Gunaldo v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

TINA GUNALDO CIVIL ACTION

VERSUS No. 20-154

BOARD OF SUPERVISORS OF LOUISIANA SECTION I

STATE UNIVERSITY AND AGRICULTURAL

AND MECHANICAL COLLEGE, ET AL.

ORDER & REASONS

Before the Court is defendants Board of Supervisors of Louisiana State

University and Agricultural and Mechanical College (“LSU”), Dr. Joseph M.

Moerschbaecher (“Moerschbaecher”), Larry Hollier (“Hollier”), and Rosalynn

Martin’s (“Martin”) (collectively, the “defendants”) motion1 to dismiss plaintiff Tina

Gunaldo’s (“Gunaldo”) first amended complaint2 pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure. For the following reasons, the motion is granted in

part and denied in part.

I.

This case arises from Gunaldo’s claims against the defendants for alleged

violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. (“Title

VII”) and the Equal Pay Act, 29 U.S.C. § 201 et seq. (the “EPA”).3

1 R. Doc. No. 21.

2 R. Doc. No. 15.

3 See R. Doc. No. 15, at 1–16. Pursuant to the discussion at the status conference on

July 7, 2020, counsel for Gunaldo notified the Court that Gunaldo did not intend to

proceed with her claim asserted under 42 U.S.C. § 1983. See R. Doc. No. 31.

A.

Accepting all of the factual assertions in Gunaldo’s complaint as true, the

relevant allegations are as follows: Gunaldo began working for Louisiana State

University Health – New Orleans (“LSUHNO”), an LSU institution, as Director of

the Center for Interprofessional Education and Collaborative Practice (“CIPECP”) in

April 2015.4 At that time, the salary range for position of Director of the CIPECP

was $115,153.00 to $213,032.00.5 Gunaldo started her position as a 0.50 full-time

equivalent (“FTE”) employee with an annual salary of $60,000.00.6 Gunaldo

eventually transitioned to 1 FTE on December 1, 2016, with a salary of $120,000.00.7

Gunaldo’s position falls within the purview of the Chancellor’s office.8

In the beginning of 2017, Gunaldo met with Moerschbaecher, Vice Chancellor

of Academic Affairs, to discuss annual raises within the institution.9 Moerschbaecher

informed Gunaldo that due to a state salary freeze, LSUHNO was considering giving

employees “equity raises” in order to elevate their salaries to the appropriate salary

ranges.10 Gunaldo subsequently received a two-percent raise, amounting to an

annual salary of $122,400.00.11 Gunaldo inquired as to why her salary increase was

Accordingly, the Court will disregard those portions of the parties’ briefs addressing

the § 1983 claim.

4 R. Doc. No. 15, at 1–2 ¶¶ 2–3, 5 ¶ 29.

5 Id. at 5 ¶ 29.

6 Id. at 5 ¶ 30.

7 Id. at 5 ¶ 31.

8 See id. at 6 ¶¶ 42–43.

9 Id. at 5 ¶ 32.

10 Id. at 5 ¶ 33.

11 Id. at 5 ¶ 34.

just two percent, knowing that salary adjustments varied and that some of her male

counterparts had received salary increases in excess of fifteen percent.12

Moerschbaecher informed Gunaldo that he would communicate with the Human

Resources (“HR”) department regarding the decision to raise her salary by two

percent.13

In March of 2018, Moerschbaecher informed Gunaldo that HR was responsible

for deciding the percentage of employees’ salary increases.14 Gunaldo met with

Martin, the Director of HR, who informed her of a study that LSUHNO had conducted

to assess the equity of its salary structure.15 Martin provided Gunaldo with a list of

comparison institutions and a document that equated the Director of the CIPECP

position to an Associate/Assistant Dean of Continuing Education in a School of

Medicine.16 Martin also informed Gunaldo that, contrary to Moerschbaecher’s

representation, administrators and each dean determined the level of salary raises.17

Gunaldo alleges that the study referenced by Martin actually revealed wage

disparities between male and female employees at the same paygrade within the

Chancellor’s office.18 Five employees, two male employees and three female

employees, including Gunaldo, worked within the Chancellor’s office and were placed

12 Id. at 5 ¶ 35.

13 Id. at 5 ¶ 36.

14 Id. at 7 ¶ 47.

15 Id. at 5 ¶ 37, 7 ¶ 48.

16 Id. at 7 ¶ 49.

17 Id. at 7 ¶ 50.

18 Id. at 6 ¶ 39.

within the N37 paygrade.19 According to the study, the three women, with salaries

of $115,839.00, $127,500.00, and $120,000.00,20 were paid well below the $162,242

midpoint salary for the N37 paygrade.21 The salaries of the male employees within

the N37 paygrade—$167,757.96 and $180,743.04—exceeded the midpoint salary for

that paygrade.22

Despite the results of the study, LSU and Hollier, Chancellor of LSUHNO, took

no action to correct the disparities, and they in fact increased the salaries of male

employees.23 For example, after the results of the study were provided to female

employees, LSUHNO’s then-general counsel learned that Hollier intended to increase

her salary, but only to a level that still fell below the minimum salary for the relevant

paygrade.24

On November 26, 2018 Gunaldo met with Moerschbaecher to inform him that

her meeting with Martin did not clarify her pay rate.25 Gunaldo communicated her

intention to compare public records for LSUHNO salaries and to initiate the process

to claim gender discrimination.26 On that same day, Gunaldo sent an email to

LSUHNO alleging gender discrimination as related to her salary and completed an

online report with the Louisiana Commission on Human Rights (“LCHR”).27 Martin

19 Id. at 6 ¶ 42.

20 As previously mentioned, Gunaldo’s salary was $120,000. Id. at 5 ¶ 31, 6 ¶ 43.

21 Id. at 6 ¶ 43.

22 Id. at 6 ¶ 44.

23 Id. at 2 ¶ 7, 6 ¶ 40.

24 Id. at 6 ¶ 41.

25 Id. at 7 ¶ 51.

26 Id. at 7–8 ¶ 52.

27 Id. at 8 ¶ 54.

responded to Gunaldo’s email later that same day and informed her that the HR

Employee Relations Team (“ERT”) would be contacting her.28

On December 3, 2018, Gunaldo met with Terrilyn Cunningham and Jason

Johnson of the ERT.29 Gunaldo informed them of the reports she received from the

Louisiana Civil Service Commission with respect to LSUHNO salaries dating back to

2012 and the conclusions she was able to draw from the reports.30 Specifically,

Gunaldo was able to conclude that the annual average salary for male employees

within “central administration” from February 28, 2017 to December 31, 2018 was

significantly higher than that for female employees, and that the average salary

increase for male employees in 2017 and 2018 was higher than the average salary

increase for female employees during the same time period.31 Gunaldo was also able

to conclude that, in 2017, the male directors of academic affairs received an average

salary increase of fourteen percent while female directors of academic affairs received

just a ten percent increase.32

According to Gunaldo, the reports also revealed that the average salary of male

employees employed in Director of Academic Affairs positions, including those

employed within central administration and at individual schools, was significantly

higher than that for female employees in the same positions.33 For example, in 2017,

28 Id. at 8 ¶ 55.

29 Id. at 8 ¶ 56.

30 Id. at 8 ¶ 57.

31 Id. at 8–9 ¶¶ 57–59.

32 Id. at 9 ¶ 60.

33 Id. at 9 ¶ 61.

male employees holding Director of Academic Affairs positions received an average

salary increase of five percent, whereas female employees in the same positions

received an increase of only four percent.34 Likewise, in 2018, male employees in

these positions received an average salary increase of one percent, whereas female

employees in the same positions received, on average, no salary increase.35

Finally, Gunaldo was able to conclude from the reports that, beginning in 2015,

the year she began her employment with LSU, the average annual salary for a

director or dean position was: $128,794.00; $123,918.00; $135,965.00; and

$142,711.00, respectively.36 Gunaldo’s annual salary has been well below the average

salary for a director or dean every year she has been employed by LSUHNO.37

Gunaldo informed the ERT that they had access to the same information on

which she based her conclusions and that she would keep them updated as to the

status of her claim with the LCHR.38 Gunaldo also mentioned three topics during

the meeting, unrelated to gender discrimination, that she thought would be beneficial

for any person who assumed the Director of CIPECP position in the future: (1) the

Director of CIPECP does not have a dedicated parking spot, whereas other directors

within the institution have the benefit of a reserved parking spot; (2) the current job

description was outdated, as it did not include development of curriculum, teaching,

34 Id. at 9 ¶ 62.

35 Id.

36 Id. at 9 ¶ 63.

37 Id.

38 Id. at 9 ¶ 64.

and grading; and (3) the Director of CIPECP did not hold a faculty position.39

Gunaldo addressed these issues because she felt that if administrators wanted her to

engage in faculty activities, this should be a part of her job description and a faculty

position could be warranted.40 The general practice at LSUHNO is for each employee

to write their own job description, so the job descriptions of LSUHNO employees are

not uniform.41

At the conclusion of the meeting, the ERT informed Gunaldo that they would

need time to review her allegations and to discuss the other topics she raised related

to the Director of the CIPECP position.42 The ERT indicated that they would likely

not have an update until after the holidays.43

On December 3, 2018, Gunaldo sent an email to the ERT with written

comments related to her current job description.44

Gunaldo officially filed a charge of discrimination with the LCHR on December

28, 2018.45

On February 19, 2019, Gunaldo met with the ERT for the second time.46 The

ERT gave Gunaldo a letter, which stated that her equal pay allegations were

unsubstantiated and that the ERT could not provide reasons as to how it arrived at

39 Id. at 9–10 ¶ 65.

40 Id. at 10 ¶ 66.

41 Id. at 12 ¶ 81.

42 Id. at 10 ¶ 67.

43 Id.

44 Id. at 10 ¶ 68.

45 Id. at 11 ¶ 76.

46 Id. at 10 ¶ 69.

this conclusion.47 The letter also stated that “the findings and recommendations have

been reported to the Chancellor.”48

Gunaldo inquired as to what positions were used for salary comparisons, and

the ERT stated that it was unable to provide that information.49 However, Gunaldo

was informed that based upon a review of the Director of the CIPECP job description

and the revisions she suggested, she would receive a ten percent salary increase on

or about March 1, 2019.50 When asked about the justification for the ten percent

increase, the ERT responded that no specifics could be provided.51

On February 27, 2019, Martin along with the HR compensation manager and

another representative from HR met with Gunaldo regarding the calculation of her

salary adjustment.52 During this meeting, Gunaldo was provided with the following

information: comparative data from the University of North Texas Health Sciences

Center and the University of Tennessee; the salary range for the N37 paygrade within

LSUHNO ($119,736.00–$204,748.00), which had changed since the time of Gunaldo’s

hiring; a suggested revised position description based on Gunaldo’s recommendations

during her meetings with the ERT; and a position title change for Gunaldo for future

salary comparisons beginning in 2019 (Chief Academic Assessment Officer).53

47 Id.

48 Id. at 10 ¶ 71.

49 Id. at 10 ¶ 70.

50 Id. at 10 ¶ 72.

51 Id.

52 Id. at 11 ¶ 73.

53 Id. at 11 ¶ 74.

Gunaldo was also informed during the meeting that the purpose of the 2017

salary adjustments was to raise employee salaries to the minimum of employees’

respective salary ranges.54 However, the institution only had $5 million to distribute

and needed $18 million to raise all employee salaries to meet the appropriate

threshold.55

Gunaldo sent Moerschbaecher and Martin an email on March 1, 2019

suggesting revisions to the proposed job description.56

On or about October 1, 2019, Gunaldo received a university-wide three percent

cost of living adjustment, which increased her annual salary to $138,678.96.57

However, her salary is still less than her male counterparts despite the increase.58

On or about October 21, 2019, Gunaldo received a right to sue notice from the

LCHR.59 Gunaldo initiated suit on January 15, 2020.60

B.

As the Director of the CIPECP, Gunaldo provides leadership and direction to

faculty, staff, and students to facilitate planning, development, coordination,

implementation, and evaluation of interprofessional education and collaborative

practice initiatives, and she acts as a liaison between her office and outside entities.61

54 Id. at 11 ¶ 74(e).

55 Id.

56 Id. at 11 ¶ 75.

57 Id. at 11 ¶ 78.

58 Id. at 12 ¶ 79.

59 Id. at 11 ¶ 77.

60 See R. Doc. No. 1.

61 R. Doc. No. 15, at 12 ¶ 80, 13 ¶ 93.

Gunaldo has a research doctorate degree, a clinical doctorate degree, a master’s

degree, and a bachelor’s degree.62 Gunaldo supervises one full-time employee and

one student worker.63

Gunaldo offers five male comparators that allegedly perform substantially

equal work whose job duties are similar to hers.64 The amended complaint further

alleges that the comparators’ positions require equal skill and effort and offer the

same responsibility under similar working conditions as the Director of the CIPECP

position.65

Patrick Reed (“Reed”), the Director of Technology Management, works in

central administration at the same level as Gunaldo under the Vice Chancellor of

Academic Affairs and had an annual salary of $181,716.96 as of December 31, 2019.66

Like Gunaldo, there are no other employees who share his job title and he supervises

one full-time employee.67 Reed’s job duties and responsibilities include the

advancement of innovation, supporting the research enterprise, and partnering with

outside individuals and businesses to collaborate on research and to commercialize

inventions.68 He oversees patents, copyrights, and other intellectual property rights

62 Id. at 12 ¶ 83.

63 Id. at 12 ¶ 82.

64 See id. at 12 ¶ 84.

65 See id. at 12 ¶ 85.

66 Id. at 12 ¶ 86.

67 Id. at 12 ¶¶ 86–87.

68 Id. at 13 ¶ 89.

for faculty and students.69 Reed has a bachelor’s degree, master’s degree, and is a

certified Registered Technology Transfer Professional.70

Christopher Vidrine (“Vidrine”), the former Director of External Relations,

worked at the same level as Gunaldo in central administration until the end of 2018.71

Vidrine’s annual salary as of December 31, 2018 was $163,718.04.72 Like Gunaldo,

there are no other employees who shared his job title, and he worked as a liaison

between the institution and outside entities.73 Specifically, Vidrine’s office served as

the liaison between LSUHNO, university administration, the Board of Regents, the

executive and legislative branches of government, and regulatory agencies on the

state and federal level on a wide range of budget matters, policy issues, and universal

concerns that affect higher education and health care.74 Vidrine has a bachelor’s

degree and a master’s degree.75

Jawed Alam, the Executive Director of Research Services, works in central

administration at the same level as Gunaldo under the Vice Chancellor of Academic

Affairs.76 Alam’s salary as of June 2019 was $225,000 and, like Gunaldo, no other

employee shares his job title.77 Alam’s office is responsible for providing programs

related to grant applications, clinical trial agreements, and registration information

69 Id.

70 Id. at 12 ¶ 88.

71 Id. at 13 ¶ 90.

72 Id.

73 Id. at 13 ¶¶ 90, 93.

74 Id. at 13 ¶ 92.

75 Id. at 13 ¶ 91.

76 Id. at 13 ¶ 94.

77 Id. at 13 ¶ 94.

for institutional oversight committees.78 Alam supervises nine employees.79 Alam

has a bachelor’s degree, master’s degree, and a Ph.D.80

Matthew Gedge, the former project manager, reported to the Vice Chancellor

of Administration and Finance in central administration and sat at the same level

under the Vice Chancellor of Academic Affairs as Gunaldo.81 Like Gunaldo, there are

no other employees who share Gedge’s job title.82 Gedge’s last known salary was

$186,000, and he does not possess a master’s or doctorate degree.83

Roy Clay (“Clay”), former Fiscal Finance Officer in central administration, also

reported to the Chancellor of Administration and Finance in central administration.84

Clay’s annual salary was $167,757.96 in 2019.85 Clay does not have a master’s or

doctorate degree.86

II.

Pursuant to Rule 12(b)(6), a district court may dismiss a complaint or part of

a complaint when a plaintiff fails to set forth well-pleaded factual allegations that

“raise a right to relief above the speculative level.” See Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). The

complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim

78 Id. at 14 ¶ 97.

79 Id. at 13 ¶ 95.

80 Id. at 14 ¶ 96.

81 Id. at 14 ¶ 98.

82 Id.

83 Id. at 14 ¶ 99.

84 Id. at 14 ¶ 100.

85 Id. at 14 ¶ 100.

86 Id.

to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Twombly, 550 U.S. at 547).

A facially plausible claim is one in which “the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Id. If the well-pleaded factual allegations “do not permit the

court to infer more than the mere possibility of misconduct,” then “the complaint has

alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679

(quoting Fed. R. Civ. P. 8(a)(2)) (alteration in original).

In assessing the complaint, a court must accept all well-pleaded facts as true

and liberally construe all factual allegations in the light most favorable to the

plaintiff. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). Furthermore, “the

Court must typically limit itself to the contents of the pleadings, including

attachments thereto.” Admins. of the Tulane Educ. Fund v. Biomeasure, Inc., 08-

5096, 2011 WL 4352299, at *3 (E.D. La. Sept. 6, 2011) (Vance, J.) (citing Collins v.

Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000)). “Dismissal is

appropriate when the complaint ‘on its face show[s] a bar to relief.’” Cutrer v.

McMillan, 308 F. App’x 819, 820 (5th Cir. 2009) (quoting Clark v. Amoco Prod. Co.,

794 F.2d 967, 970 (5th Cir. 1986)).

III. Title VII

The amended complaint alleges that LSU intentionally discriminated against

Gunaldo, a female, on the basis of her sex in violation of Title VII by compensating

her at a salary lower than similarly situated male employees.87 Gunaldo asserts this

claim only against LSU and not any of the individual defendants.

A.

LSU argues that the information Gunaldo provides with respect to allegedly

similarly situated male employees does not adequately establish that they are

sufficient comparators for purposes of Title VII, because Gunaldo fails to allege how

these comparators are on the “same playing field” as Gunaldo.88 LSU highlights that

Gunaldo does not state the comparators’ respective paygrades, and it argues that

there are a number of factors that can explain the alleged pay discrepancies that

Gunaldo fails to mention, such as number of years in the position and type of

experience in prior employment.89

Specifically, LSU maintains that Reed, the Director of Technology

Management, does not have substantially equal work and similar job duties as

Gunaldo.90 Reed is responsible for overseeing patents, copyrights, and other

intellectual property rights, whereas Gunaldo coordinates and implements

interprofessional education.91 LSU notes that Alam, the Executive Director of

Research Services, supervises nine employees, whereas Gunaldo supervises only one

full-time employee.92 Furthermore, LSU argues, Gunaldo fails to provide any factual

87 R. Doc. No. 15, at 14 ¶¶ 102–03.

88 R. Doc. No. 21-2, at 9–10.

89 Id. at 10.

90 Id.

91 Id.

92 Id.

allegations with respect to Gedge’s or Clay’s skills, efforts, or responsibilities, their

respective job duties, the number of employees they oversee, their paygrades, their

work experience and history, or the number of years they have been employed with

LSUHNO.93 LSU argues that because Gunaldo fails to set forth any facts alleging

the precise job functions she performed that were equivalent to those performed by

her male comparators or explain how she was paid less for the same work, her Title

VII claim must be dismissed.94

Gunaldo responds that, contrary to LSU’s assertions, she has specifically

named similarly situated male employees and set forth factual allegations supporting

her claim that she was treated differently from these male employees based on her

sex.95 Gunaldo contends that the information included in her complaint about

similarly situated male employees is the only information available to her without

additional discovery and that, through discovery, she will be able to gather evidence

that proves that the comparators are similarly situated and treated more favorably

by LSU.96 Because the defendants have not answered her original or amended

complaint, Gunaldo argues that whether the alleged comparators are similarly

situated is a question of fact that is not determinable at this stage of litigation.97

93 Id. at 10–11.

94 Id. at 11.

95 R. Doc. No. 24, at 12.

96 Id.

97 Id.

B.

Title VII makes it unlawful for an employer to discriminate against any

individual with respect to her compensation, terms, conditions, or privileges of

employment on the basis of sex, among other things. 42 U.S.C. § 2000e-

2(a)(1). Accordingly, the relevant inquiry is whether LSU intentionally discriminated

against Gunaldo based on her sex. See Niwayama v. Texas Tech Univ., 590 F. App’x

351, 357 (5th Cir. 2014) (citing Roberson v. Alltel Info. Servs., 373 F.3d 647, 651 (5th

Cir. 2004)).

An intentional discrimination claim can be established by either direct or

circumstantial evidence. Id. When analyzing a discrimination claim based on

circumstantial evidence, the Fifth Circuit applies the McDonnell Douglas burden-

shifting framework. Taylor v. United Parcel Serv., Inc., 554 F.3d 510, 522 (5th Cir.

2008) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). To make out

a prima facie case of discrimination in compensation, a plaintiff must show that she

was (1) a member of a protected class, who was (2) paid less than a non-member, for

(3) work requiring substantially the same responsibility. Id. (citation omitted). If the

plaintiff succeeds in establishing her prima facie case, the burden shifts to the

defendant to identify a non-discriminatory justification for the pay disparity. Id. If

the employer does articulate a valid justification, the burden then shifts back to the

plaintiff to demonstrate a fact issue as to whether the employer’s proffered reason is

pretextual. Id.

Importantly, the Supreme Court has distinguished the McDonnell

Douglas evidentiary standard from pleading requirements. See Swierkiewicz v.

Sorema N.A., 534 U.S. 506, 510–11 (2002). Accordingly, “a plaintiff need not make

out a prima facie case of discrimination [under McDonnell Douglas] in order to

survive a Rule 12(b)(6) motion to dismiss for failure to state a claim,” Raj v. La. State

Univ., 714 F.3d 322, 331 (5th Cir. 2013), and a district court errs “by subjecting a

plaintiff’s allegations to a rigorous factual or evidentiary analysis under

the McDonnell Douglas framework[.]” Cicalese v. Univ. of Texas Med. Branch, 924

F.3d 762, 767 (5th Cir. 2019) (citation omitted).

A plaintiff must still, however, “plead sufficient facts on all of the ultimate

elements of a disparate treatment claim to make h[er] case plausible.” Chhim v.

Univ. of Texas at Austin, 836 F.3d 467, 470–71 (5th Cir. 2016) (citations omitted).

These “ultimate elements” are: “(1) an ‘adverse employment action,’ (2) taken against

a plaintiff ‘because of her protected status.’” Cicalese, 924 F.3d at 767. Although a

plaintiff need not satisfy the McDonnell Douglas framework in order to state a claim

for relief under Title VII, “allegations related to that prima facie inquiry may

nonetheless be helpful in satisfying the general Iqbal plausibility standard.” Haskett

v. Continental Land Resources, L.L.C., 668 F. App’x 133, 134 (5th Cir. 2016).

Because LSU only attacks the final element of Gunaldo’s prima facie case, the

Court will reference the McDonnell Douglas framework in analyzing whether the

amended complaint states a plausible claim for relief. To establish the final prong of

a discriminatory compensation prima facie claim, a plaintiff will ultimately have to

show that her “circumstances are ‘nearly identical’ to those of a better-paid employee

who is not a member of the protected class.” Taylor, 554 F.3d at 523 (citation

omitted). To make this showing, a plaintiff’s work must require “substantially the

same responsibility” as that of the proffered comparator. Herster v. Bd. of Supervisors

of Louisiana State Univ., 887 F.3d 177, 184 (5th Cir. 2018). A variety of factors are

considered, including job responsibilities, experience, and qualifications. Id. at 185.

“By properly showing a significant difference in job responsibilities, [a defendant] can

negate one of the crucial elements in [a plaintiff’s] prima facie case of discrimination.”

Id. (internal quotation marks and citations omitted).

A plaintiff need not, however, make this “nearly identical” showing at the

pleading stage. See Cicalese, 924 F.3d at 767–68. In Cicalese, the Fifth Circuit

reversed the dismissal of a Title VII discrimination claim when the district court

faulted the plaintiffs’ complaint for failing to sufficiently allege how the plaintiffs’ co-

workers “were treated differently under nearly identical circumstances.” Id. at 767.

The Fifth Circuit held that the district court’s analysis—“scrutinizing whether [the

plaintiffs’] fellow employees were really ‘similarly situated’”—was more suited to the

summary judgment phase. Id. at 768. The court reiterated that, at the pleading

stage, “a plaintiff need only plausibly allege facts going to the ultimate elements of

the claim to survive a motion to dismiss.” Id.

LSU seeks to have the Court impose a higher legal standard on Gunaldo than

required at the pleading stage—namely, that the complaint assert “the precise job

functions [Gunaldo] performed that were equivalent to those performed by her male

comparators” and exactly “how she was paid less for the same work.”98 As the Fifth

Circuit explained in Cicalese, Gunaldo does not have to specifically allege how the

male comparators “were treated differently under nearly identical circumstances” in

order to survive a motion to dismiss. 924 F.3d at 767. Rather, the relevant inquiry is

whether Gunaldo has pled sufficient facts to make a plausible case that LSU

compensated her less than her male counterparts because of her sex. See id. The

Court finds that Gunaldo has “surmounted that lower bar.” See id. at 768.

Specifically, at least three of the comparators worked on the same level in

central administration as Gunaldo under the Vice Chancellor of Academic Affairs.99

98 The defendants rely on Corkern v. Stranco Field Servs., LLC, No. 18-5566, 2018

WL 4614001, at *2 (E.D. La. Sept. 26, 2018) (Wilkinson, M.J.) for this assertion. R.

Doc. No. 21-2, at 11; R. Doc. No. 28, at 3. In Corkern, the court dismissed the plaintiff’s

EPA claim because the complaint “fail[ed] to specify the precise job functions she

performed that were equivalent to those performed by her male counterparts, and

neglect[ed] to articulate how she was paid less for the same work.” Id. The complaint

simply restated an element of a prima facie EPA case and failed to set forth any facts

that showed that her male co-workers who received salary increases performed

substantially equal work as the plaintiff. Id.

Setting aside the fact that Corkern addressed only an EPA claim, as discussed, infra,

the amended complaint in the instant case does more than simply restate an essential

element of the prima facie case. Moreover, this Court respectfully disagrees with

Corkern’s conclusion that the plaintiff was required to specify the precise job

functions she performed that were equivalent to those performed by the male

comparators to survive a motion to dismiss. Notably, none of the cases cited by

Corkern in support of its conclusion were decided at the pleading stage. See Pearce v.

Wichita Cty., City of Wichita Falls, Tex., Hosp. Bd., 590 F.2d 128, 133 (5th Cir. 1979)

(appeal of judgment entered after trial); Jones v. Flagship Int’l, 793 F.2d 714, 723

(5th Cir. 1986) (appeal of judgment entered after trial); Weaver v. Basic Energy Servs.,

L.P., No. 13-022, 2014 WL 12513180, at *1 (W.D. Tex. Jan. 8, 2014), aff'd, 578 F.

App’x 449 (5th Cir. 2014) (summary judgment); Blackburn v. Cypress Equities I, LP,

No. 12-5030, 2014 WL 4771765, at *1 (N.D. Tex. Sept. 25, 2014) (summary judgment).

99 R. Doc. No. 15, at 12–14 ¶¶ 86, 94, 98. The amended complaint alleges that Vidrine

worked at the same level as Gunaldo in central administration. Id. at 13 ¶ 90. It is

At least one comparator, like Gunaldo, is responsible for acting as a liaison between

his office and outside entities.100 With respect to experience, qualifications, and skill,

the comparators, based on the amended complaint, appear to hold equivalent or

inferior educational degrees to Gunaldo.101 Furthermore, a study conducted by

LSUHNO allegedly revealed that Gunaldo was paid substantially less than the two

men who also worked in the Chancellor’s office at the N37 paygrade.102

Moreover, the Court notes that, because LSUHNO permits employees to write

their own job descriptions and these descriptions are not uniform, it would be

extraordinarily difficult for Gunaldo to plead, without the benefit of the discovery,

the particular responsibilities and skills required by her position compared to the

responsibilities and skills required by the male comparators’ positions.103 This is

especially true in light of the fact that Gunaldo and four of the five comparators are

the only employees at LSUHNO with their respective job titles and responsibilities.104

unclear to the Court whether this also means that Vidrine worked under the Vice

Chancellor of Academic Affairs.

100 Id. at 13 ¶ 93.

101 Compare id. at 12 ¶ 83, with id. at 12–14 ¶¶ 88, 91, 96, 99, 100.

102 Id. at 6 ¶ 42. The lowest-paid male employee in the Chancellor’s office at the N37

paygrade made in excess of $47,000 more than Gunaldo. See id. at 6 ¶¶ 43–44.

It does not appear from the face of the complaint that any of the proffered

comparators were the men who worked in the Chancellor’s office at the N37 paygrade.

However, this allegation is still relevant as these two other men may also be

comparators.

103 See id. at 12 ¶ 81.

104 See id. at 12–14 ¶¶ 86, 90, 94, 98. The defendants emphasize the fact that the

amended complaint fails to include the paygrade of each comparator. While such

information, if available, may have been helpful in analyzing Gunaldo’s claims, its

absence is certainly not fatal. Moreover, even if Gunaldo and the comparators are all

Consequently, the Court finds that Gunaldo has stated a claim for relief under

Title VII.105 See Muslow v. Bd. of Supervisors of Louisiana State Univ. & Agric. &

Mech. Coll., No. 19-11793, 2020 WL 1864876, at *2–*3, *22 (E.D. La. Apr. 14, 2020)

(Ashe, J.) (holding that plaintiffs sufficiently pled that they were treated differently

than their male counterparts based on their allegations that the defendants selected

“a younger, less-experienced white man” as one plaintiff’s replacement and increased

the salaries of plaintiffs’ male counterparts without increasing plaintiffs’ salaries);106

Wei-Ping Zeng v. Texas Tech Univ. Health Scis. Ctr. at El Paso, No. 19-99, 2019 WL

4565101, at *5 (W.D. Tex. July 29, 2019) (denying the defendant’s motion to dismiss

plaintiff’s Title VII disparate treatment claim because the complaint “allege[d] the

employees were in a similar position, which is sufficient at the motion to dismiss stage

because a close factual analysis of whether [plaintiff’s] fellow employees were

sufficiently similar is more appropriate for resolution on summary judgment”)

in different paygrades, Gunaldo could argue that LSU placed her in a lower paygrade

based on her sex.

105 The defendants’ reliance on Parr v. Nicholls State Univ., No. 09-3576, 2011 WL

838903, at *4 (E.D. La. Mar. 3, 2011) (Engelhardt, J.), aff’d sub nom. Parr v. Hulbert,

518 F. App’x 275 (5th Cir. 2013) is misplaced, as the court granted judgment in favor

of the defendant with respect to Title VII and EPA claims at the summary judgment

stage. See R. Doc. No. 28, at 2. The Parr Court had the benefit of reviewing the

evidence produced in discovery to analyze whether the comparators were truly

similarly situated employees. See 2011 WL 838903, at *4–*8.

106 Muslow involved an equal protection discrimination claim brought pursuant to 42

U.S.C. § 1983, rather than a Title VII pay discrimination claim. 2020 WL 1864876,

at *22. However, as Muslow noted, a prima facie case of employment discrimination

under either Title VII or § 1983 requires showing, inter alia, that the employee was

treated less favorably than other similarly-situated employees outside the protected

group. Id. (citing Caldwell v. Lozano, 689 F. App’x 315, 321 (5th Cir. 2017) (citation

omitted)).

(citing Cicalese, 924 F.3d at 767); Johnson v. Berry Plastics Corp., No. 15-1078, 2015

WL 5568067, at *3 (W.D. La. Aug. 28, 2015), report and recommendation adopted,

2015 WL 5599001 (W.D. La. Sept. 22, 2015) (denying the defendant’s motion to

dismiss plaintiff’s Title VII pay discrimination claim, because the similarities

between plaintiff and the comparator “remain an issue for discovery” and “[f]or now,

it suffices that plaintiff’s allegations provide defendant with fair notice of the claim

against it”).

The Court will not attempt to scrutinize whether Gunaldo’s male counterparts

are in actuality similarly situated at this juncture. See Cicalese, 924 F.3d at 768.

LSU’s arguments that the male comparators are not sufficiently similar to Gunaldo

to support a prima facie case of pay disparity under Title VII and that non-

discriminatory justifications exist for the disparity may be properly considered at the

summary judgment stage. The Court must, therefore, deny the defendants’ motion

with respect to Gunaldo’s Title VII claim.

IV. Equal Pay Act

The amended complaint also alleges that the defendants discriminated against

Gunaldo in violation of the EPA by paying, or directing that Gunaldo be paid, less

than similarly-situated male employees performing equal work under similar

working conditions requiring equal skill, effort, and responsibility.107 Gunaldo

further alleges that the difference in pay between her and similarly-situated male

107 R. Doc. No. 15, at 15 ¶¶ 107–08.

employees was, and is, not due to any seniority system, merit system, system of

earnings by quantity or quality of production, or any other factor other than sex.108

The defendants contend that the amended complaint fails to state a claim for

relief under the EPA for the same reasons LSU previously asserted with respect to

Gunaldo’s Title VII claim.109 The defendants also argue that the EPA claim must be

dismissed with respect to the individual defendants, Hollier, Moerschbaecher, and

Martin, because they are not “employers” for purposes of the EPA.110

The Court will first address whether Gunaldo has stated a claim under the

EPA and, second, whether an EPA claim may be maintained against the individual

defendants.

A.

The EPA prohibits discrimination “between employees on the basis of sex by

paying wages to employees in such establishment at a rate less than the rate at which

[the employer] 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[.]” 29

U.S.C. § 206(d)(1). To establish a prima facie case under the EPA, a plaintiff

must show that “(1) her employer is subject to the Act; (2) she performed work in a

position requiring equal skill, effort, and responsibility under similar working

conditions; and (3) she was paid less than an employee of the opposite sex providing

108 Id. at 15 ¶ 109.

109 R. Doc. No. 21-2, at 8–11.

110 Id. at 11–14.

the basis of comparison.”111 Fields v. Stephen F. Austin State Univ., 611 F. App’x 830,

831–32 (5th Cir. 2015) (internal quotation marks and citation omitted). “To establish

‘equal work,’ the plaintiff need only prove that the ‘skill, effort and responsibility’

required in the performance of the jobs is ‘substantially equal.’” Jones, 793 F.2d at

723.

The defendants do not contest that LSU is an employer subject to the EPA or

that Gunaldo was paid less than the male comparators. The only element at issue is

whether Gunaldo sufficiently pled in her complaint that she performed work in a

position requiring skill, effort, and responsibility substantially equal to and under

similar working conditions as the men LSU paid more.

The Court finds that Gunaldo has sufficiently pled a claim under the EPA for

essentially the same reasons stated with respect to the Title VII claim. As the

defendants recognize, “[g]enerally, a Title VII wage discrimination claim parallels

that of an EPA violation.”112 Montgomery v. Clayton Homes Inc., 65 F. App’x 508 (5th

Cir. 2003); see Parr, 2011 WL 838903, at *8 (granting judgment in favor of the

111 If the plaintiff establishes her prima facie case, the burden of proof shifts to the

employer to show that the differential is justified under one of the four exceptions set

forth in the EPA: (1) a seniority system; (2) a merit system; (3) a system which

measures earnings by quantity or quality of production; or (4) any factor other than

sex. Siler-Kohdr v. Univ. of Tex. Health Sci. Ctr. San Antonio, 261 F.3d 542, 546 (5th

Cir. 2001); 29 U.S.C. § 206(d)(1). These exceptions are affirmative defenses as to

which the employer has the burden of both production and persuasion. Jones v.

Flagship Int’l, 793 F.2d 714, 722 (5th Cir. 1986). If the employer offers a defense, the

plaintiff must then show that the purported reason is a pretext for

discrimination. Browning v. Southwest Research Inst., 288 F. App’x 170, 174 (5th Cir.

2008).

112 R. Doc. No. 21-2, at 9.

defendant on plaintiff’s Title VII claim “for essentially the same reasons stated with

respect to [p]laintiff’s EPA claim”). Gunaldo has alleged sufficient facts to “nudge[]

[her] claim[] across the line from conceivable to plausible[.]” Twombly, 550 U.S. at

570; cf. Espinoza v. San Benito Consol. Indep. Sch. Dist., 753 F. App’x 216, 220 (5th

Cir. 2018), cert. denied, 139 S. Ct. 2697 (2019) (affirming the district court’s dismissal

of three male plaintiffs’ EPA claim when the complaint alleged only that the

comparator received a pay raise “even though she had less experience than

[plaintiffs]”); Boudreaux v. Stranco Field Servs., LLC, No. 18-5569, 2019 WL 2142045,

at *7 (E.D. La. May 16, 2019) (Ashe, J.) (dismissing plaintiff’s EPA claim because she

alleged “nothing about the skill, effort, or responsibility required by the performance

of either [comparator’s] position,” made “bare mention of that required by her own,”

and failed to state what position either of the comparators held).

B.

The defendants next argue that Gunaldo’s EPA claims must be dismissed

against the individual defendants because they are not “employers” under the EPA.

i.

The defendants contend that Martin, as the Director of HR, has no authority

or control over the terms and conditions of Gunaldo’s employment or her

compensation because, as alleged in the amended complaint, Hollier is responsible

for setting salaries for employees within the Chancellor’s office and Moerschbaecher

was Gunaldo’s direct supervisor.113 While the defendants concede that Hollier and

113 R. Doc. No. 21-2, at 13.

Moerschbaecher may have some control over the terms and conditions of Gunaldo’s

employment, they argue that these individuals cannot be considered employers

because they did not act in their individual capacities when hiring Gunaldo or

providing her with a paycheck and withholding taxes and social security.114

Furthermore, the defendants point out that Hollier, Moerschbaecher, and Martin

possess no “employer power” and cannot develop an employer-employee relationship

with Gunaldo in their individual capacities.115

In response, Gunaldo argues that each of the three individual defendants

satisfy the economic reality test, which is a test used by the Fifth Circuit to determine

whether an individual is an employer for purposes of the EPA.116 Gunaldo also

highlights that the cases cited by the defendants predate the Fifth Circuit’s adoption

of the economic reality test, which is a broader standard than that previously utilized

to determine whether an individual is an employer.117

Gunaldo argues that Moerschbaecher, the Vice Chancellor of Academic Affairs,

is her employer for purposes of the EPA because he directly supervises her, oversees

the operations of Academic Affairs, Student Affairs, and Research, and is responsible

for hiring and firing employees, controlling employee works schedules and conditions

of employment, and maintaining employee records.118 Gunaldo further alleges that

Moerschbaecher is responsible for compliance with Louisiana and federal laws, LSU

114 Id. at 13–14.

115 Id. at 14.

116 R. Doc. No. 24, at 13.

117 Id.

118 Id. at 14–15.

System Bylaws and Regulations, Chancellor’s Memoranda, regional accreditation

standards, and publishing the Faculty Handbook.119

Gunaldo argues that Hollier, as Chancellor, is responsible for setting her

salary, which weighs in favor of finding that he is an employer under the EPA.120

Gunaldo contends that the fact that Hollier directly supervises Moerschbaecher, the

individual responsible for hiring and firing employees, controlling employee work

schedules and conditions of employment, and maintaining employee records, further

supports this finding.121

Finally, Gunaldo argues that Martin, as Director of HR, has the power to carry

out the hiring and firing of employees and is responsible for providing quality

support, services, and solutions to LSUHNO staff, faculty, and students.122 Gunaldo

contends that these allegations create an inference that Martin has power over

employees’ conditions of employment and maintains employee records.123 Gunaldo

also asserts that Moerschbaecher told her that HR made decisions regarding salary

raises, which leads to the reasonable inference that Martin, in her individual

capacity, controlled Gunaldo’s salary.124

In reply, the defendants argue that Gunaldo relies on several allegations that

are not pleaded in her amended complaint and that individuals must satisfy more

119 Id. at 15.

120 Id. at 14.

121 Id. at 14–15.

122 Id. at 15.

123 Id.

124 Id.

than one element of the economic reality test to be considered an employer for

purposes of the EPA.125

ii.

The EPA, as part of the Fair Labor Standards Act (the “FLSA”), 29 U.S.C. §§

201 et seq., uses the same definition of “employer” as defined in the FLSA. 29 C.F.R.

§ 1620.8. Under the FLSA, an “employer” is “any person acting directly or indirectly

in the interest of an employer in relation to an employee and includes a public

agency[.]” 29 U.S.C. § 203(d). To determine whether an individual is an employer for

purposes of the FLSA or EPA, the Fifth Circuit utilizes the “economic reality

test.” Martin v. Spring Break ‘83 Productions, LLC, 688 F.3d 247, 251 (5th Cir. 2012).

Under the test, “the court considers whether the alleged employer: (1) possessed the

power to hire and fire employees; (2) supervised or controlled employee work

schedules or conditions of employment; (3) determined the rate or method of payment;

and (4) maintained employee records.”126 Id.

A plaintiff need not establish every element to hold an individual liable as an

employer under the EPA. Orozco v. Plackis, 757 F.3d 445, 448 (5th Cir. 2014). “While

the absence of one factor is not necessarily dispositive, . . . the absence of all factors

is fatal.” Oncale v. CASA of Terrebonne Par., Inc., No. 19-14760, 2020 WL 3469838,

125 R. Doc. No. 28, at 5–7.

126 As Gunaldo points out, the cases relied upon by the defendants, Geller v. Univ. of

Mississippi, No. 00-52, 2001 WL 1079006, at *2 (N.D. Miss. July 9, 2001) and Schuth

v. Louisiana State Univ. Med. Ctr., No. 87-4191, 1989 WL 65566, at *2 (E.D. La. June

15, 1989) (Schwartz, J.), did not apply the economic reality test. See R. Doc. No. 21-2,

at 11–12; R. Doc. No. 24, at 13. As the economic reality test is the proper standard,

the Court does not accept the arguments based on Geller and Schuth.

at *13 (E.D. La. June 25, 2020) (Africk, J.) (internal quotation marks and citation

omitted). “The dominant theme in the case law is that those who have operating

control over employees within companies may be individually liable for FLSA

violations committed by the companies.” Orozco, 757 F.3d at 448. Moreover, “[t]he

remedial purposes of the FLSA require the courts to define ‘employer’ more broadly

than the term would be interpreted in traditional common law applications.” Id.

(citation omitted).

“In cases where there may be more than one employer, [the] court must apply

the economic realities test to each individual or entity alleged to be an employer and

each must satisfy the four part test.” Gray v. Powers, 673 F.3d 352, 355 (5th Cir. 2012)

(internal quotation marks and citation omitted). The Court will apply the economic

reality test to each of the three individual defendants.

Moerschbaecher

According to the amended complaint, Moerschbaecher is the Vice Chancellor

of Academic Affairs at LSUHNO, Dean of Graduate School Studies, and a Professor

of Pharmacology.127 As the chief academic officer at LSUHNO, he reports directly to

the Chancellor, Hollier.128 Moerschbaecher’s responsibilities as Vice Chancellor

include overseeing the operations of three major areas and directly supervising

Gunaldo.129 Moerschbaecher also oversees program and curriculum changes,

publishes the Faculty Handbook, and insures that LSUHNO is in compliance with

127 R. Doc. No. 15, at 3 ¶ 11.

128 Id. at 3 ¶ 13.

129 Id. at 3 ¶ 12.

pertinent Louisiana and federal laws, LSU System Bylaws and Regulations,

Chancellor’s memoranda, and regional accreditation standards.130 As the defendants

point out, the amended complaint does not explicitly allege that Moerschbaecher is

responsible for hiring and firing employees, controlling employee work schedules and

conditions of employment, or maintaining employee records, as Gunaldo asserts in

her response in opposition.131

Applying the well-pleaded factual allegations of the amended complaint to the

economic reality test, the Court cannot reasonably infer that Moerschbaecher is an

employer for purposes of the EPA. While the defendants are correct that the amended

complaint does not explicitly allege that Moerschbaecher controls Gunaldo’s work

schedule and conditions of her employment, the Court can reasonably infer that, as

her supervisor, Moerschbaecher has at least some control over these aspects of

Gunaldo’s employment.132 However, the Court will not find that Moerschbaecher is

an individual employer under the EPA based on the single allegation that he directly

130 Id. at 3 ¶ 14.

131 See R. Doc. No. 24, at 15; R. Doc. No. 28, at 6.

132 Gunaldo relies on Herster v. Bd. of Sup’rs of Louisiana State Univ., No. 13-139,

2013 WL 2422893, at *7–*9 (M.D. La. June 3, 2013) in support of her claim that the

individual defendants can be held liable under the EPA. R. Doc. No. 24, at 13–14.

That case is clearly distinguishable with respect to Moerschbaecher. Herster

determined that the complaint plausibly alleged that the Director of the School of

Art, the plaintiff’s supervisor, could be held liable as an employer under the EPA. Id.

The complaint alleged that the plaintiff’s supervisor negotiated her contract, which

suggested he had hiring powers; supervised and controlled her schedule and

conditions of her employment, including assigning her to her position, giving her a

“windowless closet as an office,” and excluding her from meetings; indicated that he

set the plaintiff’s title and pay; and had at least partial responsibility to compile the

plaintiff’s records that were distributed to the faculty for the vote on her

reappointment. Id. at *8.

supervised Gunaldo, which satisfies only the second prong of the economic reality

test. See Martin, 688 F.3d at 253 (sustaining summary judgment in favor of

defendant where plaintiff only adduced evidence to support one economic realities

factor); Papagolos v. Lafayette Cty. Sch. Dist., 972 F. Supp. 2d 912, 921 (N.D. Miss.

2013), amended on reconsideration on other grounds (Nov. 13, 2013). Accordingly,

Gunaldo’s EPA claim asserted against Moerschbaecher must be dismissed.

Hollier

Turning next to Hollier, the amended complaint alleges that his duties as

Chancellor include setting salaries for employees within the Chancellor’s office,

including that of Gunaldo, and supervising Moerschbaecher.133 Gunaldo does not

direct the Court’s attention to any other allegations that support her assertion that

Hollier is an employer under the EPA.

As just discussed, Moerschbaecher is not an employer for purposes of the EPA,

and the fact that Hollier supervises Moerschbaecher is irrelevant to the Court’s

determination of whether Hollier is an employer. Hollier satisfies the third element

of the economic reality test, as he is responsible for setting Gunaldo’s salary.

However, the amended complaint does not allege that he possessed the power to hire

and fire employees, supervised or controlled employee work schedules or conditions

of employment, or maintained employee records. As with Moerschbaecher, the Court

is unwilling to determine that Hollier may be held individually liable under the EPA

133 R. Doc. No. 15, at 2 ¶¶ 7–8, 3 ¶ 13.

based on one factor.134 Accordingly, Gunaldo’s EPA claim asserted against Hollier

must be dismissed.

Martin

The amended complaint alleges that Martin was the Director of HR at

LSUHNO and responsible for providing quality support, services, and solutions to the

LSUHNO staff, faculty, and students.135 Gunaldo met with Martin on March 28,

2018, after she was informed by Moerschbaecher that HR determined the rate at

which her salary increased.136 Martin informed Gunaldo at this meeting of the study

that was conducted regarding salary ranges at the institution.137 Martin, along with

two other HR representatives, met with Gunaldo again on February 27, 2019 and

provided her with, among other things, information regarding her salary and salaries

of comparable positions at other institutions.138

The Court finds that there are sufficient allegations, at this stage, to support

an inference that Martin was an employer. With respect to the first and second prongs

of the economic reality test, the amended complaint does not allege that Martin had

134 Again, the lack of factual allegations in Gunaldo’s amended complaint distinguish

this case from Herster. The complaint in Herster plausibly alleged that the Dean of

the College of Art and Design, to whom the plaintiff’s supervisor directly reported,

was an employer for purposes of the EPA. 2013 WL 2422893, at *7–*8. According to

the complaint, the Dean had the power to hire employees, divest the plaintiff of access

to university benefits, possessed final decision-making authority on whether to

promote the plaintiff, set employee workloads and compensation, and maintained the

plaintiff’s records, specifically, the minutes of the faculty meeting and the

memorandum of reasons explaining the decision not to reappoint her. Id.

135 R. Doc. No. 15, at 3 ¶¶ 17–18.

136 Id. at 7 ¶¶ 47–48.

137 Id. at 7 ¶ 48.

138 Id. at 11 ¶¶ 73–74.

hiring or firing powers or that she supervised Gunaldo’s schedule or conditions of

employment.

However, the amended complaint does plausibly allege that Martin had some

control over Gunaldo’s salary raise, satisfying the third prong, and that Martin

maintained Gunaldo’s employment records, satisfying the fourth prong. The

amended complaint alleges that Moerschbaecher told Gunaldo that HR was

responsible for employee raises.139 As the Director of HR, the Court can reasonably

infer that Martin had at least some control over Gunaldo’s compensation and played

a role in raising Gunaldo’s salary by two percent. Cf. Herster, 2013 WL 2422893, at

*9 (finding that because the human resources department “appeared to have at least

some control over [plaintiff’s] compensation,” the complaint plausibly alleged that the

individual defendants who worked in the human resources department “had some

control over [plaintiff’s] compensation, satisfying the third prong”). With respect to

the fourth prong, the amended complaint plausibly alleges that Martin was at least

partially responsible for compiling the information provided to Gunaldo at the

February 2019 meeting regarding her position and salary. This fact raises the

inference that Martin maintained Gunaldo’s employee records.

139 The defendants seem to suggest that the Court should not consider the allegation

that HR made decisions regarding salary raises because the amended complaint also

alleges that Hollier set Gunaldo’s salary. See R. Doc. No. 28, at 6–7. The Court does

not view these facts as contradictory. It is entirely plausible that Hollier set

Gunaldo’s compensation within the N37 paygrade, and HR subsequently determined

the percentage of her salary raise.

Accordingly, the defendants’ motion with respect to the EPA claim asserted

against Martin must be denied.

koe

In sum, the Court must deny the defendants’ motion with respect to the EPA

claim asserted against LSU and Martin, and it must grant the motion with respect

to the EPA claim asserted against Moerschbaecher and Hollier.

V.

Accordingly,

IT IS ORDERED that the defendants’ motion to dismiss is GRANTED IN

PART and DENIED IN PART.

IT IS FURTHER ORDERED that the defendants’ motion with respect to the

Title VII claim asserted against LSU is DENIED.

IT IS FURTHER ORDERED that the defendants’ motion with respect to the

EPA claim asserted against LSU and Martin is DENIED.

IT IS FURTHER ORDERED that the defendants’ motion with respect to the

EPA claim asserted against Hollier and Moerschbaecher is GRANTED. The EPA

claim asserted against Hollier and Moerschbaecher is DISMISSED.

New Orleans, Louisiana, August 10, 2020.

Si

UNITED STATES DISTRICT JUDGE

34