The 4th U.S. Circuit Court of Appeals overturned a district court decision that Deborah Merritt had not produced sufficient evidence to demonstrate that Old Dominion’s reason for terminating her was “pretext for discrimination.” The North Carolina-based trucking company said it discharged Merritt because she had failed a physical ability test following an ankle injury.
The appellate court disagreed with the district court’s use of a heightened burden of persuasion requirement under McDonnell Douglas Corp. v. Green, saying that at this stage, “the issue boils down to whether the plaintiff has presented a triable question of intentional discrimination.” The 4th Circuit found “the record as a whole supports Merritt’s claim that a jury could find that discrimination on the basis of gender was afoot.”
The court pointed out that Merritt’s ankle injury was healed well before Old Dominion required her to take a physical ability test, and that when her doctor cleared her to work, Old Dominion did not allow her to return to work or even leave open the possibility of her return. “Old Dominion deemed it necessary to order a full-blown fitness test to assess the effects of an injury that was neither severe nor long-lasting and then used the results of that PAT to claim Merritt was physically unable to perform the job she had been physically performing for months prior to her minor injury.”
Merritt also showed that Old Dominion used the physical ability test selectively, excusing injured male employees from taking it, and that the employee responsible for requiring the test and firing Merritt had previously made discriminatory remarks about females as truck drivers.
Finally, Merritt also produced evidence that on several occasions when Merritt attempted to change jobs from a line haul driver to a pickup and delivery driver, she was passed up in favor of less experienced males.The opinion is here.