Finkle v. Howard Cnty.

Citation12 F.Supp.3d 780
Decision Date10 April 2014
Docket NumberCivil No. JKB–13–3236.
CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
PartiesTomi Boone FINKLE, Plaintiff v. HOWARD COUNTY, MARYLAND, Defendants.

12 F.Supp.3d 780

Tomi Boone FINKLE, Plaintiff
v.
HOWARD COUNTY, MARYLAND, Defendants.

Civil No. JKB–13–3236.

United States District Court, D. Maryland.

Signed April 10, 2014


Organizations' motion denied; county's motion denied.

[12 F.Supp.3d 781]

Matthew August Lefande, Matthew August Lefande Attorney at Law PLLC, Washington, DC, for Plaintiff.

Cynthia Grams Peltzman, Ellicott City, MD, for Defendants.


MEMORANDUM

JAMES K. BREDAR, 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

[12 F.Supp.3d 782]

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.

I. BACKGROUND 1

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.)

[12 F.Supp.3d 783]

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.)

II. ANALYSIS
A. Amicus Curiae Motion

Amici have moved for leave to submit a memorandum in support of Plaintiff's opposition to Defendant's motion to dismiss. (ECF No. 13.) Here, Amici are “six national and regional organizations engaged in legal, policy, and educational work on issues affecting the lesbian, gay, bisexual, and transgender community.” (ECF No. 13 at 1.)

The decision of whether to grant such a motion is left to the discretion of the trial judge. Bryant v. Better Business Bureau of Greater Maryland, 923 F.Supp. 720, 728 (D.Md.1996) (citing Hoptowit v. Ray, 682 F.2d 1237, 1260 (9th Cir.1982); Waste Management v. York, 162 F.R.D. 34, 36 (M.D.Pa.1995)). However, the Court notes that “at the trial level, where the issues of fact as well as law predominate, the aid of amicus curiae may be less appropriate than at the appellate level where such participation has become standard procedure.” Id. at 727 (quoting Yip v. Pagano, 606 F.Supp. 1566, 1568 (D.N.J.1985), aff'd, 782 F.2d 1033 (3d Cir.1986), cert. denied, 476 U.S. 1141, 106 S.Ct. 2248, 90 L.Ed.2d 694 (1986)). Ultimately, a “motion for leave to file an amicus curiae brief ... should not be granted unless the court ‘deems the proffered information timely and useful.’ ” Id. (quoting Yip, 606 F.Supp. at 1568).

The Court recognizes that, here, Amici have significant “collective experience with litigation and policy advocacy” that is relevant to many of the issues raised by the present case. (ECF No. 13 at 1.) However, the Amicus Curiae motion (ECF No. 13) is not timely. Indeed the motion was filed on April 4, 2014—that is 101 days after Defendant filed its motion to dismiss (ECF No. 4), 73 days after Plaintiff filed her response in opposition (ECF No. 7), and 45 days after Defendant filed its reply (ECF No. 12). Amici 's brief therefore comes too late to be useful to the Court in resolving Defendant's motion to dismiss (ECF No. 4) and thus the Amicus Curiae motion (ECF No. 13) will be denied.

[12 F.Supp.3d 784]

B. Plaintiff's motion to dismiss or, alternatively, for summary judgment

In support of its motion to dismiss or, alternatively, for summary judgment (ECF No. 4), Defendant relies on three arguments to establish that Plaintiff has failed to state a claim for which relief can be granted: (1) the VMP APO position is a volunteer position and is therefore not covered by Title VII or FEPA; (2) Plaintiff has failed to state a claim for discrimination based on sex under Title VII; and (3) Plaintiff's allegations are conclusory. (ECF Nos. 4 at 1; 12 at 1.) 2

FEPA is the state law analogue of Title VII and its interpretation is guided by federal cases interpreting Title VII. Haas v. Lockheed Martin Corp., 396 Md. 469, 914 A.2d 735, 742 (2007). Therefore, for purposes of this memorandum, this Court's analysis of Plaintiff's Title VII claims shall constitute its analysis of Plaintiff's FEPA claims. See, e.g., Linton v. Johns Hopkins Univ. Applied Physics Lab., Civ. No. JKB–10–276, 2011 WL 4549177, at *4 (D.Md. Sept. 28, 2011) (applying Title VII case law to pendent FEPA claims).

The Court begins by evaluating Defendants' claim that because the VMP APO position is a volunteer position, Plaintiff has failed to state a claim under Title VII, which only covers employment relationships. ( Id. at 2–3.)

The text of Title VII is not particularly helpful in addressing this issue. The statute provides that “it shall be an unlawful employment practice for an employer to fail or refuse to hire ... any individual ... because of such individual's ... sex.” 42 U.S.C. § 2000e–2(a)(1). The statute further defines “employer” as a “person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year....” § 2000e(b). In turn, “employee” is defined as “an individual employed by an employer.” § 2000e(f).

At first blush it may seem that a volunteer, i.e. one who does not receive wages or a salary, is not in an employment relationship. Cf. Graves v. Women's Professional Rodeo Ass'n, Inc., 907 F.2d 71, 73 (8th Cir.1990) ( “Compensation by the putative...

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  • Finkle v. Howard Cnty., Civil No. JKB–13–3236.
    • United States
    • U.S. District Court — District of Maryland
    • April 10, 2014
    ...12 F.Supp.3d 780Tomi Boone FINKLE, Plaintiffv.HOWARD COUNTY, MARYLAND, Defendants.Civil No. JKB–13–3236.United States District Court, D. Maryland.Signed April 10, 2014.12 F.Supp.3d 781Matthew August Lefande, Matthew August Lefande Attorney at Law PLLC, Washington, DC, for Plaintiff.Cynthia ......

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