Fontenot v. Safety Council of Southwest Louisiana, 2:16-cv-00084

Background

Plaintiff Joni Fontenot, Chief Operating Officer of Safety Council of Southwest Louisiana, sued under the Equal Pay Act (EPA) alleging she was paid less than her male predecessor (Robert McCorquodale) for substantially equal work and that she suffered retaliation after complaining.
Fontenot seeks back wages, liquidated damages, fees, and damages for retaliation; Safety Council denies liability and asserts affirmative defenses including the EPA factor-other-than-sex defense and a two-year limitations period.
After Fontenot filed opposition to defendant’s motion for partial summary judgment on the limitations period, Safety Council moved to strike two evidentiary items submitted by Fontenot: (1) the last paragraph of Fontenot’s affidavit, which recounts a conversation with board member Greg Satterfield and quotes a 2004 memorandum by McCorquodale, and (2) a rough draft deposition transcript of Joe Andrepont.
Safety Council argued the affidavit paragraph contained inadmissible hearsay and lacked personal knowledge; it argued the deposition rough draft was uncertified and thus inadmissible.
Fontenot argued Satterfield’s and McCorquodale’s statements were non-hearsay admissions by an opposing party (Rule 801(d)(2)) or otherwise admissible, and sought leave to substitute a final deposition transcript for the rough draft.
The court denied the motion to strike the affidavit paragraph (finding the contested material could be presented admissibly at trial and was within Fontenot’s personal knowledge) and denied as moot the request to strike the rough draft because the final transcript was substituted.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Fontenot’s recounting of Satterfield’s statements in her affidavit is inadmissible hearsay	Satterfield is an agent/board president and his statements are opposing-party admissions or, in any event, Fontenot can present the witness at trial to contradict him	Directors/officers are not agents absent an express corporate resolution; statements are hearsay and not admissible summary-judgment evidence	Court declined to strike: admissibility need not be finally resolved for summary-judgment purposes and Satterfield is a potential trial witness whose prior inconsistent statement could be proven under FRE 613(b)
Whether McCorquodale’s 2004 memorandum is hearsay	Memo is a vicarious admission by an employee/agent on a matter within scope of employment (compensation)	Defendant questioned authorship and agency but acknowledged McCorquodale was the former CEO	Court held the 2004 memo is not hearsay under FRE 801(d)(2)(D) and denied the motion to strike that portion
Whether the contested affidavit statements lack the affiant’s personal knowledge (Rule 56)	Fontenot personally participated in the conversation and read the memorandum, so she has personal knowledge to attest to those matters	Statements were used to prove facts beyond affiant’s knowledge and thus violate Rule 56 affidavit requirements	Court found Fontenot’s statements were based on her personal knowledge (participation and reading) and thus not stricken
Whether the rough draft deposition transcript is admissible	Fontenot moved to substitute the final transcript and did so with leave of court	Defendant argued the rough draft was facially incompetent and uncertified	Court denied strike as moot because final transcript was substituted

Key Cases Cited

Nyack v. S. Conn. State Univ., 424 F. Supp. 2d 370 (D. Conn. 2006) (discussing vicarious-admission proof elements for agency-based admissibility)
Marsh Inv. Corp. v. Langford, 490 F. Supp. 1320 (E.D. La. 1980) (officer/director not agent of corporation absent express resolution)