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Finkle v. Howard County

United States District Court, D. Maryland

June 12, 2015

TOMI BOONE FINKLE, Plaintiff,
v.
HOWARD COUNTY, MARYLAND, Defendant.

MEMORANDUM OPINION

STEPHANIE A. GALLAGHER, Magistrate Judge.

Plaintiff Tomi Boone Finkle ("Ms. Finkle") brought this action against Defendant Howard County, Maryland ("Howard County") alleging employment discrimination 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. [ECF No. 1]. Specifically, Ms. Finkle alleges that she was not selected for a position with the Howard County Police Department's Volunteer Mounted Patrol because of her "sex, to wit, her gender identification and non-conforming gender conduct." Id. Ms. Finkle is a transgender woman, [1] having transitioned her gender identity from male to female in 2002. Id. The Court has reviewed the parties' cross-motions for summary judgment, oppositions, and replies thereto. [ECF Nos. 49, 57, 58, 61]. No hearing is deemed necessary. See Loc. R. 105.6 (D. Md. 2014). For the reasons set forth herein, Howard County's Motion for Summary Judgment will be GRANTED, and Ms. Finkle's Cross-Motion for Summary Judgment will be DENIED.

I. FACTS

Ms. Finkle has spent the majority of her career in law enforcement. See Def. Mot. 2-3. In 2002, she retired as a sergeant from the United States Capitol Police after twenty-five years of service. Id. at 2. Since then, Ms. Finkle has worked in a variety of law enforcement and disaster/emergency management positions, including as an auxiliary officer with the District of Columbia Metropolitan Police Department from 2002 to 2009. Id. at 3. Since 2000, Ms. Finkle has also served on TrotSAR, a volunteer horse-mounted search and rescue organization that serves the mid-Atlantic region. Id. Ms. Finkle has been the commander of TrotSAR since 2006. Id.

In the summer of 2009, Lieutenant Timothy Black of the Howard County Police Department ("HCPD"), who at the time was TrotSAR's Assistant Commander and Training Officer, considered creating a volunteer horse-mounted patrol unit within the HCPD. Id. at 3-4. When he mentioned this idea to Ms. Finkle, with whom he worked closely, she noted that she would be interested in participating, and that other TrotSAR members may be interested as well. Id., Exh. 9. In the summers of 2010 and 2011, TrotSAR members, including Ms. Finkle, partnered with the HCPD to provide mounted patrols for various events in Howard County. Def. Mot. 4-5, 7-8. While Lt. Black contemplated the idea of the HCPD forming a more permanent partnership with TrotSAR, he ultimately decided to create an independent, in-house volunteer mounted patrol unit. Id. at 7-8. Lt. Black believed that an informal, public relations-oriented program, as opposed to a more formal, standards-oriented program like TrotSAR, was a better fit for the HCPD. Id. at 9, Exh. 2 (Black Affidavit), ¶¶ 13-14. Lt. Black envisioned a program where members would ride on trails in Howard County and serve as an extra set of "eyes and ears" for the HCPD-communicating information to the police rather than taking direct action. Id. He aimed to model HCPD's program after the Maryland-National Capital Park Police's ("MNCPP") mounted patrol unit. Id.

By September, 2011, HCPD Chief of Police William ("Bill") McMahon approved the creation of an HCPD Volunteer Mounted Patrol ("VMP"), and Lt. Black sent out a notice to interested TrotSAR members and others in the equestrian community to apply. Def. Mot. 8-9. The HCPD received approximately seventy-five applications, including one from Ms. Finkle. Id. at 9-10. Forty of the seventy-five applicants, including Ms. Finkle, were selected to participate in horse and rider evaluations, which were to be conducted by the commander of the MNCPP's mounted patrol unit, Sergeant Rick Pellicano. Id. at 10. When Lt. Black asked Sgt. Pellicano for his advice on whether HCPD's VMP should accept retired police officers, mentioning that he intended to participate after his upcoming retirement, Sgt. Pellicano advised against it. Id. at 10, Exh. 2 (Black Affidavit), ¶ 16. Sgt. Pellicano explained that he believed current and retired police officers to be more confrontational, and that a retired police officer in his unit had caused some discord. Id. Lt. Black decided to withdraw himself from the selection process, and he advised Ms. Finkle, also a retired police officer, of his withdrawal and why. Id. ¶¶ 17-18. Although Lt. Black had doubts about whether Ms. Finkle would be a good fit for the HCPD VMP, he did not suggest that she withdraw. Id. ¶ 18 ("Though I had decided we should not take retired police officers, I did not tell Ms. Finkle she would have to withdraw from the application process. First, I considered her a friend, and second, I thought if she wanted to go through the process, she should be given the opportunity, and could perhaps persuade the interview committee that she should be selected."). Ms. Finkle continued with the application process. Def. Mot. 10. After ranking eighteen out of thirty-one in the horse and rider evaluations, Ms. Finkle, along with nineteen other applicants, was selected for an interview. Id. at 11. Twelve applicants would be selected for the VMP's inaugural class. See id., Exh. 2 (Black Affidavit), ¶ 22.

On December 7, 2011, Ms. Finkle was interviewed by Lt. Black, Sgt. William Cheuvront, and Lt. Paul Yodzis at the HCPD headquarters.[2] Def Mot. 12. While at the HCPD headquarters, prior to her interview, Ms. Finkle ran into Chief McMahon, who said hello, asked what she was doing there, and wished her luck after she explained that she was interviewing for a position with the VMP. Id. All interviewees were asked the same questions, and their answers were recorded on interview sheets, which included specific categories and rating levels. Id. at 13. While Ms. Finkle received "above standard" ratings, the three selecting officers-Lt. Black, Sgt. Cheuvront, and Lt. Jacobs[3]-ultimately decided to not offer her a position. Id. at 13-14. When discussing Ms. Finkle's application, Lt. Black reiterated Sgt. Pellicano's recommendation to not select retired police officers, especially considering the type of informal, non-confrontational mounted unit the HCPD aimed to develop. See id., Exh. 8 (Cheuvront Affidavit), ¶ 8 ("When Ms. Finkle's name came up, Lt. Black mentioned that she was a former police officer and stated that he had been advised not to take current or retired police officers because they would tend to be more aggressive and more likely to respond to an incident, which was not the route we wanted to go with the Volunteer Mounted Patrol, as we intended that would be completely nonconfrontational."). The selecting officers considered the fact that another applicant, Thomas Thelen, was a retired U.S. Secret Service agent, but they agreed that his job duties were significantly different than that of a police officer and did not raise the same concerns regarding confrontation with the public. Def. Mot. 14.

The selecting officers also discussed how Ms. Finkle seemed to "take over" in her interview, and how, when asked if she had any questions, she began to question them about various incident management protocols. Id. According to Lt. Black, this interrogation seemed to underscore his belief that Ms. Finkle may not jibe with the program they were trying to create. See id., Exh. 2 (Black Affidavit), ¶ 21 ("Ms. Finkle's interview confirmed my observation that she was more of a commander than a subordinate team member who might not fit in well with the type of mounted patrol we were creating."). Ultimately, the selecting officers found Ms. Finkle to be overqualified for the VMP position. Def. Mot. 14. In addition, the selecting officers discussed how Ms. Finkle's stated response time-namely, the time it would take for her to arrive with her horse at a deployment site in Howard County-was three hours, which was double the next longest response time of any other interviewee. Id. at 13-14. According to the selecting officers, at no point did Ms. Finkle's appearance or the fact that she is transgender enter their discussion. Id. at 14. At the time, only Lt. Black was aware that Ms. Finkle was transgender. Id .; see Def. Reply, Exh. 1 (Black Second Affidavit). Chief McMahon, who gave the final approval for the twelve applicants ultimately selected for the VMP, also was not aware that Ms. Finkle was transgender until she filed the instant lawsuit. Def. Mot., Exh. 3 (McMahon Affidavit), ¶ 15.

On December 21, 2011, Lt. Black telephoned Ms. Finkle to personally notify her that she had not been selected for the VMP's inaugural class, but that her application would be kept on file for a later class. Def. Mot. 15, Exh. 2 (Black Affidavit), ¶ 26. Lt. Black tried to explain to Ms. Finkle the reasons for their decision, but when he told her that she was not selected largely because the HCPD was not comfortable taking former police officers, she hung up on him. Id. The next day, Ms. Finkle e-mailed Lt. Black with the subject line "Sorry." Def. Mot., Exh. 31. She explained:

I wanted you to know that I consider [you] a great friend.
Please know that if you were not retiring next week I would not have submitted my discrimination compliant [sic] letter against HCPD and my notice to withdraw from all VMP processes. Certified mail takes longer to get from point A to point B, so I hope you are happily retired before Bill receives the letter.
Hopefully we can chat after you retire.

Id. On December 26, 2011, Lt. Black replied to Ms. Finkle's e-mail:

Sorry to hear you feel this way. I always wanted to do the mounted patrol also, but understood the rationale about ex-cops and being confrontational by nature. I think your reaction proves this to some extent, and unfortunately legitimizes the theory. I bowed out of this first class because of my [law enforcement officer] experience, but fully intend to try again once the dust settles and the unit is established. I don't think it will matter once it's up and running, but it is imperative that this unit start off as ...

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