King v. University Healthcare System L.C.

Case: 09-30794 Document: 00511524080 Page: 1 Date Filed: 06/28/2011

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

June 28, 2011

No. 09-30794 Lyle W. Cayce

Clerk

ANGELA KING, M.D.,

Plaintiff-Appellee Cross-Appellant

v.

UNIVERSITY HEALTHCARE SYSTEM LC,

Defendant-Appellant Cross-Appellee

Appeals from the United States District Court

for the Eastern District of Louisiana

Before JONES, Chief Judge, JOLLY, and GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Dr. Angela King sued her former employer, University Healthcare System,

L.C. (“UHS”), for sex discrimination, retaliation, breach of oral contract,

violation of the Equal Pay Act (“EPA”), and violation of the Louisiana Wage

Payment Statute (“LWPS”). A jury found that UHS did not discriminate against

Dr. King because of her sex, illegally retaliate against her, or breach an oral

contract between UHS and Dr. King. The jury did find, however, that UHS

violated the EPA and LWPS. The jury awarded Dr. King $32,700 in

compensatory damages under the EPA, and the court awarded her an additional

$32,700 in liquidated damages under the EPA and $75,000 in penalties under

the LWPS. The court awarded $76,370.54 in attorney’s fees to UHS and

Case: 09-30794 Document: 00511524080 Page: 2 Date Filed: 06/28/2011

No. 09-30794

$72,613.80 in attorney’s fees to Dr. King. Both Dr. King and UHS have appealed

aspects of the court’s ruling.

I

Beginning in 2005, UHS employed Dr. King as an anesthesiologist at

Tulane University Hospital (“Tulane”).1 Dr. King worked pursuant to a written

employment agreement with an expiration date of March 14, 2007. Under the

agreement, Dr. King was paid a base salary, plus an additional capped sum

based on the amount of time she spent on specialty calls. The contract specified

that Dr. King was to work a minimum of forty-six weeks per year and forty

hours per week. The contract also contained an integration clause:

Entire Agreement. This Agreement shall constitute the entire

agreement of the parties hereto and may not be amended except in

writing signed by all of the parties hereto. No oral statements or

prior written materials not specifically incorporated herein shall be

of any force or effect.

During Dr. King’s tenure with UHS, Hurricane Katrina struck New

Orleans, displacing many of the city’s medical professionals. UHS was unable

to keep Tulane open, and instead Dr. King and others temporarily operated out

of Lakeside Hospital (“Lakeside”), a facility that UHS had recently acquired.

The number of anesthesiologists working for UHS fell from twelve before the

hurricane to only eight after. The remaining doctors, including Dr. King, worked

long hours to meet the needs of their patients. Eventually Tulane reopened and

UHS hired additional anesthesiologists, but Dr. King continued to bear a heavy

workload.

During this time, Dr. Charles Fox was the clinical director of the

anesthesiology department at Tulane. Dr. King testified at trial that, amidst the

strain of the post-Katrina period, she and Dr. Fox discussed the possibility of

1

Prior to 2005, the Hospital’s anesthesiologists were employees of Tulane Medical

School.

2

Case: 09-30794 Document: 00511524080 Page: 3 Date Filed: 06/28/2011

No. 09-30794

additional payments being made to the anesthesiologists, including Dr. King,

based on their increased hours. According to Dr. King, they agreed that UHS

would pay $150 per hour for each “extra” hour she worked. Dr. Fox testified by

video deposition that the UHS physicians who remained in New Orleans after

Katrina had numerous discussions about the possibility of additional

compensation based on their heavy workload, but that he did not recall

promising Dr. King—and would not have had the authority to promise Dr.

King—that she would be paid $150 per hour for extra hours of work. Dr. King,

however, introduced evidence showing that she and other doctors began logging

their hours at about the same time the extra payment discussions took place.

Both Dr. King’s logs and other physicians’ reflected the $150 rate. Dr. King was

even paid $300, apparently pursuant to one such time log. Dr. Michael Mascia,

another UHS anesthesiologist, was similarly paid $3,000 for time logged on the

time sheets. Kim Ryan, the chief operating officer and interim CEO of UHS,

testified that the payments to both doctors were made in error.

Soon, the time approached for physicians’ contracts, including Dr. King’s,

to be renewed. UHS began preparing and circulating proposed contract addenda

that included a $33,000 payment in addition to a physicians’ ordinary pay. Ryan

testified that the $33,000 bonus was offered to the anesthesiologists across the

board. Dr. King first received an “Employment Agreement Addendum” with the

subhead “Extension Bonus.” The addendum offered $33,000, which was

characterized in the body of the addendum as an “Extension Bonus.” The

addendum provided that the bonus was payable upon the receipt of a fully

executed second employment agreement. Sometime thereafter, however, UHS

presented Dr. King with a second draft of the addendum. The “Extension

Bonus” subhead had been replaced with “Extra Hours Bonus.” The body of the

addendum similarly characterized the payment as an “Extra Hours Bonus,”

rather than an “Extension Bonus.” Unlike the first addendum, this addendum

3

Case: 09-30794 Document: 00511524080 Page: 4 Date Filed: 06/28/2011

No. 09-30794

subtracted Dr. King’s earlier $300 payment, leaving a total bonus of $32,700.

Dr. King signed this addendum, but the record does not suggest that she ever

returned the signed copy, and it was never signed by a representative of UHS.

Finally, UHS provided Dr. King with a third draft of the addendum. The third

draft continued to refer to the payment as an “Excess Hours Bonus” and deduct

the $300. It also included a new clause: “This Excess Hours Bonus will

compensate for excess hours worked from the time period beginning 8/29/05

through 7/31/06.” Dr. King testified at trial that she considered this term unfair

and the $33,000 inadequate payment for the full extra work she did following the

hurricane.

At the same time, UHS was offering the anesthesiologists contract

renewals. UHS took the position that it would not pay the $33,000 bonus to an

anesthesiologist unless the anesthesiologist signed both the addendum and the

extension. Dr. King did not sign either a contract extension or the final draft of

the addendum, and she did not receive a bonus. Ryan testified that every

anesthesiologist except Dr. King signed the addendum, including Dr. Mascia.

Dr. Mascia, however, allowed his contract with UHS to expire without signing

an extension. Nevertheless, he was paid a bonus of $30,000—$33,000 minus the

$3,000 that UHS had already paid him based on his time sheets. Ryan testified

that Dr. Mascia was paid the bonus only because, at the time, contract

negotiations between Dr. Mascia and UHS were ongoing and UHS believed that

Dr. Mascia would re-sign.

Although Dr. King believed that her conflict with UHS could still be

resolved, UHS informed her that her contract would not be renewed. Her tenure

with the organization, therefore, ended with the expiration of the original

written contract. Dr. King brought this suit. In the wake of the jury’s verdict

and the district court’s final judgment, the parties filed cross-appeals.

4

Case: 09-30794 Document: 00511524080 Page: 5 Date Filed: 06/28/2011

No. 09-30794

II

Both parties have raised challenges relating to either the admission or

discoverability of evidence. UHS challenges the admission of testimonial

evidence relating to the formation of an oral contract between it and Dr. King.

Dr. King challenges the exclusion of portions of two exhibits, as well as the

district court’s conclusion that certain e-mails that Dr. King sought to discover

were privileged. For the reasons below, we find no error in the district court’s

rulings.

A

UHS argues that the district court erred by admitting evidence in support

of an oral contract to pay Dr. King $150 per hour for the extra hours that she

worked. It suggests that the district court disregarded our precedents

establishing that, under Louisiana law, extraneous evidence of oral agreements

may not be admitted to vary the terms of a written contract containing an

integration clause. Dr. King responds that the evidence of an oral agreement

with UHS was offered to establish the existence of a separate oral contract, as

permitted by Louisiana law and our precedents.

The general rule in Louisiana is that a court may not consider parol

evidence to alter the terms of a written agreement when that agreement “is a

complete and accurate statement of all the terms agreed upon by the parties.”

Stokes v. Georgia-Pacific Corp., 894 F.2d 764, 768 (5th Cir. 1990); see also LA.

CIV. CODE ANN. art. 2046. Louisiana law provides that a court may, “in the

interest of justice,” consider testimonial evidence “to prove that the written act

was modified by a subsequent and valid oral agreement.” LA CIV. CODE ANN.

art. 1848. Even a written merger or integration clause is not a per se bar on

consideration of parol evidence. Omnitech Int’l, Inc. v. Clorox Co., 11 F.3d 1316,

1328 (5th Cir. 1994). If, however, the facts of a particular case show “that the

merger clause correctly reflected the parties’ intentions,” then the clause “should

5

Case: 09-30794 Document: 00511524080 Page: 6 Date Filed: 06/28/2011

No. 09-30794

thus be enforced as written.” Id.; see also Condrey v. SunTrust Bank of Ga., 429

F.3d 556, 564 (5th Cir. 2005).

Insofar as the district court’s ruling was purely evidentiary, we review it

for abuse of discretion only. Compaq Computer Corp. v. Ergonome, Inc., 387

F.3d 403, 408 (5th Cir. 2004). We conclude that, under the circumstances, the

district court acted within its discretion in granting Dr. King latitude to attempt

to establish that the integration clause did not fully reflect the parties’

intentions and that her employment contract was modified by a subsequent and

valid oral agreement. We note, however, that under Louisiana law, “[t]he mere

admissibility of oral statements does not require an automatic finding that the

statements have the substantive effect of either varying or nullifying a contract

. . . .” Bass v. Coupel, 671 So. 2d 344, 353 (La. Ct. App. 1995). To the contrary,

a court’s admission of parol evidence is “only the first step in the process for

determining its functional efficacy under the parol evidence rule.” Id. The

question of whether a subsequent agreement was actually formed, despite the

terms of the integration clause, goes to whether the verdict was plainly

erroneous, which we consider below.

B

Dr. King argues that the district court erred in refusing to allow the jury

to see portions of e-mails between Dr. King’s attorney and a UHS attorney.

Again, our review is for abuse of discretion. UHS filed a Motion in Limine to

exclude portions of the exhibits on the basis that they were settlement

communications under Rule 408(a) of the Federal Rules of Evidence. The

district court granted the motion in part, excluding portions of the e-mails that

it found reflected Dr. King’s or UHS’s willingness to settle. The district court,

however, denied UHS’s motion insofar as it sought to exclude the e-mails

completely. Rather, the district court held that they were inadmissible only

insofar as they were offered to prove UHS’s liability or the amount of Dr. King’s

6

Case: 09-30794 Document: 00511524080 Page: 7 Date Filed: 06/28/2011

No. 09-30794

claims. The district court concluded that portions of the e-mails were admissible

for permitted purposes, such as showing that Dr. King advised UHS that she

had a claim for employment discrimination.

Rule 408(a) of the Federal Rules of Evidence provides that “conduct or

statements made in compromise negotiations regarding [a] claim” are “not

admissible on behalf of any party, when offered to prove liability for, invalidity

of, or amount of [the] claim . . . or to impeach through a prior inconsistent

statement or contradiction.” See also Ikossi-Anastasiou v. Bd. of Supervisors of

La. State Univ., 579 F.3d 546, 551 (5th Cir. 2009). Dr. King argues in a

conclusory fashion that she offered the e-mails for a permissible alternative

purpose. She is unable, however, to explain what permissible purpose she was

unable to pursue. Instead, Dr. King argues merely that if the jury had seen the

redacted information, it might have ruled differently on her contract claim.

Insofar as that is true, Dr. King’s reliance on settlement negotiations to prove

liability would be a paradigmatic Rule 408(a) violation. Dr. King’s argument on

this issue has no merit.

C

Dr. King next argues that the district court erroneously denied discovery

of e-mails that would have provided further support for her EPA and Title VII

claims. Dr. King asked the district court to engage in an in camera review of

several e-mails that UHS had asserted were covered by attorney-client privilege.

Dr. King argues that those e-mails may have revealed details about the reasons

for the non-renewal of her contract—which would, she posits, have supported her

EPA and Title VII claims. The district court refused to engage in an in camera

review of the e-mails, concluding, based on UHS’s privilege log, that the e-mails

were “privileged on their face and protected from discovery.”

“[T]he attorney-client privilege protects communications made in

confidence by a client to his lawyer for the purpose of obtaining legal advice.”

7

Case: 09-30794 Document: 00511524080 Page: 8 Date Filed: 06/28/2011

No. 09-30794

Hodges, Grant & Kaufmann v. United States, 768 F.2d 719, 720 (5th Cir. 1985)

(citation omitted). The party invoking attorney-client privilege has “[t]he burden

of demonstrating [its] applicability.” Id. at 721. “The application of the

attorney-client privilege is a question of fact, to be determined in the light of the

purpose of the privilege and guided by judicial precedents.” United States v.

Neal, 27 F.3d 1035, 1048 (5th Cir.1994) (internal quotation marks and citation

omitted), cert. denied, 513 U.S. 1179 (1995). “The clearly erroneous standard of

review applies to the district court’s factual findings. We review the application

of the controlling law de novo.” Id. (internal quotation marks and citation

omitted).

The district court based its decision not to review the individual e-mails

for privilege on UHS’s FED. R. CIV. P. 26(b)(5) privilege log. The privilege log

lists the authors and recipients of the e-mails, a brief description of each

withheld communication, the amount of each document withheld, and the type

of privilege asserted. A review of the privilege log entries confirms the district

court’s conclusion that it describes communications between client and attorney

for the purpose of obtaining legal advice. The district court did not clearly err

by deciding to credit these descriptions as accurate and concluding that UHS

met its initial burden to show that it was entitled to protection by the privilege.

In rebuttal, King has offered only speculation that the e-mails are not covered

by privilege because they were made for a purpose other than obtaining legal

advice. In such a situation, the district court did not err in declining to engage

in a full in camera review of the challenged e-mails.2

2

Dr. King also argues, in a conclusory fashion and without citation to additional

authority, that (1) discovery sanctions imposed against her were in error and (2) the district

court erred in preventing her from introducing the privilege log itself into evidence. The

sanctions argument seems, at best, to be an extension of her argument that she should have

been allowed to discover the e-mails. Because we find no error with regard to the district

court’s discovery decision, we find none with regard to the sanctions. To the extent that Dr.

King has adequately raised the admissibility of the discovery log, we find no abuse of

8

Case: 09-30794 Document: 00511524080 Page: 9 Date Filed: 06/28/2011

No. 09-30794

III

Dr. King argues that the evidence was insufficient to support the jury’s

finding that UHS did not breach an oral contract to pay Dr. King $150 per hour

for the extra hours that she worked. Dr. King concedes that, because she did

not file a Rule 50(b) motion for judgment as a matter of law, we review the jury’s

verdict for plain error and may reverse “only if the judgment complained of

results in ‘manifest miscarriage of justice.’” Stover v. Hattiesburg Pub. Sch.

Dist., 549 F.3d 985, 995 (5th Cir. 2008) (internal quotation marks and citation

omitted). Nevertheless, she argues that she has proven her case so thoroughly

that a manifest miscarriage of justice will result if the jury is not reversed. UHS

counters that the jury’s verdict was well-founded, and that Dr. King failed to

establish the terms or existence of a valid oral contract.

Dr. King argues that the evidence she presented, taken together, meets

the requirements for establishing a breach of contract. Under Louisiana law,

“an oral contract for more than five hundred dollars may be proved by the

testimony of ‘one witness and other corroborating circumstances.’” Meredith v.

La. Fed’n of Teachers, 209 F.3d 398, 403 (5th Cir. 2000) (quoting LA. CIV. CODE

art. 1846). A credible plaintiff suing under an alleged oral contract may serve

as her own witness. Id. “[T]he jury is in the best position to evaluate the

evidence and to assess the credibility of witnesses.” Ham Marine, Inc. v. Dresser

Indus., Inc., 72 F.3d 454, 461 (5th Cir. 1995).

Dr. King misunderstands our standard of review. It is not enough for her

to show that she presented evidence sufficient to support a verdict in her favor.

She must show that it was a manifest miscarriage of justice for the jury to find

otherwise. The jury, however, had numerous plausible grounds on which it

could have concluded that Dr. King failed to prove her case. The jury may have

discretion in the court’s finding it inadmissible.

9

Case: 09-30794 Document: 00511524080 Page: 10 Date Filed: 06/28/2011

No. 09-30794

found Dr. King’s testimony lacked credibility. It may have found that the

“corroborating circumstances” on which she relied were more consistent with

UHS’s explanation of events. Our role on plain error review is not to re-weigh

the evidence, but merely to assure that any manifest miscarriage of justice is

avoided. Dr. King has not shown that a manifest miscarriage of justice will

result if the jury’s verdict is allowed to stand.

IV

UHS argues that the jury plainly erred in concluding that Dr. King was

entitled to unpaid wages. It argues that the jury’s finding that Dr. King was

owed $32,700 in unpaid wages is contrary to the facts and to the jury’s own

findings. Dr. King responds that the jury’s verdict was supported by the record

and that, in any event, its conclusion was not plain error.

The LWPS provides an employee who has resigned or been terminated a

statutory cause of action if her employer fails or refuses to pay any unpaid wages

she earned during her time of employment. LA. REV. STAT. ANN. § 23:631. An

employee’s LWPS cause of action is separate and apart from her traditional

contract remedies, and violations of the LWPS may subject the employer to

penalties well beyond the wages owed under the employment contract. See LA.

REV. STAT. ANN . § 23:632; Boudreaux v. Hamilton Med. Grp., Inc., 644 So. 2d

619, 623 (La. 1994) (holding that LWPS is inapplicable but remanding for

consideration of contract claim). Nevertheless, an employee’s contractual terms

of employment are central to an LWPS claim. The LWPS only requires an

employer to pay the compensation “due under the terms of employment.” LA.

REV. STAT. ANN. § 23:631(A)(1)(a)-(b). As such, payments that are “not provided

for by the employment contract” are “thus not governed by the provisions of” the

LWPS. Rutledge v. CRC Holston, Inc., 425 So. 2d 364, 366 (La. Ct. App. 1982),

writ denied, 429 So. 2d 147 (1983).

10

Case: 09-30794 Document: 00511524080 Page: 11 Date Filed: 06/28/2011

No. 09-30794

On the jury form, the jury answered “no” when asked whether it found

that UHS “breached a valid oral contract with Dr. King regarding payment for

extra hours worked after Hurricane Katrina and that such breach was a

proximate cause of damage to Dr. King.” A jury’s “[a]nswers should be

considered inconsistent . . . only if there is no way to reconcile them.” Willard

v. John Hayward, 577 F.2d 1009, 1011 (5th Cir. 1978); see also Ellis v. Weasler

Eng’g Inc., 258 F.3d 326, 343 (5th Cir. 2001) (“We are required under the

Seventh Amendment to make a concerted effort to reconcile apparent

inconsistencies in answers to special verdicts if at all possible.” (citations

omitted)). If possible, therefore, we must construe the jury’s LWPS verdict as

consistent with its oral contract conclusion—that is to say, we must construe the

LWPS verdict as based on some obligation other than the oral contract that the

jury rejected. Acknowledging this limitation, Dr. King argues that while the

jury did not find that there was an oral agreement to pay King $150 per hour,

the jury did find that there was a separate agreement to pay $33,000 for extra

hours worked, which was paid to other doctors. That reading of the verdict is

consistent with the LWPS damages award.

Dr. King’s LWPS award must stand, therefore, unless the jury plainly

erred in concluding that UHS was obligated under a separate agreement, other

than the original alleged oral contract, to pay Dr. King for her extra work.

Based on our review of the record, there is no factual support for such a

conclusion. Dr. King cannot claim rights under contract addenda that she

openly rejected. Although Dr. King’s signature does appear on one addendum,

it is undisputed that that addendum was never signed by a representative of

UHS, and it appears that the signed addendum was likely never returned to

UHS. There is no evidence of any completed oral contract to pay Dr. King the

bonus—to the contrary, the bonus was always plainly tied to the execution of a

written contract. Recovery under the LWPS must be premised on some

11

Case: 09-30794 Document: 00511524080 Page: 12 Date Filed: 06/28/2011

No. 09-30794

identifiable obligation. Because the jury’s conclusion that such an obligation

existed cannot be justified based on the record, we are compelled to find plain

error.3

V

UHS argues that the jury’s conclusion that UHS violated the EPA was

plainly erroneous. UHS posits that Dr. King did not receive the bonus because

she refused to sign an extension with UHS. It argues that Dr. Mascia, the doctor

who was paid a bonus without signing the extension, is not an appropriate

comparator to Dr. King, and that, even if he is an otherwise apt comparator, he

was paid because UHS believed he would sign the extension, not because of his

difference in sex. Dr. King responds that Dr. Mascia is an appropriate

comparator, that UHS has not demonstrated that it paid Dr. Mascia differently

for any of the reasons sanctioned by the EPA, and that the jury’s verdict was, in

any event, not plainly erroneous.

The EPA prohibits an employer from discriminating by

paying wages to employees [in a covered establishment] at a rate

less than the rate at which he 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, except

where such payment is made pursuant to (i) a seniority system; (ii)

a merit system; (iii) a system which measures earnings by quantity

or quality of production; or (iv) a differential based on any other

factor other than sex . . . .

29 U.S.C. § 206(d). “Once a plaintiff has made her prima facie case by showing

that an employer compensates employees differently for equal work, the burden

shifts to the defendant to” show by a preponderance of the evidence that the

3

Accordingly, we are not required to determine whether the district court’s jury

instructions stated the definition of “wages” overly broadly or whether the jury was wrongly

instructed with regard to the possibility of formation of an oral contract.

12

Case: 09-30794 Document: 00511524080 Page: 13 Date Filed: 06/28/2011

No. 09-30794

differential in pay was made pursuant to one of the four enumerated exceptions.

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

Cir. 2001).

At the core of the parties’ disagreement is whether the bonus that UHS

paid Dr. Mascia can be fairly compared to UHS’s refusal to pay a similar bonus

to Dr. King. UHS argues first that Dr. Mascia is himself an inappropriate

comparator to Dr. King because their jobs were not comparable, as required by

the EPA. UHS notes that, although both Dr. Mascia and Dr. King were

anesthesiologists in title, Dr. Mascia had certifications and qualifications that

Dr. King did not. Be that as it may, Dr. Mascia’s qualifications, in and of

themselves, are irrelevant to whether Drs. King and Mascia performed “equal

work on jobs the performance of which requires equal skill, effort, and

responsibility,” § 206(d). That inquiry looks to the “actual job requirements and

performance.” 29 C.F.R. § 1620.13(e). It was not plainly erroneous, based on the

record, to conclude that the performance of Drs. Mascia and King’s jobs required

equal skill, effort, and responsibility. The determinative issue, therefore, is

whether it was plain error not to conclude that the bonus was awarded to Dr.

Mascia but not Dr. King for one of the reasons permitted under the EPA: “(i) a

seniority system; (ii) a merit system; (iii) a system which measures earnings by

quantity or quality of production; or (iv) a differential based on any other factor

other than sex.” § 206(d).

As with the jury’s oral contract and LWPS verdicts, we must construe the

jury’s Title VII and EPA verdicts consistently, if possible. The jury answered

“no” when asked, “Do you find by a preponderance of the evidence that

defendant, University Healthcare System, L.C., discriminated against plaintiff,

Angela King, M.D., because of her sex and that such discrimination was a

proximate cause of damage to Dr. King?” That answer seems, at least on first

reading, in tension with a finding of EPA liability: the jury found that Dr. King

13

Case: 09-30794 Document: 00511524080 Page: 14 Date Filed: 06/28/2011

No. 09-30794

failed to show that UHS “discriminated against [Dr. King] because of her sex,”

resulting in damages; yet it found EPA liability, which, by definition, must have

been premised on the conclusion that UHS “discriminate[d] . . . between

employees on the basis of sex by paying [Dr. King] wages . . . at a rate less than

the rate at which [it paid] wages to employees of the opposite sex . . . where such

payment [was not] made pursuant to . . . a differential based on any other factor

other than sex,” § 206(d).

The allocation of burdens in EPA and Title VII claims, however, differ in

a way that may, in some cases, result in an employee prevailing on her EPA

claim but not her Title VII claim. Specifically, where a plaintiff makes an

adequate prima facie case for both an EPA and a Title VII claim, the defendant

bears the burden of persuasion to prove a defense under the EPA, whereas it has

only a burden of production to show a legitimate nondiscriminatory reason for

its actions under Title VII, with the ultimate burden of persuasion remaining

with the plaintiff. Plemer v. Parsons-Gilbane, 713 F.2d 1127, 1136-37 (5th Cir.

1983). As such, where the defendant proffers a reason for its pay differential

other than sex, but does not prove that reason by a preponderance of the

evidence, the plaintiff will succeed on an EPA claim while still bearing the

burden of persuasion under Title VII. Id. The district court’s charge to the jury

highlighted this difference in burdens. The jury was told that Dr. King bore the

burden of showing that UHS discriminated against her because of her sex under

Title VII, but that UHS bore the burden of proving the “any other factor other

than sex” defense under the EPA.

Reviewing only for plain error, we conclude that the jury’s verdict does not

work a manifest miscarriage of justice. Plain error review looks only to “whether

there is any evidence to support the jury’s verdict in favor of the plaintiff.”

Adames v. Perez, 331 F.3d 508, 511 (5th Cir. 2003) (citation omitted). Because

King has presented evidence adequate to establish a pay differential with an

14

Case: 09-30794 Document: 00511524080 Page: 15 Date Filed: 06/28/2011

No. 09-30794

appropriate comparator, Dr. Mascia, the jury was within its discretion to

conclude that UHS bore the burden of establishing an affirmative defense.

UHS’s evidence supporting its affirmative defense consisted chiefly of testimony

of UHS employees who stated that Dr. Mascia was paid the bonus because they

believed he was returning. The jury’s broad authority permitted it to conclude

that the testimony offered by UHS was not credible and that UHS simply failed

to carry its burden.

VI

A

Lastly, we turn to damages and attorney’s fees. UHS argues first that the

district court erred in granting Dr. King liquidated damages on her EPA claim.

It argues that any EPA violation arose out of actions UHS undertook in good

faith, and that the district court therefore should not have ordered liquidated

damages. Dr. King responds that UHS did not carry its burden to show good

faith and that, even if it did, the district court was within its discretion to order

liquidated damages. Where a statute authorizes liquidated damages against a

defendant who lacked good faith, this Court reviews the district court’s decision

for abuse of discretion. Singer v. City of Waco, 324 F.3d 813, 823 (5th Cir. 2003).

UHS and Dr. King agree that unless an employer can demonstrate that it

violated the EPA in good faith and with reasonable grounds for believing it was

not violating the Act, an award of liquidated damages is mandatory. 29 U.S.C.

§ 216(b); Lowe v. Southmark Corp., 998 F.2d 335, 337 (5th Cir. 1993). Once the

employer has made a showing of good faith, see 29 U.S.C. § 260, the district court

has “discretion to award an amount of liquidated damages less than the amount

awarded in back pay and retaliation damages.” Lowe, 998 F.2d at 337. To

qualify for the “good faith” defense, a defendant must show that its culpable act

or omission “was based upon reasonable grounds for believing that [the

defendant] was not violating the Act.” Id.

15

Case: 09-30794 Document: 00511524080 Page: 16 Date Filed: 06/28/2011

No. 09-30794

The district court held that UHS failed to carry its burden of showing good

faith; accordingly, the district court never considered whether to reduce Dr.

King’s liquidated damages award. The district court based its conclusion on a

credibility determination with regard to UHS’s witnesses, writing:

The principal evidence concerning the alleged good faith/reasonable

belief explanation for defendant’s conduct came from defendant’s

employees . . . . Obviously, the jury did not accept this testimony in

connection with its separate finding concerning defendant’s

argument that its payment of the bonus to Dr. Mascia was made

pursuant to a differential based on any other factor other than sex.

I similarly reject the testimony for purposes of establishing a basis

for avoiding imposition of liquidated damages.

(Citation omitted.) UHS argues first that this analysis improperly deferred to

the jury’s finding of culpability, effectively abdicating the district court’s

responsibility to make its own good faith determination. UHS’s account is belied

by the court’s own language stressing that good faith was reserved for the

judge’s determination, not the jury’s, and explaining the holding in terms of the

court’s own credibility determinations.

UHS argues next that the district court’s conclusion was premised on the

erroneous assumption that Ryan—whom the district court did find to be

“generally credible”—did not, in the district court’s words, have “the principal

logistical role and responsibility for dealing with the anesthesiologists in

connection with the relevant contract and bonus documentation.” The record is

not altogether clear with regard to the details of UHS’s internal decision-making

about its payments to Drs. Mascia and King. Based on the evidence available,

we cannot conclude that the district court abused its discretion in holding that

UHS did not carry its burden of showing good faith. The award of liquidated

damages must stand.

16

Case: 09-30794 Document: 00511524080 Page: 17 Date Filed: 06/28/2011

No. 09-30794

B

UHS challenges the award of attorney’s fees under the LWPS and EPA

only insofar as it challenges the respective verdicts on those counts. Because we

reverse the judgment against UHS under the LWPS, we also hold, of course, that

Dr. King is unable to recover attorney’s fees thereunder. By the same token,

because we affirm the district court’s EPA award, Dr. King is still entitled to

recover fees under that statute. See 29 U.S.C. § 216(b) (“The court in such action

shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a

reasonable attorney’s fee to be paid by the defendant . . . .”). While the district

court apparently followed a fairly simple rule of allocating 20% of the fees to

each claim, it has never fully accounted for how much of its award is attributable

to the EPA claim alone, how much to the LWPS claim, and how much overlap

there may have been between the two. Cf. Fox v. Vice, No. 10-114, slip op. at 8-

11 (U.S. June 6, 2011) (highlighting need to separate fees that are associated

with claims for which recovery is permitted from fees that are not). Remand is

therefore appropriate on this issue.4

C

Dr. King argues that the district court erred in concluding that UHS was

entitled to recover attorney’s fees under her original employment contract. She

argues that her employment contract only empowered UHS to recover attorney’s

fees in lawsuits based on alleged breaches of that contract itself, whereas she

sued under a separate alleged later oral contract. Section 12.3 of the written

agreement states that if either party is “required to enforce the terms of this

Agreement . . . the prevailing party shall be entitled to recover the costs of such

action, including, but not limited to a reasonable attorney’s fee.”

4

Because we remand for the purposes of apportionment of fees between the claims

anyway, we agree with UHS that the best course of action is for the district court to apportion

fees on appeal as well.

17

Case: 09-30794 Document: 00511524080 Page: 18 Date Filed: 06/28/2011

No. 09-30794

Dr. King’s argument is without merit. It is undisputed that Dr. King’s

employment by UHS was, at all times relevant to this litigation, governed by her

written employment agreement. It is further undisputed that that agreement

contained both (1) terms setting forth how King would be compensated and (2)

a clause setting forth how the contract could be amended. Dr. King has never

shown that her employment contract was superseded in full. She has, at most,

alleged subsequent supplemental agreements that would have operated in

conjunction with—and made little, if any, sense outside the context of—the

terms of the written contract. In such a circumstance, the district court was

correct in concluding that King’s litigation “required [UHS] to enforce the terms

of” the written employment agreement.

Dr. King argues that the district court’s parol evidence ruling is

inconsistent with the conclusion that UHS was enforcing its written contract

with Dr. King. As we have explained, however, the decision to admit parol

evidence in an effort to show the existence of a later agreement is by no means

the equivalent of a substantive ruling that the parties’ original contract is

irrelevant to the conflict at issue. “Louisiana’s parol evidence rule is not

substantive law, but a rule of evidence.” Dugas v. Modular Quarters, Inc., 561

So. 2d 192, 196 (La. Ct. App.1990); see also Bass, 671 So. 2d at 353. The district

court’s ruling that Dr. King could present parol evidence did not render her

written contract with UHS irrelevant or non-determinative. UHS successfully

enforced the contract in that it both enforced the integration clause and enforced

the compensation provisions as the governing statements of Dr. King’s rate of

compensation. The district court’s award of attorney’s fees under the contract

was not in error.

D

Finally, we turn to a third-party motion that has been filed with regard to

the attorney’s fees in this case. The law firm of Coats Rose Yale Ryman & Lee

18

Case: 09-30794 Document: 00511524080 Page: 19 Date Filed: 06/28/2011

No. 09-30794

(“Coats Rose”), which was Dr. King’s trial counsel, has moved for leave to assert

a privilege on the district court’s judgment for the amount of attorney’s fees

incurred on behalf of Dr. King. Coats Rose relies on LA. REV. STAT. ANN. §

9:5001, which provides a “special privilege” for “attorneys at law for the amount

of their professional fees on all judgments obtained by them” permitting them

“to take rank as a first privilege thereon superior to all other privileges and

security interests under Chapter 9 of the Louisiana Commercial Laws.” Dr.

King opposes the motion, arguing that there is no factual record involving her

conflict with Coats Rose and that a motion to this court was not the appropriate

mechanism for enforcing the firm’s rights under LA. REV. STAT. ANN . § 9:5001.

We ordered Coats Rose to respond, and in its response it recharacterizes its

motion as “the functional equivalent of requesting to intervene,” and now

apparently seeks to be treated as an intervenor.

Dr. King’s argument is well-taken. Despite Coats Rose’s late-arising

attempt to recast events, its motion made no mention of intervention and offered

no argument that it was an appropriate intervenor. Cf. FED. R. CIV. P. 24(c)

(providing that a motion to intervene must “state the grounds for intervention

and be accompanied by a pleading that sets out the claim or defense for which

intervention is sought”). Rather, the firm, a non-party, merely filed a largely

unexplained motion asking us to enforce a statutory privilege in its favor. That

motion was not an adequate motion to intervene and should therefore be denied.

We express no position as to whether intervention would be appropriate

following remand.

VII

In summary, the district court’s award in favor of Dr. King under the

Louisiana Wage Payment Statute is REVERSED and the judgment VACATED

as to that claim. The award of attorney’s fees related to the Louisiana Wage

Payment Statute claim to Dr. King is REVERSED, and the judgment is

19

Case: 09-30794 Document: 00511524080 Page: 20 Date Filed: 06/28/2011

No. 09-30794

VACATED as to the amount of the fees awarded. In all other respects, the

judgment of the district court is AFFIRMED. The case is REMANDED to the

district court for a determination of the amount of attorney’s fees attributable

to Dr. King’s Equal Pay Act claim. Coats Rose Yale Ryman & Lee’s Motion for

Leave to Assert Privilege for Attorneys’ Fees and Costs on Judgment is DENIED

without prejudice to asserting the rights claimed therein by other means.

20