Fontenot v. Safety Council of Southwest Louisiana

Filing 130

ORDER denying 57 Motion in Limine to Exclude Comparing or Tethering Joni Fontenot's Payments to Her Predecessor. Signed by Judge Nannette Jolivette Brown on 8/11/2017. (crt,Whidden, C)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
* CIVIL ACTION NO. 2:16-CV-84
*
*
v.
* JUDGE BROWN
*
SAFETY COUNCIL OF SOUTHWEST
LOUISIANA
*
* MAGISTRATE JUDGE KAY
*
*
******************************************************************************
ORDER
JONI FONTENOT

Before the Court is Plaintiff Joni Fontenot’s (“Fontenot”) “Motion in Limine to Exclude
Comparing or Tethering Joni Fontenot’s Payments to Her Predecessor.”1 Having considered the
motion, the memoranda in support and in opposition, the record, and the applicable law, the Court
will deny the motion.
I. Background
Fontenot is the Chief Operating Officer (“COO”) of Defendant Safety Council of
Southwest Louisiana (“Safety Council”).2 Fontenot filed suit against Safety Council on January
19, 2016, alleging that Safety Council paid her differently than her male predecessor, Robert
McCorquodale (“McCorquodale”), in violation of the Equal Pay Act (“EPA”), 29 U.S.C.
§ 206(d)(1), and that Safety Council retaliated against her after she complained of discrimination.3
Safety Council has responded that McCorquodale paid himself unauthorized amounts and that

1

Rec. Doc. 57.

2

Joint Pretrial Statement (Rec. Doc. 101) at 2–3.

3

Id. at 3.

1

those amounts were not based on the terms of his contract.4 On June 28, 2017, the Court granted
Fontenot’s motion for partial summary judgment, finding that Fontenot had established a prima
facie case of wage discrimination under the EPA.5 On July 7, 2017, Fontenot filed the instant
motion in limine.6 Safety Council filed an opposition to the motion on July 21, 2017.7
II. Parties’ Arguments
A.

Fontenot’s Arguments in Support of the Motion in Limine
Fontenot moves the Court to issue an Order excluding evidence, testimony, and argument

related to “comparing or tethering” Fontenot’s payments to McCorquodale’s payments and any
“speculation” of what McCorquodale’s payments might have been had Safety Council paid him
pursuant to his 2005 contract.8 Fontenot claims such evidence is based on speculation rather than
fact and is, thus, irrelevant.9 In the alternative, Fontenot argues that even if speculation as to what
McCorquodale would have been paid pursuant to his 2005 contract were relevant, comparing those
hypothetical payments to what Fontenot was paid would prejudice the jury by misleading and
confusing them.10
Fontenot asserts that because she has established a prima facie case under the EPA, the
burden of proof shifts to Safety Council to prove one of four affirmative defenses, i.e. that she was

4

See e.g., Memorandum in Opposition to Plaintiff’s Motion for Partial Summary Judgment (Rec. Doc. 33)

5

Rec. Doc. 49 at 24.

6

Rec. Doc. 57.

7

Rec. Doc. 83.

8

Rec. Doc. 57; Rec. Doc. 57-1 at 1–2.

9

Rec. Doc. 57-1 at 1–2.

at 3.

10

Id. at 2.

2

paid less than McCorquodale pursuant to (i) a seniority system; (ii) a merit system; (iii) a system
which measures earnings by quantity or quality of production; or (iv) a differential based on any
other factor other than sex (the “catch-all” defense).11 First, Fontenot argues that comparing or
tethering Fontenot’s pay to what McCorquodale would have been paid is not relevant to any of the
first three defenses, because Safety Council did not set Fontenot’s pay pursuant to a system.12
Second, Fontenot argues that such evidence is not necessary to support Safety Council’s argument
as to the “catch-all” defense that it wanted to “tighten the reigns” after it discovered
McCorquodale’s overpayments.13 Third, Fontenot argues that introducing such evidence would
confuse the jury and mislead them into thinking Fontenot’s pay was set pursuant to a system.14
Fontenot contends that there is no evidence that Safety Council set Fontenot’s pay pursuant
to a system.15 Fontenot claims that a seniority system considers length of service,16 and that a merit
system requires evidence of predetermined guidelines and criteria.17 Fontenot further claims that
an employer subject to the EPA is required to keep records relating to such systems.18 Fontenot
asserts that no records evidencing a system exist and that the deposition testimony of Safety
Council’s board members demonstrates that they did not set Fontenot’s pay pursuant to a system.19

11

Id. at 2, 7 (citing 29 U.S.C. § 206).

12

Id. at 3.

13

Id. at 8.

14

Id.

15

Id. at 3, 5.

16

Id. at 3 (citing Seniority System, Black’s Law Dictionary (10th ed. 2014).

17

Id. at 4 (citing Ryduchowski v. Port Auth. of N.Y. & N.J., 203 F.3d 135, 142–43 (2d Cir. 2000); Schulte v.
Wilson Indus., Inc., 547 F. Supp. 324, 341 (S.D. Tex. 1982)).
18

Id. at 4–5 (citing 29 C.F.R. § 1620.32).

19

Id. at 5.

3

Rather, Fontenot argues that Safety Council set Fontenot’s pay based on the biased, subjective
determinations of the members of the committee that hired her.20
Next, Fontenot argues that McCorquodale’s salary under the terms of his 2005 contract are
not relevant to Safety Council’s “catch-all” affirmative defense.21 Fontenot contends that there is
evidence that Safety Council approved McCorquodale’s payments22 until the Safety Council board
learned that McCorquodale had spent a large sum of money at a casino, at which point Safety
Council decided to “tighten the reigns.”23 Fontenot concedes that evidence relating to Safety
Council’s desire to “tighten the reigns” and whether McCorquodale’s payments were authorized
is relevant.24 However, Fontenot argues that evidence as to what McCorquodale would have been
paid pursuant to his 2005 contract is not required to prove that McCorquodale took more than he
was supposed to take.25 Fontenot asserts it would be sufficient to show that he withdrew thousands
of dollars at a casino without authority.26 According to Fontenot, after “determining they needed
to reign in” McCorquodale, Safety Council did not consider any “rules, guidelines, comparisons,
past methods or otherwise consider anything that would fit into the ordinary meaning of the word
‘system.’”27 Therefore, Fontenot argues, any speculation as to what McCorquodale should have

20

Id.

21

Id. at 7.

22

Id. Fontenot relies on Safety Council’s reporting to the IRS during the last three full years that
McCorquodale was employed as CEO (Exh. H); the responsibilities of members of Safety Council’s executive board
to approve pay increases and conduct semiannual financial reviews (Exh. I); and the fact that the EPA requires
employers to maintain records of wage payments, (29 C.F.R. § 1620.32). Id.
23

Id. at 8.

24

Id.

25

Id.

26

Id.

27

Id. at 9.

4

made is irrelevant, and any “tethering” of Fontenot’s payments to those numbers is improper and
should be excluded from evidence.28
Finally, Fontenot suggests that introducing such evidence will confuse, mislead, and
prejudice the jury.29 For example, Fontenot contends that Safety Council will attempt to argue that
Fontenot’s starting salary of $95,000 was “fair and proper” because her predecessor should have
earned $94,873 in his sixth year.30 Fontenot contends that this analogy will appear logical to the
jury when in fact it is “irrelevant and confusing data” because the salaries were not based on a
system.31
B.

Safety Council’s Arguments in Opposition to Fontenot’s Motion in Limine
In opposition, Safety Council argues that Fontenot’s motion should be denied, because the

evidence she seeks to exclude is relevant to its defense that the pay differential between Fontenot
and her predecessor was based on a factor other than sex.32 Safety Council further argues that it is
not prohibited from showing the jury Fontenot’s salary and McCorquodale’s approved salary sideby-side to prove the amount of any salary differential.33 Safety Council contends that Fontenot is
improperly attempting to limit evidence so that she can mislead the jury by suggesting that
McCorquodale’s “W-2/990 Forms,” reflect McCorquodale’s correct salary, when in fact, Safety
Council argues, they reflect the unauthorized payments that McCorquodale issued to himself.34

28

Id.

29

Id. at 6.

30

Id.

31

Id.

32

Rec. Doc. 83 at 5.

33

Id. at 2–3.

34

Id. at 3–4.

5

Safety Council claims that the facts of the case, including the deposition testimony of
McCorquodale, support its position that McCorquodale overpaid himself.35
Safety Council further avers that the report and testimony of its fact and expert witness,
John McDonald, CPA, should be admitted in its entirety because McDonald’s projections of
McCorquodale’s “approved” salary “are based on the black and white terms of McCorquodale’s
contract.”36 Safety Council claims that it is undisputed that McDonald’s expert report properly
compares McCorquodale’s approved salary with Fontenot’s approved salary, because the report is
“based upon a variety of undisputed facts,” which Safety Council claims show that
McCorquodale’s overpayments were not approved after 2005.37 Further, Safety Council asserts
that its executive board did not learn of McCorquodale’s overpayments until an investigation in
2011.38 For these reasons, Safety Council argues the motion should be denied.39
III. Law & Analysis
A.

Legal Standard
Federal Rule of Evidence 401 provides that evidence is relevant if: “(a) it has any tendency

to make a fact more or less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” Under Federal Rule of Evidence 402, relevant evidence
is admissible unless the United States Constitution, a federal statute, the Federal Rules of Evidence

35
Id. at 4 (citing the deposition of Robert J. McCorquodale (Exh. 1); Affidavit of John H. McDonald (Rec.
Doc. 33-1)).
36

Id. at 3.

37

Id. at 6. In further support, Safety Council claims that McCorquodale, himself, has conceded this point and
that Fontenot’s expert, Israel Lowery, has stated that he has no basis for disputing McDonald’s findings. Id. (citing
Rec. Doc. 52-1 at 15–23).
38

Id. at 6–7.

39

Id. at 8.

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or other rules prescribed by the Supreme Court provide otherwise, and irrelevant evidence is not
admissible. Pursuant to Federal Rule of Evidence 403, “[t]he court may exclude relevant evidence
if its probative value is substantially outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” The Fifth Circuit instructs that “[t]he exclusion of
evidence under Rule 403 should occur only sparingly[.]”40 “Relevant evidence is inherently
prejudicial; but it is only unfair prejudice, substantially outweighing probative value, which
permits exclusion of relevant matter under Rule 403.”41
B.

Analysis
Fontenot seeks the exclusion of argument, testimony, and evidence relating to projections

of McCorquodale’s salary under his 2005 contract and comparison of those projections with what
Fontenot was paid.42 Fontenot argues that what McCorquodale should have been paid, pursuant
to the terms of his 2005 contract, is not relevant to any of Safety Council’s affirmative defenses
and contends that, even if it is relevant, such evidence would mislead the jury and cause prejudice
and confusion.43 In opposition, Safety Council argues that the motion should be denied, as such
evidence is relevant to its affirmative defense that the pay differential between Fontenot and her
predecessor was based on a factor other than sex.44

40

United States v. Pace, 10 F.3d 1106, 1115 (5th Cir. 1993), cert. denied, 511 U.S. 1149 (1994).

41

Id. at 1115–16 (quoting United States v. McRae, 593 F.2d 700, 707 (5th Cir.), cert. denied, 444 U.S. 862

42

Rec. Doc. 57.

43

Id. at 2.

44

Rec. Doc. 83 at 5.

(1979)).

7

The Court notes that Fontenot has already met her burden to show that she was paid
differently than McCorquodale.45 Because Fontenot has proved a prima facie case of pay
discrimination under the EPA, the burden shifts to Safety Council to prove via one of four
affirmative defenses that such pay differential was not in violation of the EPA.46 As noted supra,
Federal Rule of Evidence 401 provides that evidence is relevant if: “(a) it has any tendency to
make a fact more or less probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.”
Here, Safety Council maintains that the pay differential between Fontenot and her
predecessor was due to a factor other than sex, i.e. because McCorquodale issued unauthorized
payments to himself.47 Safety Council has further argued that it wanted to “reign in” the position
of the chief officer, particularly relating to the compensation it offered via the terms of the
employment contract, in light of Safety Council’s discovery of McCorquodale’s overpayments.48
Projections of McCorquodale’s pay pursuant to the terms of his 2005 contract and comparison
between those projections and what Fontenot was paid could tend to make Safety Council’s
assertion that Fontenot was paid differently than McCorquodale due to a factor other than sex more
probable.49 Accordingly, such evidence would be relevant to Safety Council’s affirmative defense.
Finally, Fontenot contends that such evidence will confuse and mislead the jury, as the
evidence is speculative.50 However, Fontenot is free to make such an argument to the jury at trial.

45

See Rec. Doc. 49 at 24.

46

See King v. Univ. Healthcare Sys., L.L.C., 645 F.3d 713, 723 (5th Cir. 2011).

47

See e.g., Rec. Doc. 83 at 4.

48

See e.g., Rec. Doc. 82 at 7.

49

See Fed. R. Evid. 401.

50

See Rec. Doc. 57-1 at 6.

8

As noted supra, “[r]elevant evidence is inherently prejudicial; but it is only unfair prejudice,
substantially outweighing probative value, which permits exclusion of relevant matter under Rule
403.”51 Fontenot has not shown that the probative value of this evidence is substantially
outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.52 Accordingly, the Court hereby
denies Fontenot’s motion.
IV. Conclusion
For the reasons stated above, the Court finds that projections as to McCorquodale’s pay
under the terms of his contract may be relevant to Safety Council’s affirmative defense that the
pay differential between Fontenot and McCorquodale was due to a factor other than sex. For the
same reasons, the Court finds that a comparison of McCorquodale’s projected pay and Fontenot’s
pay may be relevant. Fontenot has not shown that the probative value of this evidence is
substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury,
undue delay, wasting time, or needlessly presenting cumulative evidence. Accordingly,
IT IS HEREBY ORDERED that Fontenot’s “Motion in Limine to Exclude Comparing
or Tethering Joni Fontenot’s Payments to Her Predecessor”53 is DENIED.
NEW ORLEANS, LOUISIANA, this11thday of August, 2017.
___

____________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

51

Id. at 1115–16 (quoting United States v. McRae, 593 F.2d 700, 707 (5th Cir.), cert. denied, 444 U.S. 862

52

See Fed. R. Evid. 403.

53

Rec. Doc. 57.

(1979)).

9