?Takeaway: Inconsistencies in corrective action given to employees for similar misconduct may lead to discrimination and retaliation claims. Employers should consider the relevant circumstances of the employee’s actions and how similar issues have been addressed in the past before issuing discipline. Documenting the basis for a particular course of action and emphasizing those factors that would distinguish arguably comparable employees puts employers in a stronger position to defend against potential legal challenges.
?
The 4th U.S. Circuit Court of Appeals recently reversed a district court’s order holding an employer liable for sex discrimination, concluding that the plaintiff did not satisfy her burden to prove her sex played a role in the termination of her employment.
The plaintiff brought a discrimination claim against the defendant, her former employer, under the West Virginia Human Rights Act, which courts interpret as consistent with Title VII of the Civil Rights Act of 1964. Following a bench trial, the district court found the defendant liable and awarded the plaintiff damages totaling $150,141, plus attorney fees and costs.
The plaintiff had been a high-performing sales representative for the defendant, a supplier of respiratory equipment. A substantial portion of her pay came from commissions earned on equipment supplied to patients per their doctors’ orders. Her responsibilities included educating doctors about what information to put in order forms so insurance would cover the costs of the equipment. The defendant’s policies prohibited employees from misrepresenting a patient’s diagnosis to justify an order of equipment, among other rules of ethical conduct.
During an internal audit, the defendant discovered the plaintiff had given doctors word-for-word templates to use in describing patients’ medical need for ventilators in order forms. In one case, a doctor’s use of the template language contradicted the actual diagnosis in a patient’s medical records. The defendant also learned that a male employee had given doctors examples of language to use in order forms. Although the defendant concluded that both employees violated its policies, it issued only a final written warning to the male employee but fired the female plaintiff.
The district court found the plaintiff’s actions nearly indistinguishable from those of the male comparator. This finding led the district court to doubt the defendant’s asserted reason for issuing harsher discipline to the plaintiff. Because the district court saw no meaningful difference between the employees’ misconduct and did not believe the defendant’s explanation for the difference in discipline, it inferred that the defendant fired the plaintiff because of her sex.
The 4th Circuit concluded the district court misapplied the legal standard for determining liability on the plaintiff’s discrimination claim. To hold an employer liable under the burden-shifting framework used to evaluate such claims under federal and West Virginia law, a plaintiff must present concrete evidence of intent to discriminate. The plaintiff made no such showing, precluding a finding of liability against the defendant.
Unlike the district court, the 4th Circuit identified material differences between the actions of the plaintiff and her male comparator. For example, the plaintiff encouraged doctors to use the exact text she provided to justify insurance coverage of equipment, whereas the male comparator provided only sample language for doctors to reference. The plaintiff also had a financial incentive to drive up orders for medical equipment so that she would earn commissions. The male employee, who had no direct responsibility for sales, received no commissions on orders placed.
The appellate court also pointed to evidence that undermined the plaintiff’s theory of sex bias, including that the employer filled the plaintiff’s position with a woman and had fired a different male employee for using template notes. The 4th Circuit reasoned that the district court’s failure to consider such evidence contributed to its erroneous finding of liability.
At most, the plaintiff proved that the defendant made an unfair business decision, for which the law provides no remedy, the appeals court said. Without linking the plaintiff’s sex to the termination decision, evidence of lesser discipline given to the male comparator did not establish liability.
The 4th Circuit emphasized that an employer’s liability for unlawful discrimination turns on whether the evidence shows it considered protected class in making an adverse employment decision. To find liability, “it is not enough to disbelieve the employer; the fact-finder must believe the plaintiff’s explanation of intentional discrimination.”
Balderson v. Lincare Inc., 4th Cir., Nos. 21-1753, 21-1765 (March 15, 2023).
Kathryn R. Brown is an attorney with Duane Morris LLP in Philadelphia.
