Fontenot v. Safety Council of Southwest Louisiana
Filing
136
ORDER denying 53 Motion in Limine. Signed by Judge Nannette Jolivette Brown on 8/18/2017. (crt,Reeves, T)
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 Defendant Safety Council of Southwest Louisiana’s (“Safety Council”)
“Motion in Limine” seeking to exclude certain allegedly irrelevant and/or prejudicial evidence
proffered by Plaintiff.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
Joni Fontenot (“Fontenot”) is the Chief Operating Officer (“COO”) of Safety Council.2
Fontenot filed suit against Safety Council on January 19, 2016, alleging that Safety Council paid
her differently than her male predecessor 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
On June 28, 2017, the Court granted Fontenot’s motion for partial summary judgment, finding that
Fontenot had proved a prima facie case of wage discrimination under the EPA.4 On July 7, 2017,
1
Rec. Doc. 53.
2
Joint Pretrial Statement (Rec. Doc. 101) at 2–3.
3
Id. at 3.
4
Rec. Doc. 49 at 24.
1
Safety Council filed the instant motion in limine.5 Fontenot filed an opposition to the motion on
July 21, 2017.6 With leave of Court, Safety Council filed a reply thereto, on July 25, 2017.7
II.
Parties’ Arguments
A. Safety Council’s Arguments in Support of the Motion in Limine
Safety Council moves the Court to issue an Order excluding as irrelevant: (1) evidence
relating to and prospective testimony of former Safety Council employees Sherelyn Kight
(“Kight”), Madelyn Wills (“Wills”), and Mason Lindsey (“Lindsey”) (collectively “former
employees”); (2) evidence relating to Robert McCorquodale’s (“McCorquodale”) “improperly
inflated” salary and/or compensation; and (3) evidence relating to salary or compensation of any
person at any other employer besides Safety Council.8
1. Evidence Relating to Kight, Wills, and Lindsey9
Safety Council asserts that any evidence of alleged violations of the EPA in relation to
former Safety Council employees Kight, Wills, or Lindsey is irrelevant, because the only salaries
at issue are those of Fontenot and McCorquodale.10 Safety Council contends that Fontenot seeks
to introduce evidence that: (1) “Kight may have complained that her salary set by McCorquodale
was less than the salary McCorquodale set for an unidentified male employee;”11 (2) “Safety
5
Rec. Doc. 53.
6
Rec. Doc. 82.
7
Rec. Doc. 93.
8
Rec. Doc. 53.
9
Safety Council moves the Court to exclude evidence as to these former employees as well as any similar
evidence. Rec. Doc. 53-1 at 8.
10
Id. at 9.
11
Id. (citing Memorandum in Opposition to the Defendant’s Motion for Partial Summary Judgment (Rec.
Doc. 34) at 3–4.
2
Council had ‘concerns’ about McCorquodale’s salary as compared to his female predecessor[,
Wills];”12 and (3) “[Fontenot’s] subjective impression that former employee [Lindsey] was paid
more than [Fontenot] for different work because he was male.”13 Safety Council asserts that
because Fontenot has proven a prima facie case under the EPA, Safety Council has the burden at
trial to prove that it paid Fontenot differently than McCorquodale pursuant to a non-discriminatory
reason.14 Safety Council asserts that evidence regarding the salaries of former employees is not
relevant to whether Safety Council paid Fontenot differently due to her gender.15
Safety Council asserts that such evidence is not only irrelevant but could “splinter the trial”
into “mini trials,” forcing Safety Council to respond to each witness’s claims.16 Safety Council
further argues that any such anecdotal evidence is more prejudicial than probative.17 Safety
Council contends that this proposition applies with greater force for the exclusion of any hearsay
testimony relating to former employees.18 Safety Council avers that it should not be required to
conduct mini trials regarding its former employees that would further tend to confuse and mislead
the jury, and waste time.19
12
Id. (citing Memorandum in Opposition to the Defendant’s Motion for Partial Summary Judgment (Rec.
Doc. 34) at 3–4.
13
Id. (citing Excerpts from Deposition of J. Fontenot (Exh. A) at 81–82 (hereinafter “Fontenot Deposition”)).
14
Id. at 8 (citing Tex. Dep’t of Cmty Affairs v. Burdine, 450 U.S. 248, 256 (1981).
15
Id. at 8–9.
16
Id.at 9–10 (citing Wyvill v. United Cos. Life Ins. Co., 212 F.3d 296, 303 (5th Cir. 2000)).
17
Id. at 10 (citing Hardy v. Fed. Express Corp., No. Civ.A. 97-1620, 1998 WL 419716, at *5 (E.D. La. July
21, 1998)).
18
Id. at 11.
19
Id.
3
Further, Safety Council asserts that the salaries of Kight and Lindsey are irrelevant because
they were set by the CEO, McCorquodale, and not by Safety Council, through its executive
board.20 Safety Council cites its 2007 by-laws for the proposition that its chief executive, alone, is
responsible for setting employees’ compensation.21 Thus, Safety Council contends, if it did not set
the salaries of Kight and Lindsey, then their salaries are not probative of whether Safety Council
paid Fontenot less than McCorquodale.22
Similarly, Safety Council contends that McCorquodale, as CEO, was responsible for
setting Fontenot’s salary in her position prior to becoming COO.23 Safety Council asserts that
Fontenot intimates that Lindsey was paid more than Fontenot because he was male.24 However,
Safety Council argues that Fontenot and Lindsey held different positions with differing
responsibilities, and thus, a comparison of their salaries is inappropriate and not relevant to her
EPA claim.25
2. Evidence Relating to McCorquodale’s “Improperly-Inflated” Salary or
Compensation
Safety Council moves the Court to issue an Order excluding testimony or evidence relating
to McCorquodale’s salary as reflected on his W-2s and Safety Council’s Form 990s, because it
claims that such evidence would waste time and confuse and mislead the jury.26 Safety Council
claims it is undisputed that these documents reflect inflated and unapproved salary amounts,
20
Id.
21
Id. (citing 2007 Safety Council By-Laws (Rec. Doc. 27-11) at Art. II, Sec. 6).
22
Id. at 11–12.
23
Id. at 12.
24
Id.
25
Id. at 12–13 (citing Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1133–34 (5th Cir. 1983)).
26
Id. at 14, 15.
4
because McCorquodale paid himself excessive amounts without Safety Council’s knowledge or
approval.27 Safety Council contends that Fontenot is disregarding the investigation into
McCorquodale’s misconduct and his resignation, and further that Fontenot’s expert, Israel Lowery
(“Lowery”), knows that the documents on which he based his expert report reflect distorted and
unapproved amounts.28
Safety Council asserts that McCorquodale’s “financial misconduct” is not at issue in this
matter, and, thus, the only relevance of this evidence is to Safety Council’s affirmative defense
that it paid Fontenot differently than McCorquodale to prevent any similar future misconduct.29
Further, Safety Council argues that this evidence would mislead the jury, by suggesting that the
pay disparity between Fontenot and McCorquodale is greater than it is.30 Finally, Safety Council
argues that the introduction of such evidence would waste time by creating a “mini trial” on the
issue of McCorquodale’s “misconduct.”31 Therefore, Safety Council argues that evidence related
to McCorquodale’s salary that include unauthorized payments should be excluded under Federal
Rule of Evidence 403.32
3. Evidence Relating to Salaries of Individuals not Employed by Safety Council
Safety Council moves the Court to issue an Order excluding, as irrelevant, testimony or
evidence relating to salaries of individuals not employed by Safety Council.33 Safety Council
27
Id. at 13–14.
28
Id. at 15.
29
Id. at 14–15.
30
Id. at 15.
31
Id.
32
Id. at 15–16.
33
Id. at 16.
5
asserts that the EPA provides a “geographic limitation” such that it limits a comparison of the
plaintiff’s salary and position to those of a comparator employee who works in the same
establishment as the plaintiff and for the same employer.34 For this reason, Safety Council argues
that the salaries paid by other entities are irrelevant, and thus, evidence and testimony related to
such salaries should be excluded.35
B. Fontenot’s Arguments in Opposition to Safety Council’s Motion in Limine
1. Evidence Relating to Kight, Wills, and Lindsey
Fontenot contends that Safety Council has already made its arguments respecting the
former employees in its memoranda in support of its motion for partial summary judgment,36 and
that the Court entered an Order “explain[ing] why the issues” are relevant.37 Fontenot adopts her
memorandum in opposition to Safety Council’s motion for partial summary judgment,38 as well
as the Court’s Order denying the motion.39 Fontenot further notes that there are outstanding
subpoenas duces tecum requesting documents as to Kight, Wills, and Lindsey.40
Fontenot also asserts that evidence as to Lindsey’s salary is relevant to whether Safety
Council’s proffered defense is pretextual.41 Fontenot claims that a Safety Council director, Larry
34
Id. (citing 29 U.S.C. § 206(d)(1); Mulhall v. Advance Sec., Inc., 19 F.3d 586, 590 (11th Cir. 1994); Ebbert
v. Nassau Cty., No. 05-CV-5445, 2009 WL 935812, at *3 (E.D.N.Y Mar. 31, 2009)).
35
Id. at 17.
36
Rec. Doc. 78 at 1, 2, 3 (citing Rec. Docs. 28, 36).
37
Id. at 2, 3, 4 (citing Rec. Doc. 50).
38
Id. (adopting Rec. Doc. 34).
39
Id. (adopting Rec. Doc. 50).
40
Rec. Doc. 78 at 2, 3, 4. Fontenot contends that she is aware of documents pertaining to Kight, but on the
advice of her attorney was to produce them through Safety Council’s attorney. Id. at 2. She further contends the
documents have not yet been produced. Id.
41
Id. at 4.
6
DeRoussel (“DeRoussel”) admitted, but later retracted, during his deposition that Safety Council’s
hiring committee reviewed Lindsey’s salary to ensure that Fontenot’s salary as COO would exceed
Lindsey’s.42 Fontenot argues that setting Fontenot’s pay in this manner is evidence suggesting that
Safety Council’s proffered affirmative defense is mere pretext.43 This is so, Fontenot argues,
because the evidence demonstrates that Fontenot’s salary as COO perpetuates the discrimination
established by McCorquodale, as CEO, when he continually paid Lindsey at higher rates than
Fontenot.44
2. Evidence Relating to McCorquodale’s Salary and Compensation and Evidence
Relating to Salaries Paid by Other Entities
In opposition, Fontenot contends that Safety Council argues the same issues it argued in its
“Motion to Exclude the Opinions and Testimony of Israel Lowery.”45 Accordingly, Fontenot
adopts her memorandum in opposition to that motion.46 In that memorandum, Fontenot argued
that salaries reflected on Safety Council’s records are properly admissible as McCorquodale’s
actual pay.47 Fontenot also argued that evidence relating to salaries paid by other entities was
properly admissible, because her expert used those salaries as a way to check the reasonableness
of his projections of McCorquodale’s future pay when calculating pay scenarios for the jury’s
consideration of back pay.48
42
Id. (no citation).
43
Id.
44
Id.
45
Id. at 5 (citing Rec. Doc. 52).
46
Id. (adopting Rec. Doc. 77).
47
Rec. Doc. 77 at 4–9.
48
Id. at 1 (citing Lowery Report (Exh. 1) at 2).
7
Fontenot argued that Safety Council suggests that when considering damages, the jury
should consider the payments Safety Council intended to pay McCorquodale instead of the
amounts that Safety Council actually paid McCorquodale.49 Fontenot cited 29 C.F.R. § 1620.10
for the proposition that, under the EPA, “wages” generally includes all payments made to an
employee as remuneration for employment.50 Fontenot further asserted that an employer subject
to the EPA is required to keep records relating to, inter alia, the payment of wages and wage
rates.51
Fontenot claimed that Safety Council alleges that it failed to maintain accurate books, but
asserted that a jury’s calculations of back pay must only be reasonable and supported by the
evidence presented in the record, and that all uncertainties should be resolved against the
discriminating employer.52 Fontenot argued that the W-2s and Form 990s reflect the actual wages
paid by Safety Council.53 Fontenot further claimed that Safety Council had the responsibility to
approve McCorquodale’s pay and did not prevent McCorquodale from giving himself payment
increases.54 In further support, Fontenot asserted that McCorquodale claims that Safety Council
knew of his payment increases.55 Finally, Fontenot argued that the presumption should be that
Safety Council’s records are accurate.56
49
Id. at 5.
50
Id.
51
Id. at 6 (citing 29 U.S.C.A. § 211; 29 C.F.R. § 1620.32).
52
Id. at 8 (citing Lowe v. Southmark Corp., 998 F.2d 335, 337 (5th Cir. 1993)).
53
Id. at 7.
54
Id.
55
Id.
56
Id.
8
C. Safety Council’s Arguments in Further Support of the Motion in Limine
In reply, Safety Council contends that Fontenot did not address the authority regarding the
exclusion of anecdotal evidence that Safety Council cited in its memorandum in support of the
instant motion, nor did Fontenot cite any law supporting her position.57 Safety Council further
argues that Fontenot “misconstrues” the Court’s Order denying Safety Council’s partial motion
for summary judgment on the issue of whether Safety Council had not willfully violated the EPA.58
Safety Council contends that the Court did not rule on the relevance of evidence relating to Kight,
Wills, or Lindsey.59 Safety Council also contends that Fontenot’s reference to any outstanding
document requests relating to Kight is a red herring, because the existence of any such documents
does not make evidence relating to Kight relevant.60
Finally, Safety Council argues that, in responding to the relevance of Lindsey’s salary,
Fontenot ignores Fifth Circuit jurisprudence that a comparison of the salaries of co-workers of the
opposite sex but in different positions with different duties is irrelevant to an EPA claim,61 and
further that Fontenot cites no evidence or legal authority to support her arguments that evidence
57
Rec. Doc. 93 at 1–2.
58
Id. at 2.
59
Id.
60
Id. at 3. Safety Council further asserts that Fontenot’s contention that Safety Council did not produce
documents which Fontenot had provided to them is false because Fontenot never provided such documents. Id. (citing
Memorandum in Support of Motion for Leave to Supplement Reply to Safety Council’s Memorandum in Opposition
to Plaintiff’s Motion to Compel (Rec. Doc. 85-1)). The Court notes that Fontenot, as COO of Safety Council, is in the
position to provide Safety Council’s documents to its attorney who may then provide such documents to Fontenot’s
attorney during discovery. See id.
61
Id. at 4 (citing Plemer, 713 F.2d at 1133–34).
9
of Lindsey’s salary is relevant.62 Safety Council claims it is undisputed that it paid Fontenot, as
COO, more than Lindsey, and that such evidence does not support her argument of pretext.63
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
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[.]”64 “Relevant evidence is inherently
prejudicial; but it is only unfair prejudice, substantially outweighing probative value, which
permits exclusion of relevant matter under Rule 403.”65
62
Id. at 3–5.
63
Id. at 5.
64
United States v. Pace, 10 F.3d 1106, 1115 (5th Cir. 1993), cert. denied, 511 U.S. 1149 (1994).
65
Id. at 1115–16 (quoting United States v. McRae, 593 F.2d 700, 707 (5th Cir.), cert. denied, 444 U.S. 862
(1979)).
10
B. Analysis
1. Evidence Relating to Kight, Wills, and Lindsey
Safety Council moves the Court to issue an Order excluding evidence relating to Kight,
Wills, and Lindsey.66 Safety Council contends that evidence relating to the salaries of Kight and
Lindsey is irrelevant, because their salaries were not set by Safety Council, acting through its
executive board, but by McCorquodale, as CEO.67 Safety Council also contends that any
comparison of Fontenot’s and Lindsey’s salaries prior to Fontenot becoming COO is irrelevant,
because their positions and duties were different.68 Finally, Safety Council contends that any
anecdotal evidence related to Kight, Wills, and Lindsey would create mini trials, forcing Safety
Council to respond to each claim, and would thus waste time and confuse the jury.69 In opposition,
Fontenot argues that evidence relating to Kight, Wills, and Lindsey is relevant to whether Safety
Council willfully violated the EPA.70 Fontenot also argues that evidence relating to Lindsey’s
salary and whether Safety Council considered his salary when setting Fontenot’s salary as COO is
relevant to whether Safety Council’s proffered affirmative defense is pretext for discrimination.71
In the Court’s Order denying Safety Council’s motion for partial summary judgment, the
Court considered evidence relating to Kight and Wills, which was offered to demonstrate that
Safety Council had twice considered whether its pay practices were in violation of the EPA.72 The
66
Rec. Doc. 53-1 at 9, 11.
67
Id. at 11–12.
68
Id. at 12–13 (citing Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1133–34 (5th Cir. 1983)).
69
Id. at 9–11.
70
Rec. Doc. 78 at 1–4.
71
Id. at 4.
72
See Rec. Doc. 50 at 17.
11
Court held that such evidence created a genuine dispute of material fact as to whether Safety
Council acted willfully by recklessly disregarding whether what it paid Fontenot was in violation
of the EPA.73 In accord with that decision, the Court finds that evidence which tends to show
whether Safety Council acted in reckless disregard of violating the EPA is relevant to whether
Safety Council violated the EPA. Accordingly, the Court will not exclude evidence as to
complaints or issues involving unequal pay on the basis of sex discrimination that were considered
by Safety Council.74
Fontenot asserts that before she became COO of Safety Council, Lindsey, a male
employee, was always paid more than she was paid.75 Thus, Fontenot argues, if Safety Council
considered Lindsey’s salary when determining what to pay her as COO, then Safety Council is
perpetuating past prejudice, which is relevant to whether Safety Council’s proffered affirmative
defense is pretext for discrimination.76 Evidence which tends to show that Safety Council set
Fontenot’s pay based on the basis of her gender is probative of pretext. Thus, if the evidence
pertaining to Safety Council’s consideration of Lindsey’s salary shows that Safety Council based
Fontenot’s pay on gender, the evidence is relevant and the Court will not exclude it.
73
Id. (citing Ikossi-Anastasiou v. Bd. of Supervisors of La. State Univ., 579 F.3d 546, 553 (5th Cir. 2009);
Reich v. Bay Inc., 23 F.3d 110, 117 (5th Cir. 1994); Mohammadi v. Nwabuisi, 605 F. App’x 329, 333 (5th Cir. 2015)
for the proposition that evidence of an employer’s action or inaction after notice of a complaint of unequal pay is
relevant to whether an employer willfully violated the EPA by recklessly disregarding whether its pay practices were
in violation of the EPA).
74
The Court notes that Safety Council has also asserted that the specific evidence that Fontenot has proffered
regarding Kight and Wills is hearsay. Rec. Doc. 53-1 at 9. At this time, the Court limits its ruling as to the general
relevancy of such evidence and does not consider the admissibility of any particular piece of evidence under any other
Federal Rule of Evidence.
75
Rec. Doc. 78 at 4.
76
Id.
12
Pursuant to Federal Rule of Evidence 403, the Court may exclude relevant evidence if its
probative value is substantially outweighed by, inter alia, wasting time or confusing or misleading
the jury.77 Safety Council contends that allowing anecdotal evidence relating to issues of unequal
pay regarding Kight, Wills, and Lindsey will create mini trials and, therefore, should be excluded
under Rule 403.78 Safety Council cites Wyvill v. United Companies Life Insurance Co., asserting
that the Fifth Circuit has held that anecdotal evidence as to discrimination against other employees
is not probative on the issue of whether the plaintiff faced discrimination and substantially
prejudices the defendant by forcing it to respond to each witness’s claims.79
In Wyvill, the plaintiffs had offered anecdotal testimony from and about former employees
as evidence that the defendant had a “pattern or practice” of discriminating against older workers.80
The Fifth Circuit stated:
Anecdotes about other employees cannot establish that
discrimination was a company’s standard operating procedure
unless those employees are similarly situated to the plaintiff. This
court and others have held that testimony from former employees
who had different supervisors than the plaintiff, who worked in
different parts of the employer’s company, or whose terminations
were removed in time from the plaintiff’s termination cannot be
probative of whether age was a determinative factor in the plaintiff’s
discharge.81
The Fifth Circuit found that none of the anecdotal evidence involved employees who were
similarly situated to the plaintiffs, and thus, the “mini-trials” created by the testimony were not
77
Fed. R. Evid. 403.
78
Rec. Doc. 53-1 at 9–11.
79
Id. at 10 (citing 212 F.3d at 303–04) (citing for the same proposition Hardy, 1998 WL 419716, at *5).
80
212 F.3d at 302.
81
Id. (citations omitted).
13
probative to the plaintiff’s assertion that the defendant had a “pattern or practice” of age
discrimination.82 The Fifth Circuit held that the “mini-trials” substantially prejudiced the defendant
who was forced to respond to each witness’s claims.83
The evidence that Safety Council challenges in the instant matter is readily distinguishable
from the anecdotal evidence in Wyvill. First, as discussed supra, the Court has already determined
that the evidence relating to Kight and Wills is probative of whether Safety Council willfully
violated the EPA. Second, Fontenot is not offering such evidence to prove that Safety Council
discriminated against her based on a “pattern or practice” of gender discrimination. Rather,
Fontenot has argued that such evidence is probative of whether Safety Council willfully violated
the EPA by recklessly disregarding whether its pay practices violated the EPA. This argument
speaks to Safety Council’s knowledge of whether its pay practices were in violation of the EPA,
and does not hinge on whether Safety Council actually violated the EPA with regards to Kight and
Wills.84 Third, the evidence relating to Lindsey likewise is not offered for the purpose of
demonstrating a “pattern or practice” of Safety Council’s gender discrimination. Rather, Fontenot
has argued that Safety Council considered Lindsey’s salary in setting Fontenot’s such that it
constituted Safety Council setting Fontenot’s pay based on how much another male employee was
paid. Thus, unlike in Wyvill, Safety Council will not have to defend itself against claims that it
discriminated against Lindsey. Accordingly, the Court will not exclude evidence relating to Kight,
Wills, and Lindsey on the basis of confusing or misleading the jury and wasting time.
82
Id. at 302–03.
83
Id. at 303.
84
See Ikossi-Anastasiou v. Bd. of Supervisors of La. State Univ., 579 F.3d 546, 553 (5th Cir. 2009); Reich v.
Bay Inc., 23 F.3d 110, 117 (5th Cir. 1994); Mohammadi v. Nwabuisi, 605 F. App’x 329, 333 (5th Cir. 2015) for the
proposition that evidence of an employer’s action or inaction after notice of a complaint of unequal pay is relevant to
whether an employer willfully violated the EPA by recklessly disregarding whether its pay practices were in violation
of the EPA.
14
2. Evidence Relating to McCorquodale’s Pay As Reflected in Safety Council’s Tax
Records
Safety Council argues that evidence relating to McCorquodale’s pay that includes
payments that Safety Council contends were not authorized should be excluded, because it will
waste time by creating a “mini trial” on the issue of McCorquodale’s misconduct and will confuse
and mislead the jury to believe that the pay disparity between Fontenot and McCorquodale is larger
than it actually is.85 In opposition, Fontenot argues that there is evidence in the record that Safety
Council approved the amounts that McCorquodale was actually paid as reflected on his W-2s and
Safety Council’s Form 990s, and thus, the jury is entitled to consider those amounts when
considering the issue of back pay.86
The Court notes that the parties vigorously dispute to what extent McCorquodale’s actual
payments were authorized by Safety Council. It is clear from the parties’ briefings in this case that
this is a central factual issue of Fontenot’s claims regarding the amount of pay disparity and of
Safety Council’s defense as to why it paid Fontenot differently than McCorquodale. These
disputed issues of fact are for the jury to decide. Therefore, evidence of what McCorquodale was
actually paid, as evidenced by Safety Council’s tax records, is relevant. Further, because such
evidence is relevant to a central question of fact for the jury to decide, the introduction of such
evidence will not confuse or mislead the jury or waste time by creating a mini trial on the issue of
McCorquodale’s misconduct. Accordingly, the Court will not exclude evidence relating to the
amount of pay McCorquodale actually received.
85
Rec. Doc. 53-1 at 15.
86
Rec. Doc. 77 at 5–9.
15
3. Evidence of Pay Rates at Other Entities
Safety Council argues that pay rates at other entities are not relevant to whether Safety
Council paid Fontenot differently than McCorquodale in violation of the EPA, because the EPA
provides a “geographic limitation” to a comparison of employees in the same establishment with
the same employer.87 In opposition, Fontenot argues that such pay rates are admissible because
her expert, Lowery, uses them as a way to check the reasonableness of his calculations of
McCorquodale’s future pay.88
Fontenot has not argued that she intends to use evidence of pay rates at other entities for
any purpose other than as her expert’s method for ensuring the reasonableness of his calculations
of McCorquodale’s future pay.89 The Court has already concluded that such evidence is
admissible.90 However, the Court agrees that evidence of pay rates outside of Safety Council are
not relevant to the issues of whether Safety Council paid Fontenot in violation of the EPA, nor
should the jury use those amounts to calculate any amount of back pay owed to Fontenot. The
Court finds that proper jury instructions will prevent the jury from being confused and misled
about the relevance and applicability of those numbers to the facts it must decide. Accordingly,
the Court will not exclude evidence relating to pay rates at other entities for the purpose of
demonstrating the reasonableness of Lowery’s calculations of McCorquodale’s future pay.
87
Rec. Doc. 53-1 at 16–17.
88
Rec. Doc. 77 at 1–2.
89
See Rec. Doc. 78 (adopting Rec. Doc. 77).
90
See the Court’s Order granting in part and denying in part Safety Council’s “Motion to Exclude the
Opinions and Testimony of Israel Lowery” (Rec. Doc. 52) filed contemporaneously with this Order.
16
IV.
Conclusion
For the reasons stated above, the Court will not exclude evidence relating to Kight, Wills,
and Lindsey, because such evidence is relevant to issues of pretext and willfulness and will not
confuse or mislead the jury or waste time. The Court will also not exclude evidence relating to the
amount that McCorquodale was actually paid, because the Court finds such evidence is relevant
to the factual issues underlying Safety Council’s affirmative defense and damages. Finally, the
Court will not exclude evidence relating to pay rates at other entities other than Safety Council,
because they are relevant to the reliability of Fontenot’s expert, Lowery, and because proper jury
instructions will prevent the jury from being misled or confused.
IT IS HEREBY ORDERED that Safety Council’s “Motion in Limine”91 is DENIED.
New Orleans, Louisiana, this18thday of August, 2017.
___
____________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
91
Rec. Doc. 53.
17
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