     Case: 18-31065      Document: 00515178668         Page: 1    Date Filed: 10/29/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                      No. 18-31065                          FILED
                                                                     October 29, 2019
                                                                       Lyle W. Cayce
JONI FONTENOT,                                                              Clerk

              Plaintiff - Appellee Cross-Appellant

v.

SAFETY COUNCIL OF SOUTHWEST LOUISIANA,

              Defendant - Appellant Cross-Appellee




                  Appeals from the United States District Court
                      for the Western District of Louisiana
                              USDC No. 2:16-CV-84


Before HIGGINBOTHAM, DENNIS, and HO Circuit Judges.
PER CURIAM:*
       Joni Fontenot replaced Robert McCorquodale as the head officer of the
Safety Council of Southwest Louisiana in October 2011 after the council
discovered     McCorquodale’s       financial    improprieties      and        he       resigned.
Fontenot’s salary was less than McCorquodale’s. But she had less relevant
experience and education. Fontenot’s contract term was three years, with the
opportunity for automatic renewal absent written notice of non-renewal from


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      No. 18-31065
either her or the council. The contract also provided for a discretionary bonus.
For the years 2012 through 2014, Fontenot’s bonuses ranged from $9,350 to
$10,000.
       On September 3, 2015, Fontenot complained to the Safety Council’s
president, Steven Trahan, that she was making less than McCorquodale did.
After the complaint, Trahan criticized Fontenot’s handling of a loan with a
local bank, claiming that her actions could harm the Safety Council’s
reputation. The Safety Council gave Fontenot a $6,000 bonus for 2015—about
$4,000 below her past bonuses—but it also gave her a 6% raise for 2016. In
July 2017, the council notified Fontenot that they were not going to renew her
contract.    Then, in October 2017, the council offered her a new one-year
contract that gave her a raise and provided for termination only for cause. 1
       Fontenot sued the Safety Council in January 2016 alleging a violation of
the Equal Pay Act, 29 U.S.C. § 206(d), and retaliation, 29 U.S.C. § 215(a)(3). A
jury determined that the Safety Council proved its affirmative defense that the
pay differential between McCorquodale and Fontenot was “pursuant to . . . a
differential based on any other factor other than sex . . . .”                  29 U.S.C.
§ 206(d)(1)(iv). It also determined that the council retaliated against Fontenot
for engaging in protected activity. The jury awarded Fontenot $120,000 in
damages.
       The Safety Council and Fontenot renewed their motions for judgment as
a matter of law attacking the adverse parts of the verdict. Fontenot also filed




       1 Although Fontenot’s previous contract allowed the council to terminate her without
cause, it required that she receive a month of notice for each year the Safety Council had
employed her, with a minimum notice period of six months. The district court determined
that, at the time of the trial, the previous contract would have required the council to give
Fontenot seventeen months’ notice before terminating her without cause, and it thus would
have provided five months more guaranteed employment than the new one-year contract that
Safety Council offered her.
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a motion for liquidated damages and attorney’s fees. The district court denied
both motions for judgment as a matter of law. It awarded Fontenot liquidated
damages equal to the jury verdict—thus giving Fontenot $240,000 in damages.
In the alternative, the district court awarded Fontenot $4,000 in damages for
the reduction of her bonus, $4,000 of liquidated damages based on that
reduction, and $232,000 in front pay.      Finally, the district court awarded
Fontenot attorney’s fees, but reduced her requested hourly rate to reflect the
amount her attorneys usually billed and the total fee amount because Fontenot
lost her Equal Pay Act claim.
      Both parties appealed those rulings adverse to them, and the Safety
Council also appealed the district court’s decision to admit Fontenot’s expert
testimony as to damages she suffered under the Equal Pay Act.
      After reviewing the briefs, the applicable law, the relevant parts of the
record, and hearing oral argument, we affirm the denial of the renewed
motions for judgment as a matter of law, essentially on the basis the district
court provided in its August 30, 2018, orders. We dismiss the council’s appeal
of the evidentiary ruling as moot. We also affirm the district court’s award of
attorney’s fees, essentially on the basis the court provided in its September 10,
2018, order.
      As to damages:      The district court awarded Fontenot $120,000 in
liquidated damages on top of the $120,000 the jury awarded. The liquidated
damages rested on two retaliatory acts—the $4,000 reduction of Fontenot’s
bonus and the council’s termination of Fontenot’s contract. The latter accounts
for $116,000 of the amount.
      Only “wages lost” can give rise to liquidated damages.          29 U.S.C.
§ 216(b). “Wages lost” refers to past earnings an employer withholds. See
Olitsky v. Spencer Gifts, Inc., 964 F.2d 1471, 1479 (5th Cir. 1992) (refusing to
award liquidated damages equal to front pay for an ADEA violation, which
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incorporates 29 U.S.C. § 216(b)’s liquidated damages provision); Cassino v.
Reichhold Chems., Inc., 817 F.2d 1338, 1348 (9th Cir. 1987) (“Under FLSA's
remedial provisions, as incorporated into the ADEA, a violating employer is
liable for wages and benefits from the date of the wrongful termination until
the date of trial, as well as ‘an additional equal amount as liquidated
damages’ . . . .”). Thus, the reduction of Fontenot’s bonus—which had already
occurred—gives rise to liquidated damages.           But the Safety Council’s
termination of Fontenot—since it operated prospectively—resulted only in lost
future wages. It cannot support a liquidated damages award.
      But it can support an award of front pay. See Hansard v. Pepsi-Cola
Metro. Bottling Co., 865 F.2d 1461, 1469 (5th Cir. 1989) (“‘Front pay’ refers to
future lost earnings.”). And front pay is part of the district court’s alternative
award calculation: $4,000 for the bonus reduction, $4,000 in liquidated
damages based on that reduction, and $232,000 as two years of front pay for
the termination. The Safety Council’s only objection to the award of front pay
is that it did not terminate Fontenot. But a jury could determine that the
council’s non-renewal of Fontenot’s contract was a termination, which is partly
why the district court denied the council’s motion for judgment as a matter of
law. We upheld that denial and therefore affirm the district court’s award of
damages on the grounds stated here and by the district court.




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