United States District Court, D. Maryland
For Tomi Boone Finkle, Plaintiff: Matthew August LeFande, LEAD ATTORNEY, Matthew August LeFande Attorney At Law PLLC, Washington, DC.
For Howard County, a municipal corporation of the State of Maryland, Defendant: Cynthia Grams Peltzman, Howard County Office of Law, Ellicott City, MD.
For American Civil Liberties Union, TRANSGENDER LAW CENTER, NATIONAL CENTER FOR LESBIAN RIGHTS, LAMBDA LEGAL, FREE STATE LEGAL PROJECT INC, American Civil Liberties Union of Maryland, Amicus: Jessica Paulie Weber, LEAD ATTORNEY, Brown Goldstein and Levy LLP, Baltimore, MD; Bill Lan Lee, Jacob Richards, PRO HAC VICE, Lewis Feinberg Lee Renaker and Jackson PC, Oakland, CA.
James K. Bredar, United States District Judge.
Tomi Boone Finkle (" Plaintiff" ) brought this suit against Howard County, Maryland (" Defendant" ) alleging discrimination on the basis of Plaintiff's sex, in violation of Title VII of the Civil Rights Act of 1964 (" Title VII" ), 42 U.S.C. § 2000e-2(a)(1), and the Maryland Fair Employment Practices Act (" FEPA" ), Md. Code, State Gov't § 20-606. Now pending before the Court are Defendant's motion to dismiss Plaintiff's complaint or, alternatively, for summary judgment (ECF No. 4) and a motion by the American Civil Liberties Union, the American Civil Liberties Union Of Maryland, Free State Legal Project, Inc., Lamda
Legal, the National Center for Lesbian Rights, and the Transgender Law Center (collectively " Amici " ) to file an amicus curiae memorandum in support of Plaintiff's opposition to Defendant's motion to dismiss (" Amicus Curiae Motion" ) (ECF No. 13). The issues have been briefed and no hearing is required. Local Rule 105.6. For the reasons set forth below, Defendant's motion to dismiss Plaintiff's complaint or, alternatively, for summary judgment (ECF No. 4) will be DENIED and the Amicus Curiae Motion (ECF No. 13) will also be DENIED.
Plaintiff is a retired Sergeant of the United States Capitol Police (" USCP" ). (ECF No. 1, Compl., at ¶ 1.) After she retired from the USCP, in March, 2002, Plaintiff " transitioned her gender identity from male to female." ( Id. at ¶ ¶ 13, 16.) Plaintiff now identifies as female. ( Id. at ¶ 16.)
In 2000, Plaintiff joined " TrotSAR, a horse mounted search and rescue organization in Crownsville, Maryland." ( Id. at ¶ 15.) Initially a " Mounted Search Officer," Plaintiff was promoted to " Assistant Commander" in 2003 and later to " Commander" in 2006. ( Id. ) Plaintiff continues to serve as the Commander of the organization. Also, from 2002 to 2008, Plaintiff served in the " District of Columbia Metropolitan Police Department's Police Auxiliary." ( Id. )
In 2010, the Howard County Police Department (HCPD) asked TrotSAR to provide horse mounted patrols in county parks and during special events. ( Id. at ¶ 19.) In addition to coordinating this service, Plaintiff assisted the HCPD in creating its own horse-mounted police auxiliary program. ( Id. )
In 2011, HCPD announced the creation a Volunteer Mounted Patrol (" VMP" ) to perform " uniformed (non-confrontational) patrols at County parks and large events." ( Id. at ¶ 21.) Although a volunteer program, VMP Auxiliary Police Officers (" APO" ) are " entitled to significant remuneration benefits available upon injury or death," as well as " good and valuable training service opportunities." ( Id. at ¶ ¶ 41, 46.)
In September 2011, Plaintiff submitted an application to volunteer as an APO in the VMP. ( Id. at ¶ ¶ 21, 22.) After passing a horse and rider skills test, administered by HCPD Lieutenant Timothy Black, on December 7, 2011, Plaintiff advanced to the final step in the selection process, which was a panel interview at HCPD headquarters. ( Id. at ¶ ¶ 23, 24.)
When Plaintiff arrived for her interview, William McMahon, the HCPD Chief of Police, " confronted [Plaintiff]" and " demanded to know why [she] was applying for a position" with the VMP. ( Id. at ¶ 25.) After Plaintiff answered McMahon's question, he wished her " 'good luck' and walked away." ( Id. ) Plaintiff claims that " [u]pon information and belief, McMahon shortly thereafter expressed to [Black] his displeasure with [Plaintiff's] application to be a member of the [VMP]." ( Id. at ¶ 26.)
On December 22, 2011, Black informed Plaintiff that she " did not make the cut" for the VMP. ( Id. at ¶ 27.) When pressed to explain this decision, Black provided that the HCPD was not accepting retired police officers for the position. ( Id. at ¶ 27.) Black also informed Plaintiff that she was overqualified and lived too far away. ( Id. at ¶ ¶ 27, 28.)
In March, 2012, Plaintiff learned that one of the applicants who was accepted into the VMP was a retired police officer and that two lived further from Howard County than Plaintiff. ( Id. at ¶ 29.) " On information and belief, Chief McMahon ordered Lt. Black and the other members of the selection panel to deny a position to [Plaintiff] because of her obvious transgendered status." ( Id. )
Immediately following her rejection from the VMP, Plaintiff filed a complaint with the Maryland Commission on Human Rights (" MCHR" ). ( Id. at ¶ 31.) On September 20, 2012, this complaint was rejected on the merits. ( Id. at ¶ 32.) Plaintiff objected to the dismissal, but the decision was upheld by the Deputy Director of the MCHR on May 29, 2013. ( Id. at ¶ ¶ 33, 34.) On August 6, 2013, Plaintiff received a " right to sue" letter from the U.S. Equal Employment Opportunity Commission (" EEOC" ). ( Id. at ¶ 35.)
On October 31, 2013, Plaintiff filed the present action alleging that Defendant " depriv[ed] the otherwise qualified Plaintiff of a position with the [HCPD's VMP] solely because of Plaintiff's sex, to wit, her gender identification and non-conforming gender conduct." ( Id. at 1.) Defendant now moves to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure or, in the alternative, for summary judgment. (ECF No. 4.) In addition, Amici seek leave to file a memorandum in support of Plaintiff's opposition to Defendant's motion to dismiss. (ECF No. 13.)
A. Amicus Curiae Motion