Muslow v. Louisiana State University and Agricultural and Mechanical College

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

KATHERINE MUSLOW, et al. CIVIL ACTION

VERSUS NO. 19-11793

BOARD OF SUPERVISORS OF SECTION M (2)

LOUISIANA STATE UNIVERSITY,

AND AGRICULTURAL AND

MECHANICAL COLLEGE, et al.

ORDER & REASONS

Before the Court is a motion for summary judgment regarding available damages filed by

defendant Board of Supervisors of Louisiana State University and Agricultural and Mechanical

College (“LSU”).1 Plaintiffs Katherine Muslow and Meredith Cunningham (together, “Plaintiffs”)

respond in opposition.2 LSU replies in further support of its motion,3 and Plaintiffs file a surreply.4

Having considered the parties’ memoranda, the record, and the applicable law, the Court grants

the motion in most all respects.

I. BACKGROUND

This case arises out of an employment dispute. Muslow and Cunningham were employed

by LSU’s Health Sciences Center in New Orleans (“LSUHSC-NO”) as full-time general counsel

and part-time staff attorney, respectively, until the summer of 2019, when their positions were

retired as part of LSU’s plan to consolidate its university-wide legal team.5

1 R. Doc. 551.

2 R. Doc. 553.

3 R. Doc. 559.

4 R. Doc. 560.

5 R. Docs. 551-1 at 2-4; 553 at 3-4.

The consolidation plan involved retiring the two LSUHSC-NO legal positions, then

occupied by Plaintiffs, and adding two new attorney positions to LSU’s office of general counsel

(“OGC”), intended to be filled by Plaintiffs.6 LSU informed Muslow of this plan in December

2018.7 In January 2019, Muslow and Cunningham were each provided an unexecuted, proposed

employment contract for the positions of OGC chief counsel and OGC staff attorney, respectively,

with salaries matching each Plaintiff’s then-current LSUHSC-NO salary and an effective date of

February 1, 2019.8 By February, Plaintiffs had completed applications for the new positions, as

requested by OGC to facilitate their transfer, but neither had executed her OGC contract, despite

prompting by OGC staff.9 On February 15, 2019, Muslow emailed OGC vice president of legal

affairs Thomas Skinner, with Cunningham copied on the email, requesting that Plaintiffs’ salaries

be reviewed before they executed the contracts.10 Based on the results of a 2017 market study

conducted by LSUHSC-NO, Muslow suggested that her salary be increased from $227,520 to

$375,000, and Cunningham’s part-time salary from $76,500 at 60% full time equivalent (“FTE”)

to $204,748 at 80% FTE, adjustments she deemed “overdue and necessary to ameliorate an

environment at [LSUHSC-NO] that has not seemed historically to view equity as potentially a

gendered issue.”11

On February 18, Skinner notified Plaintiffs that their OGC offers were rescinded “pending

further review” for the stated reason that the contracts had not been executed or returned by the

effective date.12 On March 1, Muslow emailed Skinner and LSUHSC-NO chancellor Larry

Hollier, inquiring whether “the review referenced in Mr. Skinner’s [recission] letter [was] still

6 R. Docs. 551-1 at 3-4; 553 at 3-4.

7 R. Doc. 553-3 at 7.

8 R. Docs. 551-1 at 3; 551-5 at 8-13; 553 at 6.

9 R. Docs. 551-5 at 9-10, 12-13.

10 Id. at 14-15.

11 Id. (quote at 15).

12 Id. at 16-17; R. Doc. 551-6 at 1-2.

pending or if further guidance [was] forthcoming.”13 On March 6, Muslow again emailed Skinner

and Hollier, stating that Plaintiffs “complied with everything asked of [them] and … were

responsive to the employment agreements” and “[t]hat [they] requested that [their] salaries be

reviewed [did] not render [their] response to the employment agreements nonresponsive or a

rejection of the offers.”14 Muslow also requested confirmation that Plaintiffs were “active

candidates” for the OGC positions.15 Neither Skinner nor Hollier responded.16

On March 28, 2019, the OGC positions were publicly posted with an application deadline

of April 28, 2019.17 Plaintiffs were each personally invited to apply by OGC business manager

Dana Dewailly on April 4.18 Upon learning that Plaintiffs had not submitted applications, LSU

deputy general counsel Carlton Jones emailed Plaintiffs on May 2, after the April 28 deadline had

passed, to confirm whether they intended to apply for the OGC positions.19 On May 3, Muslow

responded, with Cunningham copied on the email:

… We stand by our request for salary reviews and to be paid fairly as compared to

our male peers and consistent with the [LSUHSC-NO]’s 2017 market study. In

asking if we intend to “apply” for our jobs, are you indicating that salary reviews

will, indeed, take place and that we will be compensated equitably and in line with

the [LSUHSC-NO]’s market study?20

Jones clarified on May 10 that he “was simply trying to determine if [Muslow was] still interested”

in the OGC chief counsel position and informed her that he would forward her resume to the hiring

committee.21 On May 13, Muslow replied, again copying Cunningham, stating: “... Unless my

position is going to be compensated as dictated by the market study done at [LSUHSC-NO], …

13 R. Doc. 553-4 at 11.

14 Id. at 12.

15 Id.

16 Id. at 15.

17 R. Doc. 551-6 at 20, 23.

18 Id. at 22, 25.

19 Id. at 26; R. Doc. 551-7 at 3.

20 R. Doc. 551-7 at 2.

21 Id. at 1.

you do not have my permission to treat me as an ‘applicant’ for a position I have held going on

eighteen years now. [Cunningham] concurs.”22

On May 15, Jones again asked Muslow to confirm whether she was interested in being

considered for the OGC chief counsel position, adding that if she did not respond by 5:00 p.m. the

following day, he would “take [her] May 13, 2019 email as direction to not include [her] in the

application process and … move forward with the current pool of online applicants.”23 Muslow

did not respond, and Jones removed Plaintiffs from consideration for the OGC positions.24

Pursuant to the consolidation plan, the LSUHSC-NO staff attorney position was retired, ending

Cunningham’s employment at LSU, on June 30, 2019,25 and the LSUHSC-NO general counsel

position was retired, ending Muslow’s employment at LSU, on July 15, 2019.26 LSU subsequently

hired Louis Colletta for the OGC chief counsel position, at a starting annual salary of $182,500.27

The OGC staff attorney position was not filled.28

On July 22, 2019, Plaintiffs filed this action against LSU and several individual defendants,

alleging violations of Title VII, Title IX, the Equal Pay Act (“EPA”), 42 U.S.C. § 1983, and the

Louisiana Employment Discrimination Law.29 After extensive preliminary motion practice and

with the filing of a third amended complaint, the Plaintiffs’ claims included gender discrimination

in violation of Title VII against LSU, retaliation in violation of Title VII against LSU, gender

discrimination in violation of the EPA against LSU and three individual defendants, retaliation in

violation of the EPA against LSU and three individual defendants, and gender discrimination in

22 Id.

23 Id. at 4 (emphasis in original).

24 Id. at 5.

25 Id. at 7-8.

26 Id. at 9-10.

27 R. Doc. 365-10 at 100.

28 R. Doc. 551-1 at 13.

29 R. Doc. 1.

violation of § 1983 against two individual defendants.30 Thereafter, the Court granted the

defendants’ motions for summary judgment, dismissing all of Plaintiffs’ claims,31 and upon

Plaintiffs’ appeal,32 the Fifth Circuit affirmed the dismissal in all respects but one.

The Fifth Circuit determined that, as of the summary-judgment stage, Plaintiffs had

established a prima facie case only as to one of their retaliation allegations against LSU – namely,

“that their employment contracts with OGC were rescinded, and they were eventually terminated,

after they raised gender-pay equity concerns to Skinner via email.”33 Thus, the Fifth Circuit held

that Plaintiffs “identified two adverse employment actions related to this allegation – the rescission

of their employment contracts, and their eventual termination.”34 Applying the McDonnell

Douglas burden-shifting framework,35 the Fifth Circuit then observed that the “[d]efendants

offer[ed] several non-retaliatory reasons for the employment actions.”36 The Fifth Circuit went on

to analyze whether Plaintiffs had shown that the defendants’ stated reasons for each employment

action were “pretext for the real, retaliatory purpose,” i.e., whether Plaintiffs “provide[d]

substantial evidence that, but for [their] protected activity, [they] would not have been subject to

the adverse employment action.”37 The Fifth Circuit concluded:

30 R. Doc. 99.

31 R. Docs. 451; 452.

32 R. Docs. 502; 503.

33 Muslow v. La. State Univ. & Agric. & Mech. Coll., Bd. of Supervisors, 2023 WL 5498952, at *7 (5th Cir.

Aug. 24, 2023) [hereinafter Muslow v. LSU] (R. Doc. 511-1 at 16), cert. denied, 144 S. Ct. 573 (2024). To establish

a retaliation claim under either Title VII or the EPA, a plaintiff must demonstrate that (1) she engaged in protected

activity; (2) she experienced an adverse employment action; and (3) there is a causal connection between the protected

activity and the adverse employment action. Fisher v. Lufkin Indus., Inc., 847 F.3d 752, 757 (5th Cir. 2017); see also

Thibodeaux-Woody v. Hous. Cmty. Coll., 593 F. App’x 280, 285 (5th Cir. 2014) (observing that an analysis of a Title

VII or an EPA retaliation claim concerns the same elements).

34 Muslow v. LSU at *8 (R. Doc. 511-1 at 18).

35 Under this framework, set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), once a plaintiff

has established a prima facie case of retaliation, the burden shifts to the defendant to proffer a nonretaliatory reason

for the alleged employment action. Hagan v. Echostar Satellite, L.L.C., 529 F.3d 617, 624 (5th Cir. 2008). The

plaintiff must then show that the defendant’s stated reason is a pretext for retaliation. Aryain v. Wal-Mart Stores Tex.

LP, 534 F.3d 473, 484 (5th Cir. 2008).

36 Muslow v. LSU at *8 (R. Doc. 511-1 at 18).

37 Id. at *9 (R. Doc. 511-1 at 18).

Muslow and Cunningham have not met this burden with respect to their termination

from LSUHSC[-NO]. The evidence establishes that Plaintiffs were aware of the

plan to consolidate all legal services within OGC by December 2018. While they

were told at that time that the transition would be administrative, Muslow and

Cunningham do not dispute that they were required to go through the entire

recruiting process, which included the submission of a “completed employment

contract” before OGC could effectuate their hiring. As the district court

recognized, Plaintiffs’ “failure to execute the tendered employment contracts with

OGC or to apply for the new OGC positions – despite being prompted and invited

to do so multiple times – cemented their termination.” Thus, it was inevitable that

their positions would be terminated, and the salary-review request was not the but-

for cause of their termination.

However, Muslow and Cunningham have provided substantial evidence regarding

that their employment contracts at OGC would not have been rescinded but for the

request for their salaries to be reviewed because of gender-pay equity concerns.

Upon review, it appears that the district court – and [d]efendants on appeal – treated

the rescission of Plaintiffs’ employment contracts and their later termination as a

single adverse employment action and thus did not separately consider whether the

salary-review request was the but-for cause of the contract recission. But these are

their own adverse employment actions and must be considered separately.38

As a result, said the court, “the recission of [Plaintiffs’] employment contracts … is the only

alleged retaliatory action that … survives summary judgment.”39 The Fifth Circuit thus affirmed

the Court’s dismissal of all of Plaintiffs’ claims except those “alleging that LSU retaliated against

Muslow and Cunningham by revoking their employment contracts following their salary-review

request” and remanded the action for further proceedings on these remaining claims.40

On remand, this Court ordered the parties to file briefs addressing the issues remaining for

trial and how they should be tried.41 The parties identified three dispositive issues remaining on

remand, including the damages available for Plaintiffs’ remaining claims.42 The Court then

ordered that the parties address all dispositive issues via motions for summary judgment, beginning

38 Id. (R. Doc. 511-1 at 19-20).

39 Id. at *10 (R. Doc. 511-1 at 21).

40 R. Doc. 510; Muslow v. LSU at *11 (R. Doc. 511-1 at 23).

41 R. Doc. 535.

42 R. Docs. 537; 538; 539; 540.

with damages.43 Accordingly, LSU now moves for summary judgment dismissing or limiting the

damages sought by Plaintiffs on their remaining claims.44

II. PENDING MOTION

In its motion for summary judgment on available damages, LSU first argues that punitive

damages are not available to Plaintiffs because they failed to provide fair notice of any claim for

punitive damages against LSU in their series of amended complaints (including the operative

complaint).45 LSU next argues that punitive damages under Title VII are barred in this case as a

matter of law because LSU, as a state university, is exempt from Title VII punitive damages.46

LSU also contends that punitive damages are not available for Plaintiffs’ EPA claim as a matter

of law because Fifth Circuit case law suggests that the Fair Labor Standards Act (“FLSA”) does

not authorize punitive damages.47

LSU then argues that back pay is unavailable for the period between LSU’s recission of

the contracts on February 18, 2019, and the retirement of Plaintiffs’ LSUHSC-NO positions in the

summer of 2019 because Plaintiffs remained employed at their same salaries throughout that

period.48 LSU further argues that because there are no wrongful termination claims remaining in

this case, and Plaintiffs made no constructive discharge claims, Plaintiffs cannot recover back pay

for the period following the retirement of their LSUHSC-NO positions.49

LSU next urges that reinstatement is not feasible, given that Plaintiffs’ LSUHSC-NO

positions have been retired, the OGC chief counsel position was filled, and LSU decided not to fill

the OGC staff attorney position, and because “the record of this suit is replete with … LSU’s

43 R. Doc. 541.

44 R. Doc. 551.

45 R. Doc. 551-2 at 5-10.

46 Id. at 10.

47 Id. at 11-14.

48 Id. at 15.

49 Id. at 16-18.

objections to conduct by Plaintiffs during their former employment as legal counsel for LSUHSC-

NO.”50 LSU also argues that front pay is not available in lieu of reinstatement for the same reasons

that backpay is unavailable.51 LSU likewise contends that, because back pay is not available,

neither are EPA liquidated damages which “are an ‘additional equal amount’ to the payment of

lost wages.”52

Finally, LSU argues that any compensatory damages should be “limited to a single

allegedly retaliatory act for a limited period.”53 LSU notes that 29 C.F.R. § 1620.27(b) prohibits

an individual from “receiv[ing] duplicative relief for the same wrong” under both Title VII and the

EPA.54 LSU then contends that Plaintiffs’ recoverable compensatory damages should be confined

to the period between the alleged retaliatory act (i.e., the recission of the OGC contracts on

February 18, 2019) and the retirement of the Plaintiffs’ LSUHSC-NO positions (on June 20, 2019,

for Cunningham and July 15, 2019, for Muslow) because recovery for losses suffered after those

dates would compensate Plaintiffs for more than the “single allegedly retaliatory act” underlying

the only remaining claim in the case.55

In opposition, Plaintiffs first argue that they “are entitled to present the full range of back-

pay and front-pay damages to the jury at trial,”56 because LSU “took away Plaintiffs’ opportunity

to sign the OGC contracts and remain employed at LSU,” an opportunity which Plaintiffs claim

they would have taken but for LSU’s rescission of the contracts, resulting in their termination.57

50 Id. at 18-20 (quote at 20).

51 Id. at 20-22.

52 Id. at 22.

53 Id. at 23.

54 Id.

55 Id. at 23-24 (quote at 23).

56 R. Doc. 553 at 9.

57 Id.; see also R. Docs. 553-1 at 4 (“Plaintiffs could have (and would have) signed the OGC contracts and

remained employed at LSU”); 560 at 9 (“But for LSU’s rescission of those contracts, Plaintiffs would have signed

them and remained employed at LSU.”).

Plaintiffs reason that LSU is really asserting a “disguised mitigation affirmative defense” for which

LSU would bear the burden of proof, were it procedurally proper.58 And Plaintiffs then argue that

this mitigation defense must fail because LSU never gave Plaintiffs unconditional employment

offers after “Plaintiffs were left in positions slated for termination and then involuntarily

terminated (i.e., actually discharged) by LSU.”59 Because, in Plaintiffs’ view, front and back pay

are available, EPA liquidated damages are also available.60 Plaintiffs also contend that the

availability of reinstatement as a remedy should be evaluated after trial.61

Plaintiffs then posit that LSU offers no support for its argument that compensatory damages

“should be artificially limited to the few months [Plaintiffs] remained employed at LSU” after the

contracts were rescinded and that Plaintiffs therefore “have every right to present evidence to the

jury” that the rescission of the contracts “caused them harm supporting compensatory damages,”

up until and after their LSUHSC-NO positions were retired.62 Finally, Plaintiffs contend that the

Court should let the jury decide the issue of punitive damages at trial because their pleadings

sufficiently put LSU on notice that they sought punitive damages63 and some district courts in this

circuit have allowed the question of punitive damages to go to the jury following the Fifth Circuit’s

decision in Pineda v. JTCH Apartments, L.L.C., 843 F.3d 1062, 1066 (5th Cir. 2016).64

In reply, LSU first argues that Plaintiffs’ objections to LSU’s statement of material facts

and Plaintiffs’ own statements of undisputed and disputed facts “fail[] to raise a genuine dispute

as to any material fact [given their] reliance on conclusory arguments and failure to cite contrary,

58 R. Doc. 553 at 10.

59 Id. at 14-16 (quote at 14-15) (emphasis in original).

60 Id. at 19.

61 Id. at 18.

62 Id. at 19-20.

63 Id. at 21-22.

64 Id. at 23-24.

material facts.”65 LSU next reurges that punitive damages are not available because Plaintiffs

failed to provide notice of such a claim in their pleadings and punitive damages are not authorized

by the EPA, disputing Plaintiffs’ interpretation of the Pineda decision.66 LSU then reiterates that

front and back pay are not available because no termination claims remain. LSU maintains that

Plaintiffs’ argument that the rescission of the contracts caused Plaintiffs’ termination “overlook[s]

the proper ‘causal link’ analysis of Title VII and EPA retaliation claims, misread[s] the Fifth

Circuit opinion, and improperly conflate[s] and attempt[s] to re-cast the sole retaliatory rescission

claim as the separate and dismissed retaliatory termination claim.”67 LSU also contends that

Plaintiffs’ argument that LSU asserts an affirmative mitigation defense does not address “the stated

premise of LSU’s damages motion: Plaintiffs are not entitled to seek post-employment lost wages

in the absence of a wrongful termination or constructive discharge claim.”68 Lastly, LSU argues

that Plaintiffs do not refute the facts and law cited in support of LSU’s arguments that

reinstatement, EPA liquidated damages, and duplicative compensatory damages are unavailable.69

Plaintiffs’ surreply again urges that front and back pay are available because LSU’s

rescission of the contracts resulted in Plaintiffs’ termination70 and that LSU “avoid[s] that simple

logic” by “adopt[ing] a red-herring ‘no-wrongful-termination’ mantra”71 based on a misreading of

the Fifth Circuit’s opinion. According to Plaintiffs, “the key point” of that opinion is the

identification of “Plaintiffs’ ‘execut[ion of] the tendered employment contracts’ as a way to remain

65 R. Doc. 559 at 2.

66 Id. at 3-4.

67 Id. at 5-6 (quote at 6) (emphasis omitted).

68 Id. at 7 (emphasis omitted).

69 Id. at 9-10.

70 R. Doc. 560 at 2-3.

71 Id. at 3.

employed.”72 Plaintiffs conclude by reiterating their positions regarding the availability of EPA

liquidated damages, compensatory damages, and punitive damages.73

III. LAW & ANALYSIS

A. LEGAL STANDARD

Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a judgment as a matter of law. Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56. “One of the principal purposes of

the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses.”

Id. at 324-25. “Rule 56(c) mandates the entry of summary judgment, after adequate time for

discovery and upon motion, against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will bear the burden

of proof at trial.” Id. at 322. A party moving for summary judgment bears the initial burden of

demonstrating the basis for summary judgment and identifying those portions of the record,

discovery, and any affidavits supporting the conclusion that there is no genuine issue of material

fact. Id. at 323. If the moving party meets that burden, then the nonmoving party must use

evidence cognizable under Rule 56 to demonstrate the existence of a genuine issue of material

fact. Id. at 324.

A genuine issue of material fact exists if a reasonable jury could return a verdict for the

nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The substantive

law identifies which facts are material. Id. Material facts are not genuinely disputed when a

rational trier of fact could not find for the nonmoving party upon a review of the record taken as a

72 Id. at 4 (quoting Muslow v. LSU at *9 (R. Doc. 511-1 at 19)).

73 Id. at 6-9.

whole. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); EEOC

v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014). Unsubstantiated assertions, conclusory

allegations, and merely colorable factual bases are insufficient to defeat a motion for summary

judgment. See Anderson, 477 U.S. at 249-50; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th

Cir. 1994); Hopper v. Frank, 16 F.3d 92, 97 (5th Cir. 1994). In ruling on a summary-judgment

motion, a court may not resolve credibility issues or weigh evidence. See Delta & Pine Land Co.

v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). Furthermore, a court

must assess the evidence, review the facts, and draw any appropriate inferences based on the

evidence in the light most favorable to the party opposing summary judgment. See Tolan v. Cotton,

572 U.S. 650, 656-57 (2014); Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir. 2001). Yet,

a court only draws reasonable inferences in favor of the nonmovant “when there is an actual

controversy, that is, when both parties have submitted evidence of contradictory facts.” Little, 37

F.3d at 1075 (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)).

After the movant demonstrates the absence of a genuine issue of material fact, the

nonmovant must articulate specific facts showing a genuine issue and point to supporting,

competent evidence that may be presented in a form admissible at trial. See Lynch Props., Inc. v.

Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir. 1998); Fed. R. Civ. P. 56(c)(1)(A), (c)(2). Such

facts must create more than “some metaphysical doubt as to the material facts.” Matsushita, 475

U.S. at 586. When the nonmovant will bear the burden of proof at trial on the dispositive issue,

the moving party may simply point to insufficient admissible evidence to establish an essential

element of the nonmovant’s claim in order to satisfy its summary-judgment burden. See Celotex,

477 U.S. at 322-25; Fed. R. Civ. P. 56(c)(1)(B). “In response to a properly supported motion for

summary judgment, the nonmovant must identify specific evidence in the record and articulate the

manner in which that evidence supports that party’s claim, and such evidence must be sufficient

to sustain a finding in favor of the nonmovant on all issues as to which the nonmovant would bear

the burden of proof at trial.” Johnson v. Deep E. Tex. Reg. Narcotics Trafficking Task Force, 379

F.3d 293, 301 (5th Cir. 2004) (internal citations omitted). Unless there is a genuine issue for trial

that could support a judgment in favor of the nonmovant, summary judgment must be granted. See

Little, 37 F.3d at 1075-76.

B. ANALYSIS

1. Punitive Damages

a. Plaintiffs did not provide adequate notice of any punitive damage claims

against LSU.

A complaint must contain “a short and plain statement of the claim” and “a demand for the

relief sought, which may include relief in the alternative or different types of relief.” Fed. R. Civ.

P. 8(a)(2)-(3). To provide sufficient notice of a claim for punitive damages, “‘the complaint need

not contain the words “punitive” or “exemplary,” or refer to the statute under which such damages

are sought, but need only allege facts sufficient to put the other party on notice of a claim for

punitive damages.’” Blewster v. Garvey, 2020 WL 12740544, at *4 (E.D. La. Sept. 23, 2020)

(quoting S. Pac. Transp. Co. v. Builders Transp., Inc., 1993 WL 232058, at *4 (E.D. La. June 22,

1993)).

LSU argues that, even if punitive damages were available as a matter of law in this case,

which LSU denies,74 Plaintiffs failed to provide sufficient notice of any punitive damage claims

against LSU.75 As LSU observes, the operative complaint (the third supplemental and amended

complaint), and the three prior versions, all contain “specific notice by Plaintiffs as to which claims

74 R. Docs. 551-2 at 10-14; 559 at 3-4.

75 R. Docs. 551-2 at 5-10; 559 at 2-3.

and which [d]efendants against whom they sought punitive damages,” with no version of the

complaint specifying that Plaintiffs were seeking punitive damages against LSU for their EPA

claims.76 The original complaint sought punitive damages for Plaintiffs’ claims against LSU under

the Louisiana Employment Discrimination Law and Title IX (which claims have since been

withdrawn or dismissed) and Title VII (under which LSU is exempt from punitive damages), but

not under the EPA.77 The first amended complaint only sought punitive damages from LSU for

Plaintiffs’ Title IX claim.78 The second and third amended complaints did not seek punitive

damages for any of Plaintiffs’ claims against LSU, and only sought punitive damages against

individual defendants under § 1983.79

Plaintiffs contend that their allegation that “[d]efendants acted with malice or with reckless

or deliberate indifference to Plaintiffs’ legal rights”80 put LSU on notice of Plaintiffs’ punitive

damage claims. This allegation reflects the standard for punitive damages under Title VII. See 42

U.S.C. § 1981a(b)(1) (“A complaining party may recover punitive damages … if the complaining

party demonstrates that the respondent engaged in a discriminatory practice or discriminatory

practices with malice or with reckless indifference to the federally protected rights of an aggrieved

individual.” (emphasis added)). Plaintiffs’ punitive damage claim against LSU under Title VII

was omitted from the first, second, and third amended complaints,81 most likely because LSU is

exempt from punitive damages under Title VII.82 Thus, the allegation that all defendants acted

with malice or reckless indifference could not have put LSU on notice of a punitive damages claim

76 R. Doc. 551-2 at 7.

77 R. Doc. 1 at 19-23.

78 R. Doc 31 at 24-25.

79 R. Docs. 50 at 38-42; 99 at 15-16.

80 R. Doc. 553 at 21 (citing R. Docs. 50 at 30; 99 at 7).

81 R. Docs. 31 at 24-25; 50 at 38-42; 99 at 7.

82 See infra Section III(B)(1)(b). The issue of LSU’s exemption from Title VII punitive damages was raised

in its 12(b)(6) motion to dismiss (R. Doc. 13), which was denied as moot (R. Doc. 32) after Plaintiffs sought leave to

file the first amended complaint (R. Doc. 24).

against it because LSU was never subject to punitive damages under that standard. And because

the two circuits to address whether punitive damages are available under the FLSA are split on

this issue,83 there is no generally accepted test for a claim for punitive damages under the FLSA

(though the few district courts addressing the issue have applied the § 1981a(b)(1) standard). See,

e.g., Azkour v. Little Rest Twelve, 2015 WL 631377, at *9 (S.D.N.Y. Feb. 12, 2015) (“[T]he Court

agrees with what appears to be the only other federal court opinion to consider the standard for

punitive damages under the FLSA and concludes that the § 1981a(b)(1) standard also applies

here.” (citing Randolph v. ADT Sec. Servs., Inc., 2012 WL 2234362, at *4 (D. Md. June 14, 2012)).

Given that the availability of punitive damages under the FLSA is unsettled, and the consequent

lack of an accepted standard for such damages, the allegation that all “defendants acted with malice

or reckless or deliberate indifference” is insufficient to have put LSU on notice that Plaintiffs were

seeking punitive damages against LSU for their EPA retaliation claim.84 Finally, Plaintiffs contend

that their broad requests in the third amended complaint for “all available relief” and “all other and

further relief as to this Court appears necessary and proper”85 are not limited by their having

“list[ed] punitive damages as to two individual defendants.”86 However, these general requests

for relief fail to “allege facts sufficient to put [LSU] on notice of a claim for punitive damages.”

S. Pac. Transp. Co., 1993 WL 232058, at *4.

Therefore, the lack of notice means punitive damages are not available to Plaintiffs against

LSU on any claim.

83 See infra Section III(B)(1)(c).

84 To be sure, at one point in the litigation, Plaintiffs expressly agreed with LSU that “the EPA does not

provide for the imposition of punitive damages,” R. Doc. 69 at 5 – which would certainly explain why they did not

include such a claim in their pleadings.

85 R. Doc. 553 at 22 (quoting R. Doc. 99 at 12-13).

86 Id.

b. Punitive damages are not available for Plaintiffs’ Title VII claim.

Title VII permits a plaintiff to recover punitive damages from a “respondent (other than a

government, governmental agency or political subdivision) if the complaining party demonstrates

that the respondent engaged in a discriminatory practice or discriminatory practices with malice

or reckless indifference.” 42 U.S.C. § 1981a(b)(1) (emphasis added). The exception of

government entities from Title VII punitive damages applies to state universities, like LSU. See,

e.g., Tureaud v. Grambling State Univ., 2005 WL 8167346, at *5 (W.D. La. Aug. 26, 2005). LSU

therefore correctly argues,87 and Plaintiffs do not deny,88 that punitive damages are unavailable for

Plaintiffs’ Title VII retaliation claim against LSU. Accordingly, the only claim for which Plaintiffs

now pursue punitive damages is their EPA retaliation claim.89

c. Punitive damages are not available for Plaintiffs’ EPA claim.

The Equal Pay Act, 29 U.S.C. § 206(d), is part of the Fair Labor Standards Act, 29 U.S.C.

§§ 201-219. Plaintiffs’ EPA retaliation claim thus arises out of the FLSA’s antiretaliation

provision, which prohibits employers from:

discharg[ing] or in any other manner discriminat[ing] against any employee

because such employee has filed any complaint or instituted or caused to be

instituted any proceeding under or related to this chapter, or has testified or is about

to testify in any such proceeding, or has served or is about to serve on an industry

committee.

29 U.S.C. § 215(a)(3). The FLSA’s remedial provision states in relevant part:

Any employer who violates the provisions of section 215(a)(3) … of this title shall

be liable for such legal or equitable relief as may be appropriate to effectuate the

purposes of section 215(a)(3) … of this title, including without limitation

employment, reinstatement, promotion, and the payment of wages lost and an

additional equal amount as liquidated damages.

87 R. Docs. 551-2 at 10-14; 559 at 3-4.

88 See R. Docs. 553 at 20-24; 560 at 6-8.

89 See R. Doc. 553 at 23 (arguing that LSU provides no “persuasive reason to decide pre-trial that Plaintiffs

cannot recover punitive damages under the EPA” (emphasis added)).

Id. § 216(b). Neither the Supreme Court nor the Fifth Circuit has determined whether “such legal

or equitable relief as may be appropriate to effectuate the purposes of section 215(a)(3)” includes

punitive damages. See, e.g., Litton v. Preferred Eng’g LP, 2022 WL 22860989, at *1 (S.D. Tex.

Apr. 19, 2022) (“The Fifth Circuit hasn’t ruled on the precise issue whether punitive damages are

available for retaliation under the FLSA.”). And other circuits are split on this issue. Compare

Travis v. Gary Cmty. Mental Health Ctr., Inc., 921 F.2d 108 (7th Cir. 1990) (holding that punitive

damages are authorized by § 216(b)), with Snapp v. Unlimited Concepts, Inc., 208 F.3d 928 (11th

Cir. 2000) (holding that punitive damages are not authorized by § 216(b)).

LSU contends that “punitive damages are not recoverable under the FLSA’s antiretaliation

provisions, as a matter of law”90 because § 216(b) should be read consistently with the remedial

provision of the Age Discrimination and Employment Act (“ADEA”), which incorporates

§ 216(b),91 and the Fifth Circuit has ruled that punitive damages are not authorized by the ADEA.92

LSU further argues that this Court, as well as “[n]umerous other district courts in this federal

circuit” have accordingly held that punitive damages are not available under the FLSA.93 Plaintiffs

respond, however, that the Fifth Circuit “charted a different course” in Pineda v. JTCH

Apartments, L.L.C. when it concluded that its “‘case law interpreting the ADEA [was] no obstacle

to joining other circuits in deciding that the FLSA’s broad authorization of “legal and equitable

relief” encompasses compensation for emotional injuries suffered by an employee on account of

90 R. Doc. 551-2 at 11.

91 “The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures

provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title, and subsection (c) of this

section.” 29 U.S.C. § 626(b).

92 R. Doc. 551-2 at 11-12 (citing Palasota v. Haggar Clothing Co., 499 F.3d 474, 491 (5th Cir. 2007);

Hansard v. Pepsi-Cola Metro. Bottling Co., 865 F.2d 1461, 1469 (5th Cir. 1989); Dean v. Am. Sec. Ins. Co., 559 F.2d

1036, 1038-39 (5th Cir. 1977)).

93 R. Doc. 551-2 at 12 (citing, inter alia, Aucoin v. Kennedy, 355 F. Supp. 2d 830, 841 (E.D. La. 2004);

Biggio v. H2O Hair Inc., 2016 WL 1031344, at *2-3 (E.D. La. Mar. 14, 2016)).

employer retaliation.’” 94 In Pineda, the Fifth Circuit found that “the final ‘as may be appropriate

to effectuate the purposes’ phrase [in the ADEA] … warrant[s] a different result when it comes to

the FLSA retaliation provision” because, unlike the ADEA which requires an employee to exhaust

her administrative remedies before bringing suit, “the FLSA follows the path of tort law,

authorizing immediate suits by employees to provide compensation and deterrence.” 843 F.3d at

1066. Thus, while the Fifth Circuit in Pineda held only that emotional distress damages are

recoverable under the EPA, Plaintiffs rely heavily on the Pineda court’s quotation from a Seventh

Circuit case – reciting that “[c]ompensation for emotional distress, and punitive damages, are

appropriate for intentional torts such as retaliatory discharge,” Travis, 921 F.2d at 112, quoted in

Pineda, 843 F.3d at 1064 – to urge that punitive damages, too, should be recoverable under the

EPA here. LSU counters that Plaintiffs place undue emphasis on the Fifth Circuit’s citation to

Travis and misread the Pineda opinion which, says LSU, “does not stand for, did not reach findings

on, and did not include dicta on the availability of punitive damages under an FLSA retaliation

claim.”95 Nevertheless, Pineda does seem to indicate that the Fifth Circuit case law holding that

certain remedies are not authorized by the ADEA (e.g., compensation for emotional distress) does

not necessarily preclude the same remedies under the FLSA. See Pineda, 843 F.3d at 1066.

Therefore, the line of Fifth Circuit cases denying punitive damages for ADEA claims96 does not

in and of itself restrain this Court from finding that punitive damages are available for FLSA

antiretaliation claims. But this does not resolve the question either.

So, to resolve the question, the Court must start with the basic proposition that the EPA

does not expressly provide for the recovery of punitive damages. In determining whether a federal

94 R. Doc. 553 at 23 (citing Pineda, 843 F.3d at 1066) (emphasis omitted).

95 R. Doc. 559 at 3 (emphasis omitted).

96 See, e.g., Vaughan v. Anderson Reg’l Med. Ctr., 849 F.3d 588, 591 (5th Cir. 2017); Palasota, 499 F.3d at

491; Hansard, 865 F.2d at 1469; Dean, 559 F.2d at 1038-39.

statute like the EPA implicitly authorizes a private remedy not expressly provided for by the

statute, the Supreme Court identified the “ultimate question” as “whether Congress intended to

create the private remedy … that the plaintiff seeks to invoke.” Nw. Airlines, Inc. v. Transp.

Workers Union of Am., AFL-CIO, 451 U.S. 77, 93-94 (1981) (holding that employers have no

implied right of action for contribution from unions under the EPA); see also Touche Ross & Co.

v. Redington, 442 U.S. 560, 568 (1979) (“[O]ur task is limited solely to determining whether

Congress intended to create the private right of action asserted.”). Only two circuits have

addressed this question with respect to punitive damages under the FLSA: the Seventh Circuit in

Travis, 921 F.2d at 108, and the Eleventh Circuit in Snapp, 208 F.3d at 928.

On the one hand, the Seventh Circuit in Travis held that punitive damages are available

under § 216(b), beginning its analysis of the issue by examining the 1977 amendment to

§ 216(b).97 Having found no “case interpreting this amendment” and having ascertained that “[t]he

legislative history is unhelpful,” the Travis court determined that the question of what additional

forms of relief are authorized by the amendment “has been left to the courts.” 921 F.2d at 111-12.

Looking to the text of § 216(b) before and after the amendment, the Seventh Circuit held that

because post-amendment “relief” was provided “without limitation” and “authoriz[es] ‘legal’

relief, a term commonly understood to include compensatory and punitive damages,” punitive

damages are recoverable under the FLSA for intentional torts such as retaliatory discharge. Id. at

111.

97 The 1977 amendment added the relevant language to § 216(b) allowing suits against employers for

violations of § 215(a)(3)’s antiretaliation provision. Following the amendment, § 216(b) read: “Any employer who

violates the provisions of section 15(a)(3) of this Act shall be liable for such legal or equitable relief as may be

appropriate to effectuate the purposes of section 15(a)(3), including without limitation employment, reinstatement or

promotion and the payment of wages lost and an additional equal amount as liquidated damages.” Pub. L. No. 95-

151, 91 Stat. 1245, 1252 (1977).

On the other hand, the Eleventh Circuit in Snapp explicitly “disagree[d] with the Seventh

Circuit’s conclusion that punitive damages are available under section 216(b),” likewise

commencing its analysis with the plain language of the statute. 208 F.3d at 933. Thus, while

noting that the term “‘[l]egal relief’ is certainly a broad formulation,” the Snapp court went on to

observe that “Congress has not abandoned all specificity.” Id. at 934. Though the Eleventh Circuit

later indicated that it “fe[lt] some constraint to exclude punitive damages from the ‘legal relief’

provided in section 216(b) by the former Fifth Circuit’s decision in Dean [an ADEA case],” id. at

938, it primarily based its holding on a close analysis of the language of § 216(b) and the statutory

design of the FLSA. Id. at 933-37. In this way, then, considering that the remedies expressly

authorized by § 216(b) – “employment, reinstatement, promotion and the payment of wages lost

and … liquidated damages” – “all attempt to put the plaintiff in the place she would have been

absent the employer’s misconduct,” the Eleventh Circuit determined that the “evident purpose of

section 216(b) is compensation.”98 Id. at 934. As such, the Snapp court concluded that punitive

damages, which “have nothing to do with compensation,” are not authorized by § 216(b). Id. The

98 The Eleventh Circuit applied the ejusdem generis interpretive cannon to reach this conclusion. Snapp, 208

F.3d at 934 (“When so broad a term as ‘legal relief’ is included in a statutory provision that delineates more specific

forms of redress, the judicial mind naturally turns to the principle of ejusdem generis. We must interpret ‘a general

statutory term ... in light of the specific terms that surround it.’” (quoting Hughey v. United States, 495 U.S. 411, 419

(1990)). However, the Fifth Circuit subsequently rejected application of this canon to § 216(b):

[The defendant employer] argues that Pineda did not address its argument that the general “legal or

equitable relief” language of the remedy provision is limited by the examples that follow:

“reinstatement, promotion, and the payment of wages lost.” Because the listed remedies target

economic harm, [the defendant] contends this ejusdem generis canon – meaning words should be

interpreted to be “of the same kind” – precludes allowing emotional damages under the general

language. Even if we could use this argument to reconsider Pineda, [the defendant] misapplies this

canon. It applies when “general words follow an enumeration of two or more things,” not to a

statute like this one that starts with the general and follows that with specifics.

Starnes v. Wallace, 849 F.3d 627, 636 n.9 (5th Cir. 2017) (alteration and internal citations omitted) (citing ANTONIN

SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS, 132-33, 199, 203-205 (2012)).

However, the Eleventh Circuit’s analysis in Snapp follows the more general principle of noscitur a sociis, see SCALIA

& GARNER, supra, at 195-98; Snapp, 208 F.3d at 934 (“[T]here is something that all of the relief provided in section

216(b) has in common.”), which is the proper canon to apply to § 216(b)’s general-to-specific listing. SCALIA &

GARNER, supra, at 205 (“In all contexts other than the pattern of specific-to-general, the proper rule to invoke is the

broad associated-words canon, not the narrow ejusdem generis canon.”).

court also reasoned that the remedial scheme of § 216, examined as a whole, evinces the

compensatory nature of § 216(b), as “Congress has already covered punitive sanctions in

section 216(a),” which imposes criminal penalties for willful violations. Id. at 935. The Snapp

court posited that Congress used such broad language in the 1977 amendment not “to abandon all

restraints and throw open the doors to every conceivable variety of damages in retaliation cases,”

but to account for the “differences in the nature of minimum wage and overtime wage cases on the

one hand, and retaliation cases on the other,” as “‘employment, reinstatement, promotion, and the

payment of wages lost’ may not fully compensate the plaintiff” in a retaliation case. Id. at 937

(noting that “[f]ront pay is just one example” of a form of relief not listed in § 216(b) that may be

warranted in a retaliation case).

After considering the competing rationales of the two cases, this Court finds that the

Eleventh Circuit’s holding is more “faithful to the congressional design” of the FLSA. Id. at 939.

The Supreme Court has indicated that “the language of the statute itself, its legislative history, the

underlying purpose and structure of the statutory scheme, and the likelihood that Congress

intended to supersede or to supplement existing state remedies” are all relevant factors in

determining whether Congress intended to implicitly authorize a remedy. Nw. Airlines, 451 U.S.

at 91-95 (quote at 91). Both “the language of the statute itself” and “the underlying purpose and

structure of the statutory scheme” weigh against the availability of punitive damages under the

EPA. While the phrase “legal and equitable relief” might generally encompass punitive damages,

Miller v. Tex. State Bd. of Barber Exam’rs, 615 F.2d 650, 654 (5th Cir. 1980) (“Punitive damages

are a legal remedy ….”), it should not be read in isolation from the rest of § 216(b). It is a “basic

principle that words are given meaning by their context.” SCALIA & GARNER, supra, at 195. The

“legal or equitable relief” authorized by § 216(b) is qualified as that which “may be appropriate to

effectuate the purposes of section 215(a)(3)” with examples of such relief “including without

limitation employment, reinstatement, promotion, and the payment of wages lost and an additional

equal amount as liquidated damages.”99 29 U.S.C. § 216(b). Each of these examples, as the

Eleventh Circuit observed in Snapp, “has [one thing] in common: it is meant to compensate the

plaintiff … [e]ven the liquidated damages provision.” 100 208 F.3d at 934 (emphasis in original).

Thus, applying the interpretive canon for associated words, noscitur a sociis, which instructs that

words “associated in a context suggesting that the words have something in common … should be

assigned a permissible meaning that makes them similar,”101 SCALIA & GARNER, supra, at 195, this

Court reads the phrase “legal or equitable relief” as meaning compensatory legal or equitable relief.

This is consistent with the Fifth Circuit’s conclusion in Pineda that “‘legal and equitable relief’

encompasses compensation for emotional injuries suffered by an employee on account of

employer retaliation.” 843 F.3d at 1066 (emphasis added); cf. Sheely v. MRI Radiology Network,

P.A., 505 F.3d 1173, 1199 (11th Cir. 2007) (observing in a Rehabilitation Act case that “emotional

damages, like other forms of compensatory damages, are designed to make the plaintiff whole”).

Because the purpose of punitive damages is to punish a defendant, and not to compensate the

plaintiff, they do not fall within the scope of relief authorized by § 216(b). See Exxon Shipping

99 In Starnes, the Fifth Circuit observed that “[a]nother canon is actually implicated because the section

216(b)’s specific examples are preceded by the phrase ‘including without limitation’: ‘the verb to include introduces

examples, not an exhaustive list.’” 849 F.3d at 636 n. 9 (citing SCALIA & GARNER, supra, at 132-33). The referenced

canon simply presumes that “the word include does not ordinarily introduce an exhaustive list.” SCALIA & GARNER,

supra, at 132 (emphasis in original). The additional phrase “without limitation” does not alter the application of this

canon but only reinforces it. Id. at 132-33. (“These cautious phrases are intended to defeat the negative-implication

canon.”). Unlike the ejusdem generis argument rejected in Starnes, this Court’s application of noscitur a sociis here

does not attempt to exclude any remedy not listed in § 216(b), but simply defines the scope of implied remedies in

accordance with the listed remedies.

100 See, e.g., Brooklyn Sav. Bank v. O’Neil, 324 U.S. 697, 707 (1945) (“[T]he liquidated damage provision is

not penal in its nature but constitutes compensation for the retention of a workman’s pay which might result in damages

too obscure and difficult of proof for estimate other than by liquidated damages.”).

101 The remedies enumerated in § 216(b) are associated with the phrase “legal or equitable relief …

appropriate to effectuate the purposes of section 215(a)(3)” and thus are included within and illustrative of those

“appropriate” forms of relief. “[A] listing is not prerequisite. An ‘association’ is all that is required.” SCALIA &

GARNER, supra, at 197.

Co. v. Baker, 554 U.S. 471, 492 (2008) (observing generally that “the consensus today is that

punitives are aimed not at compensation but principally at retribution and deterring harmful

conduct”).

Interpreting § 216(b) as authorizing compensatory relief also accords with “the underlying

purpose and structure of the statutory scheme.” Nw. Airlines, 451 U.S. at 91. Congress did not

explicitly define the purpose of the FLSA antiretaliation provision, which the “legal or equitable

relief” it authorizes must “effectuate,” 29 U.S.C. § 216(b), but the Supreme Court has explained

the function of the antiretaliation provision as follows:

The central aim of the [FLSA] was to achieve, in those industries within its scope,

certain minimum labor standards. … Congress did not seek to secure compliance

with prescribed standards through continuing detailed federal supervision or

inspection of payrolls. Rather it chose to rely on information and complaints

received from employees seeking to vindicate rights claimed to have been denied.

Plainly, effective enforcement could thus only be expected if employees felt free to

approach officials with their grievances. This ends the prohibition of § 15(a)(3)

against discharges and other discriminatory practices was designed to serve.

Mitchell v. Robert DeMario Jewelry, Inc., 361 U.S. 288, 292 (1960); see also Donovan v. Square

D Co., 709 F.2d 335, 338 (5th Cir. 1983) (“[I]n the case of OSHA, like that of the FLSA and

NLRA, the long-term effect and primary purpose of anti-retaliation suits is to promote effective

enforcement of the statute by protecting employee communication with federal authorities.”). The

purpose, then, of § 215(a)(3) is not to punish employers, but to protect employees by mitigating

the “calculated risk” of retaliation they must take to report a violation by their employer. Mitchell,

361 U.S. at 293. And while adding punitive damages may help to reduce that risk by discouraging

employers from retaliating, employers’ potential liability for the compensatory remedies

authorized by § 216(b) already achieves this deterrent effect. See Pineda, 843 F.3d at 1066 (noting

that the FLSA’s “authoriz[ation of] immediate suits by employees … provide[s] compensation and

deterrence” (emphasis added)); Brooklyn Sav. Bank, 324 U.S. at 709-10 (noting that “[a]lthough

this right to sue is compensatory, [§ 216(b)] is nevertheless an enforcement provision” which

Congress “plainly intended” to have a “deterrent effect”). Punitive damages are unnecessary to

effectuate the purposes of the antiretaliation provision, as well as the underlying remedial purposes

of the EPA and the FLSA as a whole. See Irizarry v. Catsimatidis, 722 F.3d 99, 116 (2d Cir. 2013)

(“[T]he purpose of the FLSA is not to punish an employer but to remunerate aggrieved

employees.”).

Moreover, even if the liquidated damages are viewed as punitive, such that not all the

remedies listed in § 216(b) are compensatory, general punitive damages would still be

unwarranted. A bit of background is instructive. Within a few short years after the adoption of

the FLSA, the Supreme Court held that “the liquidated damage provision is not penal in its nature

but constitutes compensation for the retention of a workman’s pay which might result in damages

too obscure and difficult of proof for estimate other than by liquidated damages.” Brooklyn Sav.

Bank, 324 U.S. at 707 (citing Overnight Motor Transp. Co. v. Missel, 316 U.S. 572 (1942)).

However, Brooklyn Savings Bank was decided before the FLSA was amended to allow courts

discretion to “award no liquidated damages or award any amount thereof not to exceed the amount

specified in section 216” where an employer has shown that it acted in good faith. 29 U.S.C. § 260.

Some courts have since found that the liquidated damages provision functions as a penalty for bad-

faith violations. See, e.g., Snelling v. O. K. Serv. Garage, Inc., 311 F. Supp. 842, 846 (E.D. Ky.

1970) (“Theoretically liquidated damages are compensatory, but whatever label is attached to such

an award it cannot be gainsaid that it is a severe sanction. … Liquidated damages should only be

granted where an oppressive employer, well knowing it has no defense … stubbornly refuses to

comply with [the FLSA].”); EEOC v. White & Son Enters., 881 F.2d 1006, 1013 (11th Cir. 1989)

(“Doubling the amount of wages lost already pushes damages beyond the sphere of compensation,

however, and suffices as a punishment for appellant’s conduct.” (emphasis in original)). If the

Fifth Circuit were to agree that discretionary liquidated damages serve a punitive function, general

punitive damages would then be unnecessary. See Lee v. U.S. Sec. Assocs., Inc., 2008 WL 958219,

at *8 (W.D. Tex. Apr. 8, 2008) (“[T]he most appropriate way to give meaning to all of the language

of the statute is to conclude that the only punitive damages permitted are liquidated damages equal

to the plaintiff’s lost wages.”); Little v. Tech. Specialty Prods., LLC, 940 F. Supp. 2d 460, 479-80

(E.D. Tex. 2013) (agreeing with and adopting the reasoning of Lee). Recovery of both a liquidated

damages “penalty” and general punitive damages for the same violation would unduly burden

employers and result in a windfall to plaintiffs, in contravention of the remedial purpose of the

FLSA. See Dacar v. Saybolt, L.P., 914 F.3d 917, 933 (5th Cir. 2019) (Jones, J. concurring and

dissenting) (“This court and others have repeatedly emphasized that FLSA damages should reflect

the plaintiffs’ actual losses and must not represent a windfall.” (citing, inter alia, Roman v. Maietta

Const., Inc., 147 F.3d 71, 77 (1st Cir. 1998))).

Finally, the Court disagrees with Plaintiffs’ suggestion that “the better course is simply to

follow those post-Pineda district courts that have submitted punitive damages to the jury” without

deciding the issue.102 Plaintiffs do not explain why “the better course,” in their view, is to permit

the jury to hear evidence and arguments on the issue of punitive damages without first determining

whether such damages are available, but the post-Pineda district court decisions cited by Plaintiffs

found that judicial economy favored allowing the jury to decide the issue “to maximize the options

which are available to the Fifth Circuit on appeal.” West, 2019 WL 2454066, at *3; see also Ward,

2024 WL 1336475, at *1 (quoting West, 2019 WL 2454066, at *3). While permitting punitive

damages to go to the jury in this case might “maximize” the Fifth Circuit’s options on appeal, the

102 R. Doc. 560 at 8 (citing West v. City of Holly Springs, 2019 WL 2454066, at *3 (N.D. Miss. June 12,

2019); Ward v. Tex. Farm Bureau, 2024 WL 1336475, at *1 (W.D. Tex. Mar. 28, 2024)).

Court cannot ignore the potential for distortion doing so may have on the trial. As a result, the

Court will not evade its responsibility to decide a fully-briefed legal issue squarely placed before

it. Because the Court has determined that punitive damages are not available under § 216(b) as a

matter of law, a decision on the merits is the better use of judicial resources in this case in any

event, as it prevents the unnecessary expansion of the scope of trial to include punitive damages.

Therefore, the Court will not put punitive damages to the jury.

2. Front and Back Pay

A successful plaintiff may recover front and back pay as compensation for wages and other

benefits lost due to an employers’ violation of Title VII or the EPA. 29 U.S.C. § 216(b); 42 U.S.C.

§ 2000e-5(g)(1). Front and back pay are equitable remedies meant to restore plaintiffs to the

position they would have been in but for the violation. See Badgerow v. REJ Props., Inc., 2021

WL 1582219, at *3 (E.D. La. Feb. 24, 2021) (citing Floca v. Homcare Health Servs., Inc., 845

F.2d 108, 111 (5th Cir. 1988)). Back pay compensates a plaintiff for losses suffered between the

time of the wrongdoing and the date of final judgment, while front pay prospectively compensates

a plaintiff for losses incurred between final judgment and reinstatement or in lieu of reinstatement.

See id. at *4. “[I]n order to be eligible for back pay compensation for lost wages beyond the end

of the employment period, the employee must have been actually or constructively discharged by

the employer.” Jurgens v. EEOC, 903 F.2d 386, 390 n.5 (5th Cir. 1990).

a. Post-employment lost wages are not available absent a wrongful termination

claim.

The parties do not dispute that Plaintiffs remained employed with no reduction in their

wages during the period between LSU’s rescission of the contracts and the retirement of Plaintiffs’

LSUHSC-NO positions in summer 2019.103 Therefore, the only period for which the parties

103 See R. Docs. 551-1 at 7; 553-1.

dispute whether front and back pay are available is the period following the retirement of the

LSUHSC-NO positions in June and July of 2019 (the “post-employment period”). Despite the

absence of any wrongful termination claims, Plaintiffs contend that they “are entitled to present

the full range of back-pay and front-pay damages to the jury at trial.”104 Plaintiffs do not specify

what lost wages the “full range” of damages encompasses, but because Plaintiffs do not dispute

that they suffered no lost wages prior to the post-employment period, their front- and back-pay

claims must be for the salaries they would have earned had they assumed the OGC positions upon

the retirement of their LSUHSC-NO positions. Plaintiffs, then, not only seek post-employment

lost wages absent a wrongful termination claim but seek to “recover” the salaries of positions they

never occupied – and, as shown below, likely never would have accepted – and therefore could

not have been terminated from.105 LSU argues that “such damages would give Plaintiffs an

impermissible windfall.”106

LSU argues that back and front pay are not available for the post-employment period as a

matter of law because there are no wrongful termination claims remaining in this case and

Plaintiffs never made a constructive discharge claim.107 Plaintiffs never directly refute LSU’s

argument that, absent an actual or constructive termination claim, back and front pay are not

available for the post-employment period, but contend that “a retaliation plaintiff is entitled to

back-pay and front-pay remedies in situations where … the defendant’s conduct resulted in the

104 R. Doc. 553 at 9.

105 While Plaintiffs suggest that they had already assumed the OGC positions as early as January 2019 (R.

Doc. 553-1 at 2), their back- and front-pay arguments are based on their recognition that they needed to sign the OGC

contracts, i.e., accept the employment offers, to be guaranteed continued employment at LSU. See R. Docs. 553 at 9-

14; 560 at 2-4. And despite the Plaintiffs’ “object[ion] to LSU’s characterization of Plaintiffs’ employer as LSUHSC-

NO” and not LSU (R. Doc. 553-1 at 2), the Fifth Circuit stated that “Plaintiffs were still employed by LSUHSC[-NO]

when they were eventually terminated, and it was LSUHSC[-NO] that ultimately fired them.” Muslow v. LSU at *10

(R. Doc. 511-1 at 21).

106 R. Doc. 551-2 at 21.

107 Id. at 16-18.

plaintiff’s actual termination (as is the case here).”108 The contention that LSU’s rescission of the

contracts “resulted in plaintiffs’ actual termination” directly contradicts the Fifth Circuit opinion,

which bifurcated Plaintiffs’ “salary-review-request allegation” into “two adverse employment

actions[,] … the rescission of their employment contracts, and their eventual termination,”109 and

then found that “[Plaintiffs] have not met [their summary-judgment] burden with respect to their

termination from LSUHSC[-NO],” because “it was inevitable that their positions would be

terminated [due to the known plan to consolidate all legal services within OGC], and the salary-

review request was not the but-for cause of their termination.”110 Plaintiffs contend that the

relevant portion of the Fifth Circuit’s opinion “goes no further” than finding that the “the LSUHSC-

NO positions would have been terminated regardless of [the salary-review-request] email,” and

“tellingly does not address the causal link between LSU’s rescission of the OGC employment

contracts and Plaintiffs’ termination.”111 The insinuation that the Fifth Circuit intended to reserve

the issue of whether such a “causal link” exists is also in contravention of the Fifth Circuit’s

opinion, which determined that “the rescission of Plaintiffs’ employment contracts and their later

termination … are their own adverse employment actions and must be considered separately.”112

When the Fifth Circuit accordingly considered the retaliatory rescission and retaliatory termination

claims separately, it determined that “Plaintiffs’ ‘failure to execute the tendered employment

contracts with OGC or to apply for the new OGC positions – despite being prompted and invited

to do so multiple times – cemented their termination,’”113 eliminating the retaliatory termination

108 R. Doc. 560 at 5 (emphasis added; original emphasis and footnote omitted).

109 Muslow v. LSU at *8 (R. Doc. 511-1 at 18).

110 Id. at *9 (R. Doc. 511-1 at 19).

111 R. Doc. 553 at 12 (emphasis in original; other emphasis omitted).

112 Muslow v. LSU at *9 (R. Doc. 511-1 at 20) (emphasis added).

113 Id. (R. Doc. 511-1 at 19).

claim.114 As LSU correctly points out, Plaintiffs’ argument attempts to circumvent the dismissal

of their retaliatory termination claim by “convert[ing] the remaining retaliatory rescission claim

into a revived de facto retaliatory termination claim.”115 There are no wrongful termination claims

remaining in this case, and Plaintiffs cannot revive any claims to post-employment back and front

pay by collapsing their surviving retaliatory rescission claim and their termination into one “de

facto retaliatory termination claim.”

b. There is no causal link between the rescission and Plaintiffs’ termination.

As shown above, Plaintiffs’ claims for post-employment front and back pay absent a

wrongful termination claim fail as a matter of law. But even assuming arguendo that front and

back pay are available where the sole adverse act underlying a plaintiffs’ retaliation claim is not

an actual or constructive discharge, but a separate act which “results in” the plaintiff’s eventual

termination, Plaintiffs have not established the requisite causal link between the recission of the

contracts and their eventual termination from their LSUHSC-NO positions. Plaintiffs insist that

they “would have ‘gone through the entire recruiting process’ and remained employed at LSU”

but for LSU’s recission of the contracts, which “eliminated Plaintiffs’ only guaranteed pathway to

continued employment.”116 But, had LSU not rescinded the contracts, the onus still would have

been on Plaintiffs, not LSU, to complete the recruiting process by executing the contracts. And

unless and until Plaintiffs did so, their continued employment at LSU would not have been

guaranteed. Therefore, to support a finding that LSU’s conduct, and not Plaintiffs’ omissions,

ultimately precluded Plaintiffs’ continued employment with LSU, it is not enough that Plaintiffs

114 Id. at *10 (R. Doc. 511-1 at 21) (“[T]he recission of [Plaintiffs’] employment contracts … is the only

alleged retaliatory action that we hold survives summary judgment.”).

115 R. Doc. 559 at 5.

116 R Doc. 553 at 13 (alteration omitted).

could have signed the contracts had they not been rescinded – it must also be true that Plaintiffs

would have signed the contracts but for their rescission.

Plaintiffs recognize that their willingness to sign the contracts is necessary to establish

causation, arguing that “LSU does not try to prove, nor could it as a matter of law, that Plaintiffs

would not have signed the OGC contracts had they been given the opportunity post-rescission.”117

But it is Plaintiff’s burden, not LSU’s, to establish the causal link between the protected activity

and the adverse employment action. Lindsley v. TRT Holdings, Inc., 984 F.3d 460, 469 (5th Cir.

2021) (“To establish a prima facie case of retaliation, a plaintiff must ‘demonstrate [inter alia] that

… a causal link exists between the protected activity and the adverse employment action.’”

(quoting Gorman v. Verizon Wireless Tex., L.L.C., 753 F.3d 165, 170 (5th Cir. 2014)); Cox, 667

F. Supp. 3d at 213 (“‘[T]he non-movant must identify specific evidence in the record and articulate

the manner in which that evidence supports that party’s claim, and such evidence must be sufficient

to sustain a finding in favor of the non-movant on all issues as to which the non-movant would

bear the burden of proof at trial.’” (quoting Johnson, 379 F.3d at 301)). Plaintiffs contend that

LSU, by pointing to Plaintiffs’ failure to apply for the posted OGC positions, asserts a procedurally

improper “failure-to-mitigate affirmative defense,” for which LSU would bear the burden of

proof.118 But LSU does not argue that Plaintiffs’ refusal to apply for the OGC positions was a

failure to mitigate losses caused by LSU’s own retaliatory conduct. LSU instead cites the

Plaintiffs’ failure to apply for the positions as the reason this Court and the Fifth Circuit found that

it was Plaintiffs’ conduct, not LSU’s, that “cemented their termination,” thereby negating an

element of Plaintiffs’ claim for back pay – namely, the causal link between the alleged retaliation

117 Id. at 9 (emphasis omitted).

118 Id. at 11.

and the claimed losses – for which Plaintiffs bear the burden of proof.119 Thus, even if Plaintiffs

could assert a “de facto retaliatory termination claim,” it would be their burden to establish a causal

link between their salary-review email, the recission of the contracts, and their eventual

termination.

Plaintiffs cannot meet this burden. Plaintiffs contend that “[p]lenty of evidence at least

raises a fact issue” as to whether Plaintiffs would have signed the contracts had they not been

rescinded, citing two emails sent by Muslow on March 1 and March 6, 2019, “seeking assurances

that [Plaintiffs] would remain employed” after the contracts were rescinded and denying that the

salary-review email was “nonresponsive or a rejection of the offers,” and a deposition transcript

in which Skinner indicates that he thought the salary-review email was a “negotiation.”120 At best,

the emails support an inference that, at the time they were sent in early March 2019, Plaintiffs were

still interested in being considered for the OGC positions and did not intend to reject LSU’s offer

of the OGC positions by sending the salary-review request.121 Plaintiffs cite no other evidence in

direct support of their assertion that but for LSU’s recission of those contracts, Plaintiffs would

have signed them and remained employed at LSU.122 However, the March emails are not the end

of the story as to whether Plaintiffs would have signed the OGC contracts but for their rescission.

Other record evidence shows beyond cavil that Plaintiffs would not have signed the OGC contracts

without the significant salary increases sought in the salary-review email, which increases were

119 R. Doc. 551-2 at 17-18.

120 R. Doc. 553 at 9-10 (citing R. Doc. 553-4 at 11-15, 27).

121 See R. Doc. 553-4 at 11-15, 27. Skinner’s subjective interpretation of the email as a negotiating tactic has

no bearing on whether Plaintiffs would have been willing to sign the contracts. Id. at 27 (“I thought that this was a

salary – an attempted salary revision or negotiation.”).

122 R. Doc. 553-1 at 4. Plaintiffs’ only citation in support of this purported “undisputed material fact[]” is to

record documents which Plaintiffs claim show that “Plaintiffs’ transfer to the OGC was automatic and had already

occurred.” Id. at n.1. Whether or not Plaintiffs had already begun transitioning to the OGC is immaterial, as Plaintiffs

admit that they were required to sign the contracts in order to complete their transfer to the OGC and be “guaranteed”

continued employment at LSU. See, e.g., R. Doc. 553 at 7 (“[H]ad Plaintiffs signed the OGC contracts, they would

have continued their employment with LSU.”).

never on the table for any candidate for the OGC positions, regardless of gender.123 Thus, on May

2, 2019, after failing to sign the contracts prior to their recission on February 18 and subsequently

failing to apply for the posted OGC positions by the April 28 deadline, Plaintiffs were given yet

another opportunity to be considered for the OGC positions.124 Muslow responded on May 3,

telling LSU that Plaintiffs “st[oo]d by [their] request for salary reviews and to be paid fairly as

compared to [their] male peers and consistent with the [LSUHSC-NO]’s 2017 market study.”125

And then on May 13, in the same email string, after receiving one more chance to be considered,

Muslow told LSU, on behalf of herself and Cunningham, that “[u]nless [each] position [was] going

to be compensated as dictated by the market study … [LSU did] not have [their] permission to

treat [either of them] as an ‘applicant’” for the OGC positions.126 So, while Plaintiffs may have

presented evidence that they hoped to be “active candidates” for the OGC positions in March,

Plaintiffs unequivocally revoked their candidacy for those positions in May. Plaintiffs do not

address the May emails, except to “object to the extent that LSU seeks to create an uncontested

‘fact’ about the veracity or meaning” of the statements in these emails.127 The unsupported

objection falls flat. Nor do Plaintiffs cite to any evidence showing that they ever would have

accepted the OGC positions at the salaries offered.128 Therefore, even if Plaintiffs could assert a

123 See R. Docs. 355-6 at 24 (May 1, 2019 email from Skinner describing the increases requested in the

salary-review email as “far in excess of the amounts authorized for the positions”); 365-10 at 84-85 (Skinner’s

deposition testimony: “[I]f [$370,000] is what we have to pay for a chief counsel in New Orleans … it completely

skews and destroys our compensation structure in Baton Rouge. Paying the chief counsel in New Orleans $370,000,

when that individual is a Baton Rouge employee, would have made that individual maybe the second-highest paid

employee on the Baton Rouge campus next to President Alexander.”).

124 R. Doc. 551-7 at 3.

125 Id. at 2.

126 Id. at 1.

127 R. Doc. 553-1 at 3.

128 While the March emails indicate that Plaintiffs were still interested in being considered for the OGC

positions at that time, they do not indicate that Plaintiffs would have accepted the positions at the salaries offered, or

any salaries below the salaries requested by Plaintiffs. See R. Doc. 553-4 at 12 (“[T]hat [2017 market] study reflects

the salaries for our positions are and have been historically underpaid …. The [salary-review] request was a reasonable

one …. If there is a separate market study that LSU’s [human resources] prepared, it would be helpful and informative

if we could review a copy of that, though we cannot understand how the [LSUHSC-NO]’s study can be discounted.”).

valid “de facto retaliatory termination claim,” they fail to raise an issue of material fact as to

whether they would have signed the OGC contracts had they not been rescinded. In the end, then,

because there are no wrongful termination claims remaining in this case and Plaintiffs cannot

support their argument that the rescission of the contracts led to their termination, front and back

pay are not available.

3. Reinstatement

Like front pay, reinstatement is a prospective equitable remedy which seeks to place the

employee in the position she would have been had she not been discharged. See Bogan v. MTD

Consumer Grp., Inc., 919 F.3d 332, 336-37 (5th Cir. 2019). Thus, for reinstatement to be

warranted, there generally must have been an actual or constructive discharge. See Jurgens, 903

F.2d at 389 & n.2 (“‘As a general rule, employees are entitled to awards such as back pay and

reinstatement only if they were actually or constructively discharged from their employment.’”

(quoting Maney v. Brinkley Mun. Waterworks & Sewer Dep’t, 802 F.2d 1073, 1075 (8th Cir.

1986))). “Courts generally award front pay if reinstatement is not appropriate or possible, but

denying one does not necessarily result in awarding the other.” Bogan v. MTD Consumer Grp.,

Inc., 839 F. App’x 832, 835 (5th Cir. 2020) (citing Palasota, 499 F.3d at 489). In determining

whether reinstatement is appropriate, courts consider “a number of factors, including whether

positions now exist comparable to the plaintiff’s former position[,] whether reinstatement would

require an employer to displace an existing employee[,] … whether the plaintiff has changed

careers and whether animosity exists between the plaintiff and his former employer.” Palasota,

499 F.3d at 489 (internal citations omitted) (citing Ray v. Iuka Special Mun. Separate Sch. Dist.,

51 F.3d 1246, 1254-55 (5th Cir. 1995); Cassino v. Reichhold Chems., Inc., 817 F.2d 1338, 1346

(9th Cir. 1987); Deloach v. Delchamps, Inc., 897 F.2d 815, 822 (5th Cir. 1990)).

Plaintiffs contend that “whether reinstatement is a feasible remedy should be determined

after trial, not before and as a matter of law.”129 But because there are no wrongful termination

claims remaining in this case, and because Plaintiffs have not shown that LSU’s rescission of the

OGC contracts caused Plaintiffs’ termination, the Court can and does decide as a matter of law

that reinstatement is not appropriate in this case for the same reasons that front pay is not

available.130 And even if reinstatement were available, LSU is correct that reinstatement is not

feasible considering the relevant factors in this case.131 The LSUHSC-NO positions previously

held by Plaintiffs no longer exist.132 And the OGC chief counsel position was filled.133 Thus,

because “innocent incumbents may not be displaced” absent “extraordinary circumstances,”

Muslow cannot be reinstated. Palasota, 499 F.3d at 489 (citing Gamble v. Birmingham S. R.R.

Co., 514 F.2d 678, 685 (5th Cir. 1975)). LSU also points to evidence of animosity between LSU

and Plaintiffs – consisting of “LSU’s objections to conduct by Plaintiffs during their former

employment as legal counsel for LSUHSC-NO, including LSU’s objections to the removal,

retention, and use of LSU documents that were obtained by Plaintiffs during their former

representation of LSU”134 – which weighs against reinstatement. See Palasota, 499 F.3d at 490

(finding that “lingering animosity between the parties” militated against reinstatement where the

defendant employer alleged that the plaintiff falsified expense reports while employed by

defendant). Moreover, evidence of Plaintiffs’ insistence on unrealistic pay increases135 (at least

129 R. Doc. 553 at 18 (emphasis in original). Plaintiffs also contend in their objections to LSU’s statement

of uncontested material facts that “LSU’s position on the unavailability of reinstatement also fails due to multiple fact

disputes,” but provide no evidence establishing a fact dispute. R. Doc. 553-1 at 6.

130 See supra section III(B)(2)(b).

131 R. Docs. 551-2 at 19-20; 559 at 9.

132 R. Docs. 551-1 at 2-4; 553 at 3-4.

133 R. Doc. 551-1 at 13. LSU opted not to fill the staff attorney position at OGC. Id.

134 R. Doc. 551-2 at 20 (citing R. Docs. 33-1; 45 at 17, 52; 83 at 8-11; 109 at 4; 147-1; 175; 363-1 at 26-31;

365-1 at 32-37; 427 at 8; 429 at 8; 451 at 52-53 n.234; 473 at 22 n.12).

135 See R. Docs. 355-6 at 24; 365-10 at 84-85; 551-5 at 14-15; 553-4 at 12.

from LSU’s point of view) further suggests that reinstatement is not feasible here. See id. (finding

that reinstatement was not feasible where, among other factors, plaintiff admitted “that he would

not be interested in returning to [his former employer] for a yearly income of $75,000 – and would

be ambivalent about returning even if he earned $100,000 a year”). Therefore, because there are

no wrongful termination claims remaining and reinstatement would not be feasible in this case in

any event, Plaintiffs’ request for reinstatement also fails as a matter of law.

4. EPA Liquidated Damages

The remedies provided for violations of the FLSA’s antiretaliation provision include “the

payment of wages lost and an additional equal amount as liquidated damages.” 29 U.S.C. § 216(b).

“Only ‘wages lost’ can give rise to liquidated damages.” Fontenot v. Safety Council of Sw. La.,

782 F. App’x 356, 358 (5th Cir. 2019) (citing 29 U.S.C. § 216(b)). And because “‘[w]ages lost’

refers to past earnings an employer withholds,” id. (citing Olitsky v. Spencer Gifts, Inc., 964 F.2d

1471, 1479 (5th Cir. 1992); Cassino, 817 F.2d at 1348), front pay, which represents “lost future

wages[,] … cannot support a liquidated damages award.” Id.; see also Miller v. Raytheon Co.,

2011 WL 13234303, at *11 (N.D. Tex. May 13, 2011) (“Liquidated damages are determined by

doubling the amount of back pay owed to the plaintiff.” (citing Olitsky, 964 F.2d at 1479)). Thus,

LSU correctly argues that “to the extent Plaintiffs seek EPA liquidated damages based on front

pay, such damages are not available, as a matter of law.”136 Plaintiffs contend that because, in

their view, “Plaintiffs can recover back pay … [they] are therefore entitled to liquidated damages

too.”137 But since the Court finds that Plaintiffs suffered no lost wages as a result of the rescission

136 R. Doc. 551-2 at 22 (emphasis omitted).

137 R. Doc. 553 at 19.

of the OGC contracts,138 there is no basis for liquidated damages. Liquidated damages are thus

not available for Plaintiffs’ EPA retaliation claim as a matter of law.

5. Compensatory Damages

Compensatory damages for “future pecuniary losses, emotional pain, suffering,

inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses” are

recoverable under both Title VII and the EPA. 42 U.S.C. § 1981a(b)(3); see Pineda, 843 F.3d at

1064, 1066. Title VII compensatory damages are limited by statute, 42 U.S.C. § 1981a(b)(3), but

EPA compensatory damages are not. See 29 U.S.C. § 216(b). A plaintiff may recover

compensatory damages under either or both statutes as follows:

Recovery for the same period of time may be had under both the EPA and title VII

so long as the same individual does not receive duplicative relief for the same

wrong. Relief is computed to give each individual the highest benefit which

entitlement under either statute would provide. (e.g., liquidated damages may be

available under the EPA but not under title VII.) Relief for the same individual

may be computed under one statute for one or more periods of the violation and

under the other statute for other periods of the violation.

29 C.F.R. § 1620.27(b). Plaintiffs do not deny LSU’s contention that 29 C.F.R. § 1620.27(b)

precludes Plaintiffs from recovering compensatory damages for the same period of time for both

their Title VII and EPA claims, as they arise out of the same “wrong” (the recission of the OGC

contracts).139 Because “there is no retaliatory termination claim at issue on remand,” LSU seeks

to further restrict Plaintiffs’ claims for compensatory damages to the “limited period between the

OGC’s rescission of proposed OGC employment contracts through the retirement of Plaintiffs’

LSUHSC-NO positions.”140 However, LSU’s argument improperly conflates losses allegedly

suffered after Plaintiffs’ termination with losses allegedly suffered because of their termination.

138 See supra section III(B)(2).

139 See R. Docs. 553 at 19-20; 560 at 6.

140 R. Doc. 551-2 at 24.

The restriction of recovery “to a single allegedly retaliatory act”141 is not a temporal limitation, but

a causal one – and the relevant cause is the actionable retaliatory act, not termination.

Losses attributable to the rescission of the contracts could have been suffered as early as

February 18, 2019, and could continue to be suffered indefinitely. A district court in this circuit

illustrated the continuous nature of emotional distress damages in an employment context (a race

discrimination case) in rejecting an argument that compensatory damages “should be time limited”

by the discovery of after-acquired evidence of a nondiscriminatory basis for termination. Gale v.

Town of Como, 2012 WL 12885081, at *1-5 (N.D. Miss. May 24, 2012), aff’d, 523 F. App’x 267

(5th Cir. 2013). The defendant employer in Gale argued that the Supreme Court’s holding in

McKennon “that, in cases where after-acquired evidence of an employee’s wrongdoing would have

resulted in his termination, his recovery of backpay is limited to a period ‘from the date of the

unlawful discharge to the date the new information was discovered’” should extend to any demand

of compensatory damages for emotional harm. Id. at *1 (quoting McKennon v. Nashville Banner

Pub. Co., 513 U.S. 352, 362 (1995)). Although the argument was procedurally barred, the court

“deem[ed] it important to note that there are very strong practical and policy considerations which

militate against the merits of defendant’s argument,” the Court having just explained that “[t]he

mental distress which an employee experiences from the knowledge that he has been fired because

of his race does not cease upon the discovery of some other reason for firing him.” Id. at *4. The

same reasoning applies here: “The mental distress which an employee experiences from” – in this

case, her employer’s retaliatory conduct – “does not cease upon” employment’s end for “some

other reason” – here, because Plaintiffs failed to sign the OGC contracts or apply for the OGC

positions.

141 Id. at 23.

Of course, Plaintiffs must prove at trial that the harms underlying their claimed

compensatory damages, whether during or post-employment, are sufficiently attributable to the

alleged retaliatory act (the rescission of the contracts) and not some other cause. See Patterson v.

P.H.P. Healthcare Corp., 90 F.3d 927, 938 (5th Cir. 1996) (“Although we generally defer to the

fact finder in determining intangible harms, an award is warranted only when a sufficient causal

connection exists between the statutory violation and the alleged injury.”); Miller v. Raytheon Co.,

716 F.3d 138, 147 (5th Cir. 2013) (“The award of damages must be supported by specific evidence

of the nature and extent of the harm.”) (citing Patterson, 90 F.3d at 938). There is no reason at

this stage for the Court to preclude Plaintiffs from attempting to do so. Therefore, LSU’s argument

seeking to limit compensatory damages fails and Plaintiffs may present evidence at trial of

compensatory damages beyond the end of their employment at LSU.

IV. CONCLUSION

Accordingly, for the foregoing reasons,

IT IS ORDERED that LSU’s motion for summary judgment regarding available damages

(R. Doc. 551) is GRANTED in most all respects. It is DENIED only to the extent that

compensatory damages are not restricted to the period between the retaliatory act and the end of

Plaintiffs’ employment at LSU.

New Orleans, Louisiana, this 30th day of December, 2024.

________________________________

BARRY W. ASHE

UNITED STATES DISTRICT JUDGE