Case: 09-30794 Document: 00511524080 Page: 1 Date Filed: 06/28/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 28, 2011
No. 09-30794 Lyle W. Cayce
Clerk
ANGELA KING, M.D.,
Plaintiff-Appellee Cross-Appellant
v.
UNIVERSITY HEALTHCARE SYSTEM LC,
Defendant-Appellant Cross-Appellee
Appeals from the United States District Court
for the Eastern District of Louisiana
Before JONES, Chief Judge, JOLLY, and GARZA, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Dr. Angela King sued her former employer, University Healthcare System,
L.C. (“UHS”), for sex discrimination, retaliation, breach of oral contract,
violation of the Equal Pay Act (“EPA”), and violation of the Louisiana Wage
Payment Statute (“LWPS”). A jury found that UHS did not discriminate against
Dr. King because of her sex, illegally retaliate against her, or breach an oral
contract between UHS and Dr. King. The jury did find, however, that UHS
violated the EPA and LWPS. The jury awarded Dr. King $32,700 in
compensatory damages under the EPA, and the court awarded her an additional
$32,700 in liquidated damages under the EPA and $75,000 in penalties under
the LWPS. The court awarded $76,370.54 in attorney’s fees to UHS and
Case: 09-30794 Document: 00511524080 Page: 2 Date Filed: 06/28/2011
No. 09-30794
$72,613.80 in attorney’s fees to Dr. King. Both Dr. King and UHS have appealed
aspects of the court’s ruling.
I
Beginning in 2005, UHS employed Dr. King as an anesthesiologist at
Tulane University Hospital (“Tulane”).1 Dr. King worked pursuant to a written
employment agreement with an expiration date of March 14, 2007. Under the
agreement, Dr. King was paid a base salary, plus an additional capped sum
based on the amount of time she spent on specialty calls. The contract specified
that Dr. King was to work a minimum of forty-six weeks per year and forty
hours per week. The contract also contained an integration clause:
Entire Agreement. This Agreement shall constitute the entire
agreement of the parties hereto and may not be amended except in
writing signed by all of the parties hereto. No oral statements or
prior written materials not specifically incorporated herein shall be
of any force or effect.
During Dr. King’s tenure with UHS, Hurricane Katrina struck New
Orleans, displacing many of the city’s medical professionals. UHS was unable
to keep Tulane open, and instead Dr. King and others temporarily operated out
of Lakeside Hospital (“Lakeside”), a facility that UHS had recently acquired.
The number of anesthesiologists working for UHS fell from twelve before the
hurricane to only eight after. The remaining doctors, including Dr. King, worked
long hours to meet the needs of their patients. Eventually Tulane reopened and
UHS hired additional anesthesiologists, but Dr. King continued to bear a heavy
workload.
During this time, Dr. Charles Fox was the clinical director of the
anesthesiology department at Tulane. Dr. King testified at trial that, amidst the
strain of the post-Katrina period, she and Dr. Fox discussed the possibility of
1
Prior to 2005, the Hospital’s anesthesiologists were employees of Tulane Medical
School.
2
Case: 09-30794 Document: 00511524080 Page: 3 Date Filed: 06/28/2011
No. 09-30794
additional payments being made to the anesthesiologists, including Dr. King,
based on their increased hours. According to Dr. King, they agreed that UHS
would pay $150 per hour for each “extra” hour she worked. Dr. Fox testified by
video deposition that the UHS physicians who remained in New Orleans after
Katrina had numerous discussions about the possibility of additional
compensation based on their heavy workload, but that he did not recall
promising Dr. King—and would not have had the authority to promise Dr.
King—that she would be paid $150 per hour for extra hours of work. Dr. King,
however, introduced evidence showing that she and other doctors began logging
their hours at about the same time the extra payment discussions took place.
Both Dr. King’s logs and other physicians’ reflected the $150 rate. Dr. King was
even paid $300, apparently pursuant to one such time log. Dr. Michael Mascia,
another UHS anesthesiologist, was similarly paid $3,000 for time logged on the
time sheets. Kim Ryan, the chief operating officer and interim CEO of UHS,
testified that the payments to both doctors were made in error.
Soon, the time approached for physicians’ contracts, including Dr. King’s,
to be renewed. UHS began preparing and circulating proposed contract addenda
that included a $33,000 payment in addition to a physicians’ ordinary pay. Ryan
testified that the $33,000 bonus was offered to the anesthesiologists across the
board. Dr. King first received an “Employment Agreement Addendum” with the
subhead “Extension Bonus.” The addendum offered $33,000, which was
characterized in the body of the addendum as an “Extension Bonus.” The
addendum provided that the bonus was payable upon the receipt of a fully
executed second employment agreement. Sometime thereafter, however, UHS
presented Dr. King with a second draft of the addendum. The “Extension
Bonus” subhead had been replaced with “Extra Hours Bonus.” The body of the
addendum similarly characterized the payment as an “Extra Hours Bonus,”
rather than an “Extension Bonus.” Unlike the first addendum, this addendum
3
Case: 09-30794 Document: 00511524080 Page: 4 Date Filed: 06/28/2011
No. 09-30794
subtracted Dr. King’s earlier $300 payment, leaving a total bonus of $32,700.
Dr. King signed this addendum, but the record does not suggest that she ever
returned the signed copy, and it was never signed by a representative of UHS.
Finally, UHS provided Dr. King with a third draft of the addendum. The third
draft continued to refer to the payment as an “Excess Hours Bonus” and deduct
the $300. It also included a new clause: “This Excess Hours Bonus will
compensate for excess hours worked from the time period beginning 8/29/05
through 7/31/06.” Dr. King testified at trial that she considered this term unfair
and the $33,000 inadequate payment for the full extra work she did following the
hurricane.
At the same time, UHS was offering the anesthesiologists contract
renewals. UHS took the position that it would not pay the $33,000 bonus to an
anesthesiologist unless the anesthesiologist signed both the addendum and the
extension. Dr. King did not sign either a contract extension or the final draft of
the addendum, and she did not receive a bonus. Ryan testified that every
anesthesiologist except Dr. King signed the addendum, including Dr. Mascia.
Dr. Mascia, however, allowed his contract with UHS to expire without signing
an extension. Nevertheless, he was paid a bonus of $30,000—$33,000 minus the
$3,000 that UHS had already paid him based on his time sheets. Ryan testified
that Dr. Mascia was paid the bonus only because, at the time, contract
negotiations between Dr. Mascia and UHS were ongoing and UHS believed that
Dr. Mascia would re-sign.
Although Dr. King believed that her conflict with UHS could still be
resolved, UHS informed her that her contract would not be renewed. Her tenure
with the organization, therefore, ended with the expiration of the original
written contract. Dr. King brought this suit. In the wake of the jury’s verdict
and the district court’s final judgment, the parties filed cross-appeals.
4
Case: 09-30794 Document: 00511524080 Page: 5 Date Filed: 06/28/2011
No. 09-30794
II
Both parties have raised challenges relating to either the admission or
discoverability of evidence. UHS challenges the admission of testimonial
evidence relating to the formation of an oral contract between it and Dr. King.
Dr. King challenges the exclusion of portions of two exhibits, as well as the
district court’s conclusion that certain e-mails that Dr. King sought to discover
were privileged. For the reasons below, we find no error in the district court’s
rulings.
A
UHS argues that the district court erred by admitting evidence in support
of an oral contract to pay Dr. King $150 per hour for the extra hours that she
worked. It suggests that the district court disregarded our precedents
establishing that, under Louisiana law, extraneous evidence of oral agreements
may not be admitted to vary the terms of a written contract containing an
integration clause. Dr. King responds that the evidence of an oral agreement
with UHS was offered to establish the existence of a separate oral contract, as
permitted by Louisiana law and our precedents.
The general rule in Louisiana is that a court may not consider parol
evidence to alter the terms of a written agreement when that agreement “is a
complete and accurate statement of all the terms agreed upon by the parties.”
Stokes v. Georgia-Pacific Corp., 894 F.2d 764, 768 (5th Cir. 1990); see also LA.
CIV. CODE ANN. art. 2046. Louisiana law provides that a court may, “in the
interest of justice,” consider testimonial evidence “to prove that the written act
was modified by a subsequent and valid oral agreement.” LA CIV. CODE ANN.
art. 1848. Even a written merger or integration clause is not a per se bar on
consideration of parol evidence. Omnitech Int’l, Inc. v. Clorox Co., 11 F.3d 1316,
1328 (5th Cir. 1994). If, however, the facts of a particular case show “that the
merger clause correctly reflected the parties’ intentions,” then the clause “should
5
Case: 09-30794 Document: 00511524080 Page: 6 Date Filed: 06/28/2011
No. 09-30794
thus be enforced as written.” Id.; see also Condrey v. SunTrust Bank of Ga., 429
F.3d 556, 564 (5th Cir. 2005).
Insofar as the district court’s ruling was purely evidentiary, we review it
for abuse of discretion only. Compaq Computer Corp. v. Ergonome, Inc., 387
F.3d 403, 408 (5th Cir. 2004). We conclude that, under the circumstances, the
district court acted within its discretion in granting Dr. King latitude to attempt
to establish that the integration clause did not fully reflect the parties’
intentions and that her employment contract was modified by a subsequent and
valid oral agreement. We note, however, that under Louisiana law, “[t]he mere
admissibility of oral statements does not require an automatic finding that the
statements have the substantive effect of either varying or nullifying a contract
. . . .” Bass v. Coupel, 671 So. 2d 344, 353 (La. Ct. App. 1995). To the contrary,
a court’s admission of parol evidence is “only the first step in the process for
determining its functional efficacy under the parol evidence rule.” Id. The
question of whether a subsequent agreement was actually formed, despite the
terms of the integration clause, goes to whether the verdict was plainly
erroneous, which we consider below.
B
Dr. King argues that the district court erred in refusing to allow the jury
to see portions of e-mails between Dr. King’s attorney and a UHS attorney.
Again, our review is for abuse of discretion. UHS filed a Motion in Limine to
exclude portions of the exhibits on the basis that they were settlement
communications under Rule 408(a) of the Federal Rules of Evidence. The
district court granted the motion in part, excluding portions of the e-mails that
it found reflected Dr. King’s or UHS’s willingness to settle. The district court,
however, denied UHS’s motion insofar as it sought to exclude the e-mails
completely. Rather, the district court held that they were inadmissible only
insofar as they were offered to prove UHS’s liability or the amount of Dr. King’s
6
Case: 09-30794 Document: 00511524080 Page: 7 Date Filed: 06/28/2011
No. 09-30794
claims. The district court concluded that portions of the e-mails were admissible
for permitted purposes, such as showing that Dr. King advised UHS that she
had a claim for employment discrimination.
Rule 408(a) of the Federal Rules of Evidence provides that “conduct or
statements made in compromise negotiations regarding [a] claim” are “not
admissible on behalf of any party, when offered to prove liability for, invalidity
of, or amount of [the] claim . . . or to impeach through a prior inconsistent
statement or contradiction.” See also Ikossi-Anastasiou v. Bd. of Supervisors of
La. State Univ., 579 F.3d 546, 551 (5th Cir. 2009). Dr. King argues in a
conclusory fashion that she offered the e-mails for a permissible alternative
purpose. She is unable, however, to explain what permissible purpose she was
unable to pursue. Instead, Dr. King argues merely that if the jury had seen the
redacted information, it might have ruled differently on her contract claim.
Insofar as that is true, Dr. King’s reliance on settlement negotiations to prove
liability would be a paradigmatic Rule 408(a) violation. Dr. King’s argument on
this issue has no merit.
C
Dr. King next argues that the district court erroneously denied discovery
of e-mails that would have provided further support for her EPA and Title VII
claims. Dr. King asked the district court to engage in an in camera review of
several e-mails that UHS had asserted were covered by attorney-client privilege.
Dr. King argues that those e-mails may have revealed details about the reasons
for the non-renewal of her contract—which would, she posits, have supported her
EPA and Title VII claims. The district court refused to engage in an in camera
review of the e-mails, concluding, based on UHS’s privilege log, that the e-mails
were “privileged on their face and protected from discovery.”
“[T]he attorney-client privilege protects communications made in
confidence by a client to his lawyer for the purpose of obtaining legal advice.”
7
Case: 09-30794 Document: 00511524080 Page: 8 Date Filed: 06/28/2011
No. 09-30794
Hodges, Grant & Kaufmann v. United States, 768 F.2d 719, 720 (5th Cir. 1985)
(citation omitted). The party invoking attorney-client privilege has “[t]he burden
of demonstrating [its] applicability.” Id. at 721. “The application of the
attorney-client privilege is a question of fact, to be determined in the light of the
purpose of the privilege and guided by judicial precedents.” United States v.
Neal, 27 F.3d 1035, 1048 (5th Cir.1994) (internal quotation marks and citation
omitted), cert. denied, 513 U.S. 1179 (1995). “The clearly erroneous standard of
review applies to the district court’s factual findings. We review the application
of the controlling law de novo.” Id. (internal quotation marks and citation
omitted).
The district court based its decision not to review the individual e-mails
for privilege on UHS’s FED. R. CIV. P. 26(b)(5) privilege log. The privilege log
lists the authors and recipients of the e-mails, a brief description of each
withheld communication, the amount of each document withheld, and the type
of privilege asserted. A review of the privilege log entries confirms the district
court’s conclusion that it describes communications between client and attorney
for the purpose of obtaining legal advice. The district court did not clearly err
by deciding to credit these descriptions as accurate and concluding that UHS
met its initial burden to show that it was entitled to protection by the privilege.
In rebuttal, King has offered only speculation that the e-mails are not covered
by privilege because they were made for a purpose other than obtaining legal
advice. In such a situation, the district court did not err in declining to engage
in a full in camera review of the challenged e-mails.2
2
Dr. King also argues, in a conclusory fashion and without citation to additional
authority, that (1) discovery sanctions imposed against her were in error and (2) the district
court erred in preventing her from introducing the privilege log itself into evidence. The
sanctions argument seems, at best, to be an extension of her argument that she should have
been allowed to discover the e-mails. Because we find no error with regard to the district
court’s discovery decision, we find none with regard to the sanctions. To the extent that Dr.
King has adequately raised the admissibility of the discovery log, we find no abuse of
8
Case: 09-30794 Document: 00511524080 Page: 9 Date Filed: 06/28/2011
No. 09-30794
III
Dr. King argues that the evidence was insufficient to support the jury’s
finding that UHS did not breach an oral contract to pay Dr. King $150 per hour
for the extra hours that she worked. Dr. King concedes that, because she did
not file a Rule 50(b) motion for judgment as a matter of law, we review the jury’s
verdict for plain error and may reverse “only if the judgment complained of
results in ‘manifest miscarriage of justice.’” Stover v. Hattiesburg Pub. Sch.
Dist., 549 F.3d 985, 995 (5th Cir. 2008) (internal quotation marks and citation
omitted). Nevertheless, she argues that she has proven her case so thoroughly
that a manifest miscarriage of justice will result if the jury is not reversed. UHS
counters that the jury’s verdict was well-founded, and that Dr. King failed to
establish the terms or existence of a valid oral contract.
Dr. King argues that the evidence she presented, taken together, meets
the requirements for establishing a breach of contract. Under Louisiana law,
“an oral contract for more than five hundred dollars may be proved by the
testimony of ‘one witness and other corroborating circumstances.’” Meredith v.
La. Fed’n of Teachers, 209 F.3d 398, 403 (5th Cir. 2000) (quoting LA. CIV. CODE
art. 1846). A credible plaintiff suing under an alleged oral contract may serve
as her own witness. Id. “[T]he jury is in the best position to evaluate the
evidence and to assess the credibility of witnesses.” Ham Marine, Inc. v. Dresser
Indus., Inc., 72 F.3d 454, 461 (5th Cir. 1995).
Dr. King misunderstands our standard of review. It is not enough for her
to show that she presented evidence sufficient to support a verdict in her favor.
She must show that it was a manifest miscarriage of justice for the jury to find
otherwise. The jury, however, had numerous plausible grounds on which it
could have concluded that Dr. King failed to prove her case. The jury may have
discretion in the court’s finding it inadmissible.
9
Case: 09-30794 Document: 00511524080 Page: 10 Date Filed: 06/28/2011
No. 09-30794
found Dr. King’s testimony lacked credibility. It may have found that the
“corroborating circumstances” on which she relied were more consistent with
UHS’s explanation of events. Our role on plain error review is not to re-weigh
the evidence, but merely to assure that any manifest miscarriage of justice is
avoided. Dr. King has not shown that a manifest miscarriage of justice will
result if the jury’s verdict is allowed to stand.
IV
UHS argues that the jury plainly erred in concluding that Dr. King was
entitled to unpaid wages. It argues that the jury’s finding that Dr. King was
owed $32,700 in unpaid wages is contrary to the facts and to the jury’s own
findings. Dr. King responds that the jury’s verdict was supported by the record
and that, in any event, its conclusion was not plain error.
The LWPS provides an employee who has resigned or been terminated a
statutory cause of action if her employer fails or refuses to pay any unpaid wages
she earned during her time of employment. LA. REV. STAT. ANN. § 23:631. An
employee’s LWPS cause of action is separate and apart from her traditional
contract remedies, and violations of the LWPS may subject the employer to
penalties well beyond the wages owed under the employment contract. See LA.
REV. STAT. ANN . § 23:632; Boudreaux v. Hamilton Med. Grp., Inc., 644 So. 2d
619, 623 (La. 1994) (holding that LWPS is inapplicable but remanding for
consideration of contract claim). Nevertheless, an employee’s contractual terms
of employment are central to an LWPS claim. The LWPS only requires an
employer to pay the compensation “due under the terms of employment.” LA.
REV. STAT. ANN. § 23:631(A)(1)(a)-(b). As such, payments that are “not provided
for by the employment contract” are “thus not governed by the provisions of” the
LWPS. Rutledge v. CRC Holston, Inc., 425 So. 2d 364, 366 (La. Ct. App. 1982),
writ denied, 429 So. 2d 147 (1983).
10
Case: 09-30794 Document: 00511524080 Page: 11 Date Filed: 06/28/2011
No. 09-30794
On the jury form, the jury answered “no” when asked whether it found
that UHS “breached a valid oral contract with Dr. King regarding payment for
extra hours worked after Hurricane Katrina and that such breach was a
proximate cause of damage to Dr. King.” A jury’s “[a]nswers should be
considered inconsistent . . . only if there is no way to reconcile them.” Willard
v. John Hayward, 577 F.2d 1009, 1011 (5th Cir. 1978); see also Ellis v. Weasler
Eng’g Inc., 258 F.3d 326, 343 (5th Cir. 2001) (“We are required under the
Seventh Amendment to make a concerted effort to reconcile apparent
inconsistencies in answers to special verdicts if at all possible.” (citations
omitted)). If possible, therefore, we must construe the jury’s LWPS verdict as
consistent with its oral contract conclusion—that is to say, we must construe the
LWPS verdict as based on some obligation other than the oral contract that the
jury rejected. Acknowledging this limitation, Dr. King argues that while the
jury did not find that there was an oral agreement to pay King $150 per hour,
the jury did find that there was a separate agreement to pay $33,000 for extra
hours worked, which was paid to other doctors. That reading of the verdict is
consistent with the LWPS damages award.
Dr. King’s LWPS award must stand, therefore, unless the jury plainly
erred in concluding that UHS was obligated under a separate agreement, other
than the original alleged oral contract, to pay Dr. King for her extra work.
Based on our review of the record, there is no factual support for such a
conclusion. Dr. King cannot claim rights under contract addenda that she
openly rejected. Although Dr. King’s signature does appear on one addendum,
it is undisputed that that addendum was never signed by a representative of
UHS, and it appears that the signed addendum was likely never returned to
UHS. There is no evidence of any completed oral contract to pay Dr. King the
bonus—to the contrary, the bonus was always plainly tied to the execution of a
written contract. Recovery under the LWPS must be premised on some
11
Case: 09-30794 Document: 00511524080 Page: 12 Date Filed: 06/28/2011
No. 09-30794
identifiable obligation. Because the jury’s conclusion that such an obligation
existed cannot be justified based on the record, we are compelled to find plain
error.3
V
UHS argues that the jury’s conclusion that UHS violated the EPA was
plainly erroneous. UHS posits that Dr. King did not receive the bonus because
she refused to sign an extension with UHS. It argues that Dr. Mascia, the doctor
who was paid a bonus without signing the extension, is not an appropriate
comparator to Dr. King, and that, even if he is an otherwise apt comparator, he
was paid because UHS believed he would sign the extension, not because of his
difference in sex. Dr. King responds that Dr. Mascia is an appropriate
comparator, that UHS has not demonstrated that it paid Dr. Mascia differently
for any of the reasons sanctioned by the EPA, and that the jury’s verdict was, in
any event, not plainly erroneous.
The EPA prohibits an employer from discriminating 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 . . . .
29 U.S.C. § 206(d). “Once a plaintiff has made her prima facie case by showing
that an employer compensates employees differently for equal work, the burden
shifts to the defendant to” show by a preponderance of the evidence that the
3
Accordingly, we are not required to determine whether the district court’s jury
instructions stated the definition of “wages” overly broadly or whether the jury was wrongly
instructed with regard to the possibility of formation of an oral contract.
12
Case: 09-30794 Document: 00511524080 Page: 13 Date Filed: 06/28/2011
No. 09-30794
differential in pay was made pursuant to one of the four enumerated exceptions.
Siler-Khodr v. Univ. of Tex. Health Sci. Ctr. San Antonio, 261 F.3d 542, 546 (5th
Cir. 2001).
At the core of the parties’ disagreement is whether the bonus that UHS
paid Dr. Mascia can be fairly compared to UHS’s refusal to pay a similar bonus
to Dr. King. UHS argues first that Dr. Mascia is himself an inappropriate
comparator to Dr. King because their jobs were not comparable, as required by
the EPA. UHS notes that, although both Dr. Mascia and Dr. King were
anesthesiologists in title, Dr. Mascia had certifications and qualifications that
Dr. King did not. Be that as it may, Dr. Mascia’s qualifications, in and of
themselves, are irrelevant to whether Drs. King and Mascia performed “equal
work on jobs the performance of which requires equal skill, effort, and
responsibility,” § 206(d). That inquiry looks to the “actual job requirements and
performance.” 29 C.F.R. § 1620.13(e). It was not plainly erroneous, based on the
record, to conclude that the performance of Drs. Mascia and King’s jobs required
equal skill, effort, and responsibility. The determinative issue, therefore, is
whether it was plain error not to conclude that the bonus was awarded to Dr.
Mascia but not Dr. King for one of the reasons permitted under the EPA: “(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.” § 206(d).
As with the jury’s oral contract and LWPS verdicts, we must construe the
jury’s Title VII and EPA verdicts consistently, if possible. The jury answered
“no” when asked, “Do you find by a preponderance of the evidence that
defendant, University Healthcare System, L.C., discriminated against plaintiff,
Angela King, M.D., because of her sex and that such discrimination was a
proximate cause of damage to Dr. King?” That answer seems, at least on first
reading, in tension with a finding of EPA liability: the jury found that Dr. King
13
Case: 09-30794 Document: 00511524080 Page: 14 Date Filed: 06/28/2011
No. 09-30794
failed to show that UHS “discriminated against [Dr. King] because of her sex,”
resulting in damages; yet it found EPA liability, which, by definition, must have
been premised on the conclusion that UHS “discriminate[d] . . . between
employees on the basis of sex by paying [Dr. King] wages . . . at a rate less than
the rate at which [it paid] wages to employees of the opposite sex . . . where such
payment [was not] made pursuant to . . . a differential based on any other factor
other than sex,” § 206(d).
The allocation of burdens in EPA and Title VII claims, however, differ in
a way that may, in some cases, result in an employee prevailing on her EPA
claim but not her Title VII claim. Specifically, where a plaintiff makes an
adequate prima facie case for both an EPA and a Title VII claim, the defendant
bears the burden of persuasion to prove a defense under the EPA, whereas it has
only a burden of production to show a legitimate nondiscriminatory reason for
its actions under Title VII, with the ultimate burden of persuasion remaining
with the plaintiff. Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1136-37 (5th Cir.
1983). As such, where the defendant proffers a reason for its pay differential
other than sex, but does not prove that reason by a preponderance of the
evidence, the plaintiff will succeed on an EPA claim while still bearing the
burden of persuasion under Title VII. Id. The district court’s charge to the jury
highlighted this difference in burdens. The jury was told that Dr. King bore the
burden of showing that UHS discriminated against her because of her sex under
Title VII, but that UHS bore the burden of proving the “any other factor other
than sex” defense under the EPA.
Reviewing only for plain error, we conclude that the jury’s verdict does not
work a manifest miscarriage of justice. Plain error review looks only to “whether
there is any evidence to support the jury’s verdict in favor of the plaintiff.”
Adames v. Perez, 331 F.3d 508, 511 (5th Cir. 2003) (citation omitted). Because
King has presented evidence adequate to establish a pay differential with an
14
Case: 09-30794 Document: 00511524080 Page: 15 Date Filed: 06/28/2011
No. 09-30794
appropriate comparator, Dr. Mascia, the jury was within its discretion to
conclude that UHS bore the burden of establishing an affirmative defense.
UHS’s evidence supporting its affirmative defense consisted chiefly of testimony
of UHS employees who stated that Dr. Mascia was paid the bonus because they
believed he was returning. The jury’s broad authority permitted it to conclude
that the testimony offered by UHS was not credible and that UHS simply failed
to carry its burden.
VI
A
Lastly, we turn to damages and attorney’s fees. UHS argues first that the
district court erred in granting Dr. King liquidated damages on her EPA claim.
It argues that any EPA violation arose out of actions UHS undertook in good
faith, and that the district court therefore should not have ordered liquidated
damages. Dr. King responds that UHS did not carry its burden to show good
faith and that, even if it did, the district court was within its discretion to order
liquidated damages. Where a statute authorizes liquidated damages against a
defendant who lacked good faith, this Court reviews the district court’s decision
for abuse of discretion. Singer v. City of Waco, 324 F.3d 813, 823 (5th Cir. 2003).
UHS and Dr. King agree that unless an employer can demonstrate that it
violated the EPA in good faith and with reasonable grounds for believing it was
not violating the Act, an award of liquidated damages is mandatory. 29 U.S.C.
§ 216(b); Lowe v. Southmark Corp., 998 F.2d 335, 337 (5th Cir. 1993). Once the
employer has made a showing of good faith, see 29 U.S.C. § 260, the district court
has “discretion to award an amount of liquidated damages less than the amount
awarded in back pay and retaliation damages.” Lowe, 998 F.2d at 337. To
qualify for the “good faith” defense, a defendant must show that its culpable act
or omission “was based upon reasonable grounds for believing that [the
defendant] was not violating the Act.” Id.
15
Case: 09-30794 Document: 00511524080 Page: 16 Date Filed: 06/28/2011
No. 09-30794
The district court held that UHS failed to carry its burden of showing good
faith; accordingly, the district court never considered whether to reduce Dr.
King’s liquidated damages award. The district court based its conclusion on a
credibility determination with regard to UHS’s witnesses, writing:
The principal evidence concerning the alleged good faith/reasonable
belief explanation for defendant’s conduct came from defendant’s
employees . . . . Obviously, the jury did not accept this testimony in
connection with its separate finding concerning defendant’s
argument that its payment of the bonus to Dr. Mascia was made
pursuant to a differential based on any other factor other than sex.
I similarly reject the testimony for purposes of establishing a basis
for avoiding imposition of liquidated damages.
(Citation omitted.) UHS argues first that this analysis improperly deferred to
the jury’s finding of culpability, effectively abdicating the district court’s
responsibility to make its own good faith determination. UHS’s account is belied
by the court’s own language stressing that good faith was reserved for the
judge’s determination, not the jury’s, and explaining the holding in terms of the
court’s own credibility determinations.
UHS argues next that the district court’s conclusion was premised on the
erroneous assumption that Ryan—whom the district court did find to be
“generally credible”—did not, in the district court’s words, have “the principal
logistical role and responsibility for dealing with the anesthesiologists in
connection with the relevant contract and bonus documentation.” The record is
not altogether clear with regard to the details of UHS’s internal decision-making
about its payments to Drs. Mascia and King. Based on the evidence available,
we cannot conclude that the district court abused its discretion in holding that
UHS did not carry its burden of showing good faith. The award of liquidated
damages must stand.
16
Case: 09-30794 Document: 00511524080 Page: 17 Date Filed: 06/28/2011
No. 09-30794
B
UHS challenges the award of attorney’s fees under the LWPS and EPA
only insofar as it challenges the respective verdicts on those counts. Because we
reverse the judgment against UHS under the LWPS, we also hold, of course, that
Dr. King is unable to recover attorney’s fees thereunder. By the same token,
because we affirm the district court’s EPA award, Dr. King is still entitled to
recover fees under that statute. See 29 U.S.C. § 216(b) (“The court in such action
shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a
reasonable attorney’s fee to be paid by the defendant . . . .”). While the district
court apparently followed a fairly simple rule of allocating 20% of the fees to
each claim, it has never fully accounted for how much of its award is attributable
to the EPA claim alone, how much to the LWPS claim, and how much overlap
there may have been between the two. Cf. Fox v. Vice, No. 10-114, slip op. at 8-
11 (U.S. June 6, 2011) (highlighting need to separate fees that are associated
with claims for which recovery is permitted from fees that are not). Remand is
therefore appropriate on this issue.4
C
Dr. King argues that the district court erred in concluding that UHS was
entitled to recover attorney’s fees under her original employment contract. She
argues that her employment contract only empowered UHS to recover attorney’s
fees in lawsuits based on alleged breaches of that contract itself, whereas she
sued under a separate alleged later oral contract. Section 12.3 of the written
agreement states that if either party is “required to enforce the terms of this
Agreement . . . the prevailing party shall be entitled to recover the costs of such
action, including, but not limited to a reasonable attorney’s fee.”
4
Because we remand for the purposes of apportionment of fees between the claims
anyway, we agree with UHS that the best course of action is for the district court to apportion
fees on appeal as well.
17
Case: 09-30794 Document: 00511524080 Page: 18 Date Filed: 06/28/2011
No. 09-30794
Dr. King’s argument is without merit. It is undisputed that Dr. King’s
employment by UHS was, at all times relevant to this litigation, governed by her
written employment agreement. It is further undisputed that that agreement
contained both (1) terms setting forth how King would be compensated and (2)
a clause setting forth how the contract could be amended. Dr. King has never
shown that her employment contract was superseded in full. She has, at most,
alleged subsequent supplemental agreements that would have operated in
conjunction with—and made little, if any, sense outside the context of—the
terms of the written contract. In such a circumstance, the district court was
correct in concluding that King’s litigation “required [UHS] to enforce the terms
of” the written employment agreement.
Dr. King argues that the district court’s parol evidence ruling is
inconsistent with the conclusion that UHS was enforcing its written contract
with Dr. King. As we have explained, however, the decision to admit parol
evidence in an effort to show the existence of a later agreement is by no means
the equivalent of a substantive ruling that the parties’ original contract is
irrelevant to the conflict at issue. “Louisiana’s parol evidence rule is not
substantive law, but a rule of evidence.” Dugas v. Modular Quarters, Inc., 561
So. 2d 192, 196 (La. Ct. App.1990); see also Bass, 671 So. 2d at 353. The district
court’s ruling that Dr. King could present parol evidence did not render her
written contract with UHS irrelevant or non-determinative. UHS successfully
enforced the contract in that it both enforced the integration clause and enforced
the compensation provisions as the governing statements of Dr. King’s rate of
compensation. The district court’s award of attorney’s fees under the contract
was not in error.
D
Finally, we turn to a third-party motion that has been filed with regard to
the attorney’s fees in this case. The law firm of Coats Rose Yale Ryman & Lee
18
Case: 09-30794 Document: 00511524080 Page: 19 Date Filed: 06/28/2011
No. 09-30794
(“Coats Rose”), which was Dr. King’s trial counsel, has moved for leave to assert
a privilege on the district court’s judgment for the amount of attorney’s fees
incurred on behalf of Dr. King. Coats Rose relies on LA. REV. STAT. ANN. §
9:5001, which provides a “special privilege” for “attorneys at law for the amount
of their professional fees on all judgments obtained by them” permitting them
“to take rank as a first privilege thereon superior to all other privileges and
security interests under Chapter 9 of the Louisiana Commercial Laws.” Dr.
King opposes the motion, arguing that there is no factual record involving her
conflict with Coats Rose and that a motion to this court was not the appropriate
mechanism for enforcing the firm’s rights under LA. REV. STAT. ANN . § 9:5001.
We ordered Coats Rose to respond, and in its response it recharacterizes its
motion as “the functional equivalent of requesting to intervene,” and now
apparently seeks to be treated as an intervenor.
Dr. King’s argument is well-taken. Despite Coats Rose’s late-arising
attempt to recast events, its motion made no mention of intervention and offered
no argument that it was an appropriate intervenor. Cf. FED. R. CIV. P. 24(c)
(providing that a motion to intervene must “state the grounds for intervention
and be accompanied by a pleading that sets out the claim or defense for which
intervention is sought”). Rather, the firm, a non-party, merely filed a largely
unexplained motion asking us to enforce a statutory privilege in its favor. That
motion was not an adequate motion to intervene and should therefore be denied.
We express no position as to whether intervention would be appropriate
following remand.
VII
In summary, the district court’s award in favor of Dr. King under the
Louisiana Wage Payment Statute is REVERSED and the judgment VACATED
as to that claim. The award of attorney’s fees related to the Louisiana Wage
Payment Statute claim to Dr. King is REVERSED, and the judgment is
19
Case: 09-30794 Document: 00511524080 Page: 20 Date Filed: 06/28/2011
No. 09-30794
VACATED as to the amount of the fees awarded. In all other respects, the
judgment of the district court is AFFIRMED. The case is REMANDED to the
district court for a determination of the amount of attorney’s fees attributable
to Dr. King’s Equal Pay Act claim. Coats Rose Yale Ryman & Lee’s Motion for
Leave to Assert Privilege for Attorneys’ Fees and Costs on Judgment is DENIED
without prejudice to asserting the rights claimed therein by other means.
20