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Merritt v. Old Dominion Freight Line, Inc., No. 09-1498 (4th Cir. Apr. 9, 2010); Edwards v. Prime, Inc., No. 09-11699 (11th Cir. Apr. 9, 2010)

| Apr 10, 2010 | Daily Developments in EEO Law |

The Fourth Circuit issued a progressive decision Friday, affirming a woman truck driver’s right to a jury trial over her Title VII allegation that she was fired for sex-biased reasons — namely, for supposedly failing a physical exam not given to her male counterparts. The Eleventh Circuit holds that a group of white restaurant workers plead themselves out of court on a racial harassment claim, based on their advocacy of enforcing federal immigration laws against undocumented workers.

Merritt v. Old Dominion Freight Line, Inc., No. 09-1498 (4th Cir. Apr. 9, 2010): The employee, Ms. Merritt, made powerful efforts to move herself up the rank from Line Haul driver to Pickup and Delivery:

“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.”

She was twice passed over for open Pickup and Delivery positions in favor of male candidates before she finally snagged the job, but her future co-workers were first quizzed about how they would feel about working with a woman driver, and she was placed on an unusual 90-day probation.

After Merritt suffered an ankle injury, she was placed temporarily on light duty. But when she expressed an interest in returning to full-time work, and was medically cleared to do so, the company insisted that she take a full physical examination usually reserved for new-hires and largely unrelated to the injury she suffered:

“[O]n 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.'”

When Merritt failed this test, she was fired. Male employees who had previously returned to work from injuries were not required to take the test.

The Fourth Circuit reverses summary judgment for the employer in this case, holding (contrary to the district court) that the employee presented a genuine issue of material fact about whether the company fired her because of sex. The court found both (1) that the employee successfully undermined the employer’s use of the PAT to deny her return to work and (2) that there was circumstantial evidence of sex bias.

Regarding the former, the panel found that the record supported the inference that the PAT was unrelated to the plaintiff’s ankle injury. For example, one part of the test that the employee failed, a stacking test, was because the plaintiff was not tall enough to reach the top of the stack. “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.”

As to the latter, there was considerable evidence of hostility to female drivers, in particular 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.”

While recognize the need for freight hauling company to enforce safety standards and to test drivers’ ability to meet such standards, the panel held that a jury could find that the policy here — scantily documented, at best — was used in a discriminatory fashion:

“Merritt has advanced evidence suggesting that the policy does not exist or, alternatively, that it was erratically implemented. There 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.'”

Indeed, only on appeal did the employer argue for the first time 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.”  The record revealed, though, that “[i]n 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.” Two drivers exempted from the test were male. “By utilizing the PAT to assess the physical qualifications of Merritt but not males similarly situated to her, Stoddard could be seen by a jury to embrace beliefs that women are unsuited for some of the more remunerative forms of manual labor and, once injured, are less resilient in their ability to recover.”

The record was also replete with sex-biased attitudes by management:

“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.'”

The panel beautifully summarized its conclusions:

“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.”

Edwards v. Prime, Inc., No. 09-11699 (11th Cir. Apr. 9, 2010): The plaintiffs alleged that a franchisee of the Ruth’s Steak House Chain (Prime, Inc.) engaged in a scheme — in violation of RICO and the FLSA — to hire undocumented aliens and thus to deprive citizens of employment opportunities:

“Prime knowingly hired and employed illegal aliens, allowed them to work under the names of former Ruth’s Chris employees who were United States citizens, and provided them with the former employees’ social security numbers. In addition, the defendants gave the illegal aliens more time than federal law permits to produce paperwork establishing their eligibility to work in this country and sometimes did not require the illegal aliens ever to produce the paperwork. To fill open positions, Prime’s management asked the illegal aliens employed in the restaurant whether they knew of any other illegal aliens who were interested in working there. Prime paid illegal aliens in cash and preferred them over United States citizens. As part of the illegal enterprise the company also provided illegal aliens with name tags showing names other than their own.”

The district court dismissed, and certified for interlocutory appeal, four counts of the complaint. The Eleventh Circuit largely affirms the decision below, though (significantly) reversing for further proceedings the RICO racketeering claim.

The one claim on appeal with EEO interest was a single plaintiff’s (Edwards) contention that as a result of complaining to management about the hiring of undocumented aliens, the Latino employees Threatened and harassed the plaintiffs. Applying the au courant pleadings standards of Iqbal and Twombly, the Eleventh Circuit affirms that the complaint does not make out a plausible case of racial harassment under 42 U.S.C. § 1981:

“Although the amended complaint does allege that Edwards was Threatened, assaulted, and shunned by his Hispanic and Latino co-workers, which created a hostile work environment, it does not plausibly allege that he was harassed because he is Caucasian. To the contrary, the allegations are that he was Threatened by a Hispanic co-worker because he complained about Prime’s employment of illegal aliens. See Am. Complaint ¶ 124 (‘Plaintiff Edwards was Threatened on the job again by [a] Hispanic Latino of Defendant Prime, who told Edwards it was ‘going to be bad’ for the person who was complaining about Prime’s employment of illegal aliens.’). The amended complaint also alleges that Prime failed to intervene because it did not want to upset the Hispanic and Latino employees and compromise its ability to hire cheap illegal labor. That allegation, like the other one, suggests that Prime discriminated against Edwards because he had complained, or because his co-workers believed he had complained, about Prime’s employment of illegal aliens-not because of his race. The facts that Edwards is Caucasian and that the co-workers who were Threatening and shunning him were Hispanic or Latino, by themselves, do not state a plausible claim of race discrimination.”

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