12 F. Supp. 3d 780
D. Maryland2014Background
- Plaintiff Tomi Boone Finkle, a transgender woman, is a retired US Capitol Police sergeant who transitioned in 2002.
- Post-retirement, she joined TrotSAR and rose to Commander; she also served with the DC Metropolitan Police Department’s Police Auxiliary.
- In 2010, Howard County asked TrotSAR to provide horse-mounted patrols; in 2011 HCPD created the Volunteer Mounted Patrol (VMP).
- VMP is a volunteer program but offers significant remuneration benefits upon injury or death and valuable training opportunities.
- Plaintiff applied to be a VMP Auxiliary Police Officer in Sept. 2011, passed a skills test, but did not advance after a panel interview; she alleges pretextual reasons and seeks relief under Title VII and FEPA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the VMP APO position falls within Title VII/FEPA coverage given its volunteer status | Finkle argues the position is employment due to significant benefits | Defendant contends it is a volunteer role not covered by Title VII/FEPA | Question of coverage undecided; Haavistola controls, denying summary judgment on this basis |
| Whether Plaintiff pleads sex discrimination by denying the VMP position for transgender status | Allegations show denial due to transgender status and failure to conform to gender norms | Denial based on qualifications and distance; not necessarily gender-based discrimination | Plaintiff's claim deemed plausible and sufficiently pleaded to survive the motion |
| Whether Haavistola supports treating significant remuneration benefits as employment for Title VII purposes | Benefits upon injury/death indicate dependence on the business and hence employment | Some circuits view line-of-duty benefits as non-compensatory; Evans is distinguishable | Haavistola controls; benefits may constitute remuneration sufficient for employee status under Title VII |
| Whether Plaintiff’s claim is sufficiently pled to survive a 12(b)(6) dismissal | Allegations raise plausible inference of discrimination based on transgender status | Pleadings may be conclusory; no prima facie case required at this stage | Claim plausibly alleges sex discrimination and denial due to transgender status; dismissal denied |
Key Cases Cited
- Haavistola v. Community Fire Co. of Rising Sun, Inc., 6 F.3d 211 (4th Cir. 1993) (employee status where benefits may indicate remuneration under Title VII)
- Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (discrimination based on failure to conform to gender stereotypes; sex includes gender nonconformity)
- Schroer v. Billington, 577 F. Supp. 2d 293 (D.D.C. 2008) (gender nonconformity discrimination under Title VII after Price Waterhouse)
- Etsitty v. Utah Transit Authority, 502 F.3d 1215 (10th Cir. 2007) (transsexuals and Title VII protection; impact of Price Waterhouse on sex discrimination)