 490 U.S. at 251; see also Schwenk, 204 F.3d at
1202 (stating that Title VII encompasses instances in which
“the perpetrator’s actions stem from the fact that he believed
that the victim was a man who ‘failed to act like’ one” and
that “sex” under Title VII encompasses both the anatomical
differences between men and women and gender); Rene v.
MGM Grand Hotel, Inc., 305 F.3d 1061, 1068 (9th Cir. 2002)
(en banc) (Pregerson, J., concurring) (noting that the Ninth
Circuit had previously found that “same-sex gender
stereotyping of the sort suffered by Rene – i.e. gender
stereotyping of a male gay employee by his male co-workers”
constituted actionable harassment under Title VII and
concluding that “[t]he repeated testimony that his co-workers
treated Rene, in a variety of ways, ‘like a woman’ constitutes
ample evidence of gender stereotyping”); Bibby v.
Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 262-63
(3d Cir. 2001) (stating that a plaintiff may be able to prove a

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No. 03-3399 Smith v. Salem, Ohio, et al. 13
claim of sex discrimination by showing that the “harasser’s
conduct was motivated by a belief that the victim did not
conform to the stereotypes of his or her gender”); Nichols v.
Azteca Rest. Enters., Inc., 256 F.3d 864, 874-75 (9th Cir.
2001) (holding that harassment “based upon the perception
that [the plaintiff] is effeminate” is discrimination because of
sex, in violation of Title VII), overruling DeSantis v. Pac.
Tel. & Tel. Co., Inc., 608 F.2d 327 (9th Cir. 1979); Doe v.
Belleville, 119 F.3d 563, 580-81 (7th Cir. 1997) (holding that
“Title VII does not permit an employee to be treated
adversely because his or her appearance or conduct does not
conform to stereotypical gender roles” and explaining that “a
man who is harassed because his voice is soft, his physique is
slight, his hair long, or because in some other respect he
exhibits his masculinity in a way that does not meet his
coworkers’ idea of how men are to appear and behave, is
harassed ‘because of his sex’”), vacated and remanded on
other grounds, 523 U.S. 1001 (1998).
After Price Waterhouse, an employer who discriminates
against women because, for instance, they do not wear dresses
or makeup, is engaging in sex discrimination because the
discrimination would not occur but for the victim’s sex. It
follows that employers who discriminate against men because
they do wear dresses and makeup, or otherwise act
femininely, are also engaging in sex discrimination, because
the discrimination would not occur but for the victim’s sex.
See, e.g., Nichols, 256 F.3d 864 (Title VII sex discrimination
and hostile work environment claim upheld where plaintiff’s
male co-workers and supervisors repeatedly referred to him
as “she” and “her” and where co-workers mocked him for
walking and carrying his serving tray “like a woman”);
Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252,
261 n.4 (1st Cir. 1999) (“[J]ust as a woman can ground an
action on a claim that men discriminated against her because
she did not meet stereotyped expectations of femininity, a
man can ground a claim on evidence that other men
discriminated against him because he did not meet
stereotypical expectations of masculinity.” (internal citation
14 Smith v. Salem, Ohio, et al. No. 03-3399
omitted)); see also Rosa v. Park West Bank & Trust Co., 214
F.3d 213 (1st Cir. 2000) (applying Price Waterhouse and
Title VII jurisprudence to an Equal Credit Opportunity Act
claim and reinstating claim on behalf of biologically male
plaintiff who alleged that he was denied an opportunity to
apply for a loan because was dressed in “traditionally
feminine attire”).
Yet some courts have held that this latter form of
discrimination is of a different and somehow more
permissible kind. For instance, the man who acts in ways
typically associated with women is not described as engaging
in the same activity as a woman who acts in ways typically
associated with women, but is instead described as engaging
in the different activity of being a transsexual (or in some
instances, a homosexual or transvestite). Discrimination
against the transsexual is then found not to be discrimination
“because of . . . sex,” but rather, discrimination against the
plaintiff’s unprotected status or mode of self-identification.
In other words, these courts superimpose classifications such
as “transsexual” on a plaintiff, and then legitimize
discrimination based on the plaintiff’s gender non-conformity
by formalizing the non-conformity into an ostensibly
unprotected classification. See, e.g., Dillon v. Frank, No. 90-
2290, 1992 WL 5436 (6th Cir. Jan. 15, 1992).
Such was the case here: despite the fact that Smith alleges
that Defendants’ discrimination was motivated by his
appearance and mannerisms, which Defendants felt were
inappropriate for his perceived sex, the district court expressly
declined to discuss the applicability of Price Waterhouse.
The district court therefore gave insufficient consideration to
Smith’s well-pleaded claims concerning his contra-gender
behavior, but rather accounted for that behavior only insofar
as it confirmed for the court Smith’s status as a transsexual,
which the district court held precluded Smith from Title VII
protection.

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No. 03-3399 Smith v. Salem, Ohio, et al. 15
Such analyses cannot be reconciled with Price Waterhouse,
which does not make Title VII protection against sex
stereotyping conditional or provide any reason to exclude
Title VII coverage for non sex-stereotypical behavior simply
because the person is a transsexual. As such, discrimination
against a plaintiff who is a transsexual – and therefore fails to
act and/or identify with his or her gender – is no different
from the discrimination directed against Ann Hopkins in
Price Waterhouse, who, in sex-stereotypical terms, did not act
like a woman. Sex stereotyping based on a person’s gender
non-conforming behavior is impermissible discrimination,
irrespective of the cause of that behavior; a label, such as
“transsexual,” is not fatal to a sex discrimination claim where
the victim has suffered discrimination because of his or her
gender non-conformity. Accordingly, we hold that Smith has
stated a claim for relief pursuant to Title VII’s prohibition of
sex discrimination.
Finally, we note that, in its opinion, the district court
repeatedly places the term “sex stereotyping” in quotation
marks and refers to it as a “term of art” used by Smith to
disingenuously plead discrimination because of
transsexualism. Similarly, Defendants refer to sex
stereotyping as “the Price Waterhouse loophole.”
(Appellees’ Brief at 6.) These characterizations are almost
identical to the treatment that Price Waterhouse itself gave
sex stereotyping in its briefs to the U.S. Supreme Court. As
we do now, the Supreme Court noted the practice with
disfavor, stating:
In the specific context of sex stereotyping, an employer
who acts on the basis of a belief that a woman cannot be
aggressive, or that she must not be, has acted on the basis
of gender. Although the parties do not overtly dispute
this last proposition, the placement by Price Waterhouse
of “sex stereotyping” in quotation marks throughout its
brief seems to us an insinuation either that such
stereotyping was not present in this case or that it lacks
legal relevance. We reject both possibilities.
16 Smith v. Salem, Ohio, et al. No. 03-3399
Price Waterhouse, 490 U.S. at 250.
2. Adverse Employment Action
Despite having dismissed Smith’s Title VII claim for
failure to state a claim of sex stereotyping – a finding we have
just rejected – the district court nevertheless addressed the
merits of Smith’s Title VII claims arguendo. Relying on
White v. Burlington Northern & Sante Fe Ry. Co., 310 F.3d
443 (6th Cir. 2002), the district court held that Smith’s
suspension was not an adverse employment action because
the Court of Common Pleas, rendering the “ultimate
employment decision,” reversed the suspension, and that
accordingly, Smith’s Title VII claim could not lie. Because
this Circuit has since vacated and overruled White, 364 F.3d
789 (6th Cir. 2004) (en banc), and joined the majority of other
circuits in rejecting the “ultimate employment decision”
standard, we hold that the district court erred in its analysis
and that Smith has successfully pleaded an adverse
employment action in support of his employment
discrimination and retaliation claims pursuant to Title VII.
Common to both the employment discrimination and
retaliation claims is a showing of an adverse employment
action, which is defined as a “materially adverse change in the
terms and conditions of [plaintiff’s] employment.” Hollins v.
Atlantic Co., 188 F.3d 652, 662 (6th Cir. 1999). A “bruised
ego,” a “mere inconvenience or an alteration of job
responsibilities” is not enough to constitute an adverse
employment action. White, 364 F.3d at 797 (quoting Kocsis
v. Multi-Care Mgmt. Inc., 97 F.3d 876, 886 (6th Cir. 1996)).
Examples of adverse employment actions include firing,
failing to promote, reassignment with significantly different
responsibilities, a material loss of benefits, suspensions, and
other indices unique to a particular situation. Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998); White, 364
F.3d at 798. Here, the Fire Department suspended Smith for
twenty-four hours. Because Smith works in twenty-four hour
shifts, that twenty-four hour suspension was the equivalent of

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No. 03-3399 Smith v. Salem, Ohio, et al. 17
1Smith’s complaint does not state whether he was suspended with or
without pay. Because we must construe the com plaint in the light most
favorable to the plaintiff, Ziegler, 249 F.3d at 512, and given the liberal
pleading standards of Federal Rule of Civil Procedure 8, we do not find
this failure dispositive. A “materially adverse change” in employment
conditions often involves a ma terial loss of pay or benefits, but that is not
always the case, and “other indices that might be unique to a particular
situation” can co nstitute a “m aterially ad verse chang e” as well.
Hollins,188 F.3d at 662 . Because no discovery has b een conducted yet,
we do not know the full contours of the suspension. For now, however,
for the reasons just stated, we find that Smith has sufficiently alleged an
adverse employment action.
three eight-hour days for the average worker, or,
approximately 60% of a forty-hour work week. Pursuant to
the liberal notice pleading requirements set forth in Fed. R.
Civ. P. 8, this allegation, at this phase of the litigation, is
sufficient to satisfy the adverse employment requirement of
both an employment discrimination and retaliation claim
pursuant to Title VII.1
It is irrelevant that Smith’s suspension was ultimately
reversed by the Court of Common Pleas after he challenged
the suspension’s legality. In White, this Court recently joined
the majority of other circuits in rejecting the “ultimate
employment decision” standard whereby a negative
employment action is not considered an “adverse employment
action” for Title VII purposes when the decision is
subsequently reversed by the employer, putting the plaintiff
in the position he would have been in absent the negative
action. White, 364 F.3d 789 (holding that the suspension of
a railroad employee without pay, followed thirty-seven days
later by reinstatement with back pay, was an “adverse
employment action” for Title VII purposes). Even if the
“ultimate employment decision” standard were still viable,
the district court erred in concluding that, because the Court
of Common Pleas overturned the suspension, it was not an
adverse employment action. There is no legal authority for
the proposition that reversal by a judicial body – as opposed
18 Smith v. Salem, Ohio, et al. No. 03-3399
to the employer – declassifies a suspension as an adverse
employment action.
Accordingly, Smith has stated an adverse employment
action and, therefore, satisfied all of the elements necessary
to allege a prima facie case of employment discrimination
and retaliation pursuant to Title VII. We therefore reverse the
district court’s grant of judgment on the pleadings to
Defendants with respect to those claims.
B. 42 U.S.C. § 1983 Claims
The district court also dismissed Smith’s claims pursuant
to 42 U.S.C. § 1983 on the ground that he failed to state a
claim based on the deprivation of a constitutional or federal
statutory right.
42 U.S.C. § 1983 provides a civil cause of action for
individuals who are deprived of any rights, privileges, or
immunities secured by the Constitution or federal laws by
those acting under color of state law. Smith has stated a
claim for relief pursuant to § 1983 in connection with his sex-
based claim of employment discrimination. Individuals have
a right, protected by the Equal Protection clause of the
Fourteenth Amendment, to be free from discrimination on the
basis of sex in public employment. Davis v. Passman, 442
U.S. 228, 234-35 (1979). To make out such a claim, a
plaintiff must prove that he suffered purposeful or intentional
discrimination on the basis of gender. Vill. of Arlington
Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-65
(1977). As this Court has noted several times, “the showing
a plaintiff must make to recover on a disparate treatment
claim under Title VII mirrors that which must be made to
recover on an equal protection claim under section § 1983.”
Gutzwiller v. Fenik, 860 F.2d 1317, 1325 (6th Cir. 1988)
(citing Kitchen v. Chippewa Valley Schs., 825 F.2d 1004,
1011 (6th Cir. 1987); Daniels v. Bd. of Educ., 805 F.2d 203,
207 (6th Cir. 1986); Grano v. Dep’t of Dev., 637 F.2d 1073,
1081-82 (6th Cir. 1980); Lautermilch v. Findlay City Schs.,

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No. 03-3399 Smith v. Salem, Ohio, et al. 19
314 F.3d 271, 275 (6th Cir. 2003) (“To prove a violation of
the equal protection clause under § 1983, [a plaintiff] must
prove the same elements as are required to establish a
disparate treatment claim under Title VII.”) (quotation and
citation omitted). The facts Smith has alleged to support his
claims of gender discrimination pursuant to Title VII easily
constitute a claim of sex discrimination grounded in the Equal
Protection Clause of the Constitution, pursuant to § 1983.
See Back v. Hastings on Hudson Union Free Sch. Dist., —
F.3d —, No. 03-7058, 2004 WL 739846, at * 5-7 (2d Cir.
Apr. 7, 2004) (holding that claims premised on Price
Waterhouse sex stereotyping theory sufficiently constitute
claim of sex discrimination pursuant to § 1983).
Defendants urge us to hold otherwise, on the ground that
Smith’s complaint fails to refer specifically to the Equal
Protection Clause of the U.S. Constitution. But the Federal
Rules of Civil Procedure provide for a liberal system of notice
pleading. Fed. R. Civ. P. 8(a). A plaintiff need only provide
“a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Such
a statement must simply ‘give the defendant fair notice of
what the plaintiff’s claim is and the grounds upon which it
rests.’” Swierkiewicz v. Soremna N.A., 534 U.S. 506, 512
(2002) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Claims made pursuant to 42 U.S.C. § 1983 are not subject to
heightened pleading standards. Leatherman v. Tarrant
County Narcotics Intelligence and Coordination Unit, 507
U.S. 163, 165-66 (1993) (rejecting heightened pleading
standard for § 1983 claims); Jones v. Duncan, 840 F.2d 359
(6th Cir. 1988) (holding that § 1983 claims need not set forth
in detail all the particularities of a plaintiff’s claim against a
defendant). Moreover, legal theories of recovery need not be
spelled out as long as the relevant issues are sufficiently
implicated in the pleadings; in considering motions pursuant
to Fed. R. Civ. P. 12(c), we ask not whether a complaint
points to a specific statute, but whether relief is possible
under any set of facts that could be established consistent with
the allegation. Because Smith’s sex discrimination claim so
20 Smith v. Salem, Ohio, et al. No. 03-3399
thoroughly and obviously sounds in a constitutional claim of
equal protection, Defendants had fair notice of his claim and
the ground upon which it rests. As such, we hold that Smith
has satisfied the liberal notice pleading requirements set forth
in Fed. R. Civ. P. 8 with respect to his claim of sex
discrimination, grounded in an alleged equal protection
violation, and we therefore reverse the district court’s grant of
judgment on the pleadings dismissing Smith’s § 1983 claim.
In his appellate brief, Smith also contends that his
complaint alleges a violation of his constitutional right to due
process, based on the City’s failure to comply with the state
statutory and administrative procedures that an Ohio
municipality must follow when taking official employment
action against a public employee. His complaint outlines the
statutory procedures, governed by O.R.C. § 121.22(G),
pursuant to which members of an Ohio municipality may
meet for purposes of taking official employment action
against a public employee, and it alleges that those procedures
were not followed. The complaint also discusses O.A.C.
§ 124-9-11, which would have permitted Smith to call
witnesses at his post-suspension hearing in front of the Salem
Civil Service Commission; and the complaint alleges that he
was barred from calling witnesses. Smith contends that these
allegations implicate his right to due process pursuant to the
Fourteenth Amendment of the U.S. Constitution.
However, it is well-settled that state law does not ordinarily
define the parameters of due process for Fourteenth
Amendment purposes, and that state law, by itself, cannot be
the basis for a federal constitutional violation. See Purisch v.
Tennessee Technological Univ., 76 F.3d 1414, 1423 (6th Cir.
1996) (“Violation of a state’s formal [employment grievance]
procedure . . . does not in itself implicate constitutional due
process concerns.”). Neither Smith’s complaint nor his brief
specifies what deprivation of property or liberty allegedly
stemmed from the City’s failure to comply with state
procedural and administrative rules concerning his

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No. 03-3399 Smith v. Salem, Ohio, et al. 21
employment. Accordingly, he has failed to state a federal due
process violation pursuant to § 1983.
In sum, we hold that Smith has failed to state a § 1983
claim based on violations of his right to due process.
However, he has stated a § 1983 claim of sex discrimination,
grounded in an alleged equal protection violation, and, for
that reason, we reverse the district court’s grant of judgment
on the pleadings dismissing Smith’s § 1983 claim.
III. CONCLUSION
Because Smith has successfully stated claims for relief
pursuant to both Title VII and 42 U.S.C. § 1983, the judgment
of the district court is REVERSED and this case is
REMANDED to the district court for further proceedings
consistent with this opinion.

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