Trotta v. Cajun Conti LLC et al, No. 2:2015cv01186 - Document 67 (E.D. La. 2017)
Court Description: ORDER & REASONS granting 57 Motion for Summary Judgment. Signed by Judge Sarah S. Vance on 1/13/2017. (mmm)
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Trotta v. Cajun Conti LLC et al Doc. 67 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA J OSEPH TROTTA CIVIL ACTION VERSUS NO. 15-1186 CAJ UN CONTI, LLC, ET AL SECTION “R” (2) ORD ER AN D REASON S Defendants Cajun Conti, LLC and Cajun Bourbon, LLC m ove 1 for sum m ary judgm ent on Plaintiff J oseph Trotta’s retaliation claim under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 20 0 0 e, et seq. Because plaintiff has failed to create an issue of fact as to whether there is a causal link between plaintiff’s protected activity and his termination, plaintiff cannot establish a prim a facie case of retaliation and the Court GRANTS defendants’ m otion. I. BACKGROU N D This case arises from the term ination of J oseph Trotta’s em ploym ent with defendants Cajun Conti, LLC, and Cajun Bourbon, LLC. Defendants are 1 R. Doc. 57. Dockets.Justia.com two restaurants in the French Quarter in New Orleans, Louisiana. 2 In March of 20 13, plaintiff was hired as an at-will em ployee to work as a m anager at both restaurants. While em ployed by defendants, plaintiff reported directly to Ram sey Dibeh, the Director of Operations for defendants, 3 and then to Ram i Badr, the Vice President of Operations for defendants. 4 On August 3, 20 14, Dibeh notified Trotta that his em ploym ent with defendants was term inated. 5 Trotta filed this suit on April 14, 20 15. 6 The parties dispute why Trotta was term inated. Defendants subm it the sworn declarations of Ram i Badr and Ram sey Dibeh, who attest, and Trotta does not dispute, 7 that throughout the duration of Trotta’s employment, Trotta was frequently reprim anded for various perform ance issues. 8 Badr and Dibeh also attest that in early August, 20 14, they learned that a form er em ployee filed a charge of discrim ination with the Equal Em ploym ent 2 R. Doc. 57-4 at 1 ¶ 3. Cajun Conti does business as Oceana Grill and Cajun Bourbon does business as Olde Nola Cookery. 3 R. Doc. 57-9 at 1. 4 R. Doc. 57-4 at 1. 5 Id. at 2 ¶ 10 . 6 R. Doc. 1. 7 See R. Doc. 57-5 at 36 (Deposition of J oseph Trotta); see also R. Doc. 62-1 at 1-4 at ¶¶ 9-10 , ¶¶ 12-14, ¶¶ 17-19 (Plaintiff’s Response to Defendants’ Statement of Material Facts). 8 See R. Doc. 57-4 (Declaration of Ram i Badr); R. Doc. 57-9 (Declaration of Ram sey Dibeh). 2 Opportunity Comm ission that alleged that Trotta sexually harassed her. 9 Therefore, defendants assert that Trotta was fired because another em ployee accused Trotta of sexual harassm ent and because he frequently displayed poor work performance, including but not lim ited to: (1) failing to keep the stove and kitchen clean and sanitary under his m anagement, (2) failing to ensure item s were put away in the kitchen, (3) failing to m aintain the courtyard, (4) failing to restock the kitchen, (5) failing to m aintain quality food presentations, (6) failing to provide good custom er service under his m anagement, (7) failing to com m unicate with his co-workers, (8) dem onstrating poor leadership, including the claim of sexual harassment by another employee, (9) failing to exercise control over his subordinates, and (10 ) leaving the petty cash safe short $ 10 0 on his shift. 10 Trotta argues that his perform ance issues and the sexual harassment claim are pretextual and that Trotta was actually term inated because he gave a statement to the EEOC regarding defendants’ term ination of another em ployee, Arthur Alexander. 11 According to Trotta’s declaration, on or about J une 2, 20 14, Dibeh instructed Trotta to term inate Alexander, despite Trotta’s belief that Alexander had done nothing wrong. 12 After Alexander’s term ination, on 9 R. Doc. 57-4 at 2 ¶ 9; R. Doc. 57-9 at 2 ¶ 9. R. Doc. 57-4 at 1-2 ¶ 7, ¶ 10 ; R. Doc. 57-9 at 1-2 ¶ 6, ¶ 9; R. Doc. 57-15 at 1-2 ¶ 9. 11 R. Doc. 23 at 5 ¶ 25. 12 R. Doc. 62-3 at 1 ¶¶ 4-5. 3 10 J une 24, 20 14, Alexander filed an EEOC charge of discrim ination against Cajun Bourbon, alleging that he was discrim inated against because of his race. 13 Trotta attests that he went to the EEOC office with Alexander and gave a declaration on Alexander’s behalf. 14 Trotta did not tell anyone of his involvem ent with Alexander’s claim besides coworker Neely Hargis, 15 and Hargis testified at his deposition that he told no one of Trotta’s involvem ent. 16 Trotta also acknowledged that he had no evidence that defendants knew of his involvement with Alexander’s claim when he was term inated. 17 Dibeh, Badr and Tiffany Thom an, the Executive Adm inistrator and corporate deponent for defendants, all attest that they did not becom e aware of Trotta’s involvem ent in the Alexander charge until after Trotta was term inated. 18 Thom an also testified in her deposition that defendants becam e aware of Alexander’s EEOC claim on the same day they became aware that Trotta was accused of sexual harassm ent. 19 13 14 15 16 17 18 R. Doc. 62-17 (Sealed). R. Doc. 62-3 at 1 ¶ 5. R. Doc. 57-6 at 39-40 . R. Doc. 57-13 at 4. R. Doc. 57-6 at 41-45. R. Doc. 57-4 at 2 ¶ 12; R. Doc. 57-9 at 2 ¶ 11; R. Doc. 57-15 at 2 ¶ 10 . 19 R. Doc. 57-11 at 10 -11. 4 Plaintiff asserts a claim for unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964, as am ended, 42 U.S.C. § 20 0 0 e, et seq. Defendants now move for sum m ary judgm ent. II. LEGAL STAN D ARD A. Su m m ary Ju d gm e n t Sum m ary judgment is warranted when “the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Little v. Liquid Air Corp., 37 F.3d 10 69, 10 75 (5th Cir. 1994). When assessing whether a dispute as to any m aterial fact exists, the Court considers “all of the evidence in the record but refrains from m aking credibility determ inations or weighing the evidence.” Delta & Pine Land Co. v. N ationw ide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 20 0 8). All reasonable inferences are drawn in favor of the nonm oving party, but “unsupported allegations or affidavits setting forth ‘ultim ate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a m otion for sum m ary judgm ent.” Galindo v. Precision Am . Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting Wright & Miller, Fed. Prac. and Proc. Civ.2d § 2738 (1983)). 5 If the dispositive issue is one on which the m oving party will bear the burden of proof at trial, the m oving party “m ust come forward with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.” Int’l Shortstop, Inc. v. Rally ’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991) (internal quotation om itted). The nonm oving party can then defeat the m otion by either countering with sufficient evidence of its own, or “showing that the m oving party’s evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the m oving party.” Id. at 1265. If the dispositive issue is one on which the nonm oving party will bear the burden of proof at trial, the m oving party m ay satisfy its burden by m erely pointing out that the evidence in the record is insufficient with respect to an essential elem ent of the nonm oving party’s claim . See Celotex, 477 U.S. at 325. The burden then shifts to the nonm oving party, who m ust, by subm itting or referring to evidence, set out specific facts showing that a genuine issue exists. See id. at 324. The nonm ovant m ay not rest upon the pleadings, but m ust identify specific facts that establish a genuine issue for trial. Id. at 325; see also Little, 37 F.3d at 10 75 (“Rule 56 ‘m andates the entry of sum m ary judgment, after adequate tim e for discovery and upon m otion, against a party who fails to m ake a showing sufficient to establish the 6 existence of an elem ent essential to that party’s case, and on which that party will bear the burden of proof at trial.’”) (quoting Celotex, 477 U.S. at 332). B. Re taliatio n U n d e r Title VII In addition to prohibiting discrim ination in employment on the basis of race, color, religion, sex, or national origin, Title VII also m akes it unlawful for an em ployer to discrim inate against an em ployee who has opposed an em ploym ent practice m ade unlawful by Title VII, 42 U.S.C. § 20 0 0 e-3(a). In order to state a prim a facie retaliation claim , a plaintiff must allege “(1) that [he] engaged in activity protected by Title VII, (2) that an adverse em ploym ent action occurred, and (3) that a causal link existed between the protected activity and the adverse action.” Raggs v. Miss. Pow er & Light Co., 278 F.3d 463, 471 (5th Cir. 20 0 2). The Fifth Circuit has held that if the plaintiff does not have direct evidence of retaliation, then the McDonnell Douglas burden-shifting fram ework applies to the retaliation claim . See, e.g., Satterw hite v. City of Houston, 60 2 F. App’x 585, 587 (5th Cir. 20 15) (citing By ers v. Dallas Morning N ew s, Inc., 20 9 F.3d 419, 427 (5th Cir. 20 0 0 ). If the plaintiff m akes a prim a facie showing, the burden shifts to the defendant to articulate a legitim ate, non-retaliatory reason for the adverse em ploym ent action. See Ary ain v. W al-Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir. 20 0 8). If 7 the defendant m eets his or her burden of production, the burden shifts back to the plaintiff to show that defendant’s explanation is a pretext for unlawful retaliation. Id. A plaintiff who cannot establish a prim a facie case cannot survive a sum m ary judgm ent challenge. By ers, 20 9 F.3d at 427. III. D ISCU SSION Defendants’ m otion for sum mary judgm ent argues that Trotta cannot m ake out a prim a facie retaliation claim , and that even if Trotta has established a prima facie claim , Trotta cannot establish that defendants’ stated reason for term ination was pretextual. A. Tro tta’s Prim a Facie Claim 1. Protected Activities Trotta attests that he gave a declaration to the EEOC on behalf of form er coworker Arthur Alexander. This qualifies as protected activity under the statute, and defendants concede that Trotta engaged in protected activity. 20 See 42 U.S.C. § 20 0 0 e-3(a) (m aking it unlawful for an em ployer to discrim inate against anyone who has “m ade a charge, testified, assisted, or participated in any m anner in an investigation, proceeding, or hearing 20 R. Doc. 57-1 at 7 n.38 (“Defendants will not dispute that Plaintiff engaged in protected activity under Title VII.”). 8 under this subchapter”). Thus, Trotta has established the first element of his prim a facie case of retaliation. 2. Materially Adverse Em ploy m ent Action Next, Trotta m ust show that defendants took an “adverse em ployment action” against him. Ary ain, 534 F.3d at 484. In the retaliation context, a plaintiff m ust show that a reasonable employee would have found the challenged em ploym ent action “m aterially adverse.” Burlington N . & Santa Fe Ry . Co. v. W hite, 548 U.S. 53, 68 (20 0 6). An em ploym ent action is m aterially adverse if “it well m ight have dissuaded a reasonable worker from m aking or supporting a charge of discrim ination.” Id. (citations and internal quotation m arks om itted). An em ploym ent action is not m aterially adverse if it am ounts only to “petty slights or m inor annoyances that often take place at work and that all em ployees experience.” Id. Trotta asserts that the defendants engaged in two retaliatory acts: (1) reassigning Trotta to work the kitchen at Oceana Grill between late J une and August of 20 14; 21 and (2) term inating Trotta’s em ployment. Defendant 21 Trotta states in his opposition brief that he was reassigned on J une 30 , 20 14. R. Doc. 62 at 6; R. Doc. 62-1 at 4 ¶ 5. His declaration, however, does not m ention the reassignm ent and Trotta gave conflicting deposition testim ony on when the reassignment took place. Com pare R. Doc. 62-4 at 3 (when asked when he reassigned, Trotta responds “It was, I believe, in– maybe started in J une of– I don’t rem em ber the year, 20 14 probably) w ith R. Doc. 57-5 at 50 (when asked if he was reassigned in J uly, 9 concedes that Trotta’s term ination was an adverse em ploym ent action but disputes that Trotta’s reassignm ent was adverse. 22 Therefore, while it is clear that Trotta suffered adverse em ployment action, because tem poral proxim ity between the adverse action and the protected activity is relevant for the third element of the prima facie case, see, e.g., Evans v. City of Houston, 246 F.3d 344, 356 (5th Cir. 20 0 1), the Court m ust resolve whether Trotta’s reassignm ent was adverse to determ ine the date of the adverse employment action. Trotta argues in his opposition brief that the reassignment is adverse because he was allegedly instructed to not m ove for twelve hours while in his new position, and that defendants previously used a transfer to the kitchen as a form of punishm ent for another em ployee. 23 Trotta also points to the deposition testim ony of Neely Hargis, who testified that while at Oceana, Trotta was treated differently than other m anagers and that Hargis witnessed Trotta standing in one position for extended periods of tim e. 24 Trotta responds “I believe that’s true,” and when asked if it was correct to say that Trotta was assigned at Oceana between J uly and August of 20 14, Trotta responds “yes, I believe so.”). Therefore, the exact date of Trotta’s reassignm ent to Oceana is unclear from the record. 22 R. Doc. 57-1 at 7 n.38. 23 R. Doc. 62 at 5-7. 24 R. Doc. 62-5 at 6-7. 10 Further, Trotta points to an em ail in the record from Dibeh to Trotta sent on February 4, 20 14, where Dibeh threatens to keep Trotta at Oceana for good. 25 Defendants counter that Trotta initially requested a transfer to the kitchen to receive training in early 20 14, 26 and he was initially transferred to Oceana after his request. 27 Defendants also assert that Trotta received the same salary while at Oceana that he did as m anager, 28 and that Trotta adm itted in his deposition that he never actually stood in one place for twelve hours. 29 As described above, the Supreme Court has instructed that the action com plained of m ust be m aterially adverse in that the action “m ight well have dissuaded a reasonable worker from m aking or supporting a charge of discrim ination.” W hite, 548 U.S. at 68. Further, the Court has noted that “[c]ontext m atters” and that whether an action is m aterially adverse will depend upon the particular circum stances of the employee and the case. Id. at 69. Additionally, the Fifth Circuit has noted that a “lateral reassignm ent to a position with equal pay could am ount to a m aterially adverse action in some circum stances,” and has looked to whether the new position was 25 26 27 28 29 R. Doc. 57-7 at 7. R. Doc. 57-5 at 40 . Id. at 41. Id. R. Doc. 57-6 at 30 -36. 11 objectively m ore arduous or less prestigious, whether the new position had worse hours, whether it would objectively be viewed as a dem otion or as em barrassing, and whether the new position stripped the employee of “significant responsibilities.” Ary ain, 534 F.3d at 485 (citations om itted); see also Serna v. City of San Antonio, 244 F.3d 479, 485 (5th Cir. 20 0 1). On this record, drawing all reasonable inferences in favor of Trotta, the Court cannot find that there is a genuine issue of material fact that the reassignm ent to the kitchen at Oceana was a m aterially adverse action. The evidence suggesting that Trotta was m ade to stand in one place for twelve hours is undercut by Trotta’s own adm issions that he never actually stood in one place for twelve hours at a tim e and that while he was working in the kitchen he was also working in the restaurant itself for at least part of the tim e. 30 And while Trotta m ay certainly have been standing in one place for a period of tim e while at Oceana, this is not uncom m on for em ployees in a kitchen. The Fifth Circuit has held that physical activity which is routine to a job does not autom atically m ake a transfer to that job m aterially adverse. See Ary ain at 486 (finding assignm ent to position in which em ployee would need to constantly pick up, lift, and carry supplies not m aterially adverse because job description indicated those tasks would be required). Nor does 30 R. Doc. 57-6 at 30 -36. 12 an increased work load. See Outley v. Luke & Assocs., Inc., 840 F.3d 212, 217 (5th Cir. 20 16). Additionally, the evidence in the record is undisputed that Trotta initially requested to work in the kitchen, and that he viewed the time spent in the kitchen as “valuable.”31 The evidence that defendants transferred another em ployee to the kitchen as a punishment and Dibeh’s February em ail threatening to keep Trotta in the kitchen, in light of the com peting evidence in the record that Trotta him self requested to be in the kitchen at that tim e, do not create a genuine issue of m aterial fact as to whether the reassignm ent was m aterially adverse. Trotta puts forth no evidence suggesting that his pay was reduced (and concedes it was not), that his hours were worse at the kitchen, that the transfer was objectively em barrassing, the he objected to his transfer at the tim e, or that he was stripped of significant responsibilities. Id.; see also Ary ain, 534 F.3d at 485. Given that Trotta initially requested to work in the kitchen, that he viewed the tim e there as valuable, and that his schedule, full-tim e status and salary were unchanged, the record as a whole does not indicate a genuine issue of m aterial fact that this reassignm ent would cause a reasonable worker to be dissuaded from supporting a charge of discrim ination, W hite, 548 U.S. at 68, and therefore 31 R. Doc. 57-5 at 41-42. 13 his reassignm ent to the kitchen was not an adverse em ploym ent action. See Bum barger v. N ew Enterprise Stone and Lim e Co., Inc., 170 F. Supp. 3d 80 1, 849 (W.D. Pa. 20 16) (granting sum mary judgment on plaintiff’s retaliation claim because transfer to new position so that plaintiff could receive requested training was not m aterially adverse); Hy de v. K.B. Hom e, Inc., 355 F. App’x 266, 270 (11th Cir. 20 0 9) (finding that reduction in responsibility alone does not am ount to adverse em ployment action). Still, his term ination was certainly adverse, so the Court will proceed to the third elem ent of the prim a facie case. 3. Causation Trotta m ust also dem onstrate a causal connection between his protected activity and his term ination. In establishing the causal link, Trotta is not required to show that his protected activity was the “sole factor m otivating the employer’s challenged decision,” Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 20 0 2), but the plaintiff m ust produce some evidence showing that “the em ployer’s decision to term inate was based in part on knowledge of the em ployee’s protected activity.” Sherrod v. Am erican Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998). Dibeh, Badr, and Thom an all attest that they had no knowledge of Trotta’s involvem ent in Alexander’s 14 EEOC claim until after Trotta was term inated. 32 Trotta does not dispute that he did not tell Dibeh or Badr of his involvem ent with Alexander’s claim before his term ination, 33 Trotta adm its that he told only Hargis of his involvem ent, 34 and Hargis testified at his deposition that he did not tell anyone of Trotta’s involvem ent in Alexander’s claim. 35 Finally, Trotta adm its that he has no evidence that either Dibeh or Badr knew of his protected activity before his term ination. 36 Therefore, there is no direct evidence in the record showing or even suggesting that defendants were aware of Trotta’s protected activity at the tim e of his term ination. In an attem pt m ake up for this lack of evidence, Trotta relies prim arily on the temporal proxim ity of his statem ent to the EEOC on J une 24, 20 14 and his term ination on August 3, 20 14, alleged inconsistencies relating to when defendants became aware of the com plaints of both Alexander and the em ployee who accused Trotta of sexual assault, as well as a statem ent allegedly m ade to Trotta by Alexander before his term ination, and by Badr to Trotta after his term ination. 37 32 R. Doc. 57-4 at 2 ¶ 12; R. Doc. 57-9 at 2 ¶ 11; R. Doc. 57-15 at 2 ¶ 33 R. Doc. 57-6 at 39-40 . Id. R. Doc. 57-13 at 29. R. Doc. 57-6 at 41, 45. R. Doc. 62 at 7-11. 10 . 34 35 36 37 15 At the outset, plaintiff is wrong to suggest that tem poral proxim ity alone is sufficient to establish the third element of the prim a facie case. It is true that the Fifth Circuit considers the tem poral proxim ity between protected activity and adverse em ploym ent actions in determ ining if a causal link exists, see, e.g., Evans, 246 F.3d at 354; Strong v. Univ. Healthcare Sy s., L.L.C., 482 F.3d 80 2, 80 8 (5th Cir. 20 0 7), but the Fifth Circuit has also repeatedly (as well as recently) found that tem poral proxim ity by itself is not sufficient to establish the causal link for the third element of the prim a facie case. See Zaffuto v. City of Ham m ond, 30 8 F.3d 485, 493-94 (5th Cir. 20 0 2) (finding that despite tem poral proxim ity between alleged protected activity and alleged retaliation, the absence of “any evidence” connecting the activity with the retaliation indicated there was no genuine issue of m aterial fact as to issue of causal connection); Thom pson v. Som ervell Cty ., Tex., 431 F. App’x 338, 342 (5th Cir. 20 11) (per curiam ) (“[E]ven at the prim a facie stage, tem poral proxim ity can only establish a causal link when it is connected to the decision m aker’s knowledge of the protected activity.”); Chen v. Ochsner Clinic Found., 630 F. App’x 218, 226 (5th Cir. 20 15) (per curiam ) (“[S]ince ‘[t]he record contains nothing connected the allegedly protected activity and the alleged retaliation,’ m ere proxim ity in tim e, without m ore, cannot establish a prim a facie case.” (citing Zaffuto, 30 8 F.3d at 493)); see also 16 Butler v. Shinseki, No. 10 -0 857, 20 11 WL 3419619, at *7 (E.D. La. Aug. 4, 20 11) (stating that “under Fifth Circuit law, a plaintiff cannot rely solely on tem poral proxim ity to establish [his or] her prim a facie case”). Additionally, the Supreme Court has suggested that m ere temporal proxim ity alone, without evidence of the em ployer’s knowledge of the protected activity, cannot establish the causal link. See Clark Cty . Sch. Dist. v. Breeden, 532 U.S. 268, 273 (20 0 1) (stating that “[t]he cases that accept m ere tem poral proxim ity betw een an em ploy er’s know ledge of the protected activity and an adverse em ploym ent action as sufficient evidence of causality to establish a prim a facie case . . .”). The cases cited by plaintiff in opposition, Evans v. City of Houston and Richard v. Cingular W ireless LLC, 233 F. App’x 334 (5th Cir. 20 0 7), merely establish, as acknowledged above, that tem poral proxim ity is relevant for the third elem ent of the prim a facie case. But neither Evans nor Cingular stand for the proposition that tem poral proxim ity alone satisfies the causal element, and both Evans and Cingular had evidence in the record that the em ployer had knowledge of the protected activity. See Evans, 246 F.3d at 352 n.7 (noting that city was aware of em ployee’s testim ony about racial discrim ination hearing before adverse action); Cingular, 233 F. App’x at 335-36 (evidence indicated that Cingular was aware of plaintiff’s protected 17 activity before his term ination because plaintiff had com plained to Cingular’s internal Ethics Line about purported racial discrim ination before his term ination). Therefore, in light of the above case law, the Court does not find that the tem poral proxim ity of 40 days between Trotta’s protected activity and his term ination alone satisfies the third elem ent of the prim a facie case. The Fifth Circuit has also repeatedly held that to establish a prim a facie retaliation claim , plaintiffs m ust show at least some evidence that the decisionm akers responsible for the adverse action “had knowledge of [plaintiff’s] protected activity. Manning v. Chevron Chem . Co., LLC, 332 F.3d 874, 883 (5th Cir. 20 0 3); see also, e.g., Medina v. Ram sey Steel Co., 238 F.3d 674, 684 (5th Cir. 20 0 1); Stephens v. Erickson, 569 F.3d 779, 788 (7th Cir. 20 0 9) (“Clearly, a superior cannot retaliate against an em ployee for a protected activity about which he has no knowledge.”). As described above, Dibeh, Badr, and Thom an all attest to their lack of any knowledge of Trotta’s protected activity before his term ination, and Trotta has put forth no direct evidence (and has conceded he has none) of their knowledge before his term ination. Trotta also does not argue that there were other decisionm akers responsible for his term ination. Instead, Trotta suggests that the Court should reject the evidence in the record and infer defendants’ 18 knowledge based on 1) an alleged statem ent from Alexander to Trotta on approximately J uly 25, 20 14 that his EEOC claim was going to m ediation; 38 2) alleged inconsistencies over when defendants becam e aware of the EEOC com plaints; 39 and 3) a statem ent by Badr to Trotta three days after Trotta was term inated. 40 None of these create a reasonable inference that the decisionm akers knew of Trotta’s protected activity before he was term inated, especially in light of the other evidence in the record. First, Trotta relies on Alexander’s alleged statem ent for the truth of the m atter asserted and is therefore hearsay and not com petent sum mary judgm ent evidence. See Okoy e v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 50 7, 510 n.5 (5th Cir. 20 0 1) (“[b]ecause these statem ents are hearsay, they are not com petent sum m ary judgm ent evidence”); see also Fed. R. Civ. P. 56(c)(2) (“a party m ay object that the m aterial cited to support or dispute a fact cannot be presented in a form that would be adm issible in evidence”). There is no testim ony from Alexander in the record, or any other com petent evidence in the record showing that Alexander’s case was set for m ediation by J uly 25, 20 14. Even if there were, that Alexander possibly said his case 38 39 40 R. Doc. 62-3 at 1 ¶ 6. R. Doc. 62 at 9-10 . R. Doc. 62-3 at 2 ¶ 14. 19 was going to m ediation in late J uly does not suggest the defendants were aware of Trotta’s involvem ent in Alexander’s case. Because Alexander’s statem ent is hearsay, Trotta also cannot rely on it to argue that Thom an’s deposition testim ony that defendants set up Alexander’s mediation in early August 41 is inconsistent with the facts. Next, Trotta points to Title 29 of the Code of Federal Regulations to suggest that by law defendants should have been notified of Alexander’s claim and the sexual harassm ent claim against Trotta before August, and therefore Dibeh, Badr, and Thom an’s deposition testimony and declarations are inconsistent with the facts. According to Title 29, defendants should have been notified of each charge within ten days of the filing of the charge. See 29 C.F.R. § 160 1.14. Though Trotta subm its a copy of Alexander’s charge with his opposition to this m otion, 42 Trotta does not provide any docum entary evidence of defendants’ actual receipt of the charge. While it m ay be true that defendants should have been notified, there is com petent evidence in the record indicating that they were not notified within 10 days. 43 Trotta provides no basis to reject Thom an’s sworn deposition testim ony that 41 42 43 R. Doc. 62-6 at 6-8. R. Doc. 62-17 (Sealed). R. Doc. 62-6 at 6. 20 defendants were not notified within 10 days of Alexander’s charge. 44 Further, even if defendants were notified that Alexander had filed a claim , this does not establish that they would have also been notified of Trotta’s involvem ent. Trotta points to nothing suggesting that notice of Alexander’s claim included inform ation about Trotta’s involvement. Indeed, Alexander’s claim itself m akes no m ention of Trotta’s involvem ent in giving a declaration in support of Alexander. 45 Finally, Trotta points to a meeting he had with Badr three days after he was term inated to suggest that Badr was aware of his protected activity. Trotta testified that after Dibeh term inated him , Trotta sent a text m essage to Badr expressing his belief that he was term inated because of his statem ent to the EEOC. 46 Trotta did not nam e Alexander in the text. 47 Three days after Trotta was term inated, Trotta m et with Badr, and according to Trotta’s testim ony Badr brought up Alexander (despite Trotta’s not nam ing him in the text or m entioning his nam e) and asked Trotta “why didn’t you just com e to m e first?”48 From this one question, Trotta attests that he “understood 44 45 46 47 48 Id. R. Doc. 62-17 (Sealed). R. Doc. 57-6 at 38. R. Doc. 57-8 at 35. Id. at 43. 21 Badr to m ean why didn’t I com e to him first before giving a statement to the EEOC on behalf of Arthur Alexander.”49 Even if evidence showed that Trotta was correct and what Badr m eant by the statement was to ask Trotta why he did not go to Badr before Trotta went to the EEOC, this still would not suggest that defendants were aware of Trotta’s protected activity before his term ination. By the tim e the meeting between Badr and Trotta occurred, Trotta had already been term inated, he already texted Badr that he believed he was term inated because of his involvem ent in an EEOC claim , and defendants had been m ade aware that they had two EEOC claim s against them , one which was a com plaint against Trotta. Moreover, Trotta adm itted in his deposition that he did not have “any inform ation or any evidence that Ram i [Badr] knew that [Trotta] had been interviewed by the EEOC before [Trotta] sent th[e] text message.”50 Again, Dibeh, Badr, and Thom an all swear that they were not aware of Trotta’s involvem ent before his term ination. Trotta admits that he has no direct evidence that any of them were aware of his involvem ent. Trotta’s arguments regarding temporal proxim ity and alleged inconsistencies are unavailing. Therefore, because there is no evidence to rebut defendants’ 49 50 R. Doc. 62-3 at 2 ¶ 14. R. Doc. 57-6 at 45. 22 evidence attesting to their lack of knowledge, there is no genuine issue of m aterial fact as to any causal link between the protected activity and the adverse em ploym ent action, 51 and Trotta cannot m ake out a prim a facie case. 52 Sum m ary judgm ent is thus appropriate in defendant’s favor. See Manning, 332 F.3d at 883-84 (affirm ing sum m ary judgment when plaintiff could not establish causal link in retaliation case because plaintiff’s evidence did not show that decisionm akers were aware of protected activity before the adverse action); Butler, 20 11 WL 3419619, at *7 (granting sum m ary judgm ent because plaintiff failed to establish causal link in light of defendants’ sworn affidavits that they were not aware of plaintiff’s protected activity before adverse action occurred). 51 Because of the total lack of evidence as to the defendants’ knowledge, Trotta would still not be able to m ake out his prim a facie case even assum ing arguendo that his transfer to the kitchen was an adverse em ploym ent action. 52 Because Trotta cannot m ake out a prim a facie case, the Court will not address whether defendants had a legitim ate, non-retaliatory reason for Trotta’s term ination or if any legitim ate reason is a pretext for the actual retaliatory reason. See, e.g., Butler, 20 11 WL 3419619, at *7. 23 IV. CON CLU SION For the foregoing reasons, the Court GRANTS defendants’ m otion. New Orleans, Louisiana, this _13th _ day of J anuary, 20 17. ___ _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 24
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