Merritt v. Old Dominion Freight Line, Inc.

Decision Date09 April 2010
Docket NumberNo. 09-1498.,09-1498.
Citation601 F.3d 289
PartiesDeborah MERRITT, Plaintiff-Appellant, v. OLD DOMINION FREIGHT LINE, INC., Defendant-Appellee. Equal Employment Opportunity Commission, Amicus Supporting Appellant.
CourtU.S. Court of Appeals — Fourth Circuit

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ARGUED: Valerie Ann Chastain, Valerie A. Chastain, PC, Bedford, Virginia, for Appellant. Julie Loraine Gantz, U.S. Equal Employment Opportunity Commission, Washington, D.C., for Amicus Supporting Appellant. Robert Craig Wood, McGuirewoods, LLP, Charlottesville, Virginia, for Appellee. ON BRIEF: James L. Lee, Deputy General Counsel, Lorraine C. Davis, Acting Associate General Counsel, Vincent J. Blackwood, Assistant General Counsel, U.S. Equal Employment Opportunity Commission, Washington, DC, for Amicus Supporting Appellant. Aaron J. Longo, McGuirewoods, LLP, Charlottesville, Virginia, for Appellee.

Before WILKINSON, DUNCAN, and DAVIS, Circuit Judges.

Reversed and remanded by published opinion. Judge WILKINSON wrote the opinion, in which Judge DUNCAN and Judge DAVIS joined. Judge DAVIS wrote a concurring opinion.

OPINION

WILKINSON, Circuit Judge:

Plaintiff-appellant Deborah Merritt was a truck driver employed by defendant-appellee Old Dominion Freight Line, Inc. ("Old Dominion"). After being fired from her job, Merritt sued Old Dominion in the United States District Court for the Western District of Virginia, alleging sex discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Merritt asserted that Old Dominion fired her due to a discriminatory belief that women were incapable of performing the duties of her position. In its defense, Old Dominion claimed that it discharged Merritt instead because she had failed a physical ability test following an ankle injury. The district court granted summary judgment in favor of Old Dominion, determining that Merritt had produced insufficient evidence to demonstrate that Old Dominion's legitimate and non-discriminatory reason for her termination was "pretext for discrimination." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Under the particular circumstances here, we think Merritt has presented an issue of triable fact, and we must accordingly reverse.

I.

We review the facts under the traditional summary judgment standard, giving the benefit of inferences to the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-55, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The defendant, Old Dominion, is a nationwide trucking company that employs thousands of drivers, including both "Line Haul" drivers and "Pickup and Delivery" drivers. Line Haul drivers often drive long distances across state lines, spending some nights and weekends away from home. Pickup and Delivery drivers, on the other hand, work more locally and rarely work nights and weekends. Also, because Pickup and Delivery drivers pick-up and unload freight, the job requires more lifting and is physically more demanding than that of a Line Haul driver. Of Old Dominion's workforce of approximately 3100 Pickup and Delivery drivers, about six are female.

Deborah Merritt's story is one of a certain grit and perseverance. For six years, she was employed by Old Dominion as a Line Haul driver at its Greensboro, North Carolina and Waynesboro, Virginia terminals. During her time as a Line Haul driver, Merritt often made lengthy cross-country trips, to places like California and Texas, and sometimes logged more than five hundred miles per day. She performed her duties without incident or complaint. Eventually, Merritt became interested in becoming a Pickup and Delivery driver so she could work more regular hours and spend her nights and weekends at home. To show Old Dominion that she could perform the job successfully, she filled in numerous times as a Pickup and Delivery driver in May 2002. When filling in, she likewise performed the duties without incident or complaint. In fact, the record reflects that Merritt's supervisor found her work as a Pickup and Delivery driver to be fully satisfactory and even received compliments from clients about it.

Shortly thereafter, a permanent Pickup and Delivery position became available at Old Dominion's Lynchburg, Virginia terminal. Merritt expressed her interest in the position to Bobby Howard, the Lynchburg terminal manager. Howard informed Merritt that he lacked the authority to fill the position, but that was untrue. In fact, Howard later filled the position with a male, who had less truck-driving experience than Merritt and who had not previously worked for Old Dominion. Merritt continued to fill in temporarily as a Pickup and Delivery driver during the rest of 2002.

In May 2003, another permanent Pickup and Delivery position became available in Lynchburg, and Merritt again expressed her interest in it to Howard. Yet again, Merritt was passed over in favor of a less-experienced male driver. When Merritt asked why she was not hired to fill the positions, Howard told her that "it had been discussed and it was decided that they could not let a woman have that position." Howard also reminded her that "the company did not really have women drivers in the city as Pickup and Delivery drivers." On another occasion, Howard told Merritt that Lemuel Clayton, Old Dominion's Regional Vice President, was worried about hiring a female Pickup and Delivery driver and "was afraid a female would get hurt." On still another occasion, Howard told Merritt that Clayton had concerns about her being a Pickup and Delivery driver because he "didn't think a girl should have that position." Clayton, however, denies the allegations.

Finally, in March 2004, Old Dominion hired Merritt to fill a permanent Pickup and Delivery position in the Lynchburg terminal. Before making the decision to do so, however, Howard allegedly asked two male Pickup and Delivery drivers how they would feel working with a woman, and they responded they would not have a problem with it. After Merritt was hired, she was placed on a ninety-day probationary period, during which she stood to lose the job if any performance problems arose. According to Merritt, this probationary period was unusual, since no male drivers were subject to anything similar, while according to Clayton, the probationary period was a standard opportunity afforded to all transferring employees to allow them to change their minds about the transfer. In any event, it is uncontradicted that although Merritt's duties and pay were those of a Pickup and Delivery driver, her official job classification was never changed from Line Haul to Pickup and Delivery driver.

From March 2004 to September 2004, Merritt performed her Pickup and Delivery duties, by all accounts satisfactorily. She never had a problem lifting freight or performing the same duties that male Pickup and Delivery drivers performed, and she never received any complaints about her work from management, coworkers, or customers. Despite her positive record with the company, Steve Godsey, the then Operations' Manager for the Lynchburg terminal, told a male Pickup and Delivery driver that he "didn't see why they brought Merritt here in the first place. This is not a woman's place."

Then, on September 29, 2004, Merritt suffered an ankle injury while moving boxes on the job. When Brian Stoddard, the Vice President of Safety and Personnel at Old Dominion, learned of Merritt's injury, he put her in touch with a workers' compensation representative and several human resources employees. Merritt's doctor, Dr. Jay Hopkins, examined Merritt and diagnosed her with "plantar fasciitis with a superimposed strain." Dr. Hopkins put Merritt on light-duty work until her next appointment with him on December 27, 2004. Around that same time, Merritt began expressing an interest in returning to her normal duties, since her ankle was healing well and she was not having any serious or lingering problems with it.

Before Merritt's December 27 doctor appointment, Stoddard decided to require Merritt to take a fitness test to assess her ability to perform her Pickup and Delivery duties. Accordingly, on December 22, 2004, Old Dominion booked an appointment for a physical ability test ("PAT") for Merritt to take on December 28, 2004. The PAT is a full-body test, divided into six separate components, that evaluates the test taker's general strength, agility, and cardiovascular endurance. It is graded on a pass/fail basis. To pass, an employee must perform various tasks roughly designed to mimic those required of Line Haul and Pickup and Delivery drivers. The PAT was created for Old Dominion by an independent company in 2001 "to be used in the hiring process." Consistent with this purpose, Old Dominion uses the PAT primarily in the pre-employment context to evaluate potential hires, but, as Stoddard himself testified, only on a "very variable" basis.

On December 27, Merritt met with Dr. Hopkins. During that visit, Dr. Hopkins examined Merritt's foot and ankle, noting that "her foot was feeling fine," that the injury was not a "disabling condition," and that Merritt seemed "to be on the right track." Dr. Hopkins concluded that "the good news is that she has had a good response to treatment and I would have every reason to think that this will do fine." As Dr. Hopkins later testified, "there was nothing about Ms. Merritt's medical condition which would have prevented her from performing her job duties as a Pickup and Delivery driver for Old Dominion as of December 27, 2004." Despite a clean bill of health, Dr. Hopkins followed his standard practice and released Merritt back to work on a "trial basis," since he "cannot give the patient's employer a one hundred percent guarantee."

The day after seeing her doctor, Merritt took the PAT, as scheduled. Merritt struggled with several segments of the PAT and received an overall...

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