Finkle v. Howard County

Filing 63

MEMORANDUM OPINION. Signed by Magistrate Judge Stephanie A Gallagher on 6/12/2015. (hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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TOMI BOONE FINKLE,
Plaintiff,
v.
HOWARD COUNTY, MARYLAND,
Defendant.
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Civil Case No. SAG-13-3236

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MEMORANDUM OPINION
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.

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Although Ms. Finkle, and some other sources, routinely employ the term “transgendered,” the Court will use the
terms “transgender” or “transgender woman” to describe Ms. Finkle, in accordance with the GLAAD Media
Reference Guide for Transgender Issues, available at http://www.glaad.org/reference/transgender.

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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.

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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

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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

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All interviews were conducted by Lt. Black, Sgt. Cheuvront, who would be the direct supervisor of the VMP, and
either Lt. Jacobs, the outgoing special operations lieutenant, or Lt. Yodzis, who would be taking over for Lt. Jacobs.
Def. Mot., Exh. 2 (Black Affidavit), ¶ 20.

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While Lt. Yodzis was on the panel that interviewed Ms. Finkle, he was not involved in the discussions selecting
candidates. Def. Mot., Exh. 7 (Yodzis Affidavit), ¶¶ 3–4.

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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

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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 non-confrontational as possible. You have
helped me to get this started, and I was hoping your efforts could have continued
in the academy.
There were other factors that resulted in you being placed on hold for the next
class. Primarily, you told the interview panel that your response to the Ellicott
City area was three hours. We prefer to establish more of a local presence for this
first class. The thought is that locals will be more likely to ride more often,
especially on the assignments that are only an hour. We find it not probable that
people that live far away will be available on a routine basis, and the long-term
sustainability of them participating in the program would be in question.
Also, during your interview, you came on pretty strong. Your questions
pertaining to [Incident Command System] weren’t well received, and indicated
that you were overqualified for the position. If we were looking for an
administrator, you would be perfect. Unfortunately, we are looking for nonconfrontational people that can be molded into what we’re looking for. We
started out with 75 people interested in the program, and had to get it down to 12.
It was a difficult endeavor to sort through the under-qualified, over-qualified, and
qualified applicants to reach this number. Right or wrong, we did the best we
could in the best interest of the program.

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I am hoping our friendship can continue, and that you will reconsider
participating in the program in the future. I also am hopeful that we can maintain
a professional working relationship within Trotsar.
Id. On December 28, 2011, Chief McMahon received Ms. Finkle’s letter, wherein she objected
to not being selected for the VMP because she is a retired law enforcement officer, that doing so
is “pure discrimination that is directed towards a class of persons (retired law enforcement
officers?),” that she was never formally advised of this policy, and that she wanted to be
immediately removed from any VMP waiting list. Def. Mot., Exh. 30. Ms. Finkle also stated:
“While I realize I have little to no civil rights protection from being discriminated as a retired
law enforcement officer, I am left to question if research if [sic] my age or gender came into play
with HCPD’s decision.” Id. In a letter dated December 30, 2011, Chief McMahon wrote to Ms.
Finkle that he “regretfully accept[ed]” her request to remove her name from the VMP waiting
list, and he thanked her for her assistance to Lt. Black in getting the VMP running. Id.
According to Ms. Finkle, in March, 2012, she learned that another retired police officer
was selected for the VMP, and that at least two people selected for the VMP lived farther away
from Howard County than she did. Compl. ¶ 29. In June, 2012, Ms. Finkle filed a formal charge
of discrimination with the Maryland Commission on Civil Rights (“MCCR”). Def. Reply, Exh.
2. She complained of discrimination based on sex and sexual orientation. 4 Id. In July, 2012, the
U.S. Equal Employment Opportunity Commission (“EEOC”) issued Ms. Finkle a notice of
charge of employment discrimination under Title VII on the basis of sex, in connection with her
complaint with the MCCR. Id. In August, 2013, the EEOC issued Ms. Finkle a “right to sue”
letter. Compl. ¶ 35. Ms. Finkle filed suit on October 31, 2013. [ECF No. 1]. Shortly thereafter,
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Ms. Finkle subsequently has stated that her discrimination claim is not based on sexual orientation. See ECF No. 7
(Pl. Opp. to Def. Mot. to Dismiss), p. 6 (“The Defendant’s further arguments regarding discrimination against
women or homosexuals are particularly misplaced. Sgt. Finkle does not claim either herein.”); Def. Mot., Exh. 1
(Finkle Deposition), Tr. 156:3–6 (“Q: And again, I just want to confirm, we have gone through this before. Sexual
orientation is not part of this lawsuit, correct? A: Sexual orientation, no.”).

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Howard County filed a motion to dismiss, [ECF No. 4], which Judge Bredar denied, although he
described it as a “close call.” [ECF No. 18]. With discovery complete, both parties now move
for summary judgment. 5
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate only “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a).

A fact is “material” if it “might affect the outcome of the suit under the

governing law,” and a dispute about a material fact is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). “[T]he mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Id. at 247–48.
“When faced with cross-motions for summary judgment, the court must review each
motion separately on its own merits to determine whether either of the parties deserves judgment
as a matter of law.”

Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (internal

quotation marks omitted). This Court must “not . . . weigh the evidence and determine the truth
of the matter,” but rather should “determine whether there is a genuine issue for trial.”
Anderson, 477 U.S. at 249.
III. DISCUSSION
a. Legal Framework
Under Title VII, an employer may not “fail or refuse to hire or . . . discharge any
individual . . . because of such individual’s race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e-2(a)(1). Ms. Finkle argues that Howard County discriminated against her on
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Both parties have now consented to proceed before a U.S. Magistrate Judge. [ECF Nos. 25, 28].

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the basis of “sex, to wit, her gender identification and non-conforming gender conduct,” when
the HCPD denied her a position with its VMP unit. Compl. 1. In his memorandum opinion
denying Howard County’s motion to dismiss, Judge Bredar reasoned that, in the wake of Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989), wherein the Supreme Court held that Title VII’s
prohibition on sex discrimination encompasses discrimination on the basis of an employee’s
failure to conform to gender stereotypes, “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.”
[ECF No. 18, p. 12]. Thus, Judge Bredar found that discrimination based on Ms. Finkle’s
“‘obvious transgendered status’” was a cognizable Title VII claim of sex discrimination. Id. at
13 (quoting Compl. ¶ 30). 6 While neither the Supreme Court nor the Fourth Circuit’s Title VII
jurisprudence has addressed transgender status, the U.S. Justice Department recently clarified
that Title VII protection extends to sex discrimination claims based on an individual’s gender
identity, including transgender status. 7 Indeed, Howard County does not contest that Ms. Finkle,
as a transgender woman, falls within the ambit of Title VII protection against sex discrimination.

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Judge Bredar also found that a position with the Volunteer Mounted Patrol, though unpaid, still constituted
“employment” under Title VII. [ECF No. 18, p. 10 (“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 [Auxiliary Police Officer] in the VMP
are insufficient to bring her under the ambit of Title VII.” (quoting Compl. ¶ 41) (citing Haavistola v. Cmty. Fire
Co. of Rising Sun, Inc., 6 F.3d 211, 222 (4th Cir. 1993))].

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Memorandum from the U.S. Attorney General, Treatment of Transgender Employment Discrimination Claims
Under Title VII of the Civil Rights Act of 1964 (Dec. 15, 2014), available at http://www.justice.gov/file/188671/
download (“After considering the text of Title VII, the relevant Supreme Court case law interpreting the statute, and
the developing jurisprudence in this area, I have determined that the best reading of Title VII’s prohibition of sex
discrimination is that it encompasses discrimination based on gender identity, including transgender status. The
most straightforward reading of Title VII is that discrimination ‘because of . . . sex’ includes discrimination because
an employee’s gender identification is as a member of a particular sex, or because the employee is transitioning, or
has transitioned, to another sex.”).

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Def. Mot. 21. Thus, this Court has considered Ms. Finkle’s sex discrimination claim both as to
her transgender status and as to her alleged non-conformance with gender stereotypes. 8
When analyzing a sex discrimination claim under Title VII, a court must first consider
whether the plaintiff has shown any direct or circumstantial evidence of intentional
discrimination. See Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996)
(“To satisfy ordinary principles of proof, [the plaintiff] must provide direct evidence of a purpose
to discriminate or circumstantial evidence of sufficiently probative force to raise a genuine issue
of material fact.”). “[E]vidence is direct if it establishes discriminatory motive with no need for
an inference or a presumption.” Hart v. Lew, ELH-12-03482, 2015 WL 521158, at *22 (D. Md.
Feb. 6, 2015) (internal quotation marks omitted).

Under a mixed-motive theory of sex

discrimination, the plaintiff must demonstrate, through direct or circumstantial evidence, that
his/her sex was “a motivating factor for any employment practice, even though other factors also
motivated the practice.” 42 U.S.C. § 2000e-2(m); Desert Palace, Inc. v. Costa, 539 U.S. 90, 101
(2003).
“Absent direct evidence of intentional discrimination, claims under Title VII are analyzed
under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 802–07 (1973).” Stokes v. Virginia Dep’t of Corr., 512 F. App’x 281, 282 (4th Cir.
2013). First, the plaintiff-employee must prove a prima facie case of discrimination by a
preponderance of the evidence. If the plaintiff establishes a prima facie case, thereby creating a
presumption of unlawful discrimination, the burden then shifts to the defendant-employer to

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By referring to Ms. Finkle’s “non-conformance with gender stereotypes,” the Court is using Ms. Finkle’s selfidentified description of herself to consider the merits of her claims, and makes no finding that she does or does not
conform to gender stereotypes. See, e.g., Compl. 1 (complaining of discrimination because of her “gender
identification and non-conforming gender conduct”); Pl. Cross-Mot. 5 (“In Price Waterhouse v. Hopkins, 490 U.S.
228 (1989), the Supreme Court ruled that this prohibition [of sex discrimination] specifically includes sex
stereotyping, based on gender non-conforming behavior and appearance such as that of Sgt. Finkle.”).

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articulate legitimate, nondiscriminatory reasons for its employment action. If the employer does
so, the burden shifts back to the plaintiff to show that the given reasons for the employer’s
actions are a mere pretext for its true discriminatory motives. McDonnell Douglas Corp., 411
U.S. at 802–04. While “the mixed-motive framework forces plaintiffs to prove only that a
forbidden factor—notwithstanding the presence of permissible factors—caused the challenged
conduct,” the “pretext analysis represents a more rigorous rule than the mixed-motive analysis as
it ordinarily obligates plaintiffs to prove that a single forbidden factor—to the exclusion of other
factors—animated the employer’s adverse action.” Westmoreland v. Prince George’s Cnty.,
Md., 876 F. Supp. 2d 594, 612 (D. Md. 2012).
Because FEPA is the state law analogue of Title VII and its interpretation is guided by
federal cases interpreting Title VII, the analysis of Ms. Finkle’s Title VII claim shall constitute
the analysis of her FEPA claim. See ECF No. 18, p. 5; Haas v. Lockheed Martin Corp., 396 Md.
469, 482, 914 A.2d 735, 742 (2007); Molesworth v. Brandon, 341 Md. 621, 632–33, 672 A.2d
608, 614 (1996).
b. Analysis
For the reasons discussed below, the Court finds that Ms. Finkle has failed to show any
direct or circumstantial evidence of intentional discrimination, and also has not met her burden
under the McDonnell Douglas burden-shifting framework. Howard County is therefore entitled
to judgment as a matter of law.
1. Direct or Circumstantial Evidence
Ms. Finkle has provided no direct or circumstantial evidence that the HCPD denied her
the VMP position because she is transgender, or because of her self-identified non-conformance
with gender stereotypes, or that either factor was a motivating factor in its decision. While Ms.

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Finkle argues that Howard County’s email system is “rife with discriminatory animus,” she can
point to, at most, one e-mail from March, 2011 wherein Lt. Black corresponded with a fellow
officer, Bonita Linkins, about HCPD transgender awareness training. Pl. Cross-Mot., Exh. A. 9
Lt. Black wrote: “Hope not promoting the idea??!!,” to which Ms. Linkins responded: “Lol lol
lol lol lol!!!” Id. Yet, “[d]irect evidence must be evidence of conduct or statements that both
reflect directly the alleged discriminatory attitude and that bear directly on the contested
employment decisions.” Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir. 2006)
(emphasis added) (internal quotation marks omitted). Even if this isolated instance reflected
directly on Lt. Black’s allegedly discriminatory attitude towards transgender persons, it had no
relation to the VMP selection process, or the selecting officers’ decision to not offer Ms. Finkle a
position. In fact, the selection process did not begin until six months after Lt. Black’s e-mail,
and decisions were not made until nine months after. “Even if there is a statement that reflects a
discriminatory attitude, it must have a nexus with the adverse employment action.” Id.; see U.S.
E.E.O.C. v. CTI Global Solutions, Inc., 815 F. Supp. 2d 897, 907 (D. Md. 2011) (“Where the
derogatory statement bears little relation to the contested employment action and is attenuated by
time, a plaintiff will likely fail to satisfy the nexus requirement.”).

There is simply no

established connection between Lt. Black’s e-mail comment and Ms. Finkle not being selected
for the VMP position.
The other three department e-mails that Ms. Finkle cites as evidence include remarks
about homosexuals, yet Ms. Finkle has repeatedly stated that her discrimination claim is not
based on sexual orientation. See supra fn.4. This evidence is therefore irrelevant. Even so,

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Although Ms. Finkle submitted to the Court paper copies of Exhibits A–K with her Cross-Motion for Summary
Judgment, she attached only Exhibits F–K to her Cross-Motion for Summary Judgment filed on CM/ECF. It
appears that Exhibits A–E submitted to the Court are identical to exhibits A–E filed with Ms. Finkle’s opposition to
Howard County’s motion for protective order (ECF No. 40).

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these e-mail comments were not connected in any way to the VMP selection process, or to the
selecting officers’ decision to not select Ms. Finkle. See Pl. Cross-Mot., Exhs. B, D, E.
In her Complaint, Ms. Finkle complained about her encounter with Chief McMahon
immediately prior to her interview for the VMP position, and his alleged actions afterwards. She
states: “Upon information and belief, McMahon shortly thereafter expressed to Lt. Black his
displeasure with Finkle’s application to be a member of the horse mounted auxiliary.” Compl.
¶ 26. In her deposition, when asked about her encounter with Chief McMahon, Ms. Finkle stated
that she interpreted his “nonverbal communication” as conveying “something is not right here.”
Def. Mot., Exh. 1, Tr. 164:5–16. When asked for evidence to support the allegation in her
Complaint, Ms. Finkle concluded that, because her interview went so well, and she ultimately
was not offered the VMP position, “[s]omething happened after I left that interview. What, I
don’t know.” Id., Tr. 169:21–171:5. The Court is not persuaded that Ms. Finkle’s subjective
understanding of Chief McMahon’s conduct, and her speculative conclusion that he conveyed to
Lt. Black his disapproval of Ms. Finkle applying for the VMP position, constitute evidence of
discrimination.
While Ms. Finkle complains that the Court deprived her of “ordinary discovery to refute
factual claims by the Defendant”—namely, by issuing a protective order prohibiting Ms. Finkle
from obtaining the personal account information for all e-mail, social media, and telephone
accounts of the HCPD employees involved in the VMP selection process, see ECF No. 43—Ms.
Finkle was not precluded from “ordinary discovery” obtained through depositions. However,
Ms. Finkle chose to not depose any of the relevant witnesses. Ms. Finkle also complains that
much of Howard County’s evidence is provided via “self-serving affidavits.” While the case law
is clear that a plaintiff’s self-serving affidavits cannot suffice to defeat summary judgment, see

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National Enterprises, Inc. v. Barnes, 201 F.3d 331, 335 (4th Cir. 2000), a party is allowed to
present evidence to support its side of the case, particularly where, as here, the opposing party
did not seek to question the witnesses under oath. Ms. Finkle’s argument therefore fails.
In sum, Ms. Finkle has failed to provide any direct or circumstantial evidence that
Howard County discriminated against her because she is transgender, or because of her selfidentified non-conformance with gender stereotypes. Moreover, Ms. Finkle has offered no direct
or circumstantial evidence that either factor was a motivating factor in the decision to not select
her for the VMP position. She must therefore rely on the McDonnell Douglas burden-shifting
framework.
2. McDonnell Douglas Framework
To establish a prima facie case of discrimination regarding her non-selection for the
VMP position, Ms. Finkle must prove that: (1) she is a member of a protected class; (2) she
applied for the VMP position; (3) she was qualified for the VMP position; and (4) she was
rejected for the VMP position in favor of someone not a member of her protected class under
circumstances giving rise to an inference of unlawful discrimination. See Alvarado v. Bd. of Trs.
of Montgomery Cmty. Coll., 928 F.2d 118, 121 (4th Cir. 1991). As previously discussed, and as
conceded by Howard County, Ms. Finkle, as a transgender woman, and, by her own allegations,
a person who does not conform to gender stereotypes, is a member of a protected class under
Title VII. Ms. Finkle applied for the VMP position in September, 2011. Although Ms. Finkle
goes to great lengths to show that she was qualified for the position, Howard County does not
dispute that she was qualified. In fact, the HCPD selecting officers concluded that Ms. Finkle
was over-qualified for the position. Thus, the first three elements of the prima facie case are
satisfied.

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However, Ms. Finkle has provided no proof that she was rejected for the VMP position in
favor of someone not in her protected class. There were twelve individuals, both male and
female, selected for the VMP, and Ms. Finkle has not proven, nor even asserted, that those
twelve individuals are not transgender, or that they otherwise conform to gender stereotypes.
The only reference Ms. Finkle makes to this required showing is when she claims that one retired
Secret Service agent selected for the VMP, Thomas Thelen, was “obviously not transgendered.”
Pl. Cross-Mot. 14. Ms. Finkle has provided no evidence to support this assertion—she did not
obtain any information from Mr. Thelen personally—and the Court cannot make this
assumption.
Ms. Finkle also has pointed to no evidence in the record, besides her own perception and
beliefs, from which the Court can infer discrimination.

The record demonstrates that Ms.

Finkle’s gender identity played no role in the decision to not select her for the VMP position; in
fact, during the selection process, only Lt. Black was aware that Ms. Finkle was transgender.
Def. Mot. 21. Moreover, there is nothing to suggest that Ms. Finkle’s “non-conforming gender
conduct” was considered by the selecting officers. To the extent that the selecting officers’
discussion of Ms. Finkle’s “commanding” behavior and tendency to “take over” in her interview
had any relation to “non-conforming gender conduct,” the only comments the selecting officers
made with regards to this behavior relate to Ms. Finkle’s past experience as a commanding law
enforcement officer, not her status as a transgender woman. For these reasons, Ms. Finkle has
not proven by a preponderance of the evidence a prima facie case of discrimination.
Moreover, even if Ms. Finkle could establish a prima facie case of discrimination,
Howard County has articulated legitimate, nondiscriminatory reasons for not selecting Ms.
Finkle for the VMP position, and Ms. Finkle has not shown that these reasons are a mere pretext

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for discrimination. Howard County proffers three reasons for not selecting Ms. Finkle: (1) she is
a retired police officer; (2) her stated response time of three hours was substantially longer than
all other interviewees; and (3) her extensive experience as a retired police officer, and as the
current commander of TrotSAR, would impede her from “fitting in” as a regular team member,
rather than as someone in command. Def. Mot. 26–28.
Ms. Finkle argues that Howard County’s refusal to select retired police officers was
discriminatory in itself, because it violates the Age Discrimination in Employment Act
(“ADEA”). Pl. Cross-Mot. 12–13. However, Ms. Finkle cannot raise an ADEA claim without
first exhausting administrative remedies. See 29 U.S.C. § 626(d)(1); Jones v. Calvert Grp., Ltd.,
551 F.3d 297, 300 (4th Cir. 2009) (noting that a plaintiff’s failure to exhaust administrative
remedies concerning an ADEA claim deprives federal courts of subject matter jurisdiction over
the claim). In any event, a retired police officer does not necessarily have to be at least forty
years of age, which is a requirement for protection under the ADEA. See 29 U.S.C. § 631(a).
Ms. Finkle also argues that, by refusing to hire retired police officers, Howard County is in
violation of Howard County Code Section 12-208(I)(a), which prohibits employment
discrimination on the basis of occupation.

Pl. Cross-Mot. 14.

Again, Ms. Finkle cannot

legitimately raise this claim, because she did not “file[] a complaint with the county unit
responsible for handling violations of the county discrimination laws.” Md. Code, State Gov’t
§ 20-1202(c)(2)(i). Nevertheless, the plain language of the Howard County Code prohibiting
employment discrimination because of “occupation” does not include former occupations. Ms.
Finkle has provided no arguments to the contrary. Most importantly, Ms. Finkle’s overall
argument, that Howard County’s proffered reason is not “nondiscriminatory” because it violates

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the ADEA and the Howard County Code, misses the point—Title VII and FEPA, on which her
lawsuit is based, do not prohibit discrimination against retired police officers.
Additionally, Ms. Finkle argues that, because the HCPD selected Thomas Thelen, a
retired Secret Service agent, Howard County cannot legitimately claim that it did not select Ms.
Finkle because she is a retired police officer. Pl. Cross-Mot. 14–15. Ms. Finkle compares the
job responsibilities of Mr. Thelen and herself, noting that Mr. Thelen’s job was to “protect the
President of the United States and the White House,” and her job was to “protect the Congress
and the Capitol buildings.” Id. Furthermore, Ms. Finkle argues, both Mr. Thelen and she “had
statutory powers of arrest and both carried firearms in the performance of their duties,” yet she
opted to “refrain from burdening the record with superfluous documentation of these otherwise
readily verifiable and judicially noticeable facts.” Id. at 13, n.3. The Court is not persuaded by
Ms. Finkle’s purely speculative understanding of Mr. Thelen’s former job responsibilities. To
the contrary, Howard County has provided evidence that Mr. Thelen spent the majority of his
career with the Secret Service at a desk job investigating white collar crime, not out in the
community. Def. Reply 12.
Regarding its second proffered reason for not selecting Ms. Finkle, Howard County
explains that all the VMP candidates were asked to estimate the amount of time it would take to
arrive in Howard County with their horse for a patrol assignment, and that Ms. Finkle’s
estimated response time was longer than all other interviewees. Def. Mot. 27. In her Complaint,
Ms. Finkle complained that the HCPD hired two individuals for the VMP who lived farther away
from Howard County than she did. Compl. ¶ 29. Ms. Finkle’s logic is flawed, however, since
the distance from one’s home to Howard County does not necessarily equate to one’s response
time to Howard County. If an individual lives close to or in Howard County, but boards their

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horse far away from Howard County, their response time may be longer to retrieve their horse
and then come back to Howard County for a patrol assignment.
Lastly, with respect to the selecting officers’ belief that Ms. Finkle would not be a “good
fit” for the VMP, the Court will not “sit as a kind of super-personnel department weighing the
prudence of employment decisions.” DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir.
1998) (quoting Giannopoulos v. Brach & Brock Confections, Inc., 109 F.3d 406, 410 (7th Cir.
1997)). Rather, the Court’s sole concern is “whether the reason for which the defendant [did not
select] the plaintiff was discriminatory,” not “whether the reason was wise, fair, or even correct.”
Id. (quoting Giannopoulos, 109 F.3d at 410–11). It is Ms. Finkle who must “present sufficient
evidence to enable a factfinder to reject the employer’s non-discriminatory explanation.”
Riddick v. MAIC, Inc., Civil No. JKS 09-33, 2010 WL 4904681, at *6 (D. Md. Nov. 24, 2010),
aff’d 445 F. App’x 686 (4th Cir. 2011). Ms. Finkle has not done so here.
In sum, Ms. Finkle has not met her burden under the McDonnell Douglas burden-shifting
framework, and Howard County is therefore entitled to summary judgment. Likewise, Ms.
Finkle has failed to demonstrate that she is entitled to summary judgment.
IV. CONCLUSION
For the reasons set forth above, Howard County’s Motion for Summary Judgment [ECF
No. 49] is GRANTED, and Ms. Finkle’s Cross-Motion for Summary Judgment [ECF No. 57] is
DENIED. A separate Order follows.

Dated: June 12, 2015
/s/
Stephanie A. Gallagher
United States Magistrate Judge

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