The Fourth Circuit Court of Appeals recently issued a ringing opinion for employees in Merritt v. Old Dominion Freight Lines, a gender discrimination case until Title VII. The Court’s discussion of gender discrimination, sex stereotyping, and a corporate culture of discrimination is excellent and will make very useful precedent. A long-ish discussion is therefore in order. As the Court stated though, the quick summary is that plaintiff “Deborah Merritt’s story is one of a certain grit and perseverance.”
Old Dominion is a nationwide trucking firm that employs thousands as “line haul” drivers and “pickup and delivery” drivers. Line haul drivers travel across state lines and often spend nights and weekends away from home, while pickup and delivery drivers work locally and rarely work nights or weekends. The pickup and delivery job requires more lifting and therefore is more physically demanding than line haul driver.
Merritt worked for Old Dominion for six years as a line haul driver based in Greensboro, North Carolina, before she sought a travel and pickup delivery driver job so she could spend more time at home. Beginning in 2002, Merritt applied for several open pickup and delivery positions at Old Dominion’s Lynchburg, Va., facility, but initially was turned down for jobs that went to less-experienced male drivers. Various managers alleged stated that women were not suited to be pickup drivers.
Finally, Old Dominion hired Merritt to fill a permanent pickup position in Lynchburg. However, Merritt was placed on a ninety-day probationary period and told she could lose her job if any performance problems arose. Male drivers were not subject to similar probationary terms. For the next two years, Merritt performed her pickup duties without a problem. Unfortunately, she then suffered an ankle injury at work. She was put on light duty work by her doctor for a couple of months later, and then he gave her a clean bill of health.
When Merritt attempted to return to her regular duties, Brian Stoddard, Vice President of Safety and Personnel, required her to take a physical ability test (“PAT”), a full-body test divided into six components that evaluates the test taker’s general strength, agility, and cardiovascular endurance. The test was graded on a pass/fail basis. The PAT was created for Old Dominion to be used in the hiring process and had been used to evaluate potential hires, but only on a variable basis. Male employees who had previously returned to work from injuries were not required to take the test. When Merritt failed this test, she was fired.
Merritt sued under Title VII, alleging sex discrimination, but the federal trial court dismissed Merritt’s claim, saying she failed to prove her boss “harbored any discriminatory animus” or that Old Dominion’s use of the gender-neutral PAT test was a pretext for bias. The Fourth Circuit reversed, holding instead that Merritt presented a genuine issue of material fact about whether the company fired her because of sex. The Court found both that Merritt successfully undermined the company’s use of the PAT to deny her return to work and that there was circumstantial evidence of sex bias.
According to the Court, Merritt produced plenty of evidence that Old Dominion’s explanation for her discharge was “unworthy of credence.” For example, Merritt’s doctor stated that there was nothing about Merritt’s medical condition which would have prevented her from returning to work. As the Court explained: “Old Dominion terminated a good employee who, pre-injury, performed her job ably and without complaint and who, post-injury was both willing and able to report to this same job for work. These facts, if believed, would allow a jury to think Old Dominion was simply looking for a reason to get rid of Merritt.”
Merritt further cast doubt on the legitimacy of the PAT test by showing that injured male employees did not have to take the PAT and that use of the PAT for injured workers was not a genuine company policy. “While a neutral policy serving Old Dominion’s legitimate business interests in public and employee safety could certainly be put in place, a trier of fact could reasonably find that Old Dominion’s selective application and ever-changing rationales for the PAT were designed to conceal intent to reserve the plum Pickup and Delivery positions for male drivers.”
The Court also pointed to Merritt’s evidence of a corporate culture of discrimination at Old Dominion: “It is not unfair to observe that the corporate culture evinced a very specific yet pervasive aversion to the idea of a female Pickup and Delivery Drivers. Old Dominion employees, of all ranks, seemed to share a view that women were unfit for that position.”
The panel artfully summarized:
Our holding is not about setting tripwires whenever an employer fails to dot its ‘i’s’ or cross its ‘t’s’ in following a policy. It is not about taking a fine-toothed comb to the record in the hopes of unearthing some minor discrepancy in an employer’s story. And it is certainly not about infusing fear and trembling into a company’s every employment decision.
But the alleged facts here are too problematic to overlook. Evidence of a good employee record combines with evidence of an impermissible company attitude to form a lethal concoction. Old Dominion fired an employee who was, according to the district court, ‘able to do her job without assistance and in a satisfactory manner,’ due to a treatable ankle injury, while hiding behind the results of a selectively administered physical fitness test that did not even purport to test the injury, and while dubiously claiming that its decision was compelled by a late-blooming policy, all in the context of, to put it mildly, a sexually stereotyped work environment. In this case, it is not any single piece of evidence but rather the evidence taken in its entirety that leads us to believe Merritt deserves a trial.