Tomi Finkle v. Howard County

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:13-cv-03236-SAG Copies to all parties and the district court/agency. [999769892].. [15-1731]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1731

TOMI BOONE FINKLE,
Plaintiff - Appellant,
v.
HOWARD COUNTY,
Maryland,

a

municipal

corporation

of

the

State

of

Defendant - Appellee.

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Stephanie A. Gallagher, Magistrate
Judge. (1:13-cv-03236-SAG)

Submitted:

January 29, 2016

Decided:

March 8, 2016

Before WILKINSON and WYNN, Circuit Judges, and DAVIS, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Matthew August LeFande, ATTORNEY AT LAW PLLC, Arlington,
Virginia, for Appellant.
Gary W. Kuc, Cynthia G. Peltzman,
Lewis Taylor, HOWARD COUNTY OFFICE OF LAW, Ellicott City,
Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Tomi

Boone

Finkle

appeals

from

the

magistrate

judge’s

orders 1 granting a protective order under Fed. R. Civ. P. 26, and
granting summary judgment to Howard County on her claims that
the County discriminated against her in violation of Title VII
of

the

Civil

Rights

Act

of

1964

(“Title

VII”),

42

U.S.C.A.

§§ 2000e to 2000e-17 (West 2012 & Supp. 2015), and the Maryland
Fair Employment Practices Act, Md. Code Ann., State Gov’t § 20606(a)(1)(i)

(West

2014),

when

she

was

not

selected

for

a

position with the Howard County Police Department’s Volunteer
Mounted Patrol.
Finkle
discretion
discovery

We affirm.

first
in

argues

granting

ruling

for

that
the

an

the

district

protective

abuse

of

court

order.

discretion.

abused

We

its

review

Kolon

a

Indus.

Inc. v. E.I. DuPont de Nemours & Co., 748 F.3d 160, 172 (4th
Cir.),

cert.

denied,

135

S.

Ct.

437

(2014).

An

abuse

of

discretion occurs when the district court’s “decision is guided
by erroneous legal principles or rests upon a clearly erroneous
factual finding.”

United States v. Garcia, 752 F.3d 382, 390

(4th Cir. 2014) (internal quotation marks omitted).

1

The parties consented to full disposition of this case by
a magistrate judge, to whom we refer as the district court.

2

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We discern no abuse of discretion.

Finkle’s request was

overbroad in that she sought subscriber information for four
years’ worth of social media, email, and cell phone and text
messaging
Howard

records

County

for

Police

seven

commanding

Department.

officers

Moreover,

within

Finkle’s

the

broad

request was not limited to the information contained in those
accounts relevant to her claims.
Next, Finkle argues that summary judgment for the County
was inappropriate.

We review de novo a district court’s order

granting summary judgment.

Jacobs v. N.C. Admin. Office of the

Courts, 780 F.3d 562, 565 n.1 (4th Cir. 2015).

When reviewing

an appeal from cross-motions for summary judgment, however, we
separately
“resolve

review
all

the

factual

merits

of

disputes

each
and

motion,
any

taking

competing,

care

to

rational

inferences in the light most favorable to the party opposing
that

motion,”

to

ascertain

“whether

either

of

the

parties

deserves judgment as a matter of law.”

Defs. of Wildlife v.

N.C.

392

Dep’t

of

Transp.,

762

F.3d

(internal quotation marks omitted).

374,

(4th

Cir.

2014)

In determining whether a

genuine issue of material fact exists, “we view the facts and
all justifiable inferences arising therefrom in the light most
favorable to . . . the nonmoving party.”
565 n.1 (internal quotation marks omitted).

3

Jacobs, 780 F.3d at

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“Plaintiffs
either

through

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may

prove

direct

.

and

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.

.

violations

indirect

evidence

[of
of

Title

VII]

retaliatory

animus,” referred to as the mixed-motive framework, “or through
the

burden-shifting

framework

Green, 411 U.S. 792 (1973).” 2
787

F.3d

243,

249

(4th

of

McDonnell

Douglas

Corp.

v.

Foster v. Univ. of Md.-E. Shore,

Cir.

2015).

“Direct

evidence

[of

discriminatory animus] must be evidence of conduct or statements
that both reflect directly the alleged discriminatory attitude
and that bear directly on the contested employment decision.”
Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir. 2006)
(internal quotation marks omitted).
Finkle

contends

that

she

offered

direct

evidence

of

discriminatory animus such that at least partial judgment in her
favor was appropriate.
written

by

potentially

one

of

the

unfavorable

We disagree.
hiring

Finkle points to one email

decisionmakers

attitude

toward

that

reflects

transgender

a

persons. 3

However, this email was written about unrelated officer training
approximately eight months prior to the hiring decision Finkle
2

Maryland courts apply the Title VII frameworks to claims
under the Fair Employment Practices Act. See Dobkin v. Univ. of
Balt. Sch. of Law, 63 A.3d 692, 699-701 (Md. Ct. Spec. App.
2013).
3

Howard County has not disputed that Finkle falls within a
protected class for purposes of this appeal. We therefore need
not decide whether transgender persons comprise a protected
class under Title VII.

4

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challenges.

Isolated

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remarks

unrelated

to

the

challenged

employment decision are insufficient to provide direct evidence
of discrimination.

Brinkley v. Harbour Recreation Club, 180

F.3d 598, 608 (4th Cir. 1999), overruled on other grounds by
Desert Palace v. Costa, 539 U.S. 90 (2003).
Finkle

further

inappropriate

asserts

under

the

that

summary

McDonnell

judgment

Douglas

was

burden-shifting

framework because the County’s proffered justification for not
selecting her — that she was a retired police officer — was in
and

of

itself

discriminatory.

If

a

plaintiff

establishes

a

prima facie case of discriminatory non-selection, “[t]he burden
then

shifts

to

the

[employer]

to

show

that

its

purportedly

[discriminatory] action was in fact the result of a legitimate
non-[discriminatory] reason.”

Foster, 787 F.3d at 250.

Once

this burden is met, the plaintiff must show that the proffered
reasons are pretextual.

Id.

We conclude that Finkle has failed to meet this burden.
Although Finkle argues that refusing to select retired police
officers

is

proposition
County’s
response

itself
we

need

additional
time

discriminatory

was

not

review,

reasons

for

and,
she

not

significantly

thus,

does

not

selecting

longer

pretextual,

than

address

her:

a

the

that

any

her

of

the

applicants selected and that the decisionmakers believed she was
overqualified

for

the

position.
5

Because

these

additional

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reasons

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are

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nondiscriminatory,

we

conclude

that

the

district

court did not err in its grant of summary judgment to Howard
County.
Accordingly, we affirm the judgment.

We dispense with oral

argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED

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