Christopher Vickers v. Fairfield Medical Center, Steve Anderson, Kory J. Dixon, John Mueller, and "Jane Doe" Dixon

DAVID M. LAWSON, District Judge,

dissenting.

As the majority correctly states, in Price Waterhouse v. Hopkins, the Supreme Court held that “making employment decisions based on sex stereotyping, i.e., the degree to which an individual conforms to traditional notions of what is appropriate for one’s gender, is actionable under Title VII.” Ante at 762. Because I believe that the plaintiff in this case has pleaded exactly that, I conclude that he has stated a cognizable claim in his complaint that should have survived dismissal under the standard of review that applies to motions under Federal Rule of Civil Procedure 12(c). Since the majority has concluded otherwise, I must respectfully dissent.

I.

It is beyond debate that Title VII does not prohibit workplace discrimination or harassment based on sexual preference, sexual orientation, or homosexuality. It is equally clear that employment decisions or workplace harassment that are based on the perception that the employee is not masculine enough or feminine enough— that is, he or she fails “to conform to [gender] stereotypes,” Price Waterhouse v. Hopkins, 490 U.S. 228, 272, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), (O’Connor, J. concurring) — violates Title VII’s declaration that “[i]t shall be an unlawful employment practice for an employer ... to discriminate against any individual ... because of ... sex.” 42 U.S.C. § 2000e-2(a)(l).

The majority correctly points out that a sexual harassment claim based on a hostile workplace environment requires the claimant to plead that he was a member of a protected class, he was subjected to unwelcome sexual harassment, the harassment was based on sex, the conduct created a hostile environment, and the employer is accountable for the condition. Ante at 762 (citing Clark v. United Parcel Serv., Inc., 400 F.3d 341, 347 (6th Cir.2005)). The thrust of the opinion is that Vickers failed to plead that the harassment was based on sex because it had its roots in the harassers’ perception that *767Vickers’s private sexual practices were woman-like. The majority apparently believes that Price Waterhouse extends only to behavior and appearances that manifest themselves in the workplace, and not to private sexual conduct, beliefs, or practices that an employee might adopt or display elsewhere. It concludes, therefore, that Vickers’s tormentors were motivated by Vickers’s perceived homosexuality rather than an outward workplace manifestation of less-than-masculine gender characteristics.

However, I believe that such a reading of the complaint in this case is too narrow and imposes an obligation on the plaintiff that is more exacting at this stage of the proceedings than is required by the Federal Rules of Civil Procedure. Rule 8(a) requires only that the plaintiff set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Vickers’s 71-page, 256-paragraph tome is hardly “short and plain.” However, he does allege that his claims are “for unlawful discrimination on the basis of sex and/or sex stereotyping” and “perpetuation of a hostile working environment on the basis of sex.” Compl. at ¶ 10(A) & (B), J.A. at 10. He then proceeds in excruciating detail to describe the vile and sexually explicit acts that allegedly were committed against him by defendants Dixon and Mueller, and which allegedly were approved or condoned by defendant Anderson. In the context of a motion for judgment on the pleadings, we, like the trial court, must view these allegations as true and “construe the complaint in the light most favorable to the plaintiff.” Grindstaff v. Green, 133 F.3d 416, 421 (6th Cir.1998). “A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

I have no quarrel with the proposition that a careful distinction' must be drawn between cases ■ of gender stereotyping, which are actionable, and cases denominated as such that in reality seek protection for sexual-orientation discrimination, which are not. Nor do I believe that gender stereotyping is actionable''per se under Title VII, although certainly it may constitute evidence of discrimination on the basis of sex. As Judge Posner of the Seventh Circuit pointed out:

[Tjhere is a difference that subsequent cases have ignored between, on the one hand, using evidence ’of the plaintiffs failure to wear nail polish (or, if the plaintiff is a man, his using nail polish) to show that her sex played a role in the adverse employment action of which she complains, and, on the’other hand, creating a subtype of sexual discrimination called “sex stereotyping,” as if there were a federally protected right for male workers to wear nail polish and dresses and speak in falsetto and mince about in high heels, or for female ditchdiggers to strip to the waist in hot weather.

Hamm v. Weyauwega Milk Products, Inc., 332 F.3d 1058, 1067 (7th Cir.2003) (Posner, J. concurring). However, these distinct tions can be complicated, and where, as here, the plaintiff has pleaded facts from which a fact finder could infer that sex (and not simply - homosexuality) played a role in the employment decision and contributed to the hostility of the work environment, drawing the line should not occur at the pleading stage of the lawsuit. “Claims lacking factual merit are properly dealt with through summary judgment under Rule 56.... This is because under the notice pleading standard of the Federal Rules, courts are reluctant to dismiss colorable claims which have not had the bene*768fit of factual discovery.” Evans-Marshall v. Bd. of Educ. of the Tipp City Exempted Vill. Sch. Dist., 428 F.3d 223, 228 (6th Cir.2005) (citing Conley, 355 U.S. at 48, 78 S.Ct. 99). Most of the cases relied on by the majority were decided on summary judgment or after trial. See, e.g., Price Waterhouse, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (review of decision following bench trial); Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir.2005) (review of summary judgment); Jespersen v. Harrah’s Operating Co., 392 F.3d 1076 (9th Cir.2004) (same); Rene v. MGM Grand Hotel, Inc., 305 F.3d 1061, 1063 (9th Cir. 2002) (en banc) (same); EEOC v. Harbert-Yeargin, Inc., 266 F.3d 498 (6th Cir.2001) (review of jury verdict); Bibby v. Phila. Coca-Cola Bottling Co., 260 F.3d 257 (3d Cir.2001) (review of summary judgment); Weinstock v. Columbia Univ., 224 F.3d 33 (2d Cir.2000) (same); Spearman v. Ford Motor Co., 231 F.3d 1080 (7th Cir.2000) (same); Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 258 (1st Cir.1999) (same); King v. Super Serv., Inc., 68 Fed.Appx. 659, 663 (6th Cir.2003) (same). It behooves courts to view the evidence developed during discovery before declaring that a defendant’s behavior was motivated by hostility to homosexuals rather than discrimination “because of ... sex.” 42 U.S.C. § 2000e-2(a)(l).

II.

Looking at the allegations in this case, I cannot conclude that no set of facts could be proved that would entitle the plaintiff to relief. The allegations permit the conclusion that the defendants were hostile to the plaintiff because he was not masculine enough, justifying an inference that a female — or a man with female characteristics — would not be tolerated in the job of private police officer at the Fan-field Medical Center (FMC).

Vickers asserts that there are some twenty-five incidents of harassment that could be construed as evidence of the defendants’ perception that Vickers was not masculine enough for them. To be sure, the conduct that Vickers cites for the most part requires following Vickers’s argument from point to point, and it is not a crystal-clear statement of sex stereotyping due to the conflation with homosexual references. However, as the district court noted, Vickers does allege that he was not perceived as sufficiently masculine. In March of 2002, the complaint alleges, Vickers began investigating allegations of sexual misconduct against a male doctor at FMC by a “gay” complainant. Compl. at ¶ 15, J.A. at 23. Vickers ultimately befriended the individual and assisted him in investigating the matter. Ibid. Fellow police officers Dixon and Mueller, upon learning of the investigation and that the complainant was a homosexual, suspected Vickers of being a homosexual “and question [ed ] his masculinity.” Compl. at ¶ 16, J.A. at 23 (emphasis added). Vickers alleges that he was a private person and did not share details of his personal life at work.

In paragraph 250 of the complaint, Vickers states:

Vickers does not make any claim of protected status on the basis of homosexuality per se — whether real or perceived — with regard to his Title VII claim. Vicker[s]’s claim is instead grounded in the body of sex-discrimination jurisprudence set forth by the landmark U.S. Supreme Court decision Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), and its progeny. Although Title VII does not prohibit discrimination against homosexuals per se — -whether real or perceived- — the Price Waterhouse line of cases stands for the proposition, inter alia, that it is improper to discriminate in employment on the basis of real *769or perceived nonconformity with gender norms.

J.A. at 77. Vickers cites at least one factual example of this perception: on January 22, 2003, Dixon informed Mueller that Vickers “might jump your ass. He did me for no reason when I walked in.” Compl. at ¶ 72, J.A. at 37. According to Vickers, the following ensued:

Dixon then proceeded to explain to Mueller that Vickers was in a bad mood. Mueller said, “Maybe he is having a heavy (menstrual) flow day, huh? ” Mueller then said to Vickers, “Why don’t you pluck that tampon out and put a new pad in and lose some of that pressure? ”
Mueller walked out of the office momentarily, returning with a sanitary napkin which he tried to rub in Vickers’ face. Vickers said, “What are you putting a tampon on me for? ” Mueller snapped, “You fucker, it’s a fucking pad,” and continued to try and put the sanitary napkin in Vickers’ face. Mueller then began making sexual panting noises, followed by sexual grunts and moans. Mueller finally settled for taping the sanitary napkin to Vickers’ uniform coat.

Compl. at ¶¶ 71-72, J.A. at 37. When Vickers returned to work on January 25, 2003, Mueller asked Vickers if his mood had improved. Compl. at ¶ 73, J.A. at 37. Thus, Vickers alleges that he was subjected to harassment because he was perceived as being insufficiently masculine, Vickers clarifies in his complaint that the events alleged therein are indicative of the defendants’ perception that Vickers does not measure up to their stereotypes of masculinity and that he does not wish his complaint to be construed as suggesting otherwise, the district court recognized that Vickers was alleging a claim of sex stereotyping, and Vickers cites at least one example where his conduct incited harassment because the defendants believed him to be acting like a woman.

There are other examples. For instance, on one occasion when Vickers, Dixon, Mueller, and Anderson were working, Mueller extended a tape measure to touch Vickers’s crotch several times until Vickers got angry and told Mueller to stop. Anderson remarked that Vickers “must be tired, he’s not in the mood to play.” Compl. at ¶¶ 65-67, J.A. at 35-36. A few moments later, Dixon grabbed Vickers’s breast and remarked “Kiss [the defendants’ nickname for the plaintiff] has titties.” Compl. at ¶ 67, J.A. at 36. At another point, Vickers’s truck was rear-ended causing Dixon to express that he did not want his “favorite bitch” to get hurt and Anderson, Dixon, and Muller to joke that Vickers had been “rammed in the ass.” Compl. at ¶¶ 111-12, J.A. at 45. In yet another instance, Anderson phoned the station, but when Vickers answered Anderson demanded to speak to “a real officer.” Compl. at ¶ 115, J.A. at 46. The complaint also contains an allegation that a note was left for the plaintiff in the workplace, purportedly from a woman, asking if he was “interested” but stating that “I know your plumbing is hooked up wrong.” Compl. at ¶ 124, J.A. at 48.

These allegations, in my view, provide a basis for the inference that the plaintiff was perceived as effeminate and therefore unworthy to be considered “a real officer.” The permissible conclusion that emerges is that the plaintiff was not tolerated — and the defendants made the workplace environment hostile — because the job required only “manly men,” not woman-like ones or women themselves. The complaint need only contain “direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.” Johnson v. City of Detroit, 446 F.3d 614, 618 (6th Cir.2006) (emphasis *770added). Certainly, the complaint is replete with allegations that the plaintiff also was harassed because of his perceived homosexuality. But as homosexuality is not a qualifying classification for relief under Title VII, neither is it disqualifying. That point has been made clear by this court’s precedents. In Smith v. City of Salem, 378 F.3d 566 (6th Cir.2004), the court reversed a judgment on the pleadings for the defendant in a claim brought by a transsexual male fireman under Title VII. “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 nonconformity.” Smith, 378 F.3d at 575.

As in Smith, I believe that the plaintiff in this case has “alleged that his failure to conform to sex stereotypes concerning how a man should look and behave was the driving force behind Defendants’ actions.” Id. at 572. Following Smith, this court has held that “[s]ex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior.” Barnes v. City of Cincinnati, 401 F.3d 729, 737 (6th Cir.2005) (citations omitted). Allegations that a plaintiffs “failure to conform to sex stereotypes concerning how a man should look and behave was the driving force behind defendant’s actions” has been deemed sufficient to “state[ ] a claim for relief pursuant to Title VII’s prohibition of sex discrimination.” Ibid. Therefore, I must conclude that Vickers “has sufficiently pleaded claims of sex stereotyping and gender discrimination.” Smith, 378 F.3d at 572.

III.

The plaintiff has set forth sufficient facts in his complaint to support a Title VII claim. I do not believe we can conclude on the basis of the pleadings alone that the harassment endured by the plaintiff was motivated solely by the defendants’ perception that he was a homosexual, as distinguished from a belief that for reasons other than sexual preference the plaintiff did not conform to the stereotypical image of masculinity, as the plaintiff has alleged in many ways, at least inferentially. “A motion for judgment on the pleadings under Rule 12(c) may be granted only if all material issues can be resolved on the pleadings by the district court; otherwise, a summary judgment motion or a full trial is necessary.” Wright & Miller, Federal Practice and Procedure: Civil 3d, § 1368 pp. 248-51 (2004). Because the majority believes that the case can be resolved on the pleadings alone, I respectfully dissent.