Finkle v. Howard County
Filing
18
MEMORANDUM. Signed by Judge James K. Bredar on 4/10/14. (hmls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
*
TOMI BOONE FINKLE
*
Plaintiff
*
v.
*
HOWARD COUNTY, MARYLAND
CIVIL No. JKB-13-3236
*
Defendants
*
*
*
*
*
*
*
*
*
*
*
*
*
*
MEMORANDUM
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.
I.
BACKGROUND1
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
1
The facts are recited here as alleged by the Plaintiff, this being a motion to dismiss. See Ibarra v. United States,
120 F.3d 472, 474 (4th Cir. 1997).
2
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.)
3
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, cert.
denied, 476 U.S. 1141). 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).
4
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.
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., 914 A.2d 735, 742 (Md. 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).
2
In evaluating Defendant’s motion to dismiss (ECF No. 4), the Court will not consider the two exhibits attached to
Defendant’s motion (ECF No. 4-2 and 4-3) as the purpose of a 12(b)(6) motion is to consider the allegations in the
complaint. 5B Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 1357 (3d ed.)
5
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 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 employer to the putative
employee in exchange for his services is not a sufficient condition, but it is an essential condition
to the existence of an employer-employee relationship.”)
However, as the Fourth Circuit
explained in Haavistola v. Community Fire Co. of Rising Sun, Inc., 6 F.3d 211 (4th Cir. 1993),
even where a volunteer does not receive direct compensation, benefits may represent “indirect
but significant remuneration” and therefore establish an employment relationship for purposes of
Title VII. Id. at 222.
The Haavistola Court explained that the crucial inquiry in determining whether an
individual is an employee under Title VII is as follows:
[W]hether an individual is an employee . . . is properly determined by analyzing
the facts of each employment relationship under a standard that incorporates both
the common law test derived from principles of agency and the so-called
6
‘economic realities’ test first announced in Bartels v. Birmingham, 332 U.S. 126
(1947).
Haavistola, 6 F.3d at 220 (quoting Garrett v. Philips Mills, Inc., 721 F.2d 979 (4th Cir. 1983)).
Where, as here, the case involves a volunteer, the court emphasized that the primary focus should
not be on the employer’s control of the individual but rather on whether or not “as a matter of
economic reality [an individual is] dependent upon the business to which they render services.”
Id. (quoting Bartels, 332 U.S. at 130).
In Haavistola, the plaintiff was a volunteer at a privately-formed corporation that
provided “firefighting, emergency medical/paramedic, and rescue services to Rising Sun,
Maryland and the surrounding area.” Id. at 213. Although she received no direct compensation,
plaintiff “did not affiliate with the company without reward entirely.” Id. at 221. In particular,
as a volunteer, she received the following benefits:
state-funded disability pension, survivors’ benefits for dependents; scholarships
for dependents upon disability or death; bestowal of a state flag to family upon
death in the line of duty; benefits under the Federal Public Safety Officers’
Benefits Act when on duty; group life insurance; tuition reimbursement for
courses in emergency medical and fire service techniques; coverage under
Maryland’s Workers Compensation; tax-exemptions for unreimbursed travel
expenses; ability to purchase, without paying extra fees, a special commemorative
registration plate for private vehicles; and access to a method by which she may
obtain certification as a paramedic.
Id. at 221 (internal citations omitted). On a motion for summary judgment, the district court had
found that these benefits were insufficient to make the plaintiff an employee under Title VII. Id.
However, the court of appeals reversed the lower court, holding that:
Because compensation is not defined by statute or case law, . . . it cannot be
defined as a matter of law. The district court must leave to a factfinder the
ultimate conclusion whether the benefits represent indirect but significant
remuneration as [the plaintiff] contends or inconsequential incidents of an
otherwise gratuitous relationship as the [defendant] argues.
Id. at 221-22.
7
The facts in the case at bar are very similar to the ones in Haavistola. Indeed, here,
Plaintiff alleges that as an APO in the VMP, she would have been entitled to “significant
remuneration benefits available upon injury or death.” (Compl. at ¶ 41.)
Nonetheless, Defendants cite to Judge Titus’s opinion in Evans v. Wilkinson, 609 F.
Supp.2d 489 (D. Md. 2009), as persuasive authority in support of their contention that, despite
the holding in Haavistola, Plaintiff’s claim does not fall within the ambit of Title VII. In Evans,
Judge Titus found that a volunteer EMT, who received no salary but did enjoy certain indirect
benefits, was not an “employee” under Title VII. Id. at 497. There, the plaintiff was eligible,
upon meeting certain conditions, to receive benefits as a result of volunteering with the
Lexington Park Volunteer Rescue Squad, namely: (1) a Length of Service Program that provided
volunteers who had reached the age of 55 and completed at least 20 years of “certified active
volunteer service” with a monthly payment of $125 for the rest of their life; (2) a first-time
homeowner’s assistance program that provided eligible volunteers with up to $12,500 toward the
purchase of their first home; and (3) a scholarship program for Volunteer Rescue Squad
volunteers who satisfied the Length of Service Program requirements. 609 F. Supp.2d at 494-96.
However, the court found that the plaintiff had failed to “adduce[] evidence that she actually
received any of the benefits—or was even eligible for—those benefits.” Id. at 496 (emphasis in
original). As a result, Judge Titus found that the plaintiff did not qualify as an “employee under
Title VII “because, viewing the entire factual situation the ‘economic reality’ is that Plaintiff was
not dependent upon the Volunteer Rescue Squad.”
However, the present case is distinguishable from Evans. Here, Plaintiff’s allegation is
that as an APO in the VMP she would immediately have been eligible for and received certain
benefits—in particular “significant remuneration benefits available upon injury or death.”
8
(Compl. at ¶ 41.) Indeed, these insurance-type benefits would have provided her with coverage
as soon as she began working. In this respect, the facts of this case very strongly resemble those
in Haavistola, where the benefits package also consisted largely of benefits available upon injury
or death. In fact, with the exception of “tuition reimbursement for courses in emergency and
medical and fire service techniques; . . . tax-exemptions for unreimbursed travel expenses; ability
to purchase, without paying extra fees, a special commemorative registration plate for private
vehicles; and access to a method by which she may obtain certification as a paramedic” all of
the benefits in Haavistola, namely “state-funded disability pension, survivors’ benefits for
dependents; scholarships for dependents upon disability or death; bestowal of a state flag to
family upon death in the line of duty; benefits under the Federal Public Safety Officers’ Benefits
Act when on duty; group life insurance; . . .[and] coverage under Maryland’s Workers
Compensation,” were benefits available upon injury or death. Haavistola, 6 F.3d at 221-22.
The Court concedes that some of its sister courts have held that “line-of duty benefits”
are not guaranteed forms of remuneration and therefore cannot be considered compensation for
services for purposes of Title VII. See, e.g., Holder v. Town of Bristol, No. 3:09-CV-32 PPS,
2009 WL 3004552 (N.D. Ind., Sept. 17, 2009) (As for the line-of-duty benefits that Holder
received—workers’ compensation, disability insurance, and death benefits—these are not
guaranteed forms of remuneration. Holder and his dependents would have only seen a dime if
something bad happened to him while he was on duty. . . . It’s worth noting that these insurance
benefits are just as much for the Town’s protection as they are for the reserve officers. If Holder
had injured himself and made a claim against the Town, the policies would cover the medical
costs. So, without more, it can’t be said that these mechanisms for insuring risk had independent
value in exchange for labor.”); see also Scott v. City of Minco, 393 F.Supp.2d 1180, 1190 (W.D.
9
Okla. 2005) (collecting cases). However, those cases explicitly rejected the Fourth Circuit’s
Haavistola holding in doing so. E.g., City of Minco, 393 F. Supp.2d at 1190 (“This Court
recognizes that this conclusion is contrary to that reached by the Fourth Circuit in Haavistola.”)
This Court, however, is bound by the Fourth Circuit’s pronouncements in Haavistola and
therefore cannot find, as a matter of law, that the “significant remuneration benefits available
upon injury or death” Plaintiff would have received as an APO in the VMP are insufficient to
bring her under the ambit of Title VII. Haavistola, 6 F.3d at 222.
The Court next considers Defendant’s argument that Plaintiff’s claim is not a cognizable
claim of discrimination on the basis of sex under Title VII. (ECF No. 4-1 at 3-4.) Here, Plaintiff
has claimed that that her application to join the VMP was denied “because of her obvious
transgendered status” (Compl. at ¶ 30) and therefore 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.)
In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court held that
because Title VII prohibits discrimination on the basis of sex, employers may not discriminate
on the basis of an employee’s (or prospective employee’s) failure to conform to gender
stereotypes. The Court explained that “we are beyond the day when an employer could evaluate
employees by assuming or insisting that they matched the stereotype associated with their
group.” Id. at 251 (plurality opinion).
In the wake of Price Waterhouse, a number of sister courts have found that Title VII
protects transgender employees who are discriminated against for failing to conform to gender
stereotypes. For example, in Smith v. City of Salem, 378 F.3d 566, 574-75 (6th Cir. 2004), the
Sixth Circuit explained that:
10
Price Waterhouse . . . does not make Title VII protection against sex stereotyping
conditional or provide any reason to exclude Title VII coverage for non sexstereotypical behavior simply because the person is a transsexual. As such,
discrimination against a plaintiff who is a transsexual—and therefore fails to act
and/or identify with his or her gender—is no different from the discrimination
directed against Ann Hopkins in Price Waterhouse, who, in sex-stereotypical
terms, did not act like a woman. Sex stereotyping based on a person's gender nonconforming 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
non-conformity. Accordingly, we hold that Smith has stated a claim for relief
pursuant to Title VII's prohibition of sex discrimination.
Similarly, in Schroer v. Billington, 577 F.Supp.2d 293, 308 (D.D.C. 2008), Judge Robertson
concluded that:
[i]n refusing to hire Diane Schroer because her appearance and background did
not comport with the decisionmaker’s sex stereotypes about how men and women
should act and appear, and in response to Schroer’s decision to transition, legally,
culturally, and physically, from male to female, the Library of Congress violated
Title VII’s prohibition on sex discrimination.
See also Glenn v. Brumby, 663 F.3d 1312, 1317 (11th Cir. 2011) (collecting cases)
(“Accordingly, discrimination against a transgender individual because of her gendernonconformity is sex discrimination, whether it's described as being on the basis of sex or
gender. Indeed several circuits have so held. . . . These instances of discrimination against
plaintiffs because they fail to act according to socially prescribed gender roles constitute
discrimination under Title VII according to the rationale of Price Waterhouse.”); cf. Hart v. Lew,
Civ. No. ELH-12-03482, 2013 WL 5330581 at *15 (D. Md. Sept. 23, 2013) (“Defendant does
not contend that plaintiff, as a transsexual, is not protected by Title VII’s prohibition on sex
discrimination, and so I will assume for purposes of this motion that plaintiff is within Title VII’s
aegis.”).
However, in Schroer, Judge Robertson also cautioned that “when the plaintiff is
transsexual, direct evidence of discrimination based on sex stereotypes may look a great deal like
11
discrimination based on transsexuality itself, a characteristic that, in and of itself, nearly all
federal courts have said is unprotected.” 577 F.Supp.2d at 305 (collecting cases). Likewise, in
Etsitty v. Utah Transit Authority, 502 F.3d 1215, 1222 (10th Cir. 2007), the court held that
transsexuals are not a protected class under Title VII. In so holding, both the Schroer Court and
the Etsitty Court drew on pre-Price Waterhouse cases, including Ulane v. Eastern Airlines, Inc.,
742 F.2d 1081, 1084-85 (7th Cir. 1984), Sommers v. Budget Marketing, Inc., 667 F.2d 748, 749750 (8th Cir. 1982), and Holloway v. Arthur Andersen & Co., 566 F.2d 659, 662-63 (9th Cir.
1977). These cases held that Title VII’s “prohibition on sex discrimination mean only that it is
‘unlawful to discriminate against women because they are women and men because they are
men.’” Etsitty, 502 F.3d at 1221 (quoting Ulane, 742 F.2d at 1085).
In light of Price Waterhouse, it is unclear what, if any, significance to ascribe to the
conclusion that “transsexuals are not protected under Title VII as transsexuals.” Etsitty, 502 F.3d
at 1222. Indeed, it would seem that any discrimination against transsexuals (as transsexuals)—
individuals who, by definition, do not conform to gender stereotypes—is proscribed by Title
VII’s proscription of discrimination on the basis of sex as interpreted by Price Waterhouse. As
Judge Robertson offered in Schroer, “[u]ltimately I do not think it matters for purposes of Title
VII liability whether the Library withdrew its offer of employment because it perceived Schroer
to be an insufficiently masculine man, an insufficiently feminine woman, or an inherently
gender-nonconforming transsexual.” 577 F.Supp.2d at 305. Further, in Schwenk v. Hartford,
204 F.3d 1187, 1201 (9th Cir. 2000), a unanimous panel of the Ninth Circuit held that “[t]he
initial judicial approach taken in cases such as Holloway has been overruled by the logic and
language of Price Waterhouse. . . . [U]nder Price Waterhouse, “sex” under Title VII
encompasses both sex—that is, the biological differences between men and women—and
12
[socially-constructed] gender [expectations].” See also Smith, 378 F.3d at 573 (“[T]he approach
in Holloway, Sommers, and Ulane . . . has been eviscerated by Price Waterhouse. . . . [T]he
Supreme Court established that Title VII’s reference to ‘sex’ encompasses both the biological
differences between men and women, and gender discrimination, that is, discrimination based on
a failure to conform to stereotypical gender norms.”) Even in Etsitty, the court did not issue a
contrary ruling. Rather, the court assumed without deciding that Title VII protects “transsexuals
who act and appear as a member of the opposite sex.” Etsitty, 502 F.3d at 1224.
Therefore, on the basis of the Supreme Court’s holding in Price Waterhouse, and after
careful consideration of its sister courts’ reasoned opinions, this Court finds that Plaintiff’s claim
that she was discriminated against “because of her obvious transgendered status” is a cognizable
claim of sex discrimination under Title VII. To hold otherwise would be “to deny transsexual
employees the legal protection other employees enjoy merely by labeling them as transsexuals.”
Etsitty, 502 F.3d at 1222 n.2 (citing City of Salem, 378 F.3d at 575).
Third, the Court considers whether Plaintiff has adequately pleaded her discrimination
claim. As the Fourth Circuit has explained, “while a Title VII plaintiff is not required to plead
facts that constitute a prima facie case in order to survive a motion to dismiss, factual allegations
must be enough to raise a right to relief above the speculative level.” Templeton v. First
Tennessee Bank, N.A.¸ 424 Fed. Appx. 249, 250 (4th Cir. 2011).
Here, the Court finds that Plaintiff has alleged sufficient facts to state a claim of sex
discrimination in employment that is plausible on its face.
Although Plaintiff’s complaint
represents something of a close call, it sets forth sufficient allegations to allow the Court to
“draw the reasonable inference” that her application to join the VMP was denied “because of her
obvious transgendered status” and her failure to conform with gender norms. (Compl. at ¶ 30.)
13
Specifically, Plaintiff alleges that she does not conform to gender stereotypes in that she
is “obvious[ly] transgender[].” (Compl. at ¶ 6.) In her opposition to Defendant’s motion to
dismiss, she further explains that she is a “6’3”, 220 pound, broad-shouldered [individual] with C
cup breasts, shoulder length blond hair” and that on December 7, 2011, the day of her final
interview with the HCPD, she was wearing a skirt. (ECF No. 7 at 14 n.1.)
She further alleges that she was “well qualified and otherwise suitable for appointment”
to the VMP. (Compl. at ¶ 38.) In fact, according to her complaint, Plaintiff was the Commander
of “TrotSAR, a horse mounted search and rescue organization in Crownsville, Maryland” and, in
that capacity, helped the HCPD “develop[] and implement[]” the VMP. (Id. at ¶¶ 15, 20.)
In September 2011, Plaintiff applied to join the VMP as an APO and passed the initial
“horse and rider skills test.” (Id. at ¶¶ 21, 22, 23.) However, after an in-person panel interview
at HCPD headquarters, which was the final step in the selection process, she was informed that
she “did not make the cut.” (Id. at ¶¶ 24, 27.) Plaintiff alleges that “[o]n information and belief,
[HCPD] Chief McMahon[, whom Plaintiff met immediately prior to her interview,] ordered Lt.
Black and the other members of the selection panel to deny a position to [Plaintiff] because of
her obvious transgender status.” (Id. at ¶ 30.)
Plaintiff buttresses the plausibility of her claim by further alleging that, when she asked
Black to explain the HCPD’s decision, he provided pretextual reasons.3
In particular, he
explained that the HCPD “would not accept any retired police officer for the position” and later
added that she was “overqualified” and “lived too far away.” (Id. at ¶¶ 27, 28.) However,
3
At this stage in the proceedings, the Plaintiff need not plead a McDonnell Douglas prima facie case. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 at 547 (2007) (citing Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508 (2002)),
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). However, even outside of the McDonnell Douglas
paradigm, an allegation that someone has offered a pretextual reason can be probative. In particular, here, Plaintiff’s
allegation that Defendant offered only pretextual reasons for not hiring her makes her claim of discrimination more
plausible.
14
Plaintiff later learned that (1) “another retired police officer was indeed selected for the [VMP]”
and (2) “at least two persons selected lived on the Eastern Shore of Maryland, at a greater
distance from Howard County than [she did].” (Id. at ¶ 29.)
On the basis of these allegations, the Court finds that Plaintiff’s claim that she suffered
unlawful discrimination is plausible and therefore is sufficiently well pleaded to survive the
present motion to dismiss. Therefore, the Court will not dismiss Plaintiff’s complaint (ECF
No. 1).
Finally, the Court finds that Defendant’s motion, in the alternative, for summary
judgment (ECF No. 4) is premature. The Court does not find that Defendant has shown that
there is no genuine dispute as to any material fact, especially with regard to the reasons for the
denial of Plaintiff’s application.
For these reasons, Plaintiff’s motion to dismiss or, alternatively, for summary judgment
(ECF No. 4) shall be denied. However, this denial is without prejudice to the parties’ right to file
motions for summary judgment at later points in the litigation.
CONCLUSION
Accordingly, an order shall issue DENYING Defendant’s motion to dismiss or,
alternatively, for summary judgment (ECF no. 4) and DENYING Amici’s Amicus Curiae Motion
(ECF No. 13).
Dated this 10th day of April, 2013.
BY THE COURT:
/s/
James K. Bredar
United States District Judge
15
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?