The plaintiff, Deborah Merritt, had been employed by Old Dominion as a Line Haul truck driver.  After some time, Merritt expressed interest in a Pickup and Delivery driver position where she would have a more regular work schedule.  Merritt satisfactorily performed the duties of the Pickup and Delivery position in May 2002 when she filled in for other Pickup and Delivery drivers.  When a position opened up in the Lynchburg, Virginia terminal, Merritt expressed interest in the position to the terminal manager, who told Merritt that he lacked hiring authority.  Nevertheless, the manager later hired a male driver for the position who had less experience than Merritt.  The following year, Merritt again expressed interest in a Pickup and Delivery position when another position became available in Lynchburg.  The manager nevertheless hired a male driver for the position.  When Merritt confronted the manager about why she had not been hired, she was told that a woman could not have that position. 

In 2004, Merritt was finally offered a Pickup and Delivery driver position in Lynchburg subject to a ninety-day probationary period.  For about seven months, Merritt satisfactorily performed the duties of the position, never receiving any complaints from supervisors or customers.  Near the end of September 2004, Merritt injured her ankle on the job.  Merritt was subsequently placed on light duty by her doctor for approximately three months.  Near the end of the three-month period, Brian Stoddard, Vice President of Safety and Personnel for Old Dominion, scheduled Merritt for a fitness test to determine if she was physically able to perform her job duties.  The test was used by the company primarily as part of the pre-employment screening process.  The day after being released by her doctor to return to work, Merritt took the company’s fitness test.  Merritt had trouble with several components of the test, none of which were related to her injury according to Merritt.  Merritt received a failing grade for the test.  Stoddard then terminated Merritt’s employment for “inability to perform job.”  Merritt was then replaced with male drivers.

After her termination, Merritt brought a Title VII sex discrimination suit against Old Dominion, alleging that she was terminated because of the company’s “discriminatory belief that women were incapable of performing the duties of her position.”  Old Dominion countered that Merritt had been terminated after failing the physical ability test.  The district court granted Old Dominion’s motion for summary judgment, finding that Merritt had failed to raise a triable issue of fact with respect to pretext because she had failed to provide any evidence that Stoddard harbored discriminatory animus. 

On appeal, the Fourth Circuit reversed the lower court’s grant of summary judgment, finding that Merritt had put forth sufficient evidence that Old Dominion’s proffered reason for her termination was false.  First, the court found that at the time of her termination, Merritt’s ankle injury had healed.  Second, the court stated that the test used by Old Dominion was a “general, full-body physical fitness test that not designed to test any body part in particular,” and that the parts of the test Merritt had trouble with were unrelated to her injury.  As a result, the court found that there was sufficient evidence from which a jury could conclude that the test was merely a pretext for discrimination.

Next, the court found that Merritt had also produced sufficient evidence of discriminatory intent by showing that Stoddard and Old Dominion had employed the test selectively.  Old Dominion argued that its termination decision was made “pursuant to a uniform and neutrally administered company policy.”  The company alleged that the test was required whenever an injured employee received a conditional release from his or her doctor.  The court found, however, that although the policy was gender-neutral on its face, there was evidence that in practice the policy was not uniformly implemented, or did not exist at all.  The court found significant the fact that employees were not aware of the policy, that the policy was not written down, and that the policy argument was brought up late in the course of litigation. Further, the court pointed out that Stoddard’s decision to give Merritt the test was made before she received a “trial basis” release from her doctor. 

The court went on to say that Merritt had produced sufficient evidence that Stoddard harbored discriminatory intent based on his decision to require Merritt to take the test but not requiring the same of similarly situated male employees.  The court pointed out that while a company is certainly free to employ a testing method to ensure that its employees are capable of performing their job duties, here Merritt had been performing her duties satisfactorily for months before she was injured.  The court explained that its holding was “not about infusing fear and trembling into a company’s every employment decision,” but that the evidence in this case, when looked at as a whole, precluded summary judgment for Old Dominion.  The court emphasized that although McDonnell Douglas is a useful framework for discrimination cases, the ultimate focus should always remain on whether the plaintiff was subject to intentional discrimination.

Contributed by Claudia L. Guzman

On the defendant’s motion to dismiss, the district court had dismissed all of the claims with the exception of the FLSA claim.  After a jury trial, a verdict was rendered in favor of the employer, and the plaintiff appealed.  On appeal, Harman argued that the district court had erred in dismissing her discrimination and retaliation claims. 

The court of appeals began its analysis by stating that the standard for surviving a motion to dismiss is to state a “plausible claim for relief that permits the court to infer more than the mere possibility of misconduct.”  The court found that the district court had properly dismissed Harman’s disparate treatment claims as she had alleged mere conclusory allegations that failed to establish that she suffered an adverse employment action.  The court held, however, that the district court had improperly dismissed the retaliation claims.  Although the court found that the complaint contained “numerous irrelevant allegations”, the court stated that Harman should have been allowed to amend her complaint with regards to the retaliation claims. 

The case is primarily of interest as an example of the court of appeals reversing a 12(b)(6) dismissal based on the Supreme Court’s decision in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).  The case was the subject of Congressional hearings in December 2009 as the perception is that recent Supreme Court decisions have made it easier for the courts to dismiss civil rights cases at the pleadings stage.  Workplace Prof Blog has a short post on the hearings here.  Early commentary on the decision in 2007 asked whether the case sounded the “death-knell” for notice pleading in federal court.

Two female employees of United Salt Corporation brought suit against their employer and a plant manager alleging sexual harassment, gender discrimination, and retaliation in violation of Title VII, as well as wrongful discharge and assault and battery.  United Salt filed a Motion to Enjoin Ex Parte Contacts in response to the plaintiffs’ statement in their Motion to Compel Discovery that they planned to contact United Salt employees.  In its motion, United Salt sought to prevent the plaintiffs and their counsel from making ex parte contacts with any current United Salt employees.

The plaintiffs argued that any ex parte contacts were for the purpose of gathering information relevant to the complaint, and not to obtain admissions imputable to United Salt.  In their argument, the plaintiffs relied on Rule 4.2 of the Virginia Rules of Professional Conduct, which prohibits ex parte communications with employees within the company’s “control group.”  The plaintiffs stated that they were intending to contact only nonmanagerial employees that fall outside the “control group” and are therefore not covered by Rule 4.2. 

United Salt argued that the court’s holding in Lewis v. CSX Transportation, Inc., 202 F.R.D. 464 (W.D. Va. 2001), was controlling.  In Lewis, the court stated that the Federal Rules of Evidence imposed a broader test for determining whether ex parte contacts with a defendant’s employees were permitted.  The Lewis court articulated this test as encompassing all persons who have managerial responsibility for the company, all persons whose acts or omissions related to the case may be imputed to the company, and any persons whose statements may be deemed admissions by the company. 

The Smith court found that the employees who the plaintiffs were seeking to contact did not fall within the Lewis test.  The court reasoned that in a Title VII sexual harassment case, the company employer is only liable for acts of its supervisory employees, not nonsupervisory ones.  The court stated that “the rationale for the Lewis decision – to prevent an attorney from circumventing opposing counsel to obtain statements from employees which could be used to impute liability on the employer – is not present in this case.”  Thus, the court held that the plaintiffs were not prohibited from making ex parte contacts with nonsupervisory United Salt employees.

Contributed by Claudia Guzman