ORDER AND REASONS

NANNETTE JOLIVETTE BROWN, Chief District Judge.

Before the Court is Plaintiff Joni Fontenot's ("Fontenot") "Renewed Rule 50(b) Motion for Judgment as a Matter of Law."1 Having considered the pending motion, the memoranda in support and in opposition, the record, and the applicable law, the Court will deny the motion.

I. Background

Fontenot entered into an employment contract with Safety Council of Southwest Louisiana ("Safety Council") on October 19, 2011, to be Chief Operating Officer ("COO") of Safety Council.2 The employment contract was for a period of three years with an automatic renewal unless either party terminated the contract pursuant to the provisions therein.3 In 2014, the contract renewed by its own terms, as neither party initiated its termination.4 Fontenot's base salary from 2011 through 2015 was $95,0005 with the opportunity to receive an annual bonus based on "strategic efforts, membership and financial results."6 Fontenot's salary was to "be set annually by the Safety Council Board of Directors" and her annual performance bonus was "as approved by the executive board."7

Prior to Fontenot's employment as COO, Robert J. McCorquodale ("McCorquodale") served as Chief Executive Officer ("CEO") of Safety Council from at least 2005 to 2011.8 McCorquodale's 2005 contract set his base salary at $89,426.53 with a minimum of a three percent raise to a maximum of a six percent raise every year "upon approval by the President of the Executive Board," with the first three percent raise starting on January 1, 2005.9 McCorquodale's contract also included a provision for the possibility of an annual bonus of up to $10,000 based on the performance of Safety Council and the accomplishments of McCorquodale and "upon approval by the President of the Executive Board."10 McCorquodale's and Safety Council's tax records show years during which McCorquodale's reported wages were higher than what his contract provided as his base salary,11 including 2010 when McCorquodale's W-2 from Safety Council reflected $149,831.37 in "wages, tips, other compensation."12

McCorquodale stopped acting as CEO on June 15, 2011, creating a vacancy in the chief officer position at Safety Council.13 After considering at least four applicants, Safety Council offered Fontenot the position, styled as COO.14 Fontenot accepted Safety Council's first offer of an annual salary of $95,000.15 Fontenot's tenure as COO began on October 19, 2011.16

Nearly four years later, on September 3, 2015, Fontenot notified President of the Executive Board, Steven Trahan ("Trahan"), of her dissatisfaction with her salary.17 Trahan asked Fontenot to make a proposal.18 On November 10, 2015, Fontenot's lawyer sent Safety Council: (1) a proposal for a new contract proposing, inter alia, an annual salary of $149,00019 and (2) a demand letter raising allegations that Safety Council was in violation of the Equal Pay Act ("EPA").20

On January 19, 2016, Fontenot filed suit against Safety Council in the United States District Court for the Western District of Louisiana, alleging that she was being paid less than her male predecessor for performing equal work under similar working conditions in violation of the EPA.21 Fontenot also claimed that Safety Council unlawfully retaliated against her for making a complaint.22 The next day, Fontenot received an email from Trahan stating that she would receive a bonus of $6,000 for the year 2015 and a pay increase of six percent.23 On July 12, 2017, referencing the termination clause in the contract, Safety Council gave notice to Fontenot that it would allow the contract to expire by its own terms, stating it had concerns about some of the terms in the contract and offering to meet with Fontenot "to consider whether a new mutually satisfactory contract [could] be reached."24

B. Procedural Background

On January 19, 2016, Fontenot filed suit against Safety Council alleging violations of the EPA, 29 U.S.C. § 206(d)(1), and the anti-retaliation provision of the Fair Labor Standards Act ("FLSA"),25 § 215(a)(3).26 Prior to trial, the Court ruled that Fontenot had proven a prima facie case that she was paid differently than McCorquodale for performing equal work that requires equal skill, effort, and responsibility under similar working conditions.27 The parties stipulated that Safety Council was an employer covered by the Equal Pay Act.28 Therefore, the issues that remained for trial were: (1) whether the difference between Fontenot's and McCorquodale's pay was based on a factor other than sex; (2) Fontenot's retaliation claim; and (3) damages.29 A jury trial was held October 23-26, 2017. The jury found that Safety Council had not violated the EPA by paying Fontenot less than her male predecessor, but that Safety Council had retaliated against Fontenot because she engaged in EPA-protected activity.30 The jury awarded Fontenot $120,000 in damages for Safety Council's retaliation.31 On November 14, 2017, Fontenot filed the instant renewed motion for judgment as a matter of law challenging the sufficiency of the evidence for the jury's finding that Safety Council had not violated the EPA.32 Safety Council opposes the motion.33

II. Parties' Arguments

A. Fontenot's Arguments in Support of the Motion

In support of the motion, Fontenot first argues that the jury instructions and verdict form did not track the language of the statute, which requires Safety Council to prove that it considered the pay differential between Fontenot's and McCorquodale's salaries at the time it set Fontenot's salary.34 Therefore, Fontenot argues, evidence that was not considered by the committee that set Fontenot's pay (the "Committee") is irrelevant.35 Second, Fontenot argues that evidence of the "merits" of Fontenot's predecessor as compared to Fontenot's "merits" are not properly considered as a "factor other than sex," an affirmative defense under the EPA.36 Finally, Fontenot asserts that there was no evidence that "negotiations" took place prior to entering into the contract, and, therefore, "negotiations" could not be considered a "factor other than sex."37

As to her first argument, Fontenot sets forth "general principles of law" regarding statutory interpretation, to support her assertion that the exact language of the statute should have been submitted to the jury.38 Fontenot claims that the Court presented the statute to the jury as:

Fontenot argues that the language of the fourth defense, as she claims the Court presented it to the jury, does not have the same meaning as the language in the statute, "(iv) a differential based on any other factor other than sex."40 Fontenot asserts that every word in a statute has a meaning and that the "catch all" exception cannot be read to render the other defenses superfluous.41 Fontenot further asserts that the defenses to the EPA must be narrowly construed42 and that Safety Council was required to prove a "bona fide use of `other factors other than sex.'"43 Finally, Fontenot contends that it was Safety Council's burden to prove that sex played no role in setting her pay and that subjective evaluations are insufficient, otherwise "the exception swallows the rule."44

Fontenot then argues that the evidence showed that the Committee did not differentiate between Fontenot and her predecessor, McCorquodale, when setting Fontenot's salary.45 Instead, according to Fontenot, the Committee "used [Fontenot's] current rate of pay, [Fontenot's] experience and [the Chief Operating Officer] job description" to set Fontenot's salary.46 Thus, Fontenot argues, the Committee's determination was based on "their own highly subjective perception of employee worth based on her past salary."47

Fontenot further argues that the statute requires Safety Council to prove that it derived the amount of money that equals the difference between Fontenot's salary and McCorquodale's salary from a factor other than sex.48 According to Fontenot, Safety Council was required by law to keep a record of the factors it used to set Fontenot's salary.49 Fontenot claims that the testimony of the members of the Committee proved that they did not consider "the difference" but instead considered Fontenot's previous salary, the responsibilities of the COO, and, through circumstantial evidence, the salary of another male employee in a different position.50 Therefore, Fontenot argues, because Safety Council did not consider McCorquodale's salary when setting Fontenot's salary, Safety Council cannot justify the difference between their salaries.51 Fontenot asserts that, consequentially, the testimony and evidence offered as to McCorquodale's experience, "juxtaposed against Fontenot's" experience, were irrelevant.52

Second, according to Fontenot, any evidence relating to McCorquodale's merits, are not sufficient to prove a defense under the "catch all" exception because the EPA specifically provides a separate defense for payments made pursuant to a merit system.53 Moreover, Fontenot argues that Safety Council bore the burden of proving that education and experience "adds value to the job," and that Safety Council did not present evidence as to why McCorquodale's education and experience was worth a higher salary than Fontenot's, considering that the work of Safety Council was "more akin to running a college than working as a safety engineer."54 Fontenot cites "jurisprudential support" for the propositions that: (1) subjective evaluations of an employee's merit are not sufficient to establish an affirmative defense to the EPA; (2) that evidence as to merit cannot be used to support a defense under the "catch all" provision; and (3) that an employer must prove that its asserted "factor other than sex" was the factor it used to determine the pay differential.55 Fontenot claims Safety Council's Committee used subjective evaluations and argued Fontenot's and McCorquodale's relative merits at trial even though the Committee did not compare them when it set Fontenot's salary.56

Third, Fontenot asserts that Safety Council took the position that Fontenot's salary was the result of negotiations.57 Fontenot challenges this position as an insufficient "factor other than sex" because there were no meaningful negotiations.58 Fontenot contends that merely accepting a job without requesting more money does not constitute negotiations.59 Fontenot also cautions that EPA cases require a case-by-case analysis of the facts, and that the cases previously cited by Safety Council in various briefs are distinguishable from the facts in this case.60 For all these reasons, Fontenot argues that Safety Council has failed to prove its affirmative defense under the EPA.61

Considering these arguments, Fontenot contends that she has proven damages as a result of Safety Council's violation of the EPA in the amount of $384,800.62 Fontenot asserts that this amount is the difference between McCorquodale's wages and Fontenot's wages,63 including what McCorquodale would have been paid based on his wage increases.64 Fontenot further asserts that when an employer fails to maintain accurate records as required by statute, any uncertainty in the difference between wages should be resolved against the discriminating employer.65

For all these reasons, Fontenot moves the Court to find that Safety Council failed to prove an affirmative defense and grant Fontenot $384,800 in back pay, as well as all other appropriate relief.66

B. Safety Council's Arguments in Opposition to the Motion

In opposition to the motion, Safety Council first contends that the Court's jury instructions were legally correct.67 Second, Safety Council claims that its position has consistently been that Fontenot had less education and experience than McCorquodale and that Safety Council wanted to correct payment excesses it discovered under McCorquodale.68 Safety Council asserts there is sufficient evidence to support the jury's verdict that the difference in pay between Fontenot and McCorquodale was based on these factors other than sex.69 Third, Safety Council rebuts Fontenot's arguments characterizing its defense as one of the three "system" defenses allowed by the EPA.70

Safety Council asserts that it was undisputed that Fontenot's education and experience in management and the safety field "paled in comparison" to that of McCorquodale.71 According to Safety Council, it was also undisputed that its board members had known McCorquodale for at least the decade during which McCorquodale was employed by Safety Council, and that the board members had been familiar with his experience in management and the safety field.72 Safety Council also asserts that it is undisputed that by the summer of 2011, Safety Council was aware of "both McCorquodale's proper and approved salary as well as the significant excess amounts he had improperly paid himself."73 Safety Council further contends that the salary offered to, and accepted by, Fontenot was comparable to what McCorquodale had earned in his sixth year in the position.74 Therefore, according to Safety Council, the jury had sufficient evidence to conclude that Fontenot's pay was premised on the differences between Fontenot's and McCorquodale's experience as well as the board's desire to "correct and remediate pay and benefit excesses manipulated by [McCorquodale] through the contract structure then in place."75 Safety Council claims that the jury made credibility determinations when it came to the conclusion that Safety Council had proved that gender was not a factor in setting Fontenot's salary.76

Rebutting Fontenot's assertion that Safety Council attempted to prove a defense based on a "merit system," Safety Council reasserts that it has always claimed it paid Fontenot differently than McCorquodale because of the "catch-all" affirmative defense, § 206(d)(1)(iv), and not based on a "merit system," § 206(d)(1)(ii).77 In so doing, Safety Council further asserts that Fontenot's salary determination was not based on the subjective whim of the Committee, and moreover, that it is undisputed that Fontenot's education and experience were "drastically below" that of McCorquodale.78 As for Fontenot's criticisms of the cases cited by Safety Council, Safety Council argues that Fontenot focuses on whether the courts considered "system" defenses, which are not a requirement under the fourth "catch-all" defense of the EPA.79 Safety Council contends that the "catch-all" defense of "a differential based on any other factor other than sex" is broad and includes factors such as difference in experience, job level, skill levels, and previous training, as well as exigent circumstances of the business.80

In summation, Safety Council asserts that the jury was able to assess the witnesses' credibility to determine that Safety Council had proved that it based Fontenot's salary on factors other than sex, namely the differences in experience between Fontenot and McCorquodale and Safety Council's desire to correct pay and benefit excesses built into McCorquodale's contract.81

III. Legal Standard

Federal Rule of Civil Procedure 50(a)(1) provides:

If the court does not grant a motion for judgment as a matter of law pursuant to Rule 50(a)(1), within twenty-eight days after the entry of judgment a party may file a renewed motion for judgment as a matter of law and include an alternative request for a new trial under Rule 59.82 "In ruling on the motion, the court may: (1) allow judgment on the verdict, if the jury returned a verdict; (2) order a new trial; or (3) direct the entry of judgment as a matter of law."83

A motion pursuant to Rule 50(b) "in an action tried by jury is a challenge to the legal sufficiency of the evidence supporting the jury's verdict."84 Therefore, under Rule 50(b), "judgment as a matter of law is proper after a party has been fully heard by the jury on a given issue, and there is no legally sufficient evidentiary basis for a reasonable jury to have found for that party with respect to that issue."85 In evaluating a Rule 50(b) motion, a court must "consider all of the evidence, drawing all reasonable inferences and resolving all credibility determinations in the light most favorable to the non-moving party."86 Because all reasonable inferences and credibility determinations should be resolved in favor of the non-movant, "judgment as a matter of law should not be granted unless the facts and inferences point so strongly and overwhelmingly in the movant's favor that reasonable jurors could not reach a contrary conclusion."87

The Equal Pay Act makes it unlawful for an employer covered by the Act to discriminate between employees on the basis of sex "by paying wages to employees . . . at a rate less than the rate at which [the employer] pays wages to employees of the opposite sex for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions."88 A differential in pay between the sexes is not unlawful when the payments are 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."89 The jury found that Safety Council had proved that the difference in pay between Fontenot and McCorquodale was based on a factor other than sex.90

IV. Analysis

In challenging the jury's verdict, Fontenot claims there was not sufficient evidence for the jury to find that the difference in pay between Fontenot and McCorquodale was based on a factor other than sex because: (1) when setting Fontenot's salary, Safety Council did not differentiate it from McCorquodale's and, therefore, any evidence of factors other than sex that were not considered by Safety Council at that time is irrelevant;91 (2) evidence of respective merits are not properly considered as a "factor other than sex;"92 and (3) no evidence was presented of meaningful negotiations before Fontenot entered into an employment contract with Safety Council for the position of COO.9394 In response, Safety Council contends that sufficient evidence was introduced for the jury to find that the difference in pay was based on Fontenot having less experience than McCorquodale as well as Safety Council's desire to correct the payment and benefit excesses during McCorquodale's tenure by changing the contract structure, both of which are factors other than sex.95 The Court notes that neither party cited any portion of the record in support of their respective positions.

Because the evidence offered in relation to Safety Council's desire to change the chief officer's contract structure elucidates the amount of difference in pay between Fontenot and McCorquodale, the Court begins its consideration with Safety Council's second factor other than sex. At trial, the parties submitted evidence that showed differences between McCorquodale's salary pursuant to his contract and what his tax records reflected as his income. In 2005, McCorquodale entered into a contract with Safety Council that provided an annual base salary of $89,426.53 with a three percent increase starting January 1, 2005.96 His contract also provided for a three to six percent increase in salary every year and an annual bonus of up to $10,000, each of which was to be approved by the President of the Executive Board.97 Both parties introduced the same exhibit projecting what McCorquodale's salary would have been each year pursuant to the terms of the contract under the maximum annual raise allowed:

SAFETY COUNCIL OF SOUTHWEST LOUISIANA What would be Bob's current salary had the contract been adhered to

Evidence and testimony were offered that, in June 2011, Safety Council sought information, which was provided by Safety Council's Certified Public Accountant ("CPA"), John McDonald ("McDonald"), regarding payments made to McCorquodale and what was allowed under McCorquodale's contract.99 Safety Council also submitted evidence that compared McCorquodale's actual base salary with his contract's stated maximum base salary, showing alleged annual overpayments ranging between roughly $3,400 and $12,600 for the years 2007 through 2011.100 Fontenot submitted evidence of McCorquodale's tax records showing, for example, that McCorquodale's "wages, tips, [and] other compensation" from Safety Council was $149,880.02 in 2009 and $149,831.37 in 2010.101 Evidence and testimony was offered that Fontenot's base salary was $95,000 from when she started as COO in 2011 through when she filed the instant lawsuit in 2016.102

In support of its affirmative defense, Safety Council introduced evidence and offered testimony of its concerns and decisions in 2011 regarding what it considered excess payments that McCorquodale had paid himself and how to guard against that in the future. The minutes of the July 1, 2011 executive board meeting state:

Minutes from another Safety Council board meeting, a week later, showed consideration of the same topics:

Board members who were on the Committee that hired Fontenot as COO and set her salary testified that they believed McCorquodale had paid himself amounts in excess of his contract that were not approved by Safety Council.105 One board member on the Committee testified that after learning of the financial issues during McCorquodale's tenure:

Fontenot does not specifically challenge this "factor other than sex" offered by Safety Council. Considering the foregoing, the Court finds that evidence was introduced at trial to support a finding that Safety Council paid Fontenot less than McCorquodale because it wanted to correct and guard against excessive payments that it believed occurred under the structure in place during McCorquodale's tenure-a factor other than sex. Accordingly, the evidence is sufficient for a reasonable jury to find that the difference in pay between Fontenot and McCorquodale was based on a factor other than sex.

To the extent any difference between Fontenot's and McCorquodale's pay is not attributable to the previous factor involving correcting the contract structure, the Court considers the evidence relating to Safety Council's "factor other than sex" defense. Safety Council also claims that it paid Fontenot less than McCorquodale because she had less education and experience in management and the safety field.107 The Fifth Circuit has stated that "`[d]ifferent job levels, different skill levels, previous training and experience[,] all may account for unequal salaries in an environment free from discrimination.'"108

At trial, Safety Council board members who were on the Committee that set Fontenot's salary testified as to how they determined the salary to offer Fontenot. Committee member Larry DeRoussel ("DeRoussel") testified that the then-President of Safety Council, Joe Andrepont ("Andrepont"), determined a figure, consulted Safety Council's CPA, and then suggested the figure to the other Committee members.109 The Committee members testified that they considered some combination of Fontenot's experience and background, her prior salary, and the increased responsibilities of COO.110 Andrepont, then-President of Safety Council and Committee member, testified as to the benefits of having someone with experience as the chief officer of Safety Council,111 and noted specifically that Safety Council knew that Fontenot did not have the experience that McCorquodale did.112

The Committee members testified that they did not compare McCorquodale's salary to what they intended to offer Fontenot.113 However, they did testify that they were familiar with the difference in experience between McCorquodale and Fontenot.114 They also testified that, at the time they hired Fontenot and set her salary, they were aware of what McCorquodale's pay should have been in light of the recent investigation and meetings concerning the overpayment issues.115

Fontenot impeached some of the Committee members with their prior deposition testimony where they did not state that the recent history regarding McCorquodale's salary and the financial irregularities were on their minds at the time they set Fontenot's pay.116 However, the Court must "consider all of the evidence, drawing all reasonable inferences and resolving all credibility determinations in the light most favorable to the non-moving party."117 Therefore, to the extent the Committee members' deposition testimony differed from their trial testimony, the Court finds that a reasonable jury could have believed the Committee members' testimony at trial rather than during their depositions.

Still, Fontenot essentially asserts that in order to have proved the defense, "a differential based on any factor other than sex," Safety Council was required to prove that it specifically and purposely considered McCorquodale's salary and the differences between McCorquodale and Fontenot when setting Fontenot's pay.118 Fontenot cites 29 C.F.R. § 1620.32(b) to support this proposition.119 However, this regulation, titled "Recordkeeping requirements," merely requires an employer to preserve, for at least two years:

Fontenot does not identify any documents that she believes were made, or should have been made, in Safety Council's regular course of business on this issue, nor does she provide legal authority to support her interpretation that the regulation requires an employer to document the reason for a pay differential.121 The plain language of the regulation requires an employer to "preserve any records which [it] makes in the regular course of business," not that the employer must make such records.122

The Court finds that this regulation, alone, does not support Fontenot's proposition that the "catch-all" defense of the EPA requires an employer to specifically and purposely compare an employee of one sex with any and all proper comparators of the opposite sex at the time it makes salary determinations. The Court also notes that Fontenot filed the instant lawsuit more than two years after she was hired as COO.123 Thus, seemingly, the recordkeeping regulation would not have required Safety Council to maintain any records made in 2011 beyond the year 2013.124

Fontenot also seems to suggest that an employee's qualifications for a job are "merits" which should be considered under a "merit system" defense rather than under the "catch-all" defense, "a differential based on any other factor other than sex."125 In support, Fontenot quotes one Fifth Circuit case which discussed merit systems and qualifications in the same paragraph.126 However, Fontenot omitted the specific sentence in which the Fifth Circuit addressed employees' "qualifications" separately from employees' "relative merit."127 The full passage suggests that the Fifth Circuit did not consider qualifications at the time of hiring to be "merits" under a merit system defense:

In a case considering the "catch-all" defense of the EPA, the Fifth Circuit stated that "[d]ifferent job levels, different skill levels, previous training and experience[,] all may account for unequal salaries in an environment free from discrimination,"129 and several district courts within the Fifth Circuit have followed this statement of the law.130 Thus, the Court is not persuaded that Safety Council's evidence as to Fontenot's and McCorquodale's experience should not have been considered under Safety Council's "catch-all" defense.

Fontenot also challenges the evidence to support Safety Council's defense of "negotiations."131 However, as Safety Council does not contend that it paid Fontenot less due to negotiations, the Court will not consider whether evidence was sufficient to support a finding that the difference in pay was based on negotiations.

Accordingly, despite not explicitly considering any differences between Fontenot and McCorquodale at the time of setting Fontenot's salary, testimony was offered that: (1) in the summer of 2011, Safety Council was aware of McCorquodale's contractual salary and the overpayments he received, considering the recent investigation and board meetings on the subject; (2) Safety Council chose Fontenot to replace McCorquodale after he resigned; and (3) the Committee members were familiar with McCorquodale's experience, particularly that his experience was greater than Fontenot's. The Committee members also testified that they considered Fontenot's level of experience, her prior pay rate, and her increased responsibilities as COO when deciding the salary to offer her. Therefore, legally sufficient evidence exists for a reasonable jury to find that the difference between McCorquodale's and Fontenot's pay132 was based on their differences in experience, Fontenot's prior salary, and Fontenot's increased job responsibilities, all of which are factors other than sex.

V. Conclusion

Evidence was introduced to support a finding that Safety Council paid Fontenot less than her male predecessor, McCorquodale, for two reasons. First, Safety Council believed that McCorquodale had overpaid himself and desired to correct the structure which allowed these excessive payments. Second, Safety Council paid Fontenot less considering the increase of responsibilities she would take on as COO, her previous salary, and her level of experience, while being familiar with the differences between Fontenot's experience level and McCorquodale's experience level. Accordingly, the Court finds that a legally sufficient evidentiary basis exists for a reasonable jury to find that the difference in pay between Fontenot and McCorquodale was based on factors other than sex. Because the Court finds support for the jury's verdict in favor of Safety Council on Fontenot's EPA claim, it need not consider any evidence as to the amount of damages submitted by Fontenot. Accordingly,

IT IS HEREBY ORDERED that Fontenot's "Renewed Motion for Judgment as a Matter of Law"133 is DENIED.