PRESENT: All the Justices 

NEW DIMENSIONS, INC. 

 OPINION BY 

v. Record No. 120760 JUSTICE S. BERNARD GOODWYN 

 June 6, 2013 

CATHERINE TARQUINI 

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY 

Gaylord L. Finch, Jr. Judge 

In this appeal, we consider whether the circuit court 

erred in holding that the four defenses set forth in the 

federal Equal Pay Act, 29 U.S.C. § 206(d)(1), are affirmative 

defenses that are waived if not pled. We conclude that while 

the defenses set forth in the Equal Pay Act are affirmative, 

they were not waived under the facts presented in this case, 

and the circuit court erred in precluding the introduction of 

evidence related to those defenses. 

Background 

 Catherine Tarquini filed an amended complaint against New 

Dimensions, Inc. (NDI) in the Circuit Court of Prince William 

County, alleging breach of contract, quantum meruit and 

violation of the Equal Pay Act (EPA). Tarquini sought damages 

of $160,000 for her breach of contract and quantum meruit 

claims, and damages equal to the difference between her salary 

commission rate and that paid to NDI’s male employees, in 

addition to statutory liquidated damages, attorneys’ fees and 

costs for the EPA claim. 
2

NDI answered. NDI denied Tarquini’s allegation that it 

had violated the EPA but it did not affirmatively plead the 

defenses articulated in the statute. The case proceeded to 

discovery, during which NDI disclosed the substance and nature 

of its alleged seniority and merit-based compensation system as 

an explanation for why Tarquini was paid less than other 

employees, both male and female, who held the same job. Two 

business days before trial, Tarquini filed a motion in limine 

to prohibit NDI from presenting evidence in defense of the EPA 

claim because NDI had not pled any affirmative defense to the 

claim. The circuit court granted the motion in limine and 

denied NDI’s motion for reconsideration. 

After a three-day bench trial, the circuit court issued a 

letter opinion and held that Tarquini was entitled to 

$33,985.53 in commissions under her express contract, and was 

not entitled to quantum meruit recovery because the express 

contract governed the parties’ relationship. Based on its 

earlier ruling granting Tarquini’s motion in limine, the 

circuit court refused to consider NDI’s defenses to the EPA 

claim and awarded Tarquini $6,867.04 on the EPA claim, plus an 

equal amount of liquidated damages. At a later hearing, the 

parties presented expert testimony and argument on the issue of 

attorneys’ fees and costs due Tarquini pursuant to the EPA. 
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The circuit court awarded Tarquini $116,282.50 in attorneys’ 

fees and $8,478.55 in costs on her EPA claim. NDI appeals. 

Facts 

Tarquini interviewed for a position as a design and sales 

consultant with NDI, a homebuilding company, in 2005. NDI 

offered Tarquini a commission of 2.12% of her total sales and 

stated that commissions would be paid in accordance with the 

construction draw schedule. Tarquini accepted the position and 

was paid commissions at this rate. However, other design and 

sales consultants previously hired by NDI, both male and 

female, were paid commissions of 2.25%. 

In 2007, Tarquini was terminated by NDI and was not paid 

commissions for certain sales she had secured, although work on 

these construction projects was substantially completed prior 

to her termination. Tarquini retained counsel, and NDI sent 

Tarquini’s attorney a check in the amount of approximately 

$33,985.00, representing what it believed it owed in 

commissions. Tarquini did not accept the check and filed this 

action. 

Analysis 

 NDI argues that the circuit court erred in granting 

Tarquini’s motion in limine and preventing NDI from presenting 

evidence of its gender-neutral compensation system at trial. 

It asserts that it was not necessary for NDI to affirmatively 
4

plead its gender-neutral compensation system as a defense 

because the EPA specifically sets forth such a compensation 

system as a defense. NDI claims that it was not required to 

expressly plead any of the four enumerated statutory defenses, 

and that this Court has held that there is no requirement to 

affirmatively plead a defense that is evident from the subject 

of an action. 

NDI submits that the requirement that affirmative defenses 

be pled exists to prevent surprise or prejudice at trial, and 

that long before trial Tarquini was aware that NDI sought to 

present evidence of a gender-neutral compensation system in 

defense of her EPA claim. According to NDI, no prejudice would 

have resulted from the presentation of such evidence. 

Tarquini replies that the circuit court properly granted 

her motion in limine because NDI failed to affirmatively plead 

its statutory defenses under the EPA. She claims that it is 

well-established under Virginia law that affirmative defenses 

must be pled to prevent unfair surprise or prejudice at trial, 

and although this Court has not considered whether the EPA 

statutory defenses must be explicitly pled, federal courts have 

determined that they are affirmative defenses. Thus, Tarquini 

argues, NDI’s failure to properly plead its affirmative 

defenses resulted in a waiver of those defenses, and that the 
5

waiver was not excused by Tarquini’s awareness that such 

defenses were possible. 

 Whether the statutory defenses set forth in the EPA are 

affirmative defenses is a pure question of law that this Court 

reviews de novo. See, e.g., Moreau v. Fuller, 276 Va. 127, 

133, 661 S.E.2d 841, 844-45 (2008). This standard likewise 

applies to the determination of whether any such affirmative 

defenses would be waived if not pled. See id. These are 

questions of first impression. 

 The EPA prohibits employers from discriminating on the 

basis of gender: 

No employer having employees subject to any 

provisions of this section shall discriminate, within 

any establishment in which such employees are 

employed, between employees on the basis of sex by 

paying wages to employees in such 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)(1)(emphasis added). 

 “To make out a prima facie case under the EPA, the burden 

falls on the plaintiff to show that the skill, effort and 

responsibility required in her job performance are equal to 

those of a higher-paid male employee.” Wheatley v. Wicomico 
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Cnty., 390 F.3d 328, 332 (4th Cir. 2004). Upon the plaintiff 

establishing a prima facie case, “the burden then shifts to the 

employer to prove, by a preponderance of evidence, that the pay 

differential is justified by the existence of one of the four 

statutory exceptions set forth in § 206(d)(1): (1) a seniority 

system, (2) a merit system, (3) a system that measures earnings 

by quantity or quality of production, or (4) a differential 

based on any factor other than sex.” Strag v. Board of Trs., 

55 F.3d 943, 948 (4th Cir. 1995). If the employer successfully 

bears this burden, the plaintiff’s claim fails unless she is 

able to rebut the employer’s evidence. Id. 

This case presents an instance in which application of 

reverse-Erie doctrine1

 is appropriate: a federal statutory 

cause of action brought for trial in state court. This Court 

therefore applies federal substantive law and must determine 

whether Virginia procedural law governs the procedural aspects 

of the federal statutory cause of action. 

 The federal law applicable in this case is the EPA. 

Whether the four enumerated exceptions to the statutory 

 1

 Erie doctrine is the principle under which federal courts 

sitting in cases of diversity jurisdiction apply state 

substantive law and federal procedural law. See Hanna v. 

Plumer, 380 U.S. 460, 473-74 (1965); Erie R. Co. v. Tompkins, 

304 U.S. 64, 78-79 (1938). Reverse-Erie doctrine involves the 

application of state procedural law to federal substantive 

causes of action in state court. See Felder v. Casey, 487 U.S. 

131, 151 (1988). 
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provisions are affirmative defenses is likewise a matter of 

federal substantive law. See Blair v. Manhattan Life Ins. Co., 

692 F.2d 296, 299 (3d Cir. 1982) (“‘The question of which party 

bears the burden of proof in a diversity case ordinarily is a 

matter of substantive law within the meaning of Erie R. Co. v. 

Tompkins, 304 U.S. 64 (1938), and so is governed by state law. 

In such a case, the district court is obligated to determine 

the burden of proof in accordance with the law of the forum 

state . . . .’” (quoting DeMarines v. KLM Royal Dutch Airlines, 

580 F.2d 1193, 1200 (3d Cir. 1978))) (internal citations 

omitted). The Supreme Court of the United States and other 

federal courts have categorized the EPA defenses as 

affirmative. See, e.g., County of Washington v. Gunther, 452 

U.S. 161, 169 (1981) (“The Equal Pay Act is divided into two 

parts: a definition of the violation, followed by four 

affirmative defenses.”); Corning Glass Works v. Brennan, 417 

U.S. 188, 196-97 (1974); Brinkley-Obu v. Hughes Training, Inc.,

36 F.3d 336, 344 (4th Cir. 1994) (“The defendant must prove one 

of four affirmative defenses to avoid liability.”). We 

therefore hold that the enumerated EPA statutory defenses are 

affirmative defenses in accordance with federal law. 

Under Erie, in federal diversity actions substantive state 

law determines whether a defense is affirmative. The Federal 

Rules of Civil Procedure “provide the manner and time in which 
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defenses are raised and when waiver occurs . . . .” Arismendez 

v. Nightingale Home Health Care, Inc., 493 F.3d 602, 610 (5th 

Cir. 2007) (citation omitted). The inverse is true in cases 

where state courts apply federal substantive law, subject to 

certain constraints. See Felder, 487 U.S. at 150 (“Federal law 

takes state courts as it finds them only insofar as those 

courts employ rules that do not ‘impose unnecessary burdens 

upon rights of recovery authorized by federal laws.’” (quoting 

Brown v. Western Ry. Co., 338 U.S. 294, 298-99 (1949))). 

“Just as federal courts are constitutionally obligated to 

apply state law to state claims, so too the Supremacy Clause 

imposes on state courts a constitutional duty ‘to proceed in 

such manner that all the substantial rights of the parties 

under controlling federal law [are] protected.’” Id. (quoting 

Garrett v. Moore-McCormack Co., 317 U.S. 239, 245 (1942)). 

Thus, federal substantive law is applied under state procedural 

rules to the extent that the state rules do not interfere with 

the consistent operation of federal law. Id. at 151. This 

Court must determine the procedural law applicable to the 

pleading of the EPA affirmative defenses in Virginia courts. 

The Virginia rules concerning the pleading of affirmative 

defenses are not expressly preempted by federal statute. There 

is no statute-specific or blanket federal provision that could 

have been intended to apply to the pleading of the EPA 
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affirmative defenses, save Rule 8(c) of the Federal Rules of 

Civil Procedure. The Commonwealth has a discrete interest in 

controlling litigation conducted in its courts under consistent 

rules, and we hold that application of Virginia pleading 

standards to the EPA affirmative defenses would not lead to a 

substantial difference in outcomes of state and federal EPA 

actions. Therefore, we will apply Virginia procedural law 

concerning the pleading of affirmative defenses in EPA actions 

brought in Virginia courts. 

In doing so, this Court necessarily looks to the 

procedural pleading principles articulated in Monahan v. Obici 

Med. Mgmt. Servs., 271 Va. 621, 628 S.E.2d 330 (2006). See

Chesapeake & Ohio Ry. Co. v. Meadows, 119 Va. 33, 43, 89 S.E. 

244, 247 (1916) (applying Virginia procedure in FELA matter). 

Our jurisprudence has long “required that a party raise 

specific defenses (just as a plaintiff must give notice of 

claims) so that surprise and prejudice at trial from late 

revelation of unanticipated legal theories is avoided.” 

Monahan, 271 Va. at 632, 628 S.E.2d at 336. “This has 

generally led to a requirement that affirmative defenses must 

be pled in order to be relied upon at trial.” Id. 

 This Court, however, has found exceptions to the general 

requirement that affirmative defenses be pled, including: (1) 

where the issue addressed by the affirmative defense was not 
10

disclosed in the plaintiff’s pleading; (2) where the 

affirmative defense is not an absolute bar to recovery; and (3) 

where the affirmative defense is “addressed by statute.” Id.

at 632-34, 628 S.E.2d at 336-37. The affirmative defense at 

issue in Monahan was mitigation of damages, and in holding that 

the defense need not be specifically pled, this Court noted 

that “we express no opinion as to the specific pleading of any 

other affirmative defense.” Id. at 634 n.11, 628 S.E.2d at 337 

n.11. 

Traditional affirmative defenses or special pleas that 

constitute an absolute bar to recovery include “statute of 

limitations, absence of proper parties, res judicata, usury, a 

release, prior award, infancy, bankruptcy, denial of 

partnership, bona fide purchaser, and denial of an essential 

jurisdictional fact alleged in the bill.” Id. at 634, 628 

S.E.2d at 337. The requirement that most such defenses be 

specifically pled arises from their collateral nature. Where a 

defendant seeks to rely upon an affirmative defense not 

apparent from the allegations pled and unrelated to the 

elements of a plaintiff’s cause of action, that affirmative 

defense must be pled to avoid unfair surprise or prejudice to 

the plaintiff. 

Unlike traditional affirmative defenses, the EPA 

“affirmative defenses” are specifically listed as exclusions in 
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the statute that creates the cause of action. The affirmative 

defenses are broad and include the general defense that the 

plaintiff was not discriminated against on the basis of gender. 

29 U.S.C. § 206(d)(1). 

The EPA does not on its face require that its affirmative 

defenses be pled. See id.; cf. Jones v. Jones, 249 Va. 565, 

571-72, 457 S.E.2d 365, 369 (1995) (noting that the affirmative 

defense of the statute of limitations must be pled, per the 

statute). Because the EPA defenses are stated in the statute 

creating the cause of action, and include any defense that the 

differential is based on a factor other than gender, the 

plaintiff is put on notice of the assertion of an affirmative 

defense when the defendant denies that any pay differential is 

based on gender. In such an instance, there is little risk of 

prejudice or surprise resulting from not also requiring the 

pleading of an affirmative general defense. 

In this matter, for example, NDI’s answer denied 

Tarquini’s allegation that she was paid less because of her 

gender, putting her on notice of its defense. Tarquini 

undisputedly acquired knowledge of NDI’s defense during the 

protracted litigation of the case. No prejudice resulted from 

NDI generally denying the allegation that Tarquini was paid 

less because of her gender, without also affirmatively pleading 
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that it was asserting, as a defense, “a differential based on 

[a] factor other than sex.” 29 U.S.C. § 206(d)(1)(iv). 

We hold that because the four statutory defenses under the 

EPA are express exceptions contained within the statute that 

creates the cause of action, and because in such cases there is 

little risk of prejudice or surprise, Virginia procedural law 

does not require that such EPA affirmative defenses be pled to 

avoid waiver of the right to assert those defenses to the 

claim. We therefore reverse the circuit court and hold that 

NDI did not waive its right to present evidence regarding its 

defenses to the EPA claim.2

Conclusion 

Accordingly, for the reasons stated, we will reverse the 

judgment of the circuit court and remand this case for further 

proceedings consistent with this opinion. 

Reversed and remanded. 

 2

 Given this holding, there is no need to address the issue 

of attorneys’ fees.