Fontenot v. Safety Council of Southwest Louisiana

Filing 79

ORDER denying 64 Motion to Realign the Parties. Signed by Judge Nannette Jolivette Brown on 7/21/2017. (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

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 Safety Council retaliated against
her after she complained about the discrimination, in violation of 29 U.S.C. § 215.2 Before the
Court is Safety Council’s “Motion to Realign the Parties” in which Safety Council contends that
it has the burden of proof for the remaining issues at trial and requests that the Court reorder the
presentation of proof at trial so that Safety Council presents first.3 Having considered the pending
motion, the memoranda in support and in opposition, the record, and the applicable law, the Court
denies Safety Council’s “Motion to Realign the Parties.”

1

Rec. Doc. 1.

2

Id.

3

Rec. Doc. 64.

1

I. Background
A.

Factual Background
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

4

Joint Pretrial Statement (Rec. Doc. 24) at para. 7.

5

Id. at paras. 3, 7.

6

Id. at para. 7.

7

Id.

8

Rec. Doc. 33 at 4; Rec. Doc. 27-2 at11.

9

Rec. Doc. 24 at para. 7.

10

Id.

11
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.

2

the Executive Board.”12 In 2009, McCorquodale’s W-2 reflected that 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 executive board.15
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 she complained of
discrimination.17
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

12

Rec. Doc. 33-4 at 296.

13

Rec. Doc. 27-8.

14

Rec. Doc. 27-9.

15

Rec. Doc. 33 at 2-3.

16

Rec. Doc. 24 at para. 7.

17

Id.

18

Rec. Doc. 1 at para. 10.

19

Id. at para. 11.

3

of an EPA violation by “beginning to treat her differently and refusing to pay her a bonus for the
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
B.

Procedural Background
On January 19, 2016, Fontenot filed her Complaint against Safety Council in the Western

District of Louisiana.23 The case was assigned to Judge Minaldi in the Lake Charles Division.24
Safety Council filed an Answer on February 23, 2016.25 The case was set for trial on May 22,
2017.26 On March 14, 2017, the trial date was continued to August 21, 2017.27 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.28 On July
13, 2017, the Court continued the trial date to August 28, 2017.29

20

Id. at para. 13.

21

Id. at paras. 12, 15.

22

Rec. Doc. 24 at para. 7.

23

Rec. Doc. 1.

24

Rec. Doc. 2.

25

Rec. Doc. 4.

26

Rec. Doc. 10.

27

Rec. Doc. 18.

28

Rec. Doc. 19.

29

Rec. Doc. 65

4

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.30 On the same day, Safety Council also
filed a “Motion for Partial Summary Judgment” seeking summary judgment on the issue that the
two-year limitations period would apply to Fontenot’s EPA claim because there was no evidence
that Safety Council willfully violated the EPA.31 On June 28, 2017, the Court granted Fontenot’s
motion, entering summary judgment that Fontenot had not waived her EPA claim and that she had
presented a prima facie case of a violation of the EPA.32 The same day, the Court denied Safety
Council’s motion, finding there were genuine issues of material fact as to whether Safety Council
willfully violated the EPA.33
Safety Council filed the instant “Motion to Realign the Parties” on July 14, 2017,
requesting that the Court reorder the presentation of arguments and proof at trial so that Safety
Council presents its defenses first.34 Safety Council argues this is appropriate because it bears the
initial burden at trial as Fontenot has already proven her prima facie case.35 Fontenot filed a
memorandum in response arguing that the order at trial should not be changed because there are
issues remaining for which Fontenot maintains the burden of proof.36 With leave of Court, Safety
Council filed a reply reiterating its position that it is logical for Safety Council to present its case

30

Rec. Doc. 27.

31

Rec. Doc. 28. Safety Council filed this motion while maintaining that it did not violate the EPA.

32

Rec. Doc. 49.

33

Rec. Doc. 50.

34

Rec. Doc. 64.

35

Id.

36

Rec. Doc. 69.

5

as to its affirmative defense before Fontenot presents evidence that Safety Council’s proffered
reasons for the pay differential were mere pretext for discrimination.37
II. The Parties’ Arguments
A.

Safety Council’s Arguments in Support of its “Motion to Realign the Parties”
Safety Council moves the Court to realign the parties so that at trial Safety Council may

present its proof of non-discriminatory reasons for paying Fontenot differently than her
predecessor, McCorquodale, before Fontenot presents evidence that those reasons are pretextual.38 Safety Council argues that it is appropriate to realign the parties if the burden of proof
has shifted from the plaintiff to the defendant.39 Safety Council contends that in EPA cases, once
a plaintiff proves her prima facie case, the burden of proof shifts to the defendant to “show by a
preponderance of the evidence that the differential in pay was made pursuant to one of the [Equal
Pay Act’s] four enumerated exceptions.”40 Safety Council contends that if it meets this burden then
the “burden of persuasion” shifts back to Fontenot to show that Safety Council’s proffered reasons
were mere pretext for discrimination.41
Under this burden-shifting framework, Safety Council claims that the initial burden at trial
lies with Safety Council to prove it had legitimate, nondiscriminatory reasons for paying Fontenot
and McCorquodale differently because the Court has already ruled that Fontenot has established

37

Rec. Doc. 74.

38

Rec. Doc. 64 at 2–3. .

39

Rec. Doc. 64-1 at 3 (citing Ericsson Inc. v. Harris Corp., 1999 WL 604827 (N.D. Tex. 1999).

40

Id. at 4 (quoting Barsch v. Nueces County, 2016 WL 4785169, at *5 (S.D. Tex. 2016) (quoting King v.
Univ. Healthcare Sys., L.C., 645 F.3d 713, 723 (5th Cir. 2011))) (internal quotation marks omitted). Safety Council
distinguishes the burden-shifting framework under the EPA from the framework under a Title VII claim in that, under
a Title VII claim, once a plaintiff has made a prima facie case, the defendant has the “burden of production” to produce
evidence of a legitimate, nondiscriminatory reason, but the plaintiff always maintains the “burden of persuasion.” Rec.
Doc. 64-1 at 4.
41

Id. at 2 (citing Taylor v. United Parcel Service, Inc., 554 F.3d 510 (5th Cir. 2008)).

6

her prima facie case under the Equal Pay Act.42 Safety Council argues that it would be illogical
for Fontenot to present her proof and arguments that Safety Council’s reasons are mere pretext
before Safety Council has had the opportunity to present to the jury what those reasons are.43
B.

Fontenot’s Opposition to Safety Council’s “Motion to Realign the Parties”
Fontenot opposes Safety Council’s motion because she contends that she still bears the

burden of proof at trial as to whether Safety Council is subject to the EPA; whether Safety Council
retaliated against Fontenot; whether Safety Council willfully violated the EPA; and as to the
amount of damages and attorney’s fees at issue.44 Fontenot agrees with Safety Council’s assertion
that the Court may control the mode and order of examining witnesses and presenting evidence,
pursuant to Federal Rule of Evidence 611(a), but claims that Safety Council’s motion does not
explain how allowing the defense to present first at trial would serve the purposes of Rule 611(a),
i.e. to “make those procedures effective for determining the truth,” “avoid wasting time,” and
“protect witnesses from harassment or undue embarrassment.”45 Citing a case from the Southern
District of New York, Fontenot argues that it is not appropriate to allow the defendant to present
its case first when the plaintiff still bears the burden of proof on some issues remaining in the
case.46

42

Id. at 2.

43

Id. at 5.

44

Rec. Doc. 69 at 1–2.

45

Id. at 2 (citing Fed. R. Evid. 611(a)).

46

Id. (citing St. Paul Fire & Marine Ins. Co. v. Scopia Windmill Fund, LP, No. 14-8002, 2015 WL
5440694, at *13 (S.D.N.Y. Sept. 9, 2015)).

7

C.

Safety Council’s Reply in Support of its “Motion to Realign the Parties”
In reply, Safety Council again argues that allowing the defendant to present its arguments

and evidence as to its non-discriminatory reasons for the pay disparity before Fontenot presents
her arguments and evidence that those reasons are pretext is “the only logical and effective way to
determine the truth and avoid wasting time” because Fontenot has already proven her prima facie
case.47 Deferring to the Court’s discretion, Safety Council suggests other ways to achieve a “fair
presentation” under the posture of the case, such as by bifurcating the issues of the “non-gender
factor/pre-text issue” and damages, or allowing Fontenot to present her opening and closing
arguments first, while still allowing Safety Council to present its evidence as to its affirmative
defenses before Fontenot presents her case on pretext.48
III. Law & Analysis
Safety Council requests that the Court enter an order realigning the parties so that Safety
Council will present its arguments and evidence as to its affirmative defenses to Fontenot’s EPA
claim before Fontenot presents her evidence that the proffered reasons are mere pretext for
discrimination.49 Fontenot contends that a reordering of presentation at trial is inappropriate
because she still maintains the burden of proof as to some of the remaining issues in the case.50
Pursuant to Federal Rule of Evidence 611(a), the Court has the authority to “exercise
reasonable control over the mode and order of examining witnesses and presenting evidence” in
order to: (1) “make those procedures effective for determining the truth;” (2) “avoid wasting time;”

47

Rec. Doc. 74 at 1.

48

Id. at 1–2.

49

Rec. Doc. 64.

50

Rec. Doc. 69.

8

and (3) “protect witnesses from harassment or undue embarrassment.”51 “[T]raditional notions of
fairness favor giving the privilege of opening and closing to the party who carries the burden of
proof.”52 However, “the matter of a court’s allocation of the right to open and close … does not go
to the merits of a controversy.”53 Thus, the decision as to which party has the right to open and
close “rests with the sound discretion of the [Court].”54
Based on the briefing presented by the parties, it appears there are at least five issues that
remain for trial: (1) whether Safety Council is subject to the EPA;55 (2) whether Safety Council
has an affirmative defense regarding the pay differential between Fontenot and McCorquodale;56
(2) whether any violation of the EPA by Safety Council was “willful;” (3) whether Safety Council
retaliated against Fontenot in response to her EPA claims; and (4) “the amount,” if any, “of back
pay due for” the alleged “violation of the [EPA] and retaliation,” if proven.57
Fontenot still bears the burden of proof regarding her retaliation claim; whether any
violation of the EPA by Safety Council was willful; and damages, if any.58 As noted supra,

51

Fed. R. Evid. 611(a).

52

United States v. 2, 353.28 Acres of Land, 414 F.2d 965, 972 (5th Cir. 1969).

53

Moreau v. Oppenheim, 663 F.2d 1300, 1311 (5th Cir. 1981).

54

Id.

55

The Court notes that neither party raised this issue during the pendency of Fontenot’s “Partial Motion for
Summary Judgment” regarding her prima facie case or in any other motion filed by either party regarding the
application of the EPA to Fontenot’s claims.
56

In its memorandum in support of its motion, Safety Council claims that if it meets its burden of production
and persuasion as to an affirmative defense, then the burden of persuasion shifts back to Fontenot to show that the
reasons proffered were mere pretext. Rec. Doc. 64-1 at 2. However, the court notes that Safety Council cited a Title
VII case for this proposition, which, as Safety Council later argues, has a different burden-shifting framework than
EPA cases. See id. at 4.
57

See Rec. Docs. 69 and 64.

58

See e.g., Browning v. Sw. Research Inst., 288 F.App’x 170, 178 (5th Cir. 2008) (stating that a plaintiff must
establish that she suffered an adverse employment action in an EPA retaliation claim); Cox v. Brookshire Grocery
Co., 919 F.2d 354, 356 (5th Cir. 1990) (stating it is the plaintiff’s burden to show that an employer willfully violated

9

“traditional notions of fairness favor giving the privilege of opening and closing to the party who
carries the burden of proof.”59 Considering here, the plaintiff maintains the burden of proof over
the majority of the remaining issues to be decided by the jury, the Court finds that maintaining the
traditional order of presentation of arguments and proof at trial would be the most effective way
to organize the trial.
Safety Council argues that presentation of evidence regarding pretext before presentation
of Safety Council’s reasons for the pay differential between Fontenot and McCorquodale would
be illogical.60 However, because Fontenot must still prove her retaliation claim, Safety Council’s
willfulness, and damages, it is likely that much of the evidence Fontenot might present to show
pretext might also be presented to prove the remaining claims for which she has the burden of
proof. Thus, restricting Fontenot from presenting evidence regarding pretext in her case-in-chief
would obstruct the interests identified in Federal Rule of Evidence 611(a), namely to provide an
effective procedure for determining the truth and to avoid wasting time. Moreover, the Court notes
that Safety Council does not appear to object to Fontenot maintaining the right to present her
opening and closing arguments before Safety Council.61 For these reasons, the Court finds in its
sound discretion that the interests identified in Federal Rule of Evidence 611(a) and traditional
notions of fairness would be best served by allowing Fontenot to present all of the evidence in
support of her claims in her case-in-chief and any rebuttal evidence after Safety Council has

the Fair Labor Standards Act). The EPA was incorporated into the Fair Labor Standards act at 29 U.S.C. § 206(d). 77
Stat. 57 (1963).
59

Acres of Land, 414 F.2d at 972.

60

Rec. Doc. 64-1 at 5.

61

See Rec. Doc. 74 at 2 (suggesting that the Court could allow Fontenot to present her opening and closing
arguments first).

10

presented evidence of its defenses. Accordingly, the Court will not reorder the presentation of
arguments and proof at trial.62
I.

Conclusion

The Court finds that Fontenot still bears the burden of proof at trial on whether the EPA
applies here; her retaliation claim; whether Safety Council willfully violated the EPA; and
damages, if any. Thus, the Court will not reorder the presentation of opening and closing arguments
and the presentation of evidence at trial. Accordingly,
IT IS ORDERED that Safety Council’s “Motion to Realign the Parties” is DENIED.
NEW ORLEANS, LOUISIANA, this ______ day of July, 2017.
21st

____________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

62

See Ransom v. M. Patel Enters., Inc., No. A-10-CA-857 AWA, 2011 WL 5299699, at *2 (W.D. Tex. Nov.
4, 2011) (denying defendant’s motion to open and close evidence because, inter alia, plaintiffs maintained burden of
proof on some issues remaining for trial).

11