No. 09-1498 _______________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT _______________________________________________________ DEBORAH MERRITT, Plaintiff/Appellant, v. OLD DOMINION FREIGHT LINE, INC., Defendant/Appellee. _______________________________________________________ On Appeal from the United States District Court for the Western District of Virginia _______________________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF DEBORAH MERRITT AND REVERSAL _______________________________________________________ JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, NE, 5th Floor Washington, D.C. 20507 (202) 663-4718 TABLE OF CONTENTS STATEMENT OF INTEREST . . . . . . . . . . . . . . . . .1 STATEMENT OF THE ISSUE. . . . . . . . . . . . . . . . .2 STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . .2 DISTRICT COURT DECISION . . . . . . . . . . . . . . . 11 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . 13 THERE IS SUFFICIENT EVIDENCE IN THE RECORD TO SUPPORT A FINDING THAT THE DEFENDANT'S JUSTIFICATION FOR FIRING THE PLAINTIFF WAS A PRETEXT FOR SEX DISCRIMINATION. . . . . . . . . .13 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . 21 CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . 22 CERTIFICATE OF SERVICE TABLE OF AUTHORITIES Cases Page(s) Brinkley v. Harbour Rec. Club, 180 F.3d 598 (4th Cir. 1999) . . . . . . . . . . 19 Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003) . . . . . . . . . . . . . . . 19 EEOC v. Sears, Roebuck & Co., 243 F.3d 846 (4th Cir. 2001) . . . . . . . . 17, 20 Frank v. United Airlines, Inc., 216 F.3d 845 (9th Cir. 2000) . . . . . . . . . . 19 Hill v. Lockheed Martin Logistics Mgmt., 354 F.3d 277 (4th Cir. 2004) . . . . . . . . . . 15 Lettieri v. Equant, Inc., 478 F.3d 640 (4th Cir. 2007) . . . . . . . . . . 18 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). . . . . . . . . . . . . . . 14 Miles v. Dell, Inc., 429 F.3d 480 (4th Cir. 2005) . . . . . . . . . . 14 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). . . . . . . . . . . . . 17, 18 Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500 (1957). . . . . . . . . . . . . . . 19 St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). . . . . . . . . . . . . . . 17 Weeks v. S. Bell Tel. & Tel Co., 408 F.2d 228 (5th Cir. 1969) . . . . . . . . . . 20 Williams v. St. Luke's-Shawnee Mission Health Sys., Inc., 276 F.3d 1057 (8th Cir. 2002). . . . . . . . . . 15 Statutes 42 U.S.C. § 2000e-2(a) . . . . . . . . . . . . . . . . . . 14 42 U.S.C. § 2000e-5. . . . . . . . . . . . . . . . . . . . .1 STATEMENT OF INTEREST The Equal Employment Opportunity Commission is the agency charged by Congress with the administration, interpretation, and enforcement of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and other federal statutes prohibiting employment discrimination. See 42 U.S.C. § 2000e-5. Private actions to enforce Title VII provide the Commission with vital assistance in its efforts to eradicate employment discrimination. In granting the defendant's motion for summary judgment, the district court made several significant errors in considering the evidence. First, the court gave no weight to evidence that there was widespread opposition among high-level officials of the defendant to hiring a woman in the position the plaintiff held. The district court also improperly accepted the defendant's explanation for why the plaintiff was required to take a physical fitness test notwithstanding evidence that it was a post-hoc fabrication. Unless corrected by this Court, the district court's analysis of the pretext evidence and misapplication of the summary judgment standards would unfairly limit the ability of victims of sex discrimination to obtain redress under Title VII and would adversely affect the Commission's enforcement of the statute. We therefore offer our views to the Court pursuant to Federal Rules of Appellate Procedure Rule 29(a). STATEMENT OF THE ISSUE Whether evidence that the defendant's non-discriminatory explanation for treating the plaintiff differently than similarly situated male employees was false, coupled with evidence that company officials were reluctant to employ women in the job the plaintiff held, is sufficient to support a finding that the plaintiff was terminated because of her sex in violation of Title VII. STATEMENT OF FACTS Deborah Merritt began working for Old Dominion Freight Line as a line haul driver in January 1996. III Joint Appendix ("J.A.") 974 (Merritt Aff. ¶ 4). Merritt filled in as a pickup and delivery ("P&D") driver on a number of occasions in 2002. III J.A. 994-1017 (2002 driving logs indicating "driving local for Lynchburg"); I J.A. 395 (Godsey Dep. 13). P&D drivers deliver freight within a metropolitan area and unload it. Because it required more lifting, the P&D job was more physically demanding than the line haul job. I J.A. 413 (Stoddard Dep. 12). In May 2002, Merritt applied for a vacant P&D position at the Lynchburg terminal. III J.A. 1078 (Merritt Aff./Charge of Discrimination). She was passed over for a man with less driving experience. I J.A. 442-43 (Clayton Dep. 12-13); I J.A. 366-72 (Erwin Callahan Application); II J.A. 932 (Merritt Aff. ¶¶ 2-3). Merritt testified that Lynchburg Terminal Manager Bobby Howard told her that "it was decided that they could not let a woman have that position." I J.A. 315 (Merritt Dep. 35). Another P&D position opened up in 2003. I J.A. 318 (Merritt Dep. 43); III J.A. 1078 (EEOC Charge of Discrimination/Merritt Aff.). When Merritt called Howard to express interest in transferring into the job, Howard told her that Midsouth Vice President Lemuel Clayton "had concerns I would not be able to do the job" and "was afraid I would get hurt." Id.; see also I J.A. 318, 319 (Merritt Dep. 43, 45). Merritt stated that Howard "reminded me that the company did not really have women drivers in the city." Id. Once again the job was given to a man with less driving experience than Merritt. I J.A. 443-44 (Clayton Dep. 13-14); I J.A. 374-80 (Earl Brown Application). After repeated calls to Howard, Merritt was finally hired as a P&D driver at the Lynchburg terminal in March 2004. I J.A. 390 (Payroll Change Request 3-22- 04); I J.A. 320 (Merritt Dep. 46). Merritt testified that she was hired on probationary status for the first three months at Clayton's behest. I J.A. 49 (Merritt Dep. 44); III J.A. 1078 (EEOC Charge/Aff.). Old Dominion did not require male P&D drivers to complete a probationary period. II J.A. 666 (Brown Aff. ¶ 5). Driver Earl Brown stated that, after Merritt began work as a P&D driver, Operations Manager Steven Godsey told him "I don't see why they brought her here in the first place. This is not a woman's place." II J.A. 666 (Brown Aff. ¶ 9). Women P&D drivers at Old Dominion were a rarity. The company's drivers could name only five women out of Old Dominion's 3,000-plus P&D drivers nationwide. II J.A. 729 (Fee Dep. 7); II J.A. 490 (Dalton Dep. 26); II J.A. 506 (Eanes Dep. 24); II J.A. 521 (K. Smith Dep. 35); II J.A. 752 (Blalock Dep. 10); II J.A. 741 (Kelly Dep. 5); see also II J.A. 955 (Old Dominion SEC Form 10-K). Merritt was the only female P&D driver at the Lynchburg terminal, and the only woman in the geographic area overseen by Regional Vice President Clayton, which included West Virginia, Virginia, North Carolina, South Carolina, and eastern Tennessee. II J.A. 528 (Pike Dep. 11); II J.A. 506 (Eanes Dep. 24); J.A. 354 (Merritt Dep. 171); II J.A. 787 (Defendant's Responses to Plaintiff's Second Interrogatories at 6). Numerous Old Dominion officials and drivers testified that Merritt had no problems performing her job as a pickup and delivery driver until she was injured in September 2004. I J.A. 396-97, 400-01, 403 (Godsey Dep. 35-36, 60-61, 63); I J.A. 421 (Stoddard Dep. 29); II J.A. 503, 504 (Eanes Dep. 17, 18); II J.A. 518 (K. Smith Dep. 23); II J.A. 484 (Dalton Dep. 18); II J.A. 666-67 (Brown Aff. ¶¶ 10- 12); II J.A. 672 (Davis Aff. ¶¶ 8-9). On September 29, 2004, Merritt sprained her left foot at a delivery destination when she tripped over a skid. I J.A. 330 (Merritt Dep. 111); III J.A. 1186 (Merritt Dep. 114). She was diagnosed with a mid-foot sprain by her physician, Dr. Robert Elliott. II J.A. 583-84 (Elliott Dep. 10-11). He prescribed anti-inflammatory medication and instructed Merritt not to return to her P&D job until her foot healed. III J.A. 1187-88 (Merritt Dep. 122-23). Merritt was on crutches and unable to work until Dr. Elliott cleared her for light duty on October 20, 2004. II J.A. 584-86 (Elliott Dep. 11-13); II J.A. 590 (excerpt from medical chart). Old Dominion referred Merritt to Dr. Jay Hopkins, an orthopedic surgeon, who concluded she had plantar fasciitis triggered by the foot sprain, gave her a cortisone injection, and prescribed anti-inflammatory and pain medications and a gel heel pad. II J.A. 557, 558 (Hopkins Aff. ¶¶ 6, 9); II J.A. 573-74 (11/29/04 medical chart entry). Dr. Hopkins was of the opinion that Merritt's plantar fasciitis was not a disabling condition and characterized the company's suggestion that Merritt apply for disability benefits as "inappropriate." II J.A. 558 (Hopkins Aff. ¶ 9); see also II J.A. 575 (12/27/04 medical chart entry stating: "There was even some suggestion that she should apply for disability, which is totally ludicrous."). In mid-December, 2004, Merritt was informed that she would have to take a fitness test before she could return to work as a P&D driver.<1> I J.A. 356 (Merritt Dep. 184). Brian Stoddard, the company's Vice President of Safety and Personnel who ordered the fitness test, testified that the only reason he required Merritt to take the test was because the medical release Dr. Hopkins provided to Merritt said she could return to her job "on a trial basis." I J.A. 410-11, 415 (Stoddard Dep. 8- 9, 18). However, Dr. Hopkins did not give Merritt her release until December 27, 2004, after she was told she would be required to take the test. II J.A. 564 (release); II J.A. 624 (12/22/04 e-mail from Maynard to Stoddard referring to scheduled fitness test); II J.A. 545 (12/21/04 e-mail from Parker to Godsey and Stoddard noting fitness test is being scheduled); I J.A. 356-57 (Merritt Dep. 184- 85). Dr. Hopkins testified that he believed Merritt was completely recovered when he signed the release, but that he routinely includes the "trial basis" language in work releases and removes it if the employer indicates that it will not accept such a release. II J.A. 549-50 (Hopkins Dep. 25-26); II J.A. 558-59 (Hopkins Aff. ¶¶ 9-12). Dr. Hopkins testified that no one at Old Dominion communicated that the "trial basis" release was a problem. II J.A. 559 (Hopkins Aff. ¶ 11). He also stated that no one in his office would have told Old Dominion prior to the date the release was signed that he might release Merritt to return to work on a trial basis. II J.A. 560 (Hopkins Aff. ¶ 13). According to Dr. Hopkins, that there was no notation on Merritt's charge of any communication between his office and Old Dominion prior to December 27, 2004, confirms that no such communication occurred. II J.A. 560 (Hopkins Aff. ¶ 13). Merritt took the fitness test on December 28, 2004. II J.A. 638 (Pre- Placement Screening Data Sheet). The test consisted of six components, most of which had nothing to do with the condition of Merritt's foot. II J.A. 639 (Physical Abilities Testing Job Candidate Audit Sheet); I J.A. 340-43 (Merritt Dep. 127- 130). One component of the test required Merritt to lift a box from a table to a shelf above her head. I J.A. 343 (Merritt Dep. 130). Merritt, who is 5' 1" tall, was too short to reach the shelf even with a stool. Id. Merritt was told she failed the test by Brian Stoddard two days later. I J.A. 349 (Merritt Dep. 137). According to the company, unless she received an average score of 100% on all six components of the test, she was not qualified for the P&D job. I J.A. 417 (Stoddard Dep. 23). Michael Napier, an expert on industry standards in the trucking industry, stated that he was "unaware of a single instance where any motor carrier had either established a policy for, or had tested injured employees on, portions of their bodies which were not affected by an injury." II J.A. 687 (Napier Rpt. at 8). Napier noted that the test Merritt took "was not specific to her foot sprain," and Merritt received a 91% score on the only component of the test that would have given Old Dominion any information regarding the condition of her foot. Id. Furthermore, Stoddard testified that new hires were not typically given the test to determine their physical fitness for the P&D job. I J.A. 418, 419 (Stoddard Dep. 24, 25). In fact, a number of Old Dominion employees testified that no drivers at the Lynchburg terminal had ever been required to take any physical fitness test. I J.A. 456, 458 (Reese Dep. 11, 17); I J.A. 465 (Dwyer Dep. 11); II J.A. 520 (K. Smith Dep. 33); I J.A. 398-99 (Godsey Dep. 51-52); II J.A. 489 (Dalton Dep. 24); II J.A. 505 (Eanes Dep. 22); II J.A. 527 (Pike Dep. 10); II J.A. 476 (Jill Howard Dep. 29); II J.A. 667 (Brown Aff. ¶ 13). Other drivers injured on the job were permitted to return to their jobs without taking the test that Merritt was required to take despite the fact that their injuries were more serious than Merritt's. For example, Gerald Dalton missed six months of work as a P&D driver following a hernia operation. II J.A. 480-86 (Dalton Dep. 20-21). He returned to work with light duty restrictions, and resumed his job as a P&D driver without having to pass a fitness test. II J.A. 488- 89, 491-92 (Dalton Dep. 23-24, 29-30). Donald Smith, a line haul driver out of the Greensboro terminal, was injured on three occasions. In 2002, he suffered a rotator cuff dislocation and was out of work for nine months. II J.A. 889 (D. Smith Dep. 11). In 2004, he suffered a shoulder injury and bicep separation on his right arm and missed one month of work. Id. He separated his shoulder and had been out of work since July at the time of his September 2008 deposition. II J.A. 889-90 (D. Smith Dep. 11-12). Smith was required to take a test only with respect to the strength of his injured arm to ensure that he could lift enough weight to perform his driving job. II J.A. 892 (D. Smith Dep. 14); II J.A. 903 (Functional Capacity Evaluation Summary Sheet). Charles Blalock, a line haul driver assigned to Greensboro, missed three months of work after breaking his leg on the job. II J.A. 753 (Blalock Dep. 12). Although his doctor gave him a 10% disability rating in the recovered right leg, Old Dominion did not require him to take a fitness test before resuming his driving duties. II J.A. 755-56 (Blalock Dep. 15-16). Bobby Miller, also a line haul driver out of Greensboro, was in a 1982 accident in which he suffered a crushed ankle, broken leg, two cracked vertebrae in his back, a broken collarbone, and internal injuries. II J.A. 765 (Miller Dep. 6). Although he was out of work fifteen months, he was never required to take a fitness test after his doctor released him to return to work. Id. According to Merritt, when Stoddard told her she failed the test, he stated that "he was shocked at how weak I was." I J.A. 349 (Merritt Dep. 137). He told her that her upper body strength was inadequate and that she "wasn't physically able to drive a truck." Id. Merritt testified that Stoddard raised the possibility that Merritt could retake the test and reapply for her job. Id. He told her to get a program of weight training and physical therapy put in place. Id. Renee Dwyer, an employee in the company's safety and personnel department, testified that she was not aware of any problems Merritt had with upper body strength and that no one complained about her upper body strength, or any other physical limitations, during the time Merritt worked as a P&D driver. I J.A. 467 (Dwyer Dep. 26). Merritt was told she was terminated on December 30, 2004. I J.A. 348-49 (Merritt Dep. 136-37). Stoddard testified that he made the decision to terminate Merritt. I J.A. 107 (Stoddard Dep. 50). Merritt's termination form lists "inability to perform job" as the reason for her termination. I J.A. 930 (Payroll Change Request); I J.A. 403 (Godsey Dep. 63); I J.A. 107 (Stoddard Dep 50). Clayton testified that he had no concerns about Merritt's physical ability to perform the duties of the P&D driver, and that she was never physically unable to perform the job. I J.A. 448-49 (Clayton Dep. 35-36). According to one of Merritt's coworkers, Merritt's replacement "was male. We don't have no females." II J.A. 521 (K. Smith Dep. 35); see also I J.A. 423 (Stoddard Dep. 39); I J.A. 384 (Payroll Change Request 2/2/05 for Buddy Bartley returning to work as "local P&D driver"); I J.A. 386 (Payroll Change Request 2/2/05 for Tommy Canada hired as a P&D driver). Because of the discharge due to the "inability to perform job" notation in her file, Merritt was never able to obtain another truck driving job. Merritt was conditionally offered a position at Fleetmaster Express and was sent for a Department of Transportation physical and drug test, which she passed. I J.A. 327-28 (Merritt Dep. 57-58). But Fleetmaster did not offer her a position because Old Dominion had stated in her reference that she was terminated due to inability to perform her job duties. I J.A. 327-28 (Merritt Dep. 57-58). Trucking industry expert Napier testified that classifying her as ineligible for rehire combined with the notation that she was unable to perform her job "would give any responsible, competent motor carrier, safety director considerable pause in hiring her because of those statements." II J.A. 714 (Napier Dep. 87). DISTRICT COURT DECISION The district court granted summary judgment for the defendant. III J.A. 1374 (Memorandum Opinion at 1). The court found that Merritt offered sufficient evidence to establish a prima facie case. III J.A. 1384 (Mem. at 11). In reaching this conclusion, the court rejected Old Dominion's argument that Merritt was not meeting the company's expectations because she was out of work with an injury, noting that "Merritt's injury was temporary, and there was no indication that the injury would prevent her from resuming her full duties once it healed." Id. The court concluded, however, that there was insufficient evidence to support a finding that Old Dominion's stated reason for firing her—her inability to pass the fitness test—was pretextual. The court concluded that the company's decision to require Merritt to pass the test was justified because the "trial basis" language in Merritt's release prompted Stoddard to require the test "to resolve any ambiguity about Merritt's physical fitness to go back to work." III J.A. 1385 (Mem. at 12). The court emphasized that "Stoddard was the sole decisionmaker for Old Dominion," that "he alone decided to discharge Merritt after she failed the [fitness test]," and that there was no evidence that Stoddard "harbored any discriminatory animus." III J.A. 1385 (Mem. at 12). According to the court, L.B. Clayton, Old Dominion's Regional Vice President, was the one who "harbored some discriminatory animus towards women," not Stoddard, and Merritt failed to show that Stoddard shared those sentiments or that there was a link between Clayton's comments about women not doing the P&D job and Stoddard's decisions to require Merritt to take the fitness test and then fire her when she failed it. III J.A. 1385-86 (Mem. at 12-13). The court held that the "limited circumstantial evidence" of sex discrimination offered by the plaintiff was not sufficient to support a finding that defendant's reliance on Merritt's failure of the fitness test was a pretext for discrimination. III J.A. 1387 (Mem. at 14). According to the court, the fact that nine women had passed the test in the past "undermines Merritt's suggestion that Stoddard required her to take the [fitness test] because he knew she would fail it." Id. The court also found that Merritt's evidence that similarly situated drivers were given more favorable treatment was "of limited probative value because Merritt did not produce sufficient details about the nature of her co-workers' releases from their doctors, or about the physical tests they were required to take." Id. The court also found that, even if Merritt had offered evidence that she was treated differently, she did not produce sufficient evidence to allow a finding that the different treatment was because she is a woman. Id. The court held that "Merritt has offered no real evidence to lead to the conclusions that Stoddard decided to give Merritt the PAT because he knew she would fail, that he desired her to fail because she was a woman, or that he discharged her because she was a woman rather than because she failed the PAT." III J.A. 1387-88 (Mem. at 14-15).<2> ARGUMENT THERE IS SUFFICIENT EVIDENCE IN THE RECORD TO SUPPORT A FINDING THAT THE DEFENDANT'S JUSTIFICATION FOR FIRING THE PLAINTIFF WAS A PRETEXT FOR SEX DISCRIMINATION. Old Dominion fired Merritt, the only female P&D driver at the Lynchburg terminal and one of only a handful of women among the company's 3,000-plus P&D drivers nationwide, ostensibly because she failed a general physical fitness test she was required to take when she tried to return from a foot injury. Notwithstanding evidence that Merritt had no problem performing the P&D job before her injury, that her foot was completely healed, and that similarly situated male employees were not required to take a general physical fitness test upon returning from injury, the district court held that there was insufficient evidence that the defendant's explanation for firing Merritt was pretextual. Furthermore, despite evidence that several high- level Old Dominion officials believed that women were not capable of doing the P&D job, the district court concluded that there was no evidence that the decision to make Merritt take a fitness test after her injury was motivated by her sex. The district court committed two significant errors in granting summary judgment for the defendant: it ignored evidence that the company's justification for requiring the fitness test was false, and it failed to give appropriate weight to the substantial evidence that the company was reluctant to employ women in the P&D position. Section 703(a) of Title VII makes it unlawful for an employer to discharge any individual because of that individual's sex. See 42 U.S.C. § 2000e-2(a). A plaintiff seeking to prove discrimination with indirect evidence first establishes a prima facie case by demonstrating that (1) she is a member of a protected class; (2) she suffered an adverse employment action; (3) she was performing her job duties at a level that met her employer's legitimate expectations at the time of the adverse employment action; and (4) the position remained open or was filled by similarly qualified applicants outside the protected class. See Miles v. Dell, Inc., 429 F.3d 480, 485 (4th Cir. 2005) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) and Hill v. Lockheed Martin Logistics Mgmt., 354 F.3d 277, 285 (4th Cir. 2004)). The district court, in correctly finding that Merritt established a prima facie case, concluded that there was sufficient evidence that she was qualified for the P&D job despite her injury and despite the fact that she failed the fitness test. According to the court, "Merritt's injury was temporary, and there was no indication that the injury would prevent her from resuming her full duties once it healed." III J.A. 1384. There was ample evidence that Merritt was fully capable of doing the P&D job. Numerous witnesses stated that she had no problems doing the job before her injury; her doctor stated that the injury was fully healed; and even Regional Vice President Clayton, who feared women could not handle the P&D job, testified that he had no concerns about Merritt's physical ability to perform the duties of the job. See supra, at 10 (Clayton Dep. 35-36). Because the district court held that Merritt had established a prima facie case of discrimination based on gender and Old Dominion advanced a legitimate nondiscriminatory reason for Merritt's discharge–she failed the fitness test, and in the company's view, was physically unable to perform the P&D job—Merritt had the burden of proving that this explanation was a pretext for discrimination. See, e.g., Williams v. St. Luke's-Shawnee Mission Health Sys., Inc., 276 F.3d 1057, 1058 (8th Cir. 2002) ("The only remaining question, then, is whether [the plaintiff] produced evidence that could lead a reasonable jury to believe that his termination was not really due to the violations of company policy, as [defendant] asserts, but was instead due to [discriminatory] animus."). Despite acknowledging the evidence of Merritt's ability to do the job, the district court accepted Old Dominion's explanation that it terminated Merritt because it deemed her unqualified due to her inability to pass the fitness test. III J.A. 1384-85. This was error in light of the evidence that other drivers at Old Dominion were not required to take the fitness test that Merritt was given, either at the time they were hired or when they returned from injury. See supra, at 8-9. The company's only explanation for requiring Merritt to take the fitness test was that Merritt's doctor released her to work on a trial basis. I J.A. 410-11, 415 (Stoddard Dep. 8-9, 18). However, there is evidence that Stoddard could not have known of the "trial basis" release at the time he directed Merritt to take the fitness test since Dr. Hopkins did not issue the release until some time later, and he stated that no one in his office had contact with Old Dominion prior to that time. See supra, at 6. This evidence is sufficient to support a finding that the company's explanation for requiring Merritt to take a physical fitness test was fabricated. The court also concluded that, even if there was sufficient evidence that Merritt was treated differently than similarly situated male drivers, summary judgment was warranted because Merritt produced "no real evidence" that the different treatment was because she is a woman. III J.A. 1387. This conclusion is wrong for two reasons. First, if a jury disbelieves Old Dominion's non-discriminatory explanation for treating Merritt differently, particularly if that "disbelief is accompanied by a suspicion of mendacity," the jury may infer that the employer acted for a discriminatory reason, even in the absence of affirmative evidence of bias. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)). Under Reeves, a jury could infer that Merritt was terminated because of her sex if it disbelieves Stoddard's story that he made her take a fitness test based on the "trial basis" language in her doctor's release. See Reeves, 530 U.S. at 148 ("[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated."); see also EEOC v. Sears, Roebuck & Co., 243 F.3d 846, 853 (4th Cir. 2001) (quoting Reeves' directive that a prima facie case of discrimination and evidence discrediting the employer's stated justification allows a fact finder to "‘infer the ultimate fact of discrimination from the falsity of the employer's explanation'"). The Reeves Court reiterated that "[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of the judge." 530 U.S. at 150-51. Accordingly, once a plaintiff has introduced evidence establishing a prima facie case and evidence from which a reasonable factfinder could find that the employer's proffered explanation for its actions is false, "the ultimate question of liability ordinarily should not be taken from the jury." Reeves, 530 U.S. at 155 (Ginsburg, J., concurring). In any event, there is evidence in this case indicating that there was substantial skepticism among Old Dominion's management about the ability of women to do the P&D job. Old Dominion employs virtually no women as P&D drivers. See supra, at 3-4. Merritt was passed over for a P&D slot on two occasions where the job went to men with less driving experience. See supra, at 2-3. She was told on multiple occasions that the company was uncomfortable with women performing the P&D position. See supra, at 3. When she finally obtained the P&D job at the Lynchburg terminal, she was told she would be on probation the first three months to see how things went despite the fact that men transferring to the P&D job were not told they were on probation. See supra, at 3. This evidence would support a finding that the company's decision to treat Merritt differently when she attempted to return from her injury was attributable to the company's concern that women were too weak to do the P&D job. Cf. Lettieri v. Equant, Inc., 478 F.3d 640, 649 (4th Cir. 2007) ("‘[E]vidence that clearly indicates a discriminatory attitude at the workplace and . . . illustrate[s] a nexus between the negative attitude and the employment action'" is "the kind of evidence that we have determined to be sufficient to defeat an employer's motion for summary judgment.") (quoting Brinkley v. Harbour Rec. Club, 180 F.3d 598, 608 (4th Cir. 1999)). The district court discounted all of this evidence because there was no direct evidence that Stoddard, the official who terminated Merritt, personally expressed hostility toward women. However, Merritt was not required to offer direct evidence of sex discrimination to reach a jury. Cf. Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003) ("‘Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.'") (quoting Rogers v. Mo. Pac. R.R. Co., 352 U.S. 500, 508 n.17 (1957)). Moreover, in light of the comments by Old Dominion officials suggesting that women might injure themselves in the physically demanding P&D job, a jury could find that Merritt's termination was based on sex even if Stoddard himself had no problem with women performing the P&D job. Stoddard was surely aware that Clayton and Godsey did. Furthermore, contrary to the district court's view, Merritt was not required to show that Stoddard knew that she would fail the fitness test. Old Dominion violated Title VII if it subjected Merritt to a more onerous qualification standard because she was a woman even if Stoddard did not know that she would fail, or even desire that she fail. See, e.g., Frank v. United Airlines, Inc, 216 F.3d 845, 854 (9th Cir. 2000) (airline's requirement that female flight attendants meet more stringent weight standards than male flight attendants violated Title VII). There is sufficient evidence to support a finding that the company's unease about placing a woman in the P&D job led Stoddard to overreact and order the fitness test following her minor injury and that he would not have done so had Merritt been a man. See Weeks v. S. Bell Tel. & Tel. Co., 408 F.2d 228, 236 (5th Cir. 1969) (holding that company's refusal to hire a woman into the switchman position violated Title VII and stating that "using these class stereotypes [about lifting ability] denies desirable positions to a great many women perfectly capable of performing the duties involved"). From this evidence, taken together, a reasonable jury could conclude that Merritt was forced out of her job as a P&D driver because she was a woman. In this case, "there is a good deal of evidence of pretext casting serious doubt on the employer's proffered justification for its job action, and nothing to prevent a rational fact-finder from finding that the employer was motivated by discriminatory reasons." Sears, 243 F.3d at 857. Because a reasonable jury would not be compelled to believe Old Dominion's explanation for terminating Merritt and could instead conclude that she was forced out of the P&D position because of her sex, the district court erred in granting summary judgment. CONCLUSION For the foregoing reasons, the judgment of the district court should be reversed and the case remanded for further proceedings. Respectfully submitted, JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS Acting Associate General Counsel VINCENT J. BLACKWOOD Assistant General Counsel ______________________________ JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4718 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Federal Rules of Appellate Procedure Rule 32(a)(7)(B) because it contains 5,221 words, excluding the parts of the brief exempted by Federal Rules of Appellate Procedure Rule 32(a)(7)(B)(iii). This brief complies with the typeface requirements of Federal Rules of Appellate Procedure Rule 32(a)(5) and the type style requirements of Federal Rules of Appellate Procedure Rule 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word 2003 in Times New Roman 14 point. _________________________________ JULIE L. GANTZ Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4718 Dated: July 13, 2009 CERTIFICATE OF SERVICE I, Julie L. Gantz, certify that I filed this brief with the Court by sending, via first-class mail, the original and seven copies of the foregoing brief on July 13, 2009; a PDF version of the brief was also electronically filed with the Court through the ECF system the same day. I also certify that I served two copies of the brief this 13th day of July, 2009, by first-class mail, postage pre-paid, to the following counsel of record: Counsel for Plaintiff/Appellant: Valerie A. Chastain, Esq. 315 North Bridge Street Bedford, VA 24523 Counsel for Defendant/Appellee: Aaron J. Longo, Esq. Robert C. Wood, Esq. MCGUIRE WOODS LLP 100 North Tryon Street, Suite 2900 Charlotte, NC 28202 ________________________________ Julie L. Gantz Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M Street, N.E., 5th Floor Washington, D.C. 20507 (202) 663-4718 julie.gantz@eeoc.gov *********************************************************************** <> <1> The parties in this case use the terms “physical ability test” or “PAT” interchangeably with the term “isokinetic test” or “iso” even though the two types of tests are not synonymous. Isokinetic tests are typically performed to measure strength or movement of an isolated affected (injured) area of the body while a physical ability test is a more comprehensive, general fitness test given to post-offer pre-hire applicants to ensure they can perform the essential functions of the position. II J.A. 686-87 (Napier Rpt. at 7-8). It is undisputed that the test Merritt took on December 28, 2004, was a general physical fitness test, not an isokinetic test. To avoid confusion, we refer to it in this brief as a “fitness test.” <2> On May 15, 2009, the district court granted the plaintiff’s motion to deny the defendant’s request for costs . III J.A. 1394-95 (Memorandum Opinion at 2-3). In finding that Merritt did not have the ability to pay the defendant’s costs, the court noted that Merritt had been unable to find work as a truck driver and earns only $8,000 a year cleaning houses. The court noted that one prospective employer told Merritt that she could not be hired because Old Dominion gave her a negative reference. The court stated, “while I remain convinced that it was the correct decision to grant the Defendant’s summary judgment motion, it was not an easy one. This was a very close case.” III J.A. 1394 (Mem. at 2).