Female Truck Driver Wins Appeal of Firing

(CN) - A female truck driver provided evidence "too problematic to overlook" that Old Dominion Freight Line fired her because she's a woman, the 4th Circuit ruled. The company allegedly forced Deborah Merritt to pass a rigorous fitness exam after she recovered from an ankle injury.

The Richmond-based appeals court found evidence of an "impermissible company attitude" toward hiring women to work its coveted pickup and delivery routes, which allow drivers to work regular hours and spend nights and weekends at home.

Deborah Merritt said she pursued those routes for six years while working as a long-haul trucker for Old Dominion. She occasionally filled in as a pickup and delivery driver, and said she performed the job well, but was passed over for a permanent spot in favor of less qualified men.

She landed a full-time position in 2004, after her bosses "asked two male drivers how they would feel working with a woman" and subjected her to an unusually long probationary period, according to the ruling.

After passing probation, Merritt hurt her ankle on the job and had to go on light duty. Before she could resume her regular duties, company supervisors made her take a rigorous physical exam and fired her when she didn't pass, Merritt claimed.

U.S. District Judge Norman Moon dismissed Merritt's gender bias lawsuit against the trucking company, saying Merritt failed to offer enough evidence of discrimination.

The 4th Circuit disagreed.

Judge J. Harvie Wilkinson called Merritt's story one of "a certain grit and perseverance," and said she had shown "ample evidence" that Old Dominion "was simply looking for a reason to get rid of " her when it required her to pass the post-injury fitness test.

"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 [test] to claim Merritt was physically unable to perform the job she had been physically performing for months prior to her minor injury," Wilkinson wrote. "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 added that at least two male employees with similar injuries were allowed to return to work without passing the fitness test.

He said Merritt also presented compelling evidence that the company had traditionally overlooked women for pick-up and delivery positions because of fears that women could not handle the physical requirements and were more prone to injury than men.

"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 [fitness test] were designed to conceal an intent to reserve the plum pickup and delivery positions for male drivers only."

The appellate panel reversed and remanded.

Merritt drew the support of the Equal Employment Opportunity Commission in a friend-of-the-court brief.

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