Please ensure Javascript is enabled for purposes of website accessibility
Home / Opinion Digests / Employment Law / Sex discrimination verdict for employee reversed

Sex discrimination verdict for employee reversed

Where a woman presented no evidence that would allow a factfinder to find that sex played any role in her former employer’s decision to terminate her employment, and the alleged male comparator was not similarly situated to the woman, the trial court erred in awarding the woman compensatory and punitive damages.


Lincare Inc. terminated the employment of one of its most productive sales representatives, Chandra Balderson, concluding that she had violated Lincare’s “Corporate Health Care Law Compliance Program” and “Code of Conduct.” Balderson contends that Lincare discriminated against her on the basis of sex because it gave a fellow male employee, who had engaged in similar conduct, only a “final written warning.”

Following a bench trial, the district court found Lincare liable to Balderson and awarded her $30,141 in compensatory damages and $120,000 in punitive damages. In its opinion, the court concluded that the male employee was indeed an appropriate comparator and that Lincare’s proffered explanation for its decision to terminate Balderson’s employment was not credible. And to find Lincare liable on the ultimate issue of discriminatory intent, the court reasoned that because “the only difference” between the comparator’s situation and Balderson’s was that “[the comparator] is male and that Ms. Balderson is female,” it followed that “the disparate treatment between [them] was a result of discriminatory animus.”


The district court assumed that because it had found (1) that Balderson had proved a prima facie case of disparate treatment and (2) that Lincare’s explanation was not credible, it necessarily followed that it was permitted, without more, to “infer the ultimate fact of sex discrimination.” This legal analysis failed to faithfully apply the Supreme Court’s prescriptions, as incorporated into West Virginia law.

In Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), the Supreme Court specifically addressed the question of “whether a plaintiff’s prima facie case of discrimination …, combined with sufficient evidence for a reasonable factfinder to reject the employer’s nondiscriminatory explanation for its decision, is adequate to sustain a finding of liability for intentional discrimination.” The court’s conclusion was that such a showing may be sufficient but that it is not necessarily so. Instead, the court observed, there will “[c]ertainly … be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant’s explanation, no rational factfinder could conclude that the action was discriminatory.”

The district court failed to recognize this possibility and to address it in light of the circumstances presented. Had it done so, it would have been compelled to conclude that Balderson’s case was one of the type recognized in Reeves. Balderson presented no evidence, explicit or implied, that would allow a factfinder to find that sex played any role in Lincare’s decision to terminate her employment. Balderson herself acknowledged in her trial testimony that during her employment with Lincare, “[n]o one ever made any gender-related comments directed at [her]” and that during the entire termination process, there was nothing “about [Lincare’s] conduct that led [her] to believe that they were treating [her] differently because of [her] gender.” Moreover, Pederson and her two colleagues who conducted the investigation leading to Balderson’s termination were all female, and Lincare hired a female to replace Balderson.

While Balderson and her alleged comparator (Brady) engaged in similar conduct in providing “leading” information to physicians, it is just not the case that the “only difference” between them was sex. In addition to a major difference with respect to their respective job responsibilities and the nature of their positions, the conduct for which they were disciplined also differed. Thus, although the district court concluded that Brady’s and Balderson’s relevant conduct was not just similar but “nearly indistinguishable” and even “the same,” the record and the court’s own underlying findings do not support that conclusion. As such, that finding, which lay at the heart of the district court’s analysis, was clearly erroneous.


Balderson v. Lincare Inc., Case Nos. 21-1753, 21-1765, March 15, 2023. 4th Cir. (Niemeyer), from SDWVA at Charleston (Johnston). David B. Goroff for Appellant/Cross-Appellee. Andrew Carver Robey for Appellee/Cross-Appellant. VLW 023-2-075. 21 pp.