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Transgender former cop not discriminatorily denied horse-riding patrol job

By Marjorie Johnson, J.D.

A retired transgender female police sergeant failed to advance her Title VII and state law claims asserting that she was not selected for a position with a police department’s volunteer mounted patrol because of her gender identification and non-conforming gender conduct, a federal magistrate judge in Maryland ruled. A single email from six months earlier, in which a decisionmaker commented to a fellow officer “Hope not promoting the idea??!!” was a stray remark and too far removed. Moreover, she failed to refute the county’s assertion that she was not chosen because she was a retired police officer (and thus too confrontational); her three-hour response was substantially longer than all others; and her extensive experience would impede her from “fitting in” as a regular team member (Finkle v. Howard County, Maryland, June 12, 2015, Gallagher, S.).

Law enforcement experience. The sergeant transitioned her gender identity from male to female in 2002. That same year, she retired from her 25-year career as a sergeant for the U.S. Capitol Police. She then went to work in a variety of law enforcement jobs, as well as serving as the commander of “TrotSAR,” a volunteer horse-mounted search and rescue organization.

In 2009, a lieutenant of the Howard County Police Department (HCPD), who was also TrotSAR’s assistant commander, told the sergeant that he would be creating a volunteer horse-mounted patrol unit within the HCPD. In the summers of 2010 and 2011, TrotSAR members, including the sergeant, partnered with the HCPD to provide mounted patrols for various events in the county. The lieutenant then decided to create an in-house volunteer mounted patrol unit that would serve as an extra set of “eyes and ears” for the HCPD. He aimed to model HCPD’s program after the Maryland-National Capital Park Police’s (“MNCPP”) mounted patrol unit.

Retired cops too confrontational. In September 2011, the police chief approved the creation of an HCPD volunteer mounted patrol (VMP). The department received 75 applications and selected 40 (including the sergeant), to participate in horse and rider evaluations. When the lieutenant asked the commander of the MNCPP’s mounted patrol unit for his advice on whether the VMP should accept retired police officers, the commander advised against it since he believed that current and retired police officers were more confrontational and mentioned that a retired police officer in his unit had caused some discord. As a result, the lieutenant decided to withdraw himself from the hiring process and advised the sergeant of his withdrawal and why.

The sergeant and 19 other applicants were interviewed to fill 12 spots for the VMP’s inaugural class. While she received “above standard” ratings, the three selecting officers, including the lieutenant, ultimately decided to not offer her a position. When discussing her application, the lieutenant reiterated the MNCPP commander’s recommendation to not select retired police officers, especially considering the type of informal, non-confrontational mounted unit the HCPD aimed to develop. The selecting officers considered the fact that another applicant was a retired U.S. Secret Service agent but agreed that his job duties were significantly different than that of a police officer and did not raise the same concerns regarding confrontation.

“Overqualified” and domineering. The selecting officers also discussed how the sergeant 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. Ultimately, they found her to be overqualified for the VMP position. They also discussed that her three-hour response time, which was double the next longest response time of any other interviewee. They claimed that they never discussed her appearance or the fact that she was transgender and only the lieutenant was aware that she was transgender.

The lieutenant subsequently advised her that she had not been selected but her application would be kept on file. The next day, she advised him that she was submitting a discrimination complaint and withdrawing from the VMP process. In his reply, he explained the rationale about ex-cops being confrontational by nature. He also explained that other factors were considered, including her 3-hour response time and that she “came on pretty strong” during her interview.

Protected transgender status. The magistrate judge first clarified that the sergeant’s gender bias claim was being considered both as to transgender status and as to her non-conformance with gender stereotypes. Notably, in denying the county’s earlier motion to dismiss, the district court had determined that discrimination based on her “obvious transgendered status” was a cognizable Title VII claim of sex discrimination. Moreover, while neither the Supreme Court nor the Fourth Circuit’s had addressed transgender status, the U.S. Justice Department recently clarified that Title VII protection extended to sex discrimination claims based on an individual’s gender identity, including transgender status. Indeed, the county did not contest that the sergeant, as a transgender woman, fell within the ambit of Title VII protection.

Stray e-mail comments. Rejecting the sergeant’s assertion that the county’s email system was “rife with discriminatory animus,” the magistrate held that there was no direct evidence that she was denied the VMP position because she was transgender or because of her self-identified non-conformance with gender stereotypes. She actually only pointed to one email, made months prior to VMP decision, in which the lieutenant wrote to a fellow officer: “Hope not promoting the idea??!!,” to which the officer responded: “Lol lol lol lol lol!!!” Even if this isolated instance reflected directly on the lieutenant’s allegedly discriminatory attitude towards transgender persons, it had no relation to the VMP selection process or the selecting officers’ decision to not offer her a position. In fact, the selection process did not begin until six months after the e-mail, and decisions were not made until nine months after.

No consideration of “non-conforming gender conduct.” The sergeant was also unable to establish her McDonnell Douglas prima facie case since she provided no allegation or proof that she was rejected for the VMP position in favor of someone not in her protected class. She also failed to present sufficient evidence from which bias could be inferred. In addition to the fact that only one of the three decisionmakers was aware that she was transgender, there was nothing to suggest that her “non-conforming gender conduct” was even considered. To the extent that their discussion of her “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 in this regard related to her past experience as a commanding law enforcement officer, not her status as a transgender woman.

No pretext. Finally, the sergeant failed to cast doubt on the county’s assertion that she was not selected for the VMP position because she was a retired police officer; her stated response time of three hours was substantially longer than all other interviewees; and her extensive experience would impede her from “fitting in” as a regular team member, rather than as someone in command. First, although she attempted to argue that the county’s refusal to select retired police officers violated the ADEA, retired police officers do not necessarily have to be at least 40 years old and Title VII did not prohibit discrimination against retired police officers.

Additionally, although HCPD selected a retired Secret Service agent, he was not a proper comparator in terms of showing pretext since the record revealed that he worked at a desk job investigating white collar crime and was not out in the community. Finally, although she argued that two of the individuals selected lived father away from the county than her, the issue was how long it would take to arrive in the county with their horse. The distance from one’s home to the county did not necessarily equate to one’s response time since response time could depend upon where the individual boarded his or her horse.