April 13, 2010: A female trucker fired for failing a physical ability test on returning from a work-related injury raised a jury issue of sex discrimination under Title VII of the 1964 Civil Rights Act because the plaintiff had successfully performed the job in the past, her injury had healed, and the employer did not require injured male employees to take the test, the U.S. Court of Appeals for the Fourth Circuit ruled April 9 (Merritt v. Old Dominion Freight Line Inc., 4th Cir., No. 09-1498, 4/9/10).

Reversing summary judgment for Old Dominion Freight Line Inc., the court decided plaintiff Deborah Merritt had raised a triable issue that Old Dominion's reliance on the physical ability test (PAT) to fire her in February 2005 was a pretext for intentional sex discrimination.

Although Old Dominion's vice president Brian Stoddard alone made the decision to fire Merritt, the court said other managers' statements that Merritt's pickup and delivery driver job was not women's work, Merritt's history of difficulty in securing the job, and Old Dominion's shifting and inconsistent explanations of its PAT policy would support a reasonable jury in finding Stoddard's decision was based on Merritt's sex.

A federal district court in Virginia had dismissed Merritt's Title VII claim, saying she failed to prove Stoddard “harbored any discriminatory animus” or that Old Dominion's legitimate, nondiscriminatory use of the gender-neutral PAT was a pretext for bias.

Joined by the Equal Employment Opportunity Commission on appeal, however, Merritt contended that Stoddard's selective use of a test intended for job applicants was not neutral and that circumstantial evidence suggested Old Dominion was using her ankle injury (from which Merritt's doctor testified she had fully recovered) as an excuse to fire her based on gender.

Purported Policy Selectively Applied

Writing for the appeals court, Justice J. Harvie Wilkinson III said “the record as a whole supports Merritt's claim that a jury could find that discrimination on the basis of gender was afoot.” Although Merritt might lack a triable sex bias claim if Old Dominion had a uniform policy of requiring all drivers returning from injury leave to pass the PAT, the court said, evidence suggests that was not the case. Rather, the evidence indicates that Stoddard made a purely subjective decision to require Merritt to take the PAT, even though the test was developed for job applicants and it assessed nothing specific to Merritt's injury, the court said.

Moreover, Stoddard exercised his discretion against the backdrop of an Old Dominion corporate culture in which the company could identify only six female pickup and delivery drivers among approximately 3,100 drivers in that position, Merritt had been passed over for the job for nearly two years despite a spotless record as a line haul driver, and managers allegedly told Merritt the job was not for women, the court said.

“While the views of others are no proof of the views of Stoddard, at some point the corporate environment in which he worked places Stoddard's own selective use of the PAT in Merritt's case in a less neutral context,” the court said.

“[W]e do not hold that Merritt's evidence must be believed or that, if believed, must yield an inference that Old Dominion unlawfully discriminated against her,” Wilkinson wrote. “But because Merritt's evidence may well be believed and may well yield such an inference, Old Dominion is not entitled to summary judgment.”

Judges Allyson K. Duncan and Andre M. Davis joined in the decision.

Denied Return From Injury Leave

Old Dominion is a nationwide trucking firm that employs thousands as “line haul” drivers and “pickup and delivery” drivers, the court related. 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, the court said.

Merritt worked for Old Dominion for six years as a line haul driver based in Greensboro, N.C., 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, the court said.

Bobby Howard, the Lynchburg terminal manager, allegedly told Merritt that the company “did not really have women drivers” in pickup and delivery jobs and that regional vice president Lemuel Clayton “was afraid [a woman] would get hurt” if given such a job. On another occasion, Howard told Merritt that VP Clayton “didn't think a girl should have that position.” Clayton denied the alleged comments, the court said.

In March 2004, Old Dominion hired Merritt as a pickup and delivery driver, but placed her on a 90-day probationary period, the court said. Merritt alleged no male drivers who transferred were placed on probation, but VP Clayton testified probation was standard procedure that permitted transferring employees to “change their minds” if a new job did not work out.

Through September 2004, Merritt performed her new job successfully, the parties agreed. She had no trouble lifting freight and received no complaints from management, co-workers, or customers, the court related. Despite her positive record, however, Lynchburg terminal operations manager Steve Godsey allegedly told a male driver he did not understand why the company “brought [Merritt] here in the first place” because “this is not a women's place.”

On Sept. 29, 2004, Merritt injured her ankle on the job. She was diagnosed with an ankle sprain and plantar fasciitis and her doctor prescribed light-duty work until Merritt's next appointment on Dec. 27. Prior to that doctor's appointment, however, Brian Stoddard, vice president of safety and personnel, decided Merritt must pass the PAT before she could return to work.

On Dec. 27, Merritt's doctor examined her and concluded her injury was “not a disabling condition” and that nothing prevented Merritt from performing her duties as a pickup and delivery driver.

Based on the PAT administered on Dec. 28, however, Old Dominion determined that Merritt received an overall failing grade and was not physically fit to resume her job, the court said. Although the test revealed no problem with Merritt's ankle, she was unable to place a weighted box on an overhead shelf (the five-foot, one-inch Merritt testified the shelf was placed too high) or walk backward pulling a cable (Merritt testified the test occurred in a crowded hallway in which she bumped into people).

Citing the test results, Stoddard fired Merritt effective Feb. 1, 2005. Merritt sued under Title VII, alleging sex discrimination, but the U.S. District Court for the Western District of Virginia granted summary judgment to Old Dominion. Merritt appealed.

Triable Issue of Pretext

The Fourth Circuit said that while Merritt proceeded under the familiar “burden-shifting framework” of the U.S. Supreme Court decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 5 FEP Cases 965 (1973), “the issue boils down to whether the plaintiff has presented a triable question of intentional discrimination.”

Merritt has done so, the court decided, saying a reasonable jury could find the evidence undermines Old Dominion's contention that it had a regular policy of requiring drivers returning from injury leaves to pass the PAT. Merritt introduced “ample evidence” that Old Dominion's explanation for its decision to fire her “was unworthy of credence,” the court said.

The record indicates Merritt's ankle injury was temporary and had healed at the time of Stoddard's decision to fire her, the court said. The plaintiff's doctor testified there was nothing in Merritt's medical condition to prevent her from resuming her duties as a pickup and delivery driver in December 2004, the court pointed out.

Rather than allow Merritt to return, however, Old Dominion required a “full-blown fitness test” to assess the effects of a minor injury on Merritt's ability to perform a job she had successfully performed for six months prior to her injury, the court said. “In doing so, 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,” Wilkinson wrote. “These facts, if believed, would allow a trier of fact to think Old Dominion was simply looking for a reason to get rid of Merritt.”

Although Old Dominion contended it had a gender-neutral policy of requiring all injured drivers to pass the PAT, the court said a reasonable jury could find that explanation was a pretext, given the company's inconsistent use of the test, plus evidence that the PAT was not designed to test Merritt's alleged physical shortcoming and that injured male drivers returned without taking the PAT, the court said.

A reasonable jury could also conclude sex discrimination was Stoddard's actual motivation for scheduling the PAT and firing Merritt, given previous managerial statements that pickup and delivery driver was not a job for women and statistics suggesting Old Dominion acted on that belief, the court said.

“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 an intent to reserve the plum pickup and delivery positions for male drivers only,” Wilkinson wrote.

Valerie Ann Chastain in Bedford, Va., represented Merritt on appeal. Roger Craig Wood of McGuire Woods in Charlottesville, Va., represented Old Dominion. Julie L. Gantz of the Equal Employment Opportunity Commission in Washington, D.C., represented EEOC as an amicus supporting Merritt.

By Kevin P. McGowan for BNA Daily Labor Report