The United States District Court for the District of Maryland held that a former U.S. Capitol Police sergeant’s volunteer status did not bar her sex bias claim against the Howard County, Maryland Police Department (the “County”). Finkle v. Howard Cnty, No. JKB-13-3236 (D. Md. Apr. 10, 2014). The fact that the County rejected Tomi Boone Finkle (“Finkle”) for a position with a volunteer patrol did not exclude her from coverage on the basis of sex under 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.
Finkle started her law enforcement career with the U.S. Capitol Police when she was a man. By the time she retired as a sergeant, she was ready to begin a new life as a woman. When she volunteered through an in-person interview to ride with a new mounted search-and-rescue patrol unit that she helped the County create, she was turned down. She claimed that the County told her that retired police officers were not being considered for the position, she was overqualified, and she lived too far away She later learned that the accepted applicant was a retired officer and who lived farther away than Finkle.
In support of its motion to dismiss or, alternatively, for summary judgment, the County relied on three arguments: (1) the position was a volunteer position and was therefore not covered by Title VII and/or FEPA; (2) Finkle failed to state a claim for discrimination based on sex under Title VII; and (3) Finkle’s allegations were conclusory. Judge James K. Bredar acknowledged that Indiana and Oklahoma federal courts have declined to recognize volunteer workers as Title VII-covered “employees” eligible for line-of-duty benefits such as those that Finkle would have received had she received the position. However, in Judge Bredar’s opinion, Finkle’s case was too similar to a 1993 Fourth Circuit decision to ignore the binding effect of the ruling. Haavistola v. Community Fire Co. of Rising Sun, Inc., 6 F.3d 211 (4th Cir. 1993).
Similarly, Judge Bredar also rejected the contention that Finkle’s claims were not viable under Title VII’s sex discrimination provisions and/or the FEPA by citing a line of federal cases recognizing Title VII sex bias claims for transgender employees under a sex stereotyping theory. The theory stems from a Supreme Court case prohibiting job actions based on a belief that an employee does not act in conformance with society’s expectations for persons of that gender. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). In Judge Bredar’s opinion, the post-Price Waterhouse transgender cases support the conclusion that any discrimination against transsexuals is proscribed by Title VII’s proscription of discrimination on the basis of sex because, by definition, transsexuals do not conform to gender stereotypes.
Accordingly, Finkle stated plausible sex discrimination claims under Title VII and Maryland law by alleging that she was denied employment because she is transgendered. The County’s motion was denied.