Tomi Finkle v. Howard County , 640 F. App'x 245 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1731
TOMI BOONE FINKLE,
Plaintiff - Appellant,
v.
HOWARD COUNTY, a municipal corporation of the State of
Maryland,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Stephanie A. Gallagher, Magistrate
Judge. (1:13-cv-03236-SAG)
Submitted: January 29, 2016 Decided: March 8, 2016
Before WILKINSON and WYNN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Matthew August LeFande, ATTORNEY AT LAW PLLC, Arlington,
Virginia, for Appellant. Gary W. Kuc, Cynthia G. Peltzman,
Lewis Taylor, HOWARD COUNTY OFFICE OF LAW, Ellicott City,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tomi Boone Finkle appeals from the magistrate judge’s
orders 1 granting a protective order under Fed. R. Civ. P. 26, and
granting summary judgment to Howard County on her claims that
the County discriminated against her in violation of Title VII
of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.A.
§§ 2000e to 2000e-17 (West 2012 & Supp. 2015), and the Maryland
Fair Employment Practices Act, Md. Code Ann., State Gov’t § 20-
606(a)(1)(i) (West 2014), when she was not selected for a
position with the Howard County Police Department’s Volunteer
Mounted Patrol. We affirm.
Finkle first argues that the district court abused its
discretion in granting the protective order. We review a
discovery ruling for an abuse of discretion. Kolon Indus.
Inc. v. E.I. DuPont de Nemours & Co., 748 F.3d 160, 172 (4th
Cir.), cert. denied, 135 S. Ct. 437 (2014). An abuse of
discretion occurs when the district court’s “decision is guided
by erroneous legal principles or rests upon a clearly erroneous
factual finding.” United States v. Garcia, 752 F.3d 382, 390
(4th Cir. 2014) (internal quotation marks omitted).
1The parties consented to full disposition of this case by
a magistrate judge, to whom we refer as the district court.
2
We discern no abuse of discretion. Finkle’s request was
overbroad in that she sought subscriber information for four
years’ worth of social media, email, and cell phone and text
messaging records for seven commanding officers within the
Howard County Police Department. Moreover, Finkle’s broad
request was not limited to the information contained in those
accounts relevant to her claims.
Next, Finkle argues that summary judgment for the County
was inappropriate. We review de novo a district court’s order
granting summary judgment. Jacobs v. N.C. Admin. Office of the
Courts, 780 F.3d 562, 565 n.1 (4th Cir. 2015). When reviewing
an appeal from cross-motions for summary judgment, however, we
separately review the merits of each motion, taking care to
“resolve all factual disputes and any competing, rational
inferences in the light most favorable to the party opposing
that motion,” to ascertain “whether either of the parties
deserves judgment as a matter of law.” Defs. of Wildlife v.
N.C. Dep’t of Transp., 762 F.3d 374, 392 (4th Cir. 2014)
(internal quotation marks omitted). In determining whether a
genuine issue of material fact exists, “we view the facts and
all justifiable inferences arising therefrom in the light most
favorable to . . . the nonmoving party.” Jacobs, 780 F.3d at
565 n.1 (internal quotation marks omitted).
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“Plaintiffs may prove . . . violations [of Title VII]
either through direct and indirect evidence of retaliatory
animus,” referred to as the mixed-motive framework, “or through
the burden-shifting framework of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).” 2 Foster v. Univ. of Md.-E. Shore,
787 F.3d 243, 249 (4th Cir. 2015). “Direct evidence [of
discriminatory animus] must be evidence of conduct or statements
that both reflect directly the alleged discriminatory attitude
and that bear directly on the contested employment decision.”
Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir. 2006)
(internal quotation marks omitted).
Finkle contends that she offered direct evidence of
discriminatory animus such that at least partial judgment in her
favor was appropriate. We disagree. Finkle points to one email
written by one of the hiring decisionmakers that reflects a
potentially unfavorable attitude toward transgender persons. 3
However, this email was written about unrelated officer training
approximately eight months prior to the hiring decision Finkle
2Maryland courts apply the Title VII frameworks to claims
under the Fair Employment Practices Act. See Dobkin v. Univ. of
Balt. Sch. of Law, 63 A.3d 692, 699-701 (Md. Ct. Spec. App.
2013).
3Howard County has not disputed that Finkle falls within a
protected class for purposes of this appeal. We therefore need
not decide whether transgender persons comprise a protected
class under Title VII.
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challenges. Isolated remarks unrelated to the challenged
employment decision are insufficient to provide direct evidence
of discrimination. Brinkley v. Harbour Recreation Club, 180
F.3d 598, 608 (4th Cir. 1999), overruled on other grounds by
Desert Palace v. Costa, 539 U.S. 90 (2003).
Finkle further asserts that summary judgment was
inappropriate under the McDonnell Douglas burden-shifting
framework because the County’s proffered justification for not
selecting her — that she was a retired police officer — was in
and of itself discriminatory. If a plaintiff establishes a
prima facie case of discriminatory non-selection, “[t]he burden
then shifts to the [employer] to show that its purportedly
[discriminatory] action was in fact the result of a legitimate
non-[discriminatory] reason.” Foster, 787 F.3d at 250. Once
this burden is met, the plaintiff must show that the proffered
reasons are pretextual. Id.
We conclude that Finkle has failed to meet this burden.
Although Finkle argues that refusing to select retired police
officers is itself discriminatory and, thus, pretextual, a
proposition we need not review, she does not address the
County’s additional reasons for not selecting her: that her
response time was significantly longer than any of the
applicants selected and that the decisionmakers believed she was
overqualified for the position. Because these additional
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reasons are nondiscriminatory, we conclude that the district
court did not err in its grant of summary judgment to Howard
County.
Accordingly, we affirm the judgment. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.
AFFIRMED
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