PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-1753

CHANDRA BALDERSON, on behalf of herself and a class of others similarly situated,

Plaintiff - Appellee,

v.

LINCARE INC.,

Defendant - Appellant.

No. 21-1765

CHANDRA BALDERSON, on behalf of herself and a class of others similarly situated,

Plaintiff - Appellant,

v.

LINCARE INC.,

Defendant - Appellee.

Appeals from the United States District Court for the Southern District of West Virginia,

at Charleston. Thomas E. Johnston, Chief District Judge. (2:19-cv-00666)

Argued: October 27, 2022 Decided: March 15, 2023

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Before NIEMEYER and RICHARDSON, Circuit Judges, and Michael S. 

NACHMANOFF, United States District Judge for the Eastern District of Virginia, sitting 

by designation.

Reversed by published opinion. Judge Niemeyer wrote the opinion, in which Judge 

Richardson and Judge Nachmanoff joined.

ARGUED: David B. Goroff, FOLEY & LARDNER, LLP, Chicago, Illinois, for 

Appellant/Cross-Appellee. Andrew Carver Robey, HISSAM FORMAN DONOVAN 

RITCHIE PLLC, Charleston, West Virginia, for Appellee/Cross-Appellant. ON BRIEF: 

Andrew Gresik, Chicago, Illinois, Lawrence Kraus, FOLEY & LARDNER LLP, Boston, 

Massachusetts, for Appellant/Cross-Appellee. J. Zak Ritchie, Ryan McCune Donovan, 

HISSAM FORMAN DONOVAN RITCHIE PLLC, Charleston, West Virginia, for 

Appellee/Cross-Appellant.

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NIEMEYER, Circuit Judge:

Lincare, Inc., a supplier of respiratory-therapy products and services, 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.” While Balderson does not dispute her conduct, she 

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.” Based 

on this, she commenced this action against Lincare, alleging that it violated the West 

Virginia Human Rights Act, W. Va. Code § 5-11-9, which is enforced with the 

jurisprudence developed under Title VII of the federal Civil Rights Act of 1964. 

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 court pointed to no other evidence to support a finding of

discriminatory animus based on sex.

On appeal, Lincare contends that there was no evidence of discrimination on the 

basis of sex and that therefore the district court’s finding that it violated the Human Rights 

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Act was clearly erroneous as a matter of fact and erroneous as a matter of law. Balderson 

cross-appealed, contending that the district court erred in determining her compensatory 

damages award.

While the district court’s findings are entitled to substantial deference, in this case 

the core evidence showed that Balderson was fired by a woman and replaced by a woman 

and that, during the entire process, there was no indication that gender was even remotely

a factor in Lincare’s decision. 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.” The only explanation Balderson offered to substantiate the claim that 

Lincare had discriminated against her on the basis of sex was her “belie[f]” that she and 

her comparator “were doing the same thing” and the fact that “he’s a man; [she’s] a 

woman.” And the district court relied on this reasoning.

On this record, while we conclude that Balderson made a persuasive case that firing 

her was probably an unfair business decision, she nonetheless failed to present evidence 

sufficient for a factfinder to conclude that it was the product of discrimination based on

sex. Accordingly, we reverse. And because of this conclusion, we find Balderson’s crossappeal moot. 

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I

Lincare is a Florida corporation based in Clearwater, Florida, which does business 

through facilities across the country, including, as relevant here, a facility in Parkersburg, 

West Virginia. The company is a supplier of respiratory-therapy products and services, 

selling, among other things, non-invasive mechanical ventilators to in-home patients on 

their physicians’ orders. In providing ventilators, Lincare’s sales representatives work with 

physicians by, among other things, providing them with guidance as to the information 

necessary for their patients to obtain coverage for the devices from their insurance 

companies or from federal programs such as Medicare. 

Lincare required all employees to be familiar with and to act in compliance with its 

Corporate Health Care Law Compliance Program and Code of Conduct, which include 

specific requirements for ethical employee conduct. The Code of Conduct states that it 

was “designed to aid all Company employees . . . in complying with the increasingly 

complex Health Care Laws” — including the rules and regulations pertaining to Medicare, 

Medicaid, and other government-funded health care programs — “by referencing specific 

written policies and procedures,” compliance with which is “mandatory for Company 

employees.” To serve this purpose, the Code provides a number of examples of prohibited 

conduct, including “[m]isrepresenting a diagnosis for the patient to justify the services or 

equipment furnished” and “[o]ffering or giving valuable property, equipment, services, 

gifts or other benefits to a person in exchange for the referral of patients to the Company.” 

Lincare’s compliance program was overseen by Jennifer Pedersen, who had been Lincare’s 

Chief Compliance Officer since 2000. She oversaw a department with 46 employees, and

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she and her team conducted approximately 100 compliance investigations each year, 

“investigat[ing] anything that’s reported to [them] that is an actual or perceived violation 

of the healthcare [compliance] program.” 

In November 2015, Chandra Balderson began working as the sales representative 

for Lincare in the Parkersburg market area. Prior to her employment with Lincare, she had 

worked as a respiratory therapist, and she was licensed as a respiratory care therapist in 

West Virginia and Ohio. At Lincare, she became a top-10 performer out of Lincare’s

approximately 1,800 sales representatives. Consistent with that success, her compensation 

was “heavily weighted towards commission[s]” — in 2018, for example, she earned over 

$80,000 for the year in commissions, in addition to her base salary of around $25,000. As 

the sales representative for the Parkersburg area, Balderson reported to Chad Brady, the 

manager of the Parkersburg center, and she worked closely with him. Her responsibilities 

included, as relevant here, reviewing sales orders for accuracy and completeness. As she 

testified, she would “look at the progress notes to make sure that [the] piece of equipment 

[being ordered] would be covered [by insurance] based on what the physician had 

documented in their progress note” before submitting the order for approval. If the 

progress note did not “contain all the information that would be needed for approval by 

Lincare,” Balderson was trained to “educate the physician on what was missing and what 

was needed to get [the] order completed.” When Balderson was out of the office, Brady 

sometimes filled in and performed this review process, although that task was not part of 

his normal duties. Brady did not have sales responsibility and, accordingly, did not earn 

commissions. 

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In furtherance of its corporate compliance program, Lincare conducted a voluntary 

internal audit of the Parkersburg center in May 2019. That audit revealed, among other 

things, that the files for 19 patients for whom ventilators had been ordered contained a 

handwritten progress note, signed and dated by a physician, with a nearly identical 

statement of why the ventilator was medically necessary. Specifically, while the top 

portion of each progress note had a different patient’s name and identifying information, 

the body of each note appeared to be “cloned” or a “template,” stating exactly or nearly 

exactly:

Patient is diagnosed with chronic respiratory failure consequent to COPD. 

BIPAP was tried and failed. The ventilator is required to decrease work of 

breathing, improve pulmonary status and interruption of respiratory support 

could lead to serious harm, decline in health status, worsening of condition, 

increase risk of increasing CO2 retention, untimely readmissions, or death.

The results of this audit were reported to Pedersen, who, as Lincare’s Chief 

Compliance Officer, undertook an investigation to discover the source of the “handwritten 

cloned notes found in patient records that had been submitted to Lincare” for the purchase 

of ventilators. One patient’s file, in particular, led to the answer. It showed that after 

receiving a ventilator order from the physician for that patient, Balderson concluded that 

the order did not have the required documentation needed for approval. In response, she 

sent a fax to the physician’s office on May 2, 2019, with a cover sheet that stated:

– I need face to face notes within the last 6 months that mention [the 

patient’s] COPD [diagnosis] and chronic respiratory failure [diagnosis]

– I need the attached statement added or the progress note signed, dated, 

and timed with patient’s name and [date of birth] added also

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– The Trilogy [ventilator] order was missing a few things. I added. Just 

need [the doctor] to sign [and] date.

Attached to that fax was (1) an unsigned, handwritten progress note on which the patientinformation section was blank, and (2) a typewritten statement with a caption stating,

“Sample documentation for Trilogy/Astral.” Both of these documents contained 

essentially the same boilerplate language as the other progress notes identified by the audit. 

The patient’s file showed that later on that same day — May 2, 2019 — the physician 

signed and dated the handwritten template progress note that Balderson had sent and added 

the patient’s identifying information. The physician also signed the revised order form and 

had these documents, as well as records from the patient’s recent office visits, faxed back 

to Balderson. Moreover, while the diagnostic codes that the physician included on the 

original order form were codes for COPD and chronic respiratory failure, the patient’s 

office-visit records did not clearly reflect those diagnoses. Instead, they indicated a 

“[p]rimary diagnosis” of “[r]estrictive ventilatory defect,” as well as a diagnosis for 

obstructive sleep apnea. On reviewing these documents, Pedersen concluded that the 

template progress note that the doctor had signed at Balderson’s suggestion was not 

supported by, and indeed was “contradict[ed]” by, the patient’s medical records. Pedersen

therefore concluded that Balderson had “violated the [company’s compliance] program by

sending these documents to the physician.” 

Continuing the investigation, Pederson — together with Sandra Moreau, Lincare’s 

Healthcare Services Manager, and Sheila Kalteux, Lincare’s Senior Corporation Counsel 

— traveled from Florida to the Parkersburg center on June 3, 2019. There, they met with 

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Balderson and Brady, as well as other local Lincare employees. When Balderson met with 

the three senior Lincare officials, she acknowledged using the handwritten template 

progress notes to make it easier for the physicians she worked with to order ventilators for 

their patients, and she provided Pedersen with 17 such notes that had been in her sales 

binder. Each note had a header for one of two physician offices with which Balderson 

worked. The patient-information section on each of these forms was blank, but each

contained the same generic statement of medical necessity that was included in the 19 

completed notes uncovered earlier during the audit. Balderson later acknowledged that she 

had “instructed each physician to include” the language “so that their [ventilator] orders 

would get approved.” 

During the course of the Parkersburg investigation, Pederson also learned that Brady 

had provided “coaching” or “leading” information to physicians by sending physicians a 

document entitled “Good Chart Notes Examples.” That document provided three examples 

of statements sufficient to support a ventilator order:

Patient evaluated for COPD. Cough has been getting worse over the past 5 

years. Patient has established diagnosis of COPD & Chronic Respiratory 

Failure. Patient requires home ventilator 24/7 to sustain life. 

Patient presents with a history of COPD. This has been a problem for some 

time. It is associated with dyspnea on exertion. Nothing seems to improve 

his/her cough. His/her medication history is remarkable for COPD & 

Chronic Respiratory Failure. Patient requires home ventilator therapy to 

sustain life. 

Patient has a long-standing history of COPD resulting in Chronic Respiratory 

Failure. He/She has chronic elevations of his/her CO2 levels. CPAP/BIPAP 

has been tried but does not lower the CO2 levels in his/her blood. Because 

of his/her condition, I feel that home ventilator therapy is required for his/her 

condition to sustain life.

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Pederson further learned that some physicians had used the language suggested by Brady 

in substantially similar form. Finally, she learned that Brady had provided “free 

equipment” to a patient because he failed to “follow the standard protocol for replacing 

equipment [lost in a fire] so that it could be billed to the patient’s payor.” 

At the end of the June 3 investigatory visit, Pedersen made the decision to terminate 

Balderson’s employment for violating Lincare’s corporate compliance program based on 

her use of the template progress notes. At a meeting with Balderson, Brady, Moreau, and 

Kalteux, Pederson informed Balderson that her employment was being terminated for 

“leading” physicians. Pederson later testified that use of such template notes had “always 

resulted in termination” in the past. Indeed, she said specifically that she had “discharged 

a male [employee] . . . pretty close . . . in time to when Ms. Balderson was discharged” 

based on his use of template notes. Pederson also explained why the conduct represented 

such a serious infraction, testifying that because “Medicare administrative contractors 

really caution physicians . . . about not having these templates, [particularly] if the 

documentation is only there to support reimbursement,” the use of the template progress 

notes can “put a physician’s practice at risk” and can also result in “contradictory 

information” being introduced into a patient’s medical record. 

By contrast, Pedersen decided not to terminate Brady’s employment. Instead, she 

gave him a “final written warning,” which stated, “This final written warning is being 

issued to you because you violated Lincare’s policies as they pertain to the Healthcare laws 

and regulations. You wrote information on a fax to a physician that could be considered 

coaching or leading information. It was also determined that you provided free 

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equipment.” In explaining why she punished Balderson and Brady differently, Pederson

stated that she determined that Brady’s violation “did not rise to the magnitude” of

Balderson’s. As she explained: 

The difference between the example notes and the cloned progress notes is 

that the cloned notes were . . . used for a physician to add to a . . . specific 

patient’s record. The [good] chart note examples provide information to a 

physician about the type of information that should be included in a progress 

note if most payers are going to reimburse for that service. . . . [T]hese chart 

note examples are just information to provide to the physician of things that 

could be included if applicable to that patient. That’s not to say that this was 

right. We have educational brochures that could have been used instead of 

this.

After terminating Balderson’s employment, Lincare hired a woman to serve as the 

new sales representative for the Parkersburg market area.

Balderson commenced this action against Lincare in West Virginia state court in 

August 2019, on her own behalf and on behalf of others similarly situated, alleging that 

Lincare had violated the West Virginia Patient Safety Act and the West Virginia Wage 

Payment and Collection Act. After Lincare removed the action to federal court on the basis

of diversity jurisdiction, Balderson added a claim under the West Virginia Human Rights 

Act for discrimination on the basis of sex and dropped her class allegations. 

The district court granted Lincare’s motion for summary judgment on all claims 

except for the discrimination claim, and with respect to that claim, it conducted a bench 

trial in October 2020. By a memorandum opinion dated June 7, 2021, the court granted 

judgment to Balderson and awarded her $30,141 in compensatory damages and $120,000 

in punitive damages, as well as attorneys fees and costs. 

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In conducting its analysis under the West Virginia Human Rights Act, the court 

employed the burden-shifting analysis used in federal Title VII cases, as required by West 

Virginia law. See, e.g., Barefoot v. Sundale Nursing Home, 457 S.E.2d 152, 159–60 (W. 

Va. 1995). The district court held that Balderson had established a prima facie case, finding 

(1) that, as a female, she was a member of a protected group; (2) that she was discharged 

from her employment; and (3) that a male employee — Brady — was disciplined less 

severely than her, even though “both engaged in similar conduct.” The court recognized 

that Balderson had to support the inference of discrimination by showing that Brady was 

similarly situated to her in all relevant respects, and it found that Brady was indeed “an 

appropriate comparator,” as “[t]heir relevant conduct [was] nearly indistinguishable.” It 

observed that “Lincare’s attempt to distinguish the two by characterizing Mr. Brady’s 

conduct as providing [only] ‘examples’ [was] merely semantics.” The court thus

concluded that Balderson had “proved her prima facie case of gender discrimination based 

on disparate treatment.” 

Next, the court found that even though Lincare had “articulated a legitimate, nondiscriminatory reason for Ms. Balderson’s discharge from employment” — namely, that 

she violated the company’s compliance program — that reason was pretextual because 

“Lincare’s explanation [was] simply not credible.” To reach that conclusion, the court

gave three reasons. First, it observed that Lincare had “shifted its justification” for firing 

Balderson over the course of the litigation, stating first that it had fired Balderson because 

she was “leading” physicians and then stating later that it fired her for “[m]isrepresenting 

a diagnosis or falsifying documents” based on the fax cover sheet she had sent to a 

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physician’s office. Second, the court found that Lincare’s argument that Balderson’s 

conduct “could have violated or actually did violate various healthcare laws” was belied 

by the fact that Lincare had failed to report her conduct to the U.S. Department of Health 

and Human Services, as it was required to do under a Corporate Integrity Agreement with 

the agency. Finally, and most “critical” according to the court, it found that pretext was 

demonstrated by the difference in Lincare’s discipline of Brady and Balderson, despite the 

fact that Brady’s conduct was “at least comparable.”

Having concluded that Balderson had established a prima facie case and that 

Lincare’s response was “merely pretextual,” the court found by a preponderance of the 

evidence that Lincare’s “disparate treatment between Ms. Balderson and Mr. Brady was a 

result of discriminatory animus.” In reaching this conclusion, it stated that it was entitled 

to “infer the ultimate fact of sex discrimination” simply upon finding that Balderson had 

established a prima facie case and that Lincare’s proffered reason for her termination was 

pretextual, citing St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 510–11 (1993), and 

Jiminez v. Mary Washington College, 57 F.3d 369, 378 (4th Cir. 1995). The court stated 

that “the only difference between Mr. Brady’s situation and Ms. Balderson’s is that Mr. 

Brady is male and that Ms. Balderson is female” and therefore, it reasoned, their different 

punishments could only be explained by the difference in their sex. 

From the district court’s judgment, Lincare filed this appeal. Balderson filed a 

cross-appeal, challenging the amount that the district court awarded her in compensatory 

damages. 

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II

Lincare contends that the district court clearly erred (1) in concluding that a 

“similarly-situated male” was treated differently than Balderson and, in any event, (2) in 

disregarding evidence that Balderson’s termination “had nothing to do with gender 

discrimination” but instead was a business judgment made to enforce its compliance 

program. In essence, these challenges focus on (1) the requirement that, as an element of 

the prima facie case for discriminatory treatment, Balderson show that Brady was a 

comparator similarly situated to her “in all relevant respects” and (2) the ultimate 

requirement that to prove her claim, Balderson show, at least by inference, “discriminatory 

animus” — that is, the intent to discriminate because of sex. 

The West Virginia Human Rights Act makes it unlawful “[f]or any employer to 

discriminate against an individual with respect to . . . tenure . . . if the individual is able and 

competent to perform the services required.” W. Va. Code § 5-11-9(1). The term 

“discriminate” is defined by the Act to mean “to exclude from, or fail or refuse to extend 

to, a person equal opportunities because of . . . sex,” or another prohibited ground. Id. § 5-

11-3(h). The Supreme Court of Appeals of West Virginia has held that cases brought under 

the Act are “governed by the same analytical framework and structures developed under 

Title VII” of the Civil Rights Act of 1964, including the same “burden-shifting . . . 

framework for analyzing pretext claims.” Barefoot, 457 S.E.2d at 159–60 (citing St. 

Mary’s Honor Ctr., 509 U.S. 502, and others). As the Barefoot court outlined, following 

the Supreme Court’s Title VII cases, the “plaintiff must first create an inference of 

discrimination by establishing a prima facie case.” Id. at 160. “The burden of production 

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then shifts to the defendant to proffer a legitimate, nondiscriminatory reason for the 

challenged employment action.” Id. “Finally, the plaintiff then is accorded an opportunity 

to demonstrate that either age, gender, or ancestry was a determinative factor in the 

defendant’s employment decision or the defendant’s articulated rationale was merely a 

pretext for discrimination.” Id. 

The U.S. Supreme Court in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 

133 (2000), explained the holding of St. Mary’s Honor Center in more detail:

There [in St. Mary’s Honor Center] we held that the factfinder’s rejection of 

the employer’s legitimate, nondiscriminatory reason for its action does not 

compel judgment for the plaintiff. The ultimate question is whether the 

employer intentionally discriminated, and proof that “the employer’s 

proffered reason is unpersuasive, or even obviously contrived, does not 

necessarily establish that the plaintiff’s proffered reason is correct.” In other 

words, “it is not enough to disbelieve the employer; the factfinder must 

believe the plaintiff’s explanation of intentional discrimination.” 

Id. at 146–47 (cleaned up) (quoting St. Mary’s Honor Ctr., 509 U.S. at 524, 519).

The district court purported to follow this structure but, we conclude, erred both 

factually and legally. First, it clearly erred in concluding that the conduct of Balderson and 

Brady was “nearly indistinguishable.” Second, it erred in concluding that because it had 

found that at least some of Lincare’s proffered reasons for firing Balderson were false, 

those reasons were necessarily a pretext for the real reason of discriminating on the basis 

of sex. And finally, it erred in concluding that Balderson had carried the burden of 

demonstrating intentional discrimination, especially because Balderson herself denied that 

anything was ever said or done to make her think at the time that her gender had played 

any role in her employment or in the termination of her employment. On this last point, 

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the court proceeded from the premise that if Balderson proved both a prima facie case and 

that the reasons given by Lincare were pretextual, then unlawful discrimination must 

automatically follow. Reeves, however, specifically rejected that reasoning.

Without the need to address whether the district court clearly erred in finding that 

Balderson had established a prima facie case and that Lincare’s proffered reasons were 

false, we conclude that the Reeves error is dispositive. Specifically, 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, 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.” 530 

U.S. at 140. The Court’s conclusion was that such a showing may be sufficient but that it 

is not necessarily so — it depends on the circumstances. The Court thus recognized that 

while there will be cases in which the “trier of fact [can] infer the ultimate fact of 

discrimination” from the combination of the plaintiff’s prima facie case and “the 

factfinder’s disbelief of the reasons put forward by the defendant,” id. at 147 (cleaned up), 

it does not follow that “such a showing by the plaintiff will always be adequate to sustain 

a [factfinder’s] finding of liability,” id. at 148. Instead, the Court observed, there will 

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“[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.” Id. (emphasis added).

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, in which a prima facie showing 

of a similar comparator, combined with reasons to doubt the employer’s explanations, is 

not sufficient to support a finding on the “ultimate” issue — the employer’s discriminatory 

intent. Here, while Balderson had presented sufficient evidence to prove that Lincare’s 

decision to terminate her employment was unwise and even unfair, she failed at any stage

to provide a basis for inferring that her discharge had anything to do with her sex. In

nonetheless holding Lincare liable, the court summarily concluded that Balderson had 

proved “discriminatory animus” because she and Brady were disciplined differently and 

“Mr. Brady is male [while] Ms. Balderson is female.” This truncated reasoning was not 

sufficient to support a conclusion that Lincare intentionally discriminated against 

Balderson because of her sex.

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. In her 

trial testimony, Balderson herself agreed that in her experience at Lincare before her 

termination, sex was never an issue — that “[n]o one ever made any gender-related 

comments directed at [her].” She also testified that during the termination process, which 

involved Pederson’s interview of her and a meeting with Brady, Pederson, and two other 

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senior Lincare officers, there was nothing “about [their] 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. In short, there was no 

evidence that would permit the inference that gender was at play at any point during 

Balderson’s employment and the process of her termination. Yet, as Reeves makes clear,

“although intermediate evidentiary burdens shift back and forth,” Balderson retained “the 

ultimate burden” to establish that Lincare intentionally discriminated against her on the 

basis of sex. Reeves, 530 U.S. at 143 (cleaned up). “In other words, it is not enough to 

disbelieve the employer; the factfinder must believe the plaintiff’s explanation of 

intentional discrimination” — in this case, that Lincare fired Balderson because of her sex. 

Id. at 147 (cleaned up).

Not only was the record bare of evidence that Balderson’s sex played a role in her 

termination, the district court clearly erred in finding, as the core of its cursory analysis,

that the two employees’ circumstances were “nearly indistinguishable.” Based on that 

finding, the court essentially reasoned that the disparity of their punishments could only be 

explained as sex discrimination. That finding, however, does not fit the facts.

While Brady and Balderson engaged in similar conduct in providing “leading” 

information to physicians, it is just not the case that the “only difference” between them 

was sex. Balderson was a sales representative who, because she earned the majority of her 

compensation from commissions, had a direct financial incentive to increase her sales as 

much as possible, including by reducing any friction in a sale’s being completed. 

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Moreover, under the agreement between Balderson and Lincare governing her receipt of 

commissions, she could only receive such payments if she “personally obtain[ed] all . . . 

billing pre-requisites” necessary for Lincare to receive payment from the patient’s 

insurance provider, including a statement from the doctor explaining why the product was 

medically necessary. And, as a normal part of her job duties, when the Parkersburg center 

received a ventilator order from a physician’s office, Balderson was charged with 

“review[ing] [the] order for accuracy and completeness” and “look[ing] at the progress 

notes to make sure that [the] piece of equipment would be covered [by insurance] based on 

what the physician had documented in their progress note” before submitting the order for 

approval. If a progress note did not “contain all the information that would be needed for 

approval by Lincare,” Balderson had been trained to “educate the physician on what was 

missing and what was needed to get [the] order completed.” 

By contrast, Brady’s job description made clear that, as the Parkersburg center’s 

manager, he did not have “sales responsibility” and, consistent with that, he did not earn 

commissions. Moreover, while Brady would sometimes review ventilator orders for 

completeness if Balderson was out of the office, that only happened “one or two times 

every [two or] three months,” and conducting such a review was not “part of [his] normal 

job duties.” 

In addition to this major difference with respect to their respective job 

responsibilities and the nature of their positions, the conduct for which they were 

disciplined also differed. During Pedersen’s investigation of the origin of the cloned notes 

found in 19 patient files, Balderson admitted that she had regularly been using the 

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handwritten template progress notes for some one-and-a-half to two years prior to her 

termination, knowing that the template notes would be added directly to patient files once 

they were signed by the physician. Pederson later testified that by sending such notes to 

physicians, Balderson had “significantly . . . put [the] physician[s’] practice at risk.” In 

addition, she indicated that the use of such notes also increased the risk of inaccurate 

information being introduced into the documentation used to justify payments from 

insurance companies and the government. Brady, on the other hand, was found to have 

sent physicians a page with three different “Good Chart Notes Examples.” (Emphasis 

added). While Brady likely should have foreseen that some physicians would use the 

language from those examples “in a substantially similar form,” as the investigation indeed 

revealed had been done, Brady, as the district court noted, “never intended physicians to 

use his example language as a ‘word-for-word copy/paste’ template.” Yet, it was

undisputed that Balderson had that exact intent, and she actually kept copies of blank 

template notes in her possession with the intent to facilitate physicians’ use of them. 

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. Under 

the facts as proved, Lincare could have reasonably concluded — as Pedersen testified that 

she had concluded — that the difference between the two practices was material. 

Moreover, even if the district court was convinced that Balderson’s and Brady’s conduct 

was so similar that fairness required them to receive the same discipline, the question for 

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the court was not whether Lincare had made a good, equitable, or even fair decision. It 

was instead whether the actual reason for their disparate discipline was that Balderson was 

a woman and Brady was a man. 

While Balderson may have made a case that Lincare’s decision to fire her was a 

poor one and not in the best interests of the company — a proposition with which we might 

agree, especially in view of the fact that Balderson was such a valuable producer for the 

company and the incident in this case was her first infraction — that does not lead to the 

conclusion that Balderson was discharged because of her sex. Because there is no evidence

to support that finding, we reverse the judgment of the district court.

REVERSED

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