The Fourth Circuit issued an useful decision in a Title VII gender discrimination case, involving a plaintiff who was a truck driver. The court reversed the district court’s grant of summary judgment to the employer. In particular, the decision recognizes that sometimes the corporate culture can become so infected with discriminatory attitudes that the ostensibly “unbiased decision-maker” was himself influenced by the surrounding environment.

The court also calls out the employer for its purported policy that anyone injured on the job had to undergo a physical exam, since there was no written documentation of this policy, numerous employees disclaimed knowledge of any such policy, and it was disproportionately applied to female employees. The court suggests that this policy did not really exist until the oral argument on the appeal.

The EEOC filed an amicus brief in support of the plaintiff.

Some excerpts follow:

http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/091498.P.pdf

Merritt v. Old Dominion Freight Line, Inc., No. 09-1498 (4th Cir. Apr. 9, 2010).

Appeal from the United States District Court for the Western District of Virginia, at Lynchburg.

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

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, D.C., for Amicus Supporting Appellant.

Aaron J. Longo, MCGUIREWOODS, LLP, Charlottesville, Virginia, for Appellee.

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 (1981). . . .

. . . . In light of evidence that the PAT was not even designed to test Merritt’s alleged physical shortcoming, a jury could find that Old Dominion’s contention—that Merritt’s minor and temporary injury necessitated her passing the PAT—is specious. Especially in combination with Merritt’s other evidence, these alleged facts suggest that perhaps Old Dominion’s neutral reason "w[as] not its true reason[], but w[as] a pretext for discrimination." Id. at 253.

B.

In this case, Merritt provided evidence not simply of falsity but of discriminatory intent as well. Specifically, Merritt set forth evidence that: (1) Old Dominion used the PAT selectively, excusing injured male employees from taking it; and (2) The employee responsible for requiring the PAT and firing her, Stoddard, harbored discriminatory animus toward women insofar as he was responsible for selectively employing the PAT and was part and parcel of Old Dominion’s widespread resistance to hiring women as Pickup and Delivery drivers. Based on this evidence, Merritt claims a fact finder could find in favor of her on the ultimate question of intentional discrimination.

. . . . The problem with the policy lies not in theory but in practice. Here, Merritt has advanced evidence suggesting that the policy does not exist or, alternatively, that it was erratically implemented. Three considerations inform our conclusion. First, the policy’s existence is drawn into question by the conspicuous lack of evidence in the record concerning it. As both parties agree, the policy has never been memorialized in writing. And while an informal policy is no less a policy, it is curious that no one at the company seemed to be familiar with even an informal policy. Of eight Old Dominion employees asked about the matter, all eight denied ever having heard of the policy. In fact, Stoddard himself—the individual responsible for deciding whether and when to order PATs and thus presumably charged with administering the policy— suggested that Old Dominion did not have an official policy regarding whether and when to order PATs. Rather, he explained that if an employee could not perform job duties because of pain due to an injury, he’s "not necessarily going to send them for a [physical fitness] test."

Second, the policy’s existence is dubious due to its delayed emergence in the course of this litigation. Early on, Old Dominion did not assert a firm policy on when PATs were ordered, claiming instead that the test was given on an "as needed basis." . . .

It was only late in the game, on appeal and perhaps not until oral argument before this court, that the policy really took shape. At that point, Old Dominion began to pivot, arguing that PATs were not required after all on a discretionary, case-by-case basis but each and every time, without exception, an injured employee was issued an ambiguous medical release. But "a factfinder could infer from the late appearance of [the employer’s] current justification that it is a post-hoc rationale," "invented for the purposes of litigation," and "not a legitimate explanation for [its] decision." EEOC v. Sears Roebuck & Co., 243 F.3d 846, 853 (4th Cir. 2001).

Third, apart from the paucity of evidence of the policy’s existence and the policy’s late-blooming appearance, Merritt has set forth evidence that Old Dominion did not faithfully adhere to the policy and instead ordered PATs on an uneven basis. As a general matter, Old Dominion used the PAT rarely, even as to pre-hires, whom the PAT was designed to evaluate. In fact, Old Dominion required a paltry four percent of its Pickup and Delivery drivers to ever take the PAT. Especially as to injured employees, the test was administered inconsistently. . . .

. . . . At least two injured employees exempted from the policy’s reach were males, and their circumstances were similar to Merritt’s own. Like Merritt, these male drivers missed work as a result of an injury and received a conditional release from a physician. Unlike Merritt, both men were allowed to return to their full duties without passing a PAT. Importantly, in both cases, Stoddard presumably was the decision maker who opted against a PAT. . . .

. . . . We must of course be cautious about attributing to any ultimate decision maker such as Stoddard the most unfortunate expressions and beliefs of those around him and those who worked in his employ. See Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 291 (4th Cir. 2004) (en banc). It is regrettable that any distasteful comments will arise in the workplace, but that cannot mean that the actual decision maker is impugned thereby. It is the decision maker’s intent that remains crucial, and in the absence of a clear nexus with the employment decision in question, the materiality of stray or isolated remarks is substantially reduced. See McCarthy v. Kemper Life Ins. Cos., 924 F.2d 683, 686-87 (7th Cir. 1991). But that nexus existed here. It is not unfair to observe that the corporate culture evinced a very specific yet pervasive aversion to the idea of female Pickup and Delivery drivers. Old Dominion employees, of all ranks, seemed to share a view that women were unfit for that position. A regional vice president remarked, for instance, that he "didn’t think a girl should have that [Pickup and Delivery] position." He also worried that women were more injury-prone, explaining that he did not want to hire a female Pickup and Delivery driver because he "was afraid [she] would get hurt." An operations’ manager stated, "[t]his is not a woman’s place." A terminal manager forthrightly acknowledged the company’s reluctance to hiring female Pickup and Delivery drivers, noting that "the company did not really have women [Pickup and Delivery] drivers," and that Merritt was passed over because "it was decided that [the company] could not let a woman have that position."

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. In Lettieri v. Equant, Inc., 478 F.3d 640, 649 (4th Cir. 2007), for example, we noted that the plaintiff had put forward the kind of "‘evidence that clearly indicates a discriminatory attitude at the workplace and . . . illustrate[s] a nexus between that negative attitude and the employment action.’" Id. (quoting Brinkley v. Harbour Rec. Club, 180 F.3d 598, 608 (4th Cir. 1999)). We accordingly deemed the plaintiff’s "powerful evidence showing a discriminatory attitude at [her company of employment] toward female managers" sufficient to "allow a trier of fact to conclude that these discriminatory attitudes led to [plaintiff’s] ultimate termination." Id. Likewise here.

Female Pickup and Delivery drivers were rare, with only six identified in a workforce of over 3000 and with Merritt the only female in her terminal. As one Old Dominion driver concisely summarized, "We don’t have no females." Merritt’s two-year quest to be transferred from Line Haul to Pickup and Delivery is consistent with that general pattern. She was twice passed over in favor of less-experienced males; she was not told the truth about her supervisor’s authority to fill the position; and she was told that she was not hired become some were uncomfortable with women having the job and were wary that the enhanced physical requirements of Pickup and Delivery, as compared to Line Haul, were too demanding for women. Even after she was finally hired, she was placed on an allegedly out-of-the-ordinary probationary status and never granted a change in her official job title. The evidence would allow a jury to conclude that Old Dominion never wanted to hire Merritt in the first place and lends credence to the view that it was looking for a reason to fire her.

To be sure, we 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. But because Merritt’s evidence may well be believed and may well yield such an inference, Old Dominion is not entitled to summary judgment.

. . . . 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. Disposition of Merritt’s claim at the summary judgment stage would "intrude on the jury function by substituting our own judgment for that of the finder of fact." Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 650 (4th Cir. 2002). At trial, Old Dominion will be free to note the burdens that law and regulation can impose on legitimate business judgment, but Merritt will be free to argue on her record that opportunity under law must be open to the talents and industry of all.