Balow v. Medtronic USA, Inc.

Background

Jeffrey Balow worked for Medtronic as an Interventional Therapy Consultant 2 sales representative. His compensation included commissions based on sales in his territory. Medtronic later hired Angela Pan as an Interventional Therapy Consultant 1, promoted her to the same sales-representative level as Balow, and changed their commission split from 70-30 in Balow’s favor to an even split.

Balow claimed that the promotion and commission changes were discrimination based on his age and sex under the Virginia Human Rights Act. He also claimed that Medtronic retaliated against him under the Virginia Whistleblower Protection Act after he complained that Pan violated company policies by providing prohibited assistance during surgical procedures. He identified the commission changes, a final written warning, and his termination as retaliatory actions. He also claimed his termination was retaliation for filing a discrimination charge, bringing this lawsuit, and participating in the litigation.

Medtronic investigated complaints made by both employees. It issued Balow a final written warning after finding that some of his text messages to Pan were inappropriate and that he had shifted some of his workload to her. Medtronic later investigated Balow’s handling of a customer’s report concerning a ruptured balloon used in a medical procedure. The company concluded that he repeatedly failed to respond to the customer and failed to report the product complaint within the time required by its policy. Medtronic terminated his employment on August 2, 2023.

Discrimination claims

The court granted summary judgment to Medtronic on Balow’s age- and sex-discrimination claims. Summary judgment is appropriate when the evidence shows no genuine dispute over a fact that could affect the result and the moving party is entitled to judgment under the law.

The court assumed, without deciding, that Balow had presented enough evidence to establish an initial discrimination case. It nevertheless found that Medtronic had shown legitimate, nondiscriminatory business reasons for promoting Pan and adjusting the commission split. The record showed that Medtronic had previously adjusted territory coverage and commission allocations among sales representatives to improve coverage, develop employees, grow its business, and recognize employee contributions.

The court concluded that Balow did not provide evidence from which a reasonable jury could find those reasons were a pretext—an explanation used to conceal unlawful discrimination. The court found that Balow’s lack of advance notice, the dispute over who made Pan’s promotion decision, the promise allegedly made by a former supervisor, and comments about Balow’s career and retirement plans did not connect the decision to his age or sex. The court declined to decide Medtronic’s separate argument that the discrimination claims were untimely because the claims failed on their merits.

Retaliation claims

The court also granted summary judgment to Medtronic on the retaliation claims under the Virginia Whistleblower Protection Act. That statute protects an employee who, in good faith, reports a violation of federal or state law to a supervisor or government authority.

The court found that Balow’s reports to his former supervisor and in his written complaint referred to alleged violations of Medtronic policy, not to violations of state or federal law. The record did not show that he reported the unauthorized practice of medicine or violations of federal or state anti-kickback laws. The court also found that his complaint that the commission changes were “unfair” did not amount to a report of a legal violation. As a result, the court held that these reports were not protected activity under the statute.

The court separately held that Balow had not shown a causal connection between his reports and the commission changes or final warning. It found no evidence that the relevant decision-makers knew about his earlier report, and it found that the timing did not support causation. As to the final warning, Medtronic had evidence that Balow violated company policies, and the court found that Balow offered only speculation that the investigation or discipline was retaliatory.

Regarding the termination, the court assumed without deciding that Balow had established an initial retaliation case. It found that Medtronic had legitimate, nonretaliatory reasons for firing him: failing to follow the company’s product-defect reporting policy, repeatedly failing to respond to the customer, and being on a final written warning. The court found that Balow admitted many of the relevant facts and did not identify a proper comparable employee who engaged in the same conduct under similar circumstances but was treated differently. It also found that the decision-maker’s documented awareness of Balow’s lawsuit did not overcome the intervening conduct supporting the termination decision or establish pretext.

Disposition

The court granted Medtronic’s motion for summary judgment and dismissed the action with prejudice. It directed that judgment be entered.