Fontenot v. Safety Council of Southwest Louisiana
ORDER granting 27 Motion for Partial Summary Judgment. Signed by Judge Nannette Jolivette Brown on 6/28/2017. (crt,Whidden, C)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAKE CHARLES DIVISION
* CIVIL ACTION NO. 2:16-CV-84
* JUDGE BROWN
SAFETY COUNCIL OF SOUTHWEST
* MAGISTRATE JUDGE KAY
In this litigation, Plaintiff Joni Fontenot (“Fontenot”) alleges that her employer, Safety
Council of Southwest Louisiana (“Safety Council”), is paying her different wages compared to
those of a male employee who performed substantially the same work, in violation of the Equal
Pay Act (“EPA”), 29 U.S.C. § 206(d).1 Fontenot also alleges that she was retaliated against by
Safety Council after she complained about the discrimination, in violation of 29 U.S.C. § 215.2
Before the Court is Fontenot’s “Motion for Partial Summary Judgment” on the issues of whether
she has waived her EPA claim and whether she has put forth a prima facie case under the EPA.3
Having considered the pending motion, the memoranda in support and in opposition, the record,
and the applicable law, and because Safety council does not point to any contrary evidence but,
rather, argues its own affirmative defenses, the Court will grant the motion.
Rec. Doc. 1.
Rec. Doc. 27.
Safety Council is a non-profit 501(c)(3) organization dedicated to cost effective services
for Southwest Louisiana industrial and contractor businesses.4 Fontenot is a female employed by
Safety Council in the position of Chief Operating Officer (“COO”).5 Fontenot began in this
position upon entering into a three-year contract on October 19, 2011.6 The terms of the agreement
(“Employment Contract”), including compensation and duties, are memorialized in the contract.7
Fontenot was offered a starting salary of $95,000.8 The Employment Contract was renewed for an
additional three years on October 19, 2014, when neither party issued a statement of non-renewal
under the terms of the Employment Contract.9 Prior to Fontenot’s employment as COO, Robert J.
McCorquodale (“McCorquodale”) served as Chief Executive Officer (“CEO”) of Safety Council.10
McCorquodale served in this position from 2005 to 2011.11 McCorquodale’s 2005 contract set his
base salary at “$89,426.53 to be increased by 3% January 1[,] 2005 and each January 1st thereafter
by a minimum of 3% up to 6% depending on the financial condition of the Safety Council upon
approval by the President of the Executive Board.”12 In 2009, McCorquodale’s W-2 reflected that
Joint Pretrial Statement (Rec. Doc. 24), para. 7.
Id. at paras. 3, 7.
Id. at para. 7.
Rec. Doc. 33 at 4; Rec. Doc. 27-2 at11.
Rec. Doc. 24 at para. 7.
Id. Safety Council contends that McCorquodale was Safety Council’s “head executive” beginning in 2001
and entered into the position of CEO in 2005. Rec. Doc. 33 at 2.
Rec. Doc. 33-4 at 296.
he earned $165,480.02,13 and, in 2010, his W-2 reflected that he earned $165,431.37.14 Safety
Council asserts that McCorquodale resigned in 2011 after Safety Council discovered that
McCorquodale had been paying himself unauthorized amounts unbeknownst to Safety Council’s
On November 10, 2015, Fontenot, through her attorney, made a demand on Safety Council,
asserting that it was in violation of the EPA, 29 U.S.C. § 206(d)(1).16 On January 19, 2016,
Fontenot, through her attorney, filed suit against Safety Council alleging a violation of the EPA
and further alleging that Safety Council retaliated against her after her assertion of her EPA
Specifically, Fontenot alleges that Safety Council provided her with a lower compensation
package, including a lower salary, smaller incremental increases in salary, and fewer benefits, than
her male predecessor, McCorquodale, despite the fact that their job responsibilities were
substantially equal.18 Fontenot further alleges that Safety Council’s discriminatory practices are
“fixed, systematic, and continuing in nature,” which she alleges is evidence of a willful violation
of the law, and thus expands the statute of limitations for an EPA claim from two years to three
years.19 Finally, Fontenot alleges that Safety Council retaliated against her after she raised the issue
of an EPA violation by “beginning to treat her differently and refusing to pay her a bonus for the
Rec. Doc. 27-8.
Rec. Doc. 27-9.
Rec. Doc. 33 at 2-3.
Rec. Doc. 24 at para. 7.
Rec. Doc. 1 at para. 10.
Id. at para. 11.
year of 2015,” despite the fact that she had received a bonus each year prior.20 Fontenot seeks
damages equivalent to the amount of wages and benefits withheld, an equal amount in liquidated
damages, reasonable attorney’s fees, costs associated with this litigation, and compensatory and
punitive damages related to Safety Council’s retaliatory activity.21 On January 26, 2016, after
filing her Complaint, Fontenot received a $6,000 bonus for the year 2015.22
On February 23, 2016, Safety Council filed an Answer to the Complaint, denying the
allegations and alleging affirmative defenses.23 Specifically, Safety Council alleges that Fontenot
failed to state a claim upon which relief may be granted; that there is a two-year limitations period
for an EPA claim; that any pay differential between Fontenot and her predecessor was the result
of a voluntary agreement by Fontenot; that any pay differential between Fontenot and her
predecessor was based on factors and circumstances other than gender; and that the claims alleged
in the Complaint are barred, in whole or in part, by the EPA’s affirmative defense precluding
liability for unequal pay that results from compensation differentials based on factors other than
On January 19, 2016, Fontenot filed a Complaint against Safety Council in the Western
District of Louisiana.25 The case was assigned to Judge Minaldi in the Lake Charles Division.26
Id. at para. 13.
Id. at paras. 12, 15.
Rec. Doc. 24 at para. 7.
Rec. Doc. 4.
Id. at 3–4.
Rec. Doc. 1.
Rec. Doc. 2.
Safety Council filed an Answer on February 23, 2016.27 The case was set for trial on May 22,
2017.28 On March 14, 2017, the trial date was continued to August 21, 2017.29 The case was
reassigned to Judge Brown of the Eastern District of Louisiana on March 15, 2017, with an order
that the Local Rules of the Western District of Louisiana continue to apply to the case.30
On May 23, 2017, Fontenot filed a “Motion for Partial Summary Judgment” seeking
summary judgment on two issues: (1) that she had not waived her EPA claim; and (2) that she had
presented a prima facie case of a violation of the EPA.31 On June 2, 2017, Safety Council filed a
response in opposition to the “Motion for Partial Summary Judgment.”32 With leave of Court,
Fontenot filed a reply in support of the “Motion for Partial Summary Judgment” on June 6, 2017.33
II. The Parties’ Arguments
Fontenot’s Arguments in Support of the Motion for Partial Summary Judgment
In the motion, Fontenot argues that summary judgment is appropriate as to two issues: (1)
that Fontenot did not waive her claim under the EPA; and (2) that she has proven her prima facie
case that Safety Council paid unequal wages to Fontenot and a male comparator, McCorquodale,
for work performed under similar working conditions that required substantially equal skills,
effort, and responsibility.34
Rec. Doc. 4.
Rec. Doc. 10.
Rec. Doc. 18.
Rec. Doc. 19.
Rec. Doc. 27.
Rec. Doc. 33.
Rec. Doc. 35.
Rec. Doc. 27 at 1.
Equal Pay Act Claims Cannot Be Waived
First, Fontenot claims that although she acted freely when entering into her Employment
Contract with Safety Council, her rights under the EPA cannot be waived.35 Fontenot avers that
when she contracted with Safety Council on October 19, 2011, to begin her position as COO, she
was not aware of any rights she might have under the EPA.36 She also contends that Safety Council
did not mention any rights she might have under the EPA and that she did not intend to waive any
Fontenot argues that there are “hundreds of reported EPA cases” that involve employment
situations where the employee freely entered into his or her employment situation.38 Fontenot
claims that, logically, if a plaintiff who voluntarily entered into an employment contract were
barred from bringing an EPA claim, then EPA claims would only lie where an employee accepted
a job under duress.39 Fontenot cites Boaz v. FedEx Customer Information Services, Inc. for the
proposition that an employee’s claims under the EPA cannot be waived.40 In Boaz, Fontenot asserts
that the Sixth Circuit reasoned that Congress’s placement of the EPA within the Fair Labor
Standards Act (“FLSA”) was presumably purposeful; that prior to the enactment of the EPA, the
United States Supreme Court had held that employees cannot waive their FLSA claims; and that,
as a part of the FLSA, it is presumable that Congress meant for EPA claims to be equally
Rec. Doc. 27-2 at 7.
Id. at 8.
Id. (citing 725 F.3d 603, 607 (6th Cir. 2013)).
unwaivable.41 Fontenot further represents that the Sixth Circuit continued that “the Supreme
Court’s rationale for barring waiver of FLSA claims appears fully applicable to claims under the
Equal Pay Act,” namely to raise the depressed wages of women to serve the interest of justice and
“as a matter of market economics.”42
Prima Facie Case of Pay Discrimination
Second, Fontenot contends that the duties she performs as COO are substantially the same
as those performed by McCorquodale as CEO, but that they received different pay.43 Fontenot
submits as evidence Safety Council’s 2007 by-laws, which describe the responsibilities of the CEO
when McCorquodale was in that position, and Safety Council’s 2012 by-laws, which describe the
responsibilities of the COO when Fontenot was COO.44 Fontenot contends that the responsibilities
of the CEO described in the 2007 by-laws are exactly the same as the responsibilities of the COO
described in the 2012 by-laws.45 Fontenot further describes the responsibilities of McCorquodale
and Fontenot to show they are exactly the same46 and submits the affidavits of four Safety Council
employees who worked during McCorquodale’s and Fontenot’s tenures, and who declare that,
from their professional observations, Fontenot assumed the same responsibilities that
McCorquodale had during his tenure as CEO.47 Finally, Fontenot submits as evidence
McCorquodale’s 2005 Employment Contract with Safety Council stating that Fontenot now
Id. (quoting Boaz, 725 F.3d at 607).
Id. at 8–9 (quoting Boaz, 725 F.3d at 607).
Id. at 9–11.
Id. at 9 (citing Exhs. 9, 10).
Id. (“He handled the budgets. She handles the budgets.”).
Rec. Doc. 27-2 at 9 (citing Exhs. 2, 3, 4, 5).
performs “each and every one” of the duties listed therein.48 Fontenot contends that Safety
Council’s director, Larry DeRoussel, who was on the committee that hired her, advised her that
only the title of the job was being changed, from Chief Executive Officer to Chief Operating
Officer, and that the board of directors has never advised her that she is doing work outside of the
scope of her position.49
In anticipation of Safety Council’s argument that McCorquodale had an additional
responsibility to maintain public relations and develop new business, Fontenot cites to her
Employment Contract, which includes as one of her duties “generating revenues” through
“development, marketing, and fulfillment of programs.”50 Fontenot further claims that
McCorquodale hired someone to whom he could delegate these duties and that this person
continued in this position through Fontenot’s tenure until she let him go in 2015.51 Fontenot cites
Wojciechowski v. National Oilwell Varco, L.P. for the proposition that an assessment of equal
work is a factual determination that requires looking to the actual job content to corroborate
position titles and descriptions, which may include comparing the “common core of tasks” and
assessing whether their differences make the work “substantially different.”52 Based on the
evidence and proposed assessment put forth by Fontenot, she moves the Court to find that
McCorquodale and Fontenot, as proper comparators under an EPA claim, performed work that
required equal skill, effort and responsibility under similar working conditions.53
Id. at 10 (citing Exh. 11).
Id. at 10 (citing Exh. 12).
Id. at 10–11 (citing 763 F. Supp. 2d 832, 849 (S.D. Tex. 2011)).
Id. at 11.
Fontenot contends that a comparison of McCorquodale’s and Fontenot’s compensation
shows that they were paid differently by Safety Council for substantially similar work.54 Fontenot
submits two of McCorquodale’s W-2s during his tenure as CEO of Safety Council, which show
that he earned roughly $165,400 in 2009 and 2010.55 Fontenot avers that these W-2s do not reflect
fringe benefits.56 Fontenot submits her W-2 for 2015 when she was COO of Safety Council, which
states that she earned $89,867.70.57 Fontenot argues that the differences as reflected in the W-2s
of McCorquodale and Fontenot prove that she was paid unequal wages for substantially the same
Safety Council’s Opposition to the Motion for Partial Summary Judgment
Waiver of an Equal Pay Act Claim
Safety Council does not contest Fontenot’s assertion that she has not waived her claim
under the EPA.59 Safety Council argues that the real issue, which it contends is a question for the
jury, is whether it has a valid affirmative defense that “any pay differential between McCorquodale
and Fontenot was the result of voluntary and consensual negotiations between Fontenot and Safety
Council which were unrelated to Fontenot’s gender (as well as attributable to a multitude of other
non-gender related factors).”60 To this end, Safety Council notes two affirmative defenses it pleads
in its Answer: (1) that Fontenot’s voluntary agreement to accept the position of COO under the
Id. (citing Exhs. 6, 7).
Id. at n. 1.
Id. (citing Exh. 8).
Rec. Doc. 33 at 10.
contractual terms bars her from subsequently complaining about the agreed upon pay rate;61 and
(2) that any pay differential between Fontenot and McCorquodale were based on factors and
circumstances other than gender.62
Safety Council argues that pay disparities are allowed under: “(1) a seniority system; (2) a
merit system; (3) a system which measures earnings by quantity or quality of production; or (4) a
differential based on any other factor other than sex.”63 Safety Council further argues that the
fourth exception, the “catch-all exception,” includes pay disparities that result from negotiations
and agreement of the parties.64 Safety Council cites several cases from other jurisdictions, in which
Safety Council represents that no violation of the EPA was found where disparity of pay was due
to negotiations.65 Specifically, Safety Council discusses an Eighth Circuit case, Horner v. Mary
Institute, in which the Eighth Circuit held that salary negotiation was a factor other than sex
allowing a pay disparity where a private school paid a male physical education instructor $1,500
more per year than the female plaintiff because the male instructor, unlike the female plaintiff,
refused to accept the school’s initial offer.66 Safety Council also cites McNierney v. McGraw-Hill,
The Court notes that this affirmative defense may seem to raise the issue of whether Fontenot has waived
her EPA claim by voluntarily entering into the contract with Safety Council. However, the Court also notes that
Safety Council does not pursue this argument, stating: “Whether Fontenot’s Equal Pay Act claim was ‘waived’ is
not at issue in this matter. Toward that end, the Safety Council will not request any type of jury instruction that
Fontenot has ‘waived’ an EPA claim.” Id. Safety Council then makes the argument that the issue is whether
Fontenot’s negotiations and voluntary acceptance of the contract constitute a valid affirmative defense. Id.
Id. at 7–8.
Id. at 8 (quoting Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1136 (5th Cir. 1983)).
Id. (citing Reznick v. Associated Orthopedics & Sports Medicine, P.A., 104 F. App’x 387, 391–92 (5th Cir.
Id. at 8–9 (citing E.E.O.C. v. Louisiana Network, Inc., 809 F.Supp. 1210 (M.D. La. 1992); Suter v. Univ.
of Texas at San Antonio, 859 F.Supp. 2d 851 (W.D. Tex. 2012); Dey v. Colt Constr. & Dev. Co., 28 F.3d 1446, 1462
(7th Cir. 1994); E.E.O.C. v. Home Depot U.S.A., Inc., No. 4:07CV0143, 2009 WL 395835, at *10 (N.D. Ohio Feb.
Rec. Doc. 33 at 9 (citing 613 F.2d 706, 714 (8th Cir. 1980)).
Inc. in which a court in the District of Maryland stated that summary judgment was appropriate
where there was evidence that a female who was offered the same initial salary as the male
plaintiff, actually received a higher salary after negotiation.67
In response to Fontenot’s reliance on the Sixth Circuit’s holding in Boaz that an EPA claim
is unwaivable, 68 Safety Council distinguishes the facts before the court in Boaz from those in the
instant case, contending that the Sixth Circuit considered a contractual agreement that shortened
the limitations period provided in the statute to six months.69 Safety Council argues that the facts
in Boaz are not at issue in this case because it does not contend that Fontenot’s contract contained
a provision eliminating her rights under the EPA, and further states that “[w]hether Fontenot’s
Equal Pay Act claim was ‘waived’ is not at issue in this matter.”70 Rather, Safety Council argues
that the issue is whether Fontenot’s negotiations to enter her position as COO provide Safety
Council an affirmative defense as a factor “other than sex,” a proposition it contends its case
Safety Council contends that Fontenot voluntarily and consensually negotiated for her
salary and accepted the terms.72 Safety Council cites Fontenot’s deposition testimony to support
its argument that she voluntarily accepted her position and the associated salary and that her salary
as COO and the bonuses she received during her tenure were more than she previously earned.73
Rec. Doc. 33 at 9 (quoting 919 F.Supp. 853, 860 (D. Md. 1995)).
725 F. 3d at 607.
Rec. Doc. 33 at 7.
Id. at 9-10.
Id. at 10.
Id. at 9–10.
Id. at 4–5.
Safety Council also cites Fontenot’s deposition testimony to argue that Fontenot was pleased that
she got the job and a pay increase from her previous position and that she did not express
dissatisfaction with Safety Council’s president or executive board at the time she accepted the job
as COO.74 In conclusion, Safety Council does not contest Fontenot’s argument that she has not
waived her EPA claim, but rather argues its affirmative defense that, Fontenot’s “voluntary and
consensual negotiations,” inter alia, is a factor “other than sex” in the determination of Fontenot’s
Prima Facie Case of Pay Discrimination
Safety Council does not dispute that Fontenot “performs duties similar to those previously
performed by McCorquodale.”76 Safety Council argues, however, that the facts of this case present
a res nova issue regarding the element of whether Fontenot and McCorquodale were paid
differently because Fontenot is attempting to compare her pay rate to a predecessor who paid
himself more than he was authorized to and for which the salary and contract were subsequently
intentionally changed by Safety Council to prevent unauthorized payments from occurring again.77
Safety Council argues that the amounts reflected in McCorquodale’s W-2s are improperly
inflated because he was paying himself unauthorized amounts.78 Safety Council further contends
that Fontenot’s 2015 W-2 reflects a deflated salary because the amount reflects reductions for her
pre-tax health insurance and pre-tax 401(k) contributions, providing as evidence the sworn
affidavit of John McDonald, a Certified Public Accountant (“CPA”) whose firm provides
Id. at 5.
Id. at 10.
Id. at 11.
Id. at 12.
Id. at 11.
accounting and tax services for Safety Council.79 Safety Council contends that Fontenot knows
that the comparison, as she presented it, is inaccurate, because she knew McCorquodale was
paying himself in excess of what was authorized.80 Safety Council argues that Fontenot’s assertion
that McCorquodale was being paid twice as much as her is a conclusion based on the distorted
salaries represented in their respective W-2s.81
Attempting to provide the Court with a comparison of Fontenot’s and McCorquodale’s pay
using what it presents as the “correct and authorized salary” for McCorquodale, Safety Council
contends that McCorquodale’s authorized salary in the year before his resignation, his tenth year
in the position, should have been between $100,000 and $110,000.82 Safety Council contends that
McCorquodale’s approved salary would have been approximately $92,000 to $95,000 in his sixth
year.83 According to Safety Council, McCorquodale’s pay increases were due to an annual pay
raise built in to his contract, which Safety Council eliminated after McCorquodale’s resignation.84
Safety Council asserts that Fontenot earned $95,000 in her first year as COO.85
Using these figures to compare, Safety Council concedes that Fontenot, in her first year,
has a lower salary than what Safety Council asserts McCorquodale should have been paid in his
tenth year under the terms of his contract, but maintains that Fontenot’s pay is equal to what
Id. (citing Affidavit of John H. McDonald (Rec. Doc. 33-1)).
Id. at 11.
Id. at 12.
Id. Presumably, Safety Council contends that although McCorquodale became CEO in 2005 his tenure in
the position began in 2001 when he was “head executive.” See Rec. Doc. 33 at 2.
Id. at 13.
Id. at 12-13.
Id. at 13.
McCorquodale should have been making in his sixth year under the terms of his contract.86 Safety
Council contends that the fact that McCorquodale’s W-2s show an unauthorized, inflated salary
and that Safety Council purposely changed the contract to prevent such excesses when hiring
McCorquodale’s successor demonstrate that there is a dispute as to whether McCorquodale is a
proper comparator regarding wage disparity under the EPA such that summary judgment on this
issue is inappropriate.87
C. Fontenot’s Reply in Support of “Partial Summary Judgment”
EPA Claims Cannot Be Waived
In Fontenot’s Reply, she claims that Safety Council concedes in its brief that it is not
asserting that Fontenot has waived her EPA claim.88 Fontenot, therefore, requests that the Court
enter summary judgment in her favor on the issue of whether she waived her EPA claim when she
contracted with Safety Council.89
Prima Facie Case of Pay Discrimination
Fontenot replies that Safety Council has conceded that Fontenot and McCorquodale
performed substantially the same work.90 In addressing the issue of different pay, Fontenot argues
that Safety Council contends that the proper comparison to determine a wage disparity is what the
employer intended to pay as opposed to what the employer actually paid.91 Fontenot argues this is
not the law, citing the Supreme Court, which she represents “ha[s] decided that it is the employer,
Rec. Doc. 35 at 1.
Id. at 2 (emphasis in original).
not the employee, who must prove that the actual disparity is not sex linked.”92 Fontenot further
cites the Code of Federal Regulations for the meaning of “wages” under the EPA.93 Fontenot
contends this includes:
all payments made to [or on behalf of] an employee as remuneration
for employment. The term includes all forms of compensation
irrespective of the time of payment, whether paid periodically or
deferred until a later date, and whether called wages, salary, profit
sharing, expense account, monthly minimum, bonus, uniform
cleaning allowance, hotel accommodations, use of company car,
gasoline allowance, or some other name. Fringe benefits are deemed
to be remuneration for employment.94
Fontenot argues that Safety Council’s arguments regarding the reasons that McCorquodale was
paid more are not appropriate at this stage.95 Fontenot contends that she has made her prima facie
case that she was paid differently than her male predecessor for doing the same work.96
III. Law and Analysis
A. Legal Standard for Summary Judgment
Summary judgment is appropriate when the pleadings, the discovery, and any affidavits
show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.”97 When assessing whether a dispute as to any material fact exists, the Court
considers “all of the evidence in the record but refrains from making credibility determinations or
weighing the evidence.”98 All reasonable inferences are drawn in favor of the nonmoving party,
Id. (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 248 (1989) (emphasis added in Plaintiff’s brief)).
Id. (quoting 29 C.F.R. § 1620.10).
Id. at 2–3 (quoting 29 C.F.R. § 1620.10).
Id. at 3.
Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and
conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.”99
If the record, as a whole, “could not lead a rational trier of fact to find for the non-moving party,”
then no genuine issue of fact exists and the moving party is entitled to judgment as a matter of
law.100 The nonmoving party may not rest upon the pleadings, but must identify specific facts in
the record and articulate the precise manner in which that evidence establishes a genuine issue for
The party seeking summary judgment always bears the initial responsibility of informing
the Court of the basis for its motion and identifying those portions of the record that it believes
demonstrate the absence of a genuine issue of material fact.102 Thereafter, the nonmoving party
should “identify specific evidence in the record, and articulate” precisely how that evidence
supports his claims.103 To withstand a motion for summary judgment, the nonmoving party must
show that there is a genuine issue for trial by presenting evidence of specific facts.104 The
nonmovant’s burden of demonstrating a genuine issue of material fact is not satisfied merely by
creating “some metaphysical doubt as to the material facts,” “by conclusory allegations,” by
“unsubstantiated assertions,” or “by only a scintilla of evidence.”105 Rather, a factual dispute
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).
Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.
Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986).
See Celotex, 477 U.S. at 325; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
Celotex, 477 U.S. at 323.
Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994), cert. denied, 513 U.S. 871 (1994).
Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (citing Anderson v. Liberty, 477 U.S. 242, 248–
Little, 37 F.3d at 1075.
precludes a grant of summary judgment only if the evidence is sufficient to permit a reasonable
trier of fact to find for the nonmoving party.106 Hearsay evidence and unsworn documents that
cannot be presented in a form that would be admissible in evidence at trial do not qualify as
competent opposing evidence.107
B. Equal Pay Act
The Equal Pay Act prohibits an employer from discriminating between employees on the
basis of sex by:
paying wages to employees [in a covered establishment] at a rate
less than the rate at which he pays wages to employees of the
opposite sex in such establishment for equal work on jobs the
performance of which requires equal skill, effort, and responsibility,
and which are performed under similar working conditions, except
where such payment is made 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….108
Thus, for a plaintiff to prevail on an Equal Pay Act claim, she must make a prima facie case (1)
that she was paid differently than a male; (2) that she and the male employee performed equal
work on jobs the performance of which requires equal skill, effort, and responsibility; and (3) that
such work was performed under similar working conditions.109 “‘Once a plaintiff has made her
prima facie case by showing that an employer compensates employees differently for equal work,
Smith v. Amedisys Inc., 298 F.3d 434, 440 (5th Cir. 2002).
Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed. R .Civ. P. 56(c)(2).
29 U.S.C. § 206(d)(1); King v. Univ. Healthcare Sys., L.C., 645 F.3d 713, 723 (5th Cir. 2011)
Id.; see also Jones v. Flagship Int’l, 793 F.2d 714, 722-23 (5th Cir. 1986).
the burden shifts to the defendant to’ show by a preponderance of the evidence that the differential
in pay was made pursuant to one of the four enumerated exceptions.”110
1. Whether Fontenot Waived her Claim Under the Equal Pay Act
Fontenot contends that she has not waived her EPA claim by freely entering into her
contract with Safety Council,111 and Safety Council does not dispute this.112 Nevertheless, the
Court notes the supporting case law that an EPA claim cannot be waived. The EPA was enacted
in 1963 and incorporated into the Fair Labor Standards Act (“FLSA”) of 1938 at 29 U.S.C. §
206(d).113 Prior to the EPA’s enactment, the Supreme Court held that an employee’s rights under
the FLSA are unwaivable.114 The Fifth Circuit has not directly addressed the issue of whether a
plaintiff may waive an EPA claim, however, it has recently recognized that “[t]he general rule
establishes that FLSA claims . . . cannot be waived.”115 Furthermore, the Sixth Circuit and Eleventh
Circuit have considered the issue of whether an employee can explicitly waive an EPA claim,
King, 645 F.3d at 723 (quoting Siler-Khodr v. Univ. of Tex. Health Sci. Ctr. San Antonio, 261 F.3d 542,
546 (5th Cir. 2001)).
Rec. Doc. 27-2 at 9.
Rec. Doc. 33 at 10.
77 Stat. 56 (1963).
See Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 707 (1945) (“No one can doubt but that to allow waiver
of statutory wages by agreement would nullify the purposes of the Act.”); Jewell Ridge Coal Corp. v. Local No. 6167,
United Mine Workers of America, 325 U.S. 161, 167 (1945) (“Congress intended…to achieve a uniform national
policy of guaranteeing compensation for all work or employment engaged in by employees covered by the [Fair Labor
Standards] Act. Any custom or contract falling short of that basic policy, like an agreement to pay less than the
minimum wage requirements, cannot be utilized to deprive employees of their statutory rights.”).
Bodle v. TXL Mortg. Corp., 788 F.3d 159, 164 (5th Cir. 2015).
concluding that allowing such a waiver would be against the legislative policy underlying the
The Court also notes that while Safety Council asserts that it does not contest Fontenot’s
argument that she has not waived her right to bring an EPA claim by entering into the contract
freely, it asserts its affirmative defense that her compensation was based on a factor other than sex
because, inter alia, she negotiated for her compensation.117 However, the raising of an affirmative
defense is not relevant to a plaintiff’s right to bring an action under the EPA, and Safety Council
has not brought a cross motion for summary judgment in its favor on its affirmative defense. Both
Supreme Court and Fifth Circuit precedent indicate that a claim under the EPA, which is
incorporated within the FLSA, may not be waived.118 Accordingly, because no genuine issue of
material fact exists and because Safety Council does not dispute that Fontenot has not waived her
EPA claim, the Court will grant Fontenot’s motion to the extent that it requests summary judgment
in Fontenot’s favor that she has not waived her claim under the EPA.
2. Whether Fontenot has Presented a Prima Facie Case of Pay Discrimination under
Fontenot argues that she has presented a prima facie case of wage discrimination because
she and her predecessor, McCorquodale, performed equal work but were paid differently.119 Safety
Council concedes that Fontenot and McCorquodale performed similar work.120 However, Safety
See Boaz, 725 F.3d at 607 (reasoning that when Congress enacted the EPA it was aware of the law
relevant to the FLSA and intended for EPA claims to be unwaivable by placing it within the FLSA); see also
Schwartz v. Florida Bd. of Regents, 807 F.2d 901, 906 (11th Cir. 1987) (stating in dicta that allowing an employee
to prospectively waive her rights under the EPA would thwart the EPA’s legislative policy).
Rec. Doc. 33 at 10.
See Brooklyn Sav. Bank, 324 U.S. at 707; Jewell Ridge Coal Corp., 325 U.S. at 167; Bodle, 788 F.3d at
Rec. Doc. 27.
Rec. Doc. 33 at 11.
Council argues that it is inappropriate to grant summary judgment on the issue of whether Fontenot
and McCorquodale were paid differently because McCorquodale paid himself more than he was
authorized to be paid.121
The Court first considers whether Fontenot has proven her prima facie case as to the second
and third elements because these elements are not disputed. Fontenot argues that as COO she was
paid differently than her predecessor, McCorquodale, for performing equal work requiring equal
skill, effort, and responsibility under similar working conditions.122 Fontenot cites Safety
Council’s by-laws in place during their respective tenures, McCorquodale’s and Fontenot’s
respective contracts, and affidavits of subordinate employees to prove that she and McCorquodale
were responsible for the same duties requiring equal skill, effort and responsibility under similar
working conditions.123 Safety Council does not dispute that Fontenot and McCorquodale
performed similar work.124 Moreover, Safety Council does not present any evidence to contradict
Fontenot’s evidence that Fontenot and McCorquodale performed the same duties under similar
working conditions. Therefore, there is no genuine issue of material fact as to the second and third
elements required for a prima facie case of wage discrimination under the EPA.
As to the first element, i.e. whether Fontenot was paid differently than a male employee,
Fontenot contends that she was paid less than McCorquodale, her male predecessor.125 In support
of this contention, Fontenot submits McCorquodale’s 2009 and 2010 W-2s showing that he made
Id. at 13.
Rec. Doc. 27.
Rec. Doc. 27-2 at 9-10.
Rec. Doc. 33 at 11 (Safety Council’s Opposition) (“Frankly, the Safety Council does not dispute that
Plaintiff performs duties similar to those previously performed by McCorquodale.”).
Rec. Doc. 27.
$165,480.02 and $165,431.37, respectively, and Fontenot’s 2015 W-2 showing she made
$89,867.70.126 Fontenot further contends that the W-2s do not account for benefits McCorquodale
received that are not reflected in a W-2, which she asserts makes the pay differential even
In response, Safety Council claims that the W-2s submitted by Fontenot are inappropriate
to compare for the purposes of an EPA claim.128 First, Safety Council contends that the facts
present an issue of first impression because McCorquodale had been paying himself unauthorized
amounts, which improperly inflated his salary over the amount he should have been paid by the
terms of his contract.129 Safety Council purports that McCorquodale’s authorized salary in the last
year of his ten-year tenure as chief executive should have been between $100,000 and $110,000
and between $92,000 and $95,000 during his sixth year.130 Under this assumption, Safety Council
argues that Fontenot’s starting salary in her first year was equivalent to what McCorquodale’s
salary was in his sixth year.131 In support of this assertion, Safety Council submits the affidavit of
Safety Council’s CPA, John McDonald, along with exhibits showing a hypothetical progression
of McCorquodale’s salary increases based on the annual pay-raise scale built into his contract.132
Second, Safety Council contends that Fontenot’s W-2 is improperly deflated because the
amount shown includes deductions for pre-tax health insurance and pre-tax 401(k)
Rec. Doc. 27-2 at 11 (citing Exhs. 6, 7).
Id. at n. 1.
Rec. Doc. 33 at 13.
Id. at 12.
Id. at 12–13.
Id. at 13.
Rec. Doc. 33-1.
contributions.133 In support of this, Safety Council submits, as an exhibit to John McDonald’s
affidavit, a “Payroll Summary” for Joni G. Fontenot which reflects her Total Gross Pay as
Considering the evidence submitted, the Court finds that Safety Council has not introduced
controverting evidence that McCorquodale and Fontenot were not paid differently. Safety Council
contends that this is an issue of first impression, because McCorquodale paid himself more than
what his contract purportedly authorized. However, even taking Safety Council’s assertion as true,
that does not negate the fact—and Safety Council does not dispute—that McCorquodale was in
fact paid the amount stated on his W-2. Safety Council cites to no authority to support its
proposition that the Court should consider the hypothetical amounts it alleges McCorquodale
should have been paid in determining whether Fontenot has presented a prima facie case of wage
discrimination under the EPA. The plain language of the EPA prohibits an employer from
discriminating on the basis of sex “by paying wages to employees . . . at a rate less than the rate at
which he pays wages to employees of the opposite sex.”135 Moreover, even if the Court were to
consider only McCorquodale’s wages that Safety Council claims were authorized, Safety Council
has expressly conceded in its opposition to the motion that Plaintiff’s salary is “$5,000 to $15,000
less than what her predecessor’s approved salary should have been” in McCorquodale’s tenth year
as chief executive.136
Safety Council’s arguments, rather than challenging the fact that Fontenot and
McCorquodale were paid differently, provides its reasons as to why Fontenot and McCorquodale
Rec. Doc. 33 at 11.
Rec. Doc. 33-1.
29 U.S.C. § 206(d).
Rec. Doc. 33 at 13.
were paid differently, i.e. its affirmative defenses to Fontenot’s claim. Evidence of this sort is
properly presented after the plaintiff has made her prima facie case and the burden shifts to the
defendant to “prove by a preponderance of the evidence that the wage differential is justified by
one of the four affirmative defenses set forth in the Equal Pay Act.”137 Fontenot has only moved
for summary judgment on the issue of whether she made her prima facie case. Thus, consideration
of Safety Council’s proffered affirmative defenses is outside the scope of this motion. The
uncontroverted evidence presented shows that McCorquodale was paid roughly $164,000 in 2009
and 2010 as reported on his W-2s, and Fontenot was paid $89,867.70 as reported on her W-2.138
As Safety Council has not presented any evidence to controvert Fontenot’s evidence that Fontenot
and McCorquodale were paid differently, the Court finds there is no genuine issue of material fact
as to the first element.
The Court finds that Fontenot has demonstrated the required elements of a prima facie case
of wage discrimination under the EPA: (1) that she was paid differently than her male predecessor,
McCorquodale; (2) that she and McCorquodale performed equal work “on jobs the performance
of which requires equal skill, effort, and responsibility”; and (3) that such work was performed
under similar working conditions.139 As such, the Court grants her “Motion for Partial Summary
Judgment” to the extent that it requests summary judgment in Fontenot’s favor that she has
presented a prima facie case of wage discrimination under the EPA.
Siler-Khodr, 261 F.3d at 546.
Rec. Doc. 27, Exhs. 8,9,10. The Court notes Safety Council’s assertion that Fontenot’s total gross pay was
actually $95,000 in 2015. See Rec. Doc. 33-1. However, assuming this assertion is true, the uncontroverted evidence
in the record nevertheless indicates that McCorquodale was paid more than Fontenot.
See 29 U.S.C. § 206(d).
The Court finds, and Safety Council does not dispute, that Fontenot has not waived her
claim under the EPA. Accordingly, the Court grants Fontenot’s motion to the extent it seeks
summary judgment on that issue. The Court also finds, and Safety Council again does not
dispute,140 that the uncontroverted evidence in the record demonstrates that Fontenot was: (1) paid
differently than McCorquodale; (2) for performing equal work that requires equal skill, effort, and
responsibility; and (3) that such work was performed under similar working conditions. Thus, the
Court will grant Fontenot’s motion to the extent it requests summary judgment in her favor that
she has presented a prima facie case of wage discrimination under the EPA. Accordingly,
IT IS ORDERED that Fontenot’s “Motion for Partial Summary Judgment”141 is
New Orleans, Louisiana, this _____ day of June, 2017.
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE
As discussed supra , Safety Council raises its affirmative defense that Fontenot’s negotiation of her
contract falls within the “catch-all exception” to the EPA as a factor other than sex, however, the Court’s
consideration of Safety Council’s affirmative defense is outside of the scope of this motion.
Rec. Doc. 27.
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