Fontenot v. Safety Council of Sw. La., CIVIL ACTION NO. 2:16-CV-84

JONI FONTENOT v. SAFETY COUNCIL OF SOUTHWEST LOUISIANA

CIVIL ACTION NO. 2:16-CV-84

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAKE CHARLES DIVISION

June 23, 2017

JUDGE BROWN

MAGISTRATE JUDGE KAY

ORDER

In this litigation, Plaintiff Joni Fontenot ("Fontenot") alleges that her employer, Safety Council of Southwest Louisiana ("Safety Council"), is paying her lower 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 Safety Council's "Motion to Strike."³ Having considered the pending motion, the memoranda in support and in opposition, the record, and the applicable law, the Court will deny Safety Council's "Motion to Strike."

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 Joni Fontenot is a female employed by Safety Council in the position of Chief Operating Officer.⁵ Fontenot began in this position upon entering into a three-year contract on October 19, 2011.⁶ The terms of the agreement, including compensation and duties, are memorialized in the contract ("Employment Contract").⁷ 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.⁸ Prior to Fontenot's employment as Chief Operating Officer, Robert J. McCorquodale ("McCorquodale") served as Chief Executive Officer of Safety Council.⁹ McCorquodale served in this position from 2005 to 2011.¹⁰

On November 10, 2015, Fontenot, through her attorney, made a demand on Safety Council that Safety Council was in violation of the EPA, 29 U.S.C. § 206(d)(1).¹¹ On January 19, 2016, Fontenot, through her attorney, filed suit against Safety Council alleging a violation of the EPAand further alleging that Safety Council retaliated against her after her assertion of her EPA claim.¹²

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.¹³ Fontenot further alleges that Safety Council's discriminatory practices are "fixed, systematic, and continuing in nature," which she asserts 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.¹⁴ 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 year of 2015," despite the fact that she had received a bonus each year prior.¹⁵ 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.¹⁶ On January 26, 2016, after filing her Complaint, Fontenot received a $6,000 bonus for the year 2015.¹⁷

On February 23, 2016, Safety Council filed an Answer to the Complaint, denying the allegations and alleging affirmative defenses.¹⁸ Specifically, Safety Council alleges that Fontenotfailed 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 sex.¹⁹

B. Procedural Background

On January 19, 2016, Fontenot filed her Complaint against Safety Council in the Western District of Louisiana.²⁰ The case was assigned to Judge Minaldi in the Lake Charles Division.²¹ Safety Council filed an Answer on February 23, 2016.²² The case was set for trial on May 22, 2017.²³ On March 14, 2017, the trial date was continued until August 21, 2017.²⁴ 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.²⁵

On May 23, 2017, Safety Council filed a "Motion for Partial Summary Judgment" requesting the Court enter summary judgment in its favor that the two-year limitations period applies to Fontenot's claims because there is no evidence that Safety Council willfully violated theEPA.²⁶ On June 2, 2017, Fontenot filed a Memorandum in Opposition to Safety Council's "Motion for Partial Summary Judgment" alleging the existence of evidence supporting her claim that Safety Council willfully violated the EPA.²⁷ With leave of Court, Safety Council filed a reply in support of its "Motion for Partial Summary Judgment" on June 7, 2017.²⁸ The same day, Safety Council filed a "Motion to Strike" certain evidence presented by Fontenot in her Memorandum in Opposition to Safety Council's "Motion for Partial Summary Judgment."²⁹ Fontenot filed a Memorandum in Opposition on June 13, 2017.³⁰ With leave of Court, Safety Council filed a reply on June 19, 2017.³¹

II. The Parties' Arguments

A. Safety Council's "Motion to Strike"

In the motion, Safety Council moves to strike two pieces of evidence submitted by Fontenot in her response to Safety Council's "Motion for Partial Summary Judgment" on the issue of the proper limitations period to apply to Fontenot's EPA claim.³² Specifically, Safety Council moves to strike the last full paragraph of Fontenot's affidavit because Safety Counsel alleges that it is not based on personal knowledge, but rather is based on hearsay.³³ Safety Council also moves to strikethe deposition of Joe A. Andrepont, as submitted by Fontenot, because it is a rough draft and "not certified as an accurate or complete transcription of Mr. Andrepont's sworn testimony."³⁴

First, Safety Council argues that the last paragraph of Fontenot's affidavit should be stricken because it contains two hearsay statements.³⁵ The paragraph contains a statement about a conversation Fontenot had "a few years back,"_recounting what Greg Satterfield ("Satterfield"), a Safety Council board member, told her regarding Safety Council's setting of her predecessor's (McCorquodale) salary, and includes an excerpt of a "2004 Memo 'in the Safety Council's records.'"³⁶ Safety Council argues that both the statement by Satterfield and the quotation from the 2004 memorandum, referenced by Fontenot, are "statements" under Federal Rule of Evidence 801(a).³⁷ Safety Council contends that Fontenot is using these statements to prove facts not within her personal knowledge, and, thus, they are hearsay, not admissible at trial or in her affidavit.³⁸ Therefore, Safety Counsel asserts that the statements are not proper summary judgment evidence pursuant to Federal Rule of Civil Procedure 56.³⁹ Safety Council further contends that Rule 56 does not allow for an affiant to testify "as to her subjective conclusions about the import of hearsay statements."⁴⁰ Safety Council also avers that Satterfield is "the best and only source of testimony concerning facts within his personal knowledge," noting that he is a potential testifying witnessand has provided deposition testimony in this case which contradicts the hearsay statement Fontenot included in her affidavit.⁴¹

Second, Safety Council argues that the rough draft of the transcript of the deposition of Joe A. Andrepont should be stricken from the record.⁴² Safety Council contends that the rough draft is facially incompetent evidence because it "is not certified as an accurate or complete transcription of Mr. Andrepont's sworn testimony."⁴³ Safety Council points to the document's disclaimer regarding the draft's accuracy, particularly the statement that "it is not for official use."⁴⁴ Safety Council contends that this would not be admissible at trial and moves the Court to strike the rough draft from the record.⁴⁵

B. Fontenot's Opposition to Defendant's "Motion to Strike"

In response, Fontenot claims that the statements she made in the last paragraph of her affidavit are not hearsay because they should be considered "an opposing party's statement" under the hearsay exception in Federal Rule of Evidence 801(d)(2).⁴⁶ Fontenot cites evidence that Satterfield is and was on the board of directors for Safety Council, and was "Council President during the applicable time."⁴⁷ This, Fontenot contends, creates an agency relationship between Satterfield and Safety Council.⁴⁸ In support, Fontenot cites a decision by a district judge in theDistrict of Connecticut, Nyack v. Southern Connecticut State University.⁴⁹ According to Fontenot, in Nyack, the court stated that a party seeking to admit a vicarious admission must demonstrate: (1) the existence of an agency relationship between the declarant and the opposing party; (2) that the statement was made during the course of the agency relationship; and (3) that the statement relates to a matter within the scope of the agency relationship.⁵⁰ Fontenot argues that Satterfield was an agent of Safety Council making a statement during the course, and within the scope, of his agency relationship with Safety Council.⁵¹ Fontenot contends that as the president of Safety Council, Satterfield had the responsibility under its by-laws for the pay of McCorquodale.⁵²

Fontenot asserts the same arguments regarding the...