Greco v. Velvet Cactus, LLC et al

Filing 68

ORDER AND REASONS granting 28 Motion for Summary Judgment; granting 29 Motion for Summary Judgment, dismissing all federal claims with prejudice and all state-law claims without prejudice.. Signed by Chief Judge Sarah S. Vance on 6/27/14. (jjs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOSEPH RAYMOND GRECO, III

CIVIL ACTION

VERSUS

NO: 13-3514

VELVET CACTUS, LLC AND SCOTT
DICKINSON

SECTION: R

ORDER AND REASONS
Plaintiff Joseph Raymond Greco, III filed this suit against
defendants The Velvet Cactus, LLC and Scott Dickinson asserting
claims for sexual harassment and retaliation under Title VII of
the Civil Rights Act of 1964.1 He also asserts state law battery
claims against both defendants. Defendants now move the Court for
summary judgment against each of Greco's claims.2 Greco's sexual
harassment and retaliation claims against Dickinson fail because
Dickinson was never Greco's employer. Greco's retaliation claim
against The Velvet Cactus fails because he cannot establish a
causal connection between an activity protected by Title VII and
his termination. His sexual harassment claim against The Velvet
Cactus fails because Greco does not demonstrate a genuine issue
of fact as to whether Dickinson's conduct was unwelcome. In the
absence of a surviving federal claim, the Court declines to
exercise jurisdiction over Greco's state law claims and dismisses

1

R. Doc. 1.

2

R. Doc. 28; R. Doc. 29.

them without prejudice. Accordingly, the Court GRANTS defendants'
motions for summary judgment.

I.

BACKGROUND
The Velvet Cactus is a Mexican-inspired restaurant located

in New Orleans, Louisiana and owned by Herb Dyer, Howard White,
and Scott Dickinson.3 Dickinson also was employed as the General
Manager of The Velvet Cactus from May 2010 through February 2013,
at which time he was demoted to Assistant General Manager.4
Dickinson hired plaintiff Joseph Greco as a busboy in September
2011.5 During the course of Greco's employment at The Velvet
Cactus, he and Dickinson often socialized after work hours at
Parlay's Bar, located across the street from The Velvet Cactus,
or at Hoshun Restaurant.6 At some point during Greco's
employment, a coworker took a photograph of Greco playfully
attempting to lick Dickinson's nipple through Dickinson's shirt.7
Greco and Dickinson socialized during work hours as well. On
one occasion, Amanda Palamone, the coworker who took the

3

Plaintiff's Statement of Material Facts, R. Doc. 44-1 at

4

Id. at 2.

5

Id. at 2.

6

Greco Deposition, R. Doc. 28-2 at 22-23.

1.

7

Photograph, R. Doc. 28-3; Amanda Palamone Affidavit, R.
Doc. 28-8 at 2.
2

aforementioned photograph, witnessed Greco as he was bending down
to pick up trash from the floor. Palamone states that Greco
turned to look at Dickinson, spanked his own rear end, and asked
Dickinson, "Are you ready for the show?"8 Christina Ingrassia,
another Velvet Cactus server, stated that she witnessed Greco
poking Dickinson in the rear with a broom stick during her
shifts.9 She also stated in her affidavit that "on multiple
occasions," she witnessed Greco calling Dickinson a "fag" and
initiating other sexual jokes.10 Despite witnessing Greco and
Dickinson together on many occasions, neither Ingrassia nor
Palamone ever witnessed Greco asking Dickinson to stop talking to
him or to refrain from making jokes.11
Greco and Dickinson also exchanged a number of text messages
over the course of Greco's employment. Examples of Greco's
messages to Dickinson include:
July 17, 2012: "No doubt thank you baby."12
September 4, 2012: "U left yet?"13

8

R. Doc. 28-8 at 1.

9

Christina Ingrassia Affidavit, R. Doc. 28-7 at 1.

10

Id. at 1.

11

Id. at 1; R. Doc. 28-8 at 1.

12

Dickinson Declaration, R. Doc. 38-2 at 17. See also
Exhibit 4, which contains a record of these text messages. Greco
stated in his deposition that he did not know whether he authored
this text message. R. Doc. 28-2 at 63-64.
13

R. Doc. 38-2 at 17.
3

September 4, 2012 (In response to Dickinson's "Not going
buddy"): "Alrite bud. Next time."14
October 18, 2012: "Outside parleys. U comin?"15
November 22, 2012: "Piddling the poodler...what u doing
snake wrangler"16
November 22, 2012: "U at parleys? ill be ur bf if u can get
in."17
January 12, 2013: Text message containing a photograph of
Greco and reading "Thinking of u ("18
January 19, 2013: "Meet us there. We left."19
The sexual banter between Greco and Dickinson was not a one
way street, however. Dickinson once sent Greco a text message
asking, "Am I a companion that can come over for drinks?" Greco
responded, "Depends on your drink of choice..." to which
Dickinson replied, "Joe juice, lol [laugh out loud]."20 On
another occasion, Dickinson sent Greco a message reading "Hey
buddy. How's your day going? Remember, we are dating now."21
Dickinson stated in his deposition that he thought the message

14

Id.

15

R. Doc. 38-2 at 18; R. Doc. 28-2 at 26.

16

R. Doc. 38-2 at 18. Greco stated at his deposition that
"snake wrangler" was a nickname he came up with for Dickinson. R.
Doc. 28-2 at 28-29.
17

R. Doc. 38-2 at 18; R. Doc. 28-2 at 29-30.

18

R. Doc. 38-2 at 19.

19

Id. Greco was "not sure" if he sent this message. R. Doc.
28-2 at 31.
20

Dickinson Deposition, R. Doc. 44-2 at 59.

21

Id. at 52-53.
4

was funny because an unidentified employee had spread a rumor
about Dickinson and Greco being in a relationship.22 On a third
occasion, Dickinson sent Greco a message that read, "About to
dream about you. LOL."23 Dickinson also admits to once calling
Greco a "douche."24
Dickinson admitted that he "often" touched Greco's penis,
but he insisted that he would do so "in retaliation" after Greco
did the same to Dickinson.25 Dickinson stated that this would
occur "[o]ften . . . . Every time he hit me, I would hit back."26
Dickinson further admits that he once tried to kiss Greco on the
cheek outside of work "as a joke."27 He stated that Greco never
objected when Dickinson touched Greco's penis or tried to kiss
Greco, but he admitted that Greco turned his head "away and then
back toward [Dickinson]" when Dickinson attempted the kiss.28
The Velvet Cactus's Sexual Harassment Policy

22

Id. at 53.

23

Id. at 55.

24

Id. at 56.

25

Id. at 49.

26

Id.

27

Id. at 49-50.

28

Id. at 50.
5

The Velvet Cactus has an employee handbook containing its
sexual harassment policy.29 The handbook defines sexual
harassment and urges employees to promptly report any conduct
constituting harassment "to at least two people who are in a
supervisory or management capacity."30 The handbook also
guarantees employees that their complaints will remain
confidential to the extent possible.31 The date that appears at
the bottom of each page of the handbook is May 29, 2013.32 In his
motion to strike,33 which the Court addressed in a separate
order, Greco asserts that the date listed proves that the
handbook was created after Greco was terminated in March 2013.
Dyer stated in his deposition that the listed date reflects the
date on which the document was last opened.34 Dyer further stated
that the handbook was developed in 2011.35 Regardless of when the

29

R. Doc. 28-10 at 14-15.

30

Id.

31

Id.

32

Id.

33

R. Doc. 40.

34

R. Doc. 45-2 at 4.

35

R. Doc. 44-3 at 31.
6

handbook was created, Greco denies ever receiving a copy of it,36
and Dyer was unsure whether one was given to Greco.37
Defendants submitted a photograph showing a copy of The
Velvet Cactus's sexual harassment policy posted to the office
door in the back of the restaurant.38 The policy shown in the
photograph states in large, bold letters that "Sexual Harassment
is NOT TOLERATED." It defines sexual harassment and encourages
employees to report any harassment to a manager. It further
states, "If your complaint is against your manager or if you feel
uncomfortable reporting the matter to them, please contact
Herbert Dyer" at the listed phone number.39 The policy guarantees
confidentiality to the extent possible and indicates that
employees who make good-faith complaints will not be subject to
retaliation.40 Dyer stated in his affidavit that the policy had
been posted to the office door since the restaurant first
opened.41

36

R. Doc. 28-2 at 9.

37

R. Doc. 44-3 at 24.

38

R. Doc. 28-12; Herbert Dyer Affidavit, R. Doc. 28-16 at

39

R. Doc. 28-12 at 2-3.

40

Id.

41

R. Doc. 28-16 at 2.

2.

7

Greco denies that the policy was posted on the office door
during his employment.42 He admits to seeing another document
explaining The Velvet Cactus's sexual harassment policy on a
bulletin board adjacent to the time clock where he punched in and
out of work each day, but he claims that he never read it.43
The Velvet Cactus also had its employees sign a condensed
list of rules each year.44 The rule sheet Greco signed in
November of 2011 did not refer to the restaurant's sexual
harassment policy, but a second rule sheet, signed by Greco on
December 18, 2012, stated that "[s]exual harassment will not be
tolerated by anyone" and instructed any employee experiencing
harassment to "please see a Manager and we will handle
accordingly."45 Greco stated in his deposition that as a result
of signing the second rule sheet, he understood that he was
supposed to see a manager if he was being sexually harassed.46
Investigation of Dickinson's Conduct
In January 2013, Dyer received an email from an employee
complaining of Dickinson's behavior towards certain identified

42

R. Doc. 28-2 at 5-6.

43

Id. at 6-7.

44

Aimee Sandrock Affidavit, R. Doc. 28-11 at 1; R. Doc. 28-

45

R. Doc. 28-12.

46

R. Doc. 28-2 at 8.

12.

8

employees.47 This prompted Dyer to post a message to The Velvet
Cactus Employee Facebook page that read:
Having a productive work environment is our top priority. We
do not want anyone to ever feel threatened. If anyone feels
they have been a victim of sexual Harassment please contact
me immediately: This will be kept strictly confidential.48
Dyer provided his phone number and personal email address at the
bottom of the message. In response, Dyer claims to have received
two additional letters complaining of Dickinson's inappropriate
behavior as General Manager, one of which was from employee
Freddie Martinez.49 At some point before Greco was terminated,

47

R. Doc. 28-16 at 1.

48

R. Doc. 28-17; R. Doc. 28-16 at 1. The Court considers
this evidence because it is not being introduced for the truth of
the matter asserted; rather, the purpose is to indicate when
Greco would have been on notice of this opportunity to report
Dickinson's allegedly harassing behavior.
49

, R. Doc. 28-16 at 1; R. Doc. 38-2 at 24-30; R. Doc. 44-3
at 46. Dyer states in his affidavit that the original complaint
came from Martinez. In his deposition, he indicated that the
original complaint was anonymous but that he believed Martinez
was the author based on its similarities to Martinez's response
to the Facebook post and because both messages came from the same
email address. Neither party provides details regarding the other
message that supposedly was submitted in response to Dyer's
Facebook post. Martinez indicates in his affidavit that he sent a
letter to Dyer regarding Dickinson in January 2013, but it is
unclear whether he is referring to the initial, anonymous letter
or his response to Dyer's Facebook post. R. Doc. 28-15 at 1.
Plaintiff objected to defendants' Statement of Material
Facts #13, which indicated that Dyer received only two written
complaints. R. Doc. 44-1 at 4. He first argues that the statement
relies on inadmissible evidence (the two letters), despite the
fact that defendants use the evidence for a permissible
purpose–to explain Dyer's process for handling the
complaints–while plaintiff impermissibly relies on the very same
evidence to prove the truth of the matters asserted therein. Cf.
9

Martinez told Greco about his email to Dyer.50 Unlike Martinez,
Greco did not respond to Dyer's request for comment.
Dyer and White met with Dickinson to discuss the
allegations.51 Dyer suspended Dickinson without pay for either
two or three weeks.52 He also met with the managers, who work in
a supervisory position below the GM and Assistant GM.53 During
his suspension, Dickinson would visit the restaurant to prepare
the cash drawers and make bank deposits, but he would leave
before the restaurant opened.54 Dyer and co-owner Rusty White

Brauninger v. Motes, 260 F. App'x 634, 637 (5th Cir. 2007)
(noting that evidence of employee statements relating to sexual
harassment investigation were not hearsay because they were
offered to show what information the employer relied on in making
its decision, and not for the truth of the allegations they
contained).
Greco also contests the assertion that Dyer received only
two letters based on the fact that Dyer later received additional
comments regarding Dickinson's behavior in response to a separate
request, discussed below. That objection is without merit. Greco
relies on these additional employee comments for the truth of the
matters asserted as well, but the Court does not consider this
hearsay evidence on a motion for summary judgment.
Finally, Greco points to portions of Dyer's transcript as
evidence of the falsity of the statement, but he did not provide
the relevant pages.
50

R. Doc. 28-2 at 36.

51

R. Doc. 44-2 at 14-15.

52

R. Doc. 28-16 at 1; Dyer Deposition, R. Doc. 38-2 at 2527 (three weeks); R. Doc. 44-2 at 15-16 (suggesting suspension
was two weeks).
53

R. Doc. 38-2 at 30; R. Doc. 44-2 at 20.

54

R. Doc. 44-2 at 16.
10

then conducted a confidential written survey of each employee
asking whether he or she agreed or disagreed to the reinstatement
of Dickinson as General Manager.55 Of the 43 employees, five,
including Martinez, responded that they did not agree to
Dickinson's reinstatement as GM.56 Greco signed the letter
agreeing to Dickinson's reinstatement without comment.57

White

spoke to two of the employees in person,58 while Dyer spoke to
Martinez.59
Upon Dyer's belief that each employee felt comfortable with
Dickinson's return to the restaurant, Dyer and White spoke to
Dickinson to discuss their expectations upon his return.60
Dickinson was demoted to Assistant GM, while Aimee Sandrock, the
former Assistant GM, was promoted to GM.61 Dickinson's demotion
entailed a pay decrease of approximately $18,000,62 and though he

55

R. Doc. 28-16 at 1; R. Doc. 28-18 at 1.

56

R. Doc. 28-18 at 1: R. Doc. 19; R. Doc. 20.

57

R. Doc. 28-20.

58

R. Doc. 28-18 at 1.

59

R. Doc. 28-16 at 1.

60

Id. at 2.

61

R. Doc. 44-3 at 12-13. Greco argues in his opposition
brief that The Velvet Cactus did not have an Assistant GM before
Dickinson's demotion, but Greco stated multiple times in his
deposition that Aimee was the Assistant GM when he began working
there.
62

R. Doc. 44-1 at 8;
11

retained managerial authority, Sandrock assumed final authority
for all managerial decisions.63
Upon Dickinson's return, Dyer hosted an in-person meeting
with The Velvet Cactus staff. Dickinson issued a public apology
at the meeting, and Dyer instructed the staff to report any
mistreatment or sexual harassment to him or to Sandrock.64 After
Dickinson's return, no one, Greco and Martinez included, reported
any further inappropriate conduct by Dickinson.65
Greco's Termination
Greco stated under penalty of perjury in his EEOC charge
that before his termination, he had never been disciplined or
written up for any reason.66 In fact, his employment was riddled
with disciplinary problems.67 On December 5, 2011, Sandrock
completed an Employee Corrective Action Notice indicating that
Greco had received his "final written warning" for failing to
appear for his shift.68 On February 27, 2012, Greco received
another "final written warning" from Sandrock, which read:

63

R. Doc. 44-2 at 23-25.

64

R. Doc. 28-16 at 2; R. Doc. 44-1 at 7.

65

R. Doc. 28-2 at 41-42; R. Doc. 28-15 at 1.

66

R. Doc. 28-2 at 13.

67

Greco stated that he was told his former disciplinary
writeups "were taken away." R. Doc. 28-2 at 13.
68

Employee Corrective Action Notice, R. Doc. 28-9 at 1.
12

Consistently late after numerous verbal warnings. Next step
employee will be terminated.69
Greco signed this disciplinary notice and admits to discussing
his tardiness with Sandrock.70
On August 24, 2012, Greco received a third written warning
from Sandrock for consuming food that he had been instructed to
throw away.71 The lists of rules that Greco signed in both 2011
and 2012 stated:
No eating while clocked in–this includes chips. Also, if you
are ever caught eating something that is not paid for you
will automatically be terminated. This is considered
stealing. This also includes eating while rolling
silverware.72
Under the "Incident Description" heading, Sandrock wrote:
Next corrective action will be employee will be suspended
[sic] after that employee will be terminated.73
Later, in a space reserved for the supervisor's "personal
improvement plan input and suggestions," Sandrock added:
Spoke to employee about this action. Next time eating will
be terminated if I feel.74

69

Id. at 4.

70

R. Doc. 28-2 at 15-16.

71

R. Doc. 28-9 at 7.

72

R. Doc. 28-12.

73

R. Doc. 28-9 at 7.

74

Id. at 8.
13

Greco admitted to signing this notice, but he denies that
Sandrock ever told him he would be terminated for his next
violation.75 Greco further admits to drinking alcohol at work
while under the age of 21, which he acknowledged was a violation
of the restaurant's rules.76 Greco sent Dickinson a text message
concerning this incident after it apparently became known to
management, taking full responsibility for his actions and
stating that "[i]f anyone is going to get into trouble, it should
be me."77
On March 17, 2013, Sandrock terminated Greco after catching
him eating unpurchased food for the second time.78 In the
comments of termination notice, Sandrock wrote:
Employee was caught eating in back food which was considered
stealing after being written up once before79
Greco admits that he was eating unpurchased food at the
time.80
Allegations of Sexual Harassment

75

R. Doc. 28-2 at 18.

76

Id. at 26-28.

77

Id. at 26-27.

78

Id. at 19; Termination Notice, R. Doc. 28-22; Sandrock
Affidavit, R. Doc. 28-11 at 1-2.
79

R. Doc. 28-22.

80

R. Doc. 28-2 at 20.
14

Approximately one month after his termination, Greco filed a
police report against Dickinson, alleging that Dickinson
committed battery against him between the dates of May 5, 2012
and February 2013.81 Greco then mailed a handwritten letter to
Dyer alleging that he had been sexually harassed by Dickinson
while employed at The Velvet Cactus and complaining that he had
been unjustly terminated.82 Two days later, Greco filed his
formal complaint with the Equal Employment Opportunity Commission
("EEOC"), alleging sexual harassment and discrimination.83 On May
21, 2013, plaintiff filed his verified complaint in this action,

81

R. Doc. 44-11. Again, defendant impermissibly relies on
the report as evidence of the truth of the statements he made to
the police. See United States v. Paladin, No. 12-2098, — F.3d —,
2014 WL 1876989 (1st Cir. May 12, 2014)("Statements in police
reports made by individuals other than the reporting officer ...
constitute hearsay upon hearsay, and are therefore
inadmissible.")(quoting United States v. Walthour, 202 F. App'x
367, 370 (11th Cir. 2006)); accord Martin v. Strain, CIV.A.
08–1197, 2009 WL 1565869, at *1 (E.D. La., June 2, 2009).
82

R. Doc. 28-23. Defendant also impermissibly relies on
this letter for the truth of the allegations it contains.
83

R. Doc. 28-24. The EEOC charge constitutes yet another
piece of hearsay evidence to the extent Greco relies on it for
the truth of its contents. See Stolarczyk ex rel. Estate of
Stolarczyk v. Senator Int'l Freight Forwarding, LLC, 376 F. Supp.
2d 834, 841-42 (N.D. Ill. 2005) (stating that EEOC charges are
presumptively inadmissible and "lack sufficient guarantees of
trustworthiness to be excepted from the hearsay rule.") (quoting
Moffett v. McCauley, 724 F.2d 581, 584 n. 1 (7th Cir. 1984));
accord Johnson v. AutoZone, Inc., 768 F. Supp. 2d 1124, 1134
(N.D. Ala. 2011) (indicating that EEOC charges are inadmissible
for a number of reasons, "including on the basis of relevance, a
Rule 403 balancing test, and hearsay.") (quoting Frazier v. Ind.
Dep't of Labor, No. IP01-0198-C-T/G, 2003 WL 21254424, at *4
(S.D. Ind. Mar. 17, 2003)).
15

alleging sexual harassment and retaliation under Title VII, as
well as battery under Louisiana law.84 Greco alleges that his
termination was pretextual and that the real reason he was fired
was because "he did not submit, and in fact protested and
resisted, the homosexual advances of Scott Dickinson.85 He also
made the following assertions:
[Greco] became aware of a pervasive and hostile pattern of
sexual harassment that permeated The Velvet Cactus. It
centered on the General Manager Scott Dickinson (Dickinson),
who regularly used profanity and frequently made obscene
sexual gestures. Dickinson made frequent homosexual advances
upon Greco and sometimes physically stroked and touched him
and otherwise committed battery upon him. Greco at all times
objected to all these advances and at all times informed
Dickinson of his objection, to no avail. Additionally,
Dickinson periodically escorted underage employees across
the street and bought them alcoholic beverages. This open
and notorious activity was all fairly routine and continued
on a day to day basis.86
Greco stated in his deposition that he "would try to push
[Dickinson] off of [him], try not to let him do the sexual
harassment, or tell him to stop."87 It is not clear from the
portion of the deposition transcript to what incident or
incidents Greco is referring. He admits, however, that during his
18 months of employment at The Velvet Cactus, he never reported
Dickinson's behavior to anyone, including Sandrock, Dyer, or

84

R. Doc. 1.

85

Id. at 1.

86

Id.

87

R. Doc. 28-2 at 21.
16

White, although he dealt with Sandrock regularly and knew who
both Dyer and White were, having seen them before at the
restaurant.88

II.

LEGAL STANDARD
Summary judgment is warranted when "the movant shows that

there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23
(1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.
1994). When assessing whether a dispute as to any material fact
exists, the Court considers "all of the evidence in the record
but refrain[s] from making credibility determinations or weighing
the evidence." Delta & Pine Land Co. v. Nationwide Agribusiness
Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008). All reasonable
inferences are drawn in favor of the nonmoving party, but
"unsupported allegations or affidavits setting forth 'ultimate or
conclusory facts and conclusions of law' are insufficient to
either support or defeat a motion for summary judgment." Galindo
v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); see
also Little, 37 F.3d at 1075.
If the dispositive issue is one on which the moving party will
bear the burden of proof at trial, the moving party "must come
88

R. Doc. 28-2 at 9-10.
17

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). The
nonmoving party can then defeat the motion by either countering
with evidence sufficient to demonstrate the existence of a genuine
dispute of material fact, or “showing that the moving party's
evidence is so sheer that it may not persuade the reasonable
fact-finder to return a verdict in favor of the moving party." Id.
at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in the
record is insufficient with respect to an essential element of the
nonmoving party's claim. See Celotex, 477 U.S. at 325. The burden
then shifts to the nonmoving party, who must, by submitting or
referring to evidence, set out specific facts showing that a
genuine issue exists. See id. at 324. The nonmovant may not rest
upon the pleadings, but must identify specific facts that establish
a genuine issue for trial. See, e.g., id.; Little, 37 F.3d at 1075
("Rule 56 '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.'" (quoting Celotex, 477 U.S. at
322)).
18

"Because the objective of summary judgment is to prevent
unnecessary trials, and because [v]erdicts cannot rest on
inadmissible evidence, it follows that the evidence considered at
summary judgment must be capable of being converted into
admissible evidence." Akers v. Liberty Mut. Grp., 744 F. Supp. 2d
92, 95-96 (D.D.C. 2010) (internal quotation marks omitted)
(quoting Greer v. Paulson, 505 F.3d 1306, 1369 (D.C. Cir. 2007));
see also Cormier v. Pennzoil Exploration & Prod. Co., 969 F.2d
1559, 1561 (5th Cir. 1992) (refusing to consider at the summary
judgment stage a plaintiff's affidavits because they were not
based on personal knowledge and relied on hearsay statements).
"[S]heer hearsay ... counts for nothing on summary judgment."
Greer, 505 F.3d at 1315 (internal quotation marks omitted)
(quoting Gleklen v. Democratic Cong. Campaign Comm., Inc., 199
F.3d 1365, 1369 (D.C. Cir. 2000)).

III. DISCUSSION
A.

Title VII Claims Against Dickinson

A claim under Title VII is enforceable only against an
employer, not an employee. See Franklin v. City of Slidell, 928
F. Supp. 2d 874, 881 (E.D. La. 2013) ("The Fifth Circuit has also
repeatedly held, in spite of the agent provision in Title VII,
that individuals, in particular employees and supervisors, cannot
be held liable under Title VII in either their individual or
official capacities.") (citing Ackel v. Nat'l Commc'ns, Inc., 339
19

F.3d 376, 382 n. 1 (5th Cir. 2003), and Smith v. Amedisys Inc.,
298 F.3d 434, 448 (5th Cir. 2002)).
Greco does not appear to dispute this fact. Accordingly, the
Court dismisses Greco's Title VII claims against Dickinson with
prejudice.
B.

Title VII Claims Against The Velvet Cactus
1. Sexual Harassment

To establish a claim for sexual harassment under Title VII,
a plaintiff must demonstrate that: (1) He is a member of a
protected group; (2) He was the victim of unwelcome sexual
harassment; (3) The harassment was based on sex; (4) The
harassment affected a term, condition, or privilege of his
employment; and (5) His employer knew or should have known of the
harassment and failed to take prompt remedial action. Harvill v.
Westward Communications, LLC, 433 F.3d 428, 434 (5th Cir. 2005).
Following the Supreme Court's decision in Faragher v. City of
Boca Raton, 524 U.S. 775 (1998), and Burlington Ind. v. Ellerth,
524 U.S. 742 (1998), a plaintiff must prove only the first four
elements when the alleged harasser is the plaintiff's supervisor.
See Watts v. Kroger, 170 F.3d 505, 509 (5th Cir. 1999). If a
plaintiff can prove the first four elements, an "employer is
subject to vicarious liability to a victimized employee." Id.
(quoting Faragher, 524 U.S. at 807).
Defendants argue that Greco fails to satisfy the second
prong of the test because the uncontroverted evidence indicates
20

that Dickinson's conduct was not unwelcome. They point to Greco's
numerous text messages to Dickinson, in which Greco indicated
that he was "piddling the poodler," referred to Dickinson as
"baby" and "snake wrangler," and offered to be Dickinson's "bf"
if he could get into Parlay's. They further point to Ingrassia's
affidavit indicating that during her shifts at the restaurant,
she witnessed Greco poking Dickinson in the rear with a
broomstick. She also stated that she witnessed Greco "calling
Dickinson "fag" and initiating other sexual jokes" on "multiple
occasions." Separately, Palamone witnessed Greco bend down, spank
his own behind, and ask Dickinson if he was ready for the show.
On yet another occasion, Greco was photographed attempting to
lick Dickinson's clothed nipple. Greco admits that he never asked
Dickinson to stop texting him. In addition, his statement under
penalty of perjury that he "at all times objected to all [of
Dickinson's] advances and at all times informed Dickinson of his
objection," is inconsistent with the position he takes in his
brief: specifically, that Dickinson liked him and "protected" him
at work "as long as [Greco] acquiesced to the offensive
behavior."89 Greco goes on to argue that he was terminated "as
soon as [he] rejected Mr. Dickinson's sexual advances,"
suggesting that he did not actually do so until some time shortly
before his departure.

89

R. Doc. 44 at 2.
21

The Fifth Circuit defines “unwelcome sexual harassment” as
“sexual advances, requests for sexual favors, and other verbal or
physical conduct of a sexual nature that is unwelcome in the
sense that it is unsolicited or unincited and is undesirable or
offensive to the employee.” Marquez v. Voicestream Wireless
Corp., 115 F. App'x 699, 701 (5th Cir. 2004) (quoting Wyerick v.
Bayou Steel Corp., 887 F.2d 1271, 1274 (5th Cir. 1989)). The
correct inquiry is whether Greco indicated by his conduct that
the alleged sexual advances were unwelcome. Meritor Savings Bank,
FSB v. Vinson, 477 U.S. 57, 58 (1986).
If an employee engaged in the same type of workplace conduct
of which he complains in court, he must "be able to identify with
some precision a point at which [he] made known to [his]
co-workers or superiors that such conduct would hencefore [sic]
be considered offensive." Loftin-Boggs v. City of Meridian, Miss.
633 F. Supp. 1323, 1326-27 & n.8 (S.D. Miss. 1986), aff'd sub
nom. Loftin-Boggs v. Meridian, 824 F.2d 971 (5th Cir. 1987).
After making his objections known to the coworker in question,
the employee's conduct must continue to signal with consistency
that the alleged harassment is unwelcome. If an employee asks a
coworker or supervisor to stop the allegedly harassing conduct
but continues to “engag[e] in behavior similar to that which [he]
claimed was unwelcome and offensive,” his conduct "fails to send
a consistent signal" that the defendant's actions are unwelcome.
See Ryan v. Capital Contractors, Inc., 679 F.3d 772 (8th Cir.
22

2012) (observing that the defendant's conduct was not clearly
unwelcome, notwithstanding the plaintiff's assertion that he
repeatedly asked the defendant to stop, when both parties
participated in name-calling and physical horseplay with one
another); Scusa v. Nestle U.S.A. Co., Inc., 181 F.3d 958, 966
(8th Cir. 1999) (upholding a grant of summary judgment where the
plaintiff yelled and swore at her co-workers in the same manner
that she claimed constituted harassment). In Loftin-Boggs, the
plaintiff had submitted a grievance regarding her coworker's
alleged harassment, but the Court ruled against her because "the
evidence did not show that her conduct or her reaction to others'
conduct changed subsequently."90 Id. See also Dufrene v.
Pellittieri, CIV. A. 95-3806, 1996 WL 502459, at *4 (E.D. La.
Sept. 4, 1996); Badii v. Rick's Cabaret Int'l, Inc.,
3:12-CV-4541-B, 2014 WL 550593, at *24 (N.D. Tex. Feb. 11, 2014)
(applying the same standard). Similarly, a district court judge
in New York granted summary judgment for a Title VII defendant
because the totality of the plaintiff's conduct, including a
persistent stream of flirtatious emails, belied her assertions

90

Loftin-Boggs was decided after a trial rather than on a
motion for summary judgment, which allowed the judge to make
credibility assessments in reaching his conclusion. Nonetheless,
his reasoning is equally persuasive in the context of a motion
for summary judgment. The question simply becomes whether there
is a genuine factual dispute as to whether Greco has identified a
specific point in time at which he indicated that Dickinson's
conduct was no longer welcome and whether Greco's behavior going
forward was consistent with that message.
23

that her coworker's conduct was unwelcome, despite the fact that
she claimed to have objected to his advances. See Zhao v. Kaleida
Health, No. 04-CV-467-JTC(JJM), 2008 WL 346205, at *4-7 (W.D.N.Y.
Feb. 7, 2008) (quoting Loftin-Boggs).
The Court accepts as true Greco's unsubstantiated allegation
that he objected to Dickinson's advances. Nevertheless, summary
judgment is appropriate because the uncontroverted evidence
demonstrates that Greco's behavior "failed to send a consistent
signal that [Dickinson's] conduct was unwelcome." Ryan, 679 F.3d
at 779. As discussed above, "unwelcome," harassment must be both
(1) unsolicited or unincited and (2) undesirable or offensive to
the employee. Wyerick, 887 F.2d at 1274. Even accepting Greco's
assertions that Dickinson's conduct was undesirable or offensive
to him, the totality of Greco's conduct failed to signal that
fact. Rather, the uncontroverted evidence paints a picture of a
good-natured relationship characterized by frequent, joking
sexual banter and touching. Nor can it be said that Dickinson's
advances were unsolicited or unincited. Nowhere in the record
does Greco dispute Dickinson's assertion that he would touch
Greco's genitals "in retaliation" for Greco doing the same. Greco
does not deny the allegations relating to his own participation
in the sexual banter; nor does he attempt to explain why his
conduct would not signal his acceptance of Dickinson's advances.
Turning to the standard discussed in Loftin-Boggs, Greco
does not identify a particular point at which he clearly
24

indicated that, going forward, Dickinson's conduct would be
considered offensive. Id. at 1327 n. 8. Although Greco's selfserving statements in the verified complaint indicate that he
objected constantly, he also claims that he acquiesced to
Dickinson's advances until shortly before his termination. Cf.
Zhao, 2208 WL 346205, at *6 (plaintiff's claim that she submitted
to her coworker's advances out of fear contradicted her claim
that she "repeatedly rejected" his advances). Moreover, the
remainder of the uncontroverted evidence shows that Greco's
behavior towards Dickinson was inconsistent with his alleged
objections throughout the duration of his employment.
The Fifth Circuit's decision in Wyerick is distinguishable
and does not undermine the Court's conclusion that summary
judgment is appropriate. In Wyerick,91 the plaintiff had been
subjected to "an onslaught of sexual remarks and gestures" from
numerous male coworkers and supervisors at her job as a steel
plant crane operator after she had been forced to remove her
shirt in public during a medical emergency. 887 F.2d at 1272. The
sexual comments often made specific reference to the incident,
occurred up to two or three times per day, and continued even
after Wyerick filed suit, despite the fact that she reported the
harassment to management on four separate occasions. Id. The
Fifth Circuit concluded that summary judgment was not warranted

91

Wyerick involved a sexual harassment claim brought under
Louisiana law, but the considerations are identical.
25

simply because the plaintiff had made, "at most, three sexual
comments," which were "limited replies" to her coworkers' insults
over a two-year period. Id. at 1272-73 & n.4, 1275.
Whether a defendant's conduct is welcome indeed may in some
cases be an "intensely factual inquiry" that "turns largely on
credibility determinations," Wyerick, 887 F.2d at 1275, but that
does not preclude summary judgment when, accepting as true the
plaintiff's sworn assertions, the uncontroverted evidence still
demonstrates that the plaintiff solicited or incited the alleged
harassment.92
Accordingly, the Court concludes that Greco has failed to
demonstrate a genuine issue of fact as to whether Dickinson's
conduct was unwelcome. The Court grants defendants' motion for
summary judgment against Greco's sexual harassment claim.

92

This case is likewise distinguishable from cases holding
that a plaintiff's use of foul language or sexual innuendo in an
unrelated, consensual setting conclusively demonstrates that he
or she is "the kind of person" who would welcome the same type of
behavior from a coworker in the workplace. See Swentek v. USAIR,
Inc., 830 F.2d 552, 557 (4th Cir. 1987); Burns v. McGregor Elec.
Indus., Inc., 989 F.2d 959, 963 (8th Cir. 1993). It is equally
distinguishable from cases in which a plaintiff participates in
good-natured, albeit crude, joking among coworkers but then is
subjected to "intensely personal and demeaning remarks" from a
particular employee. See E.E.O.C. v. Fairbrook Med. Clinic, P.A.,
609 F.3d 320, 329 (4th Cir. 2010).

26

ii. Retaliation
Greco also asserts a Title VII claim for retaliation based
on his termination from The Velvet Cactus. To establish a prima
facie case of retaliation, the plaintiff must establish that: (1)
he participated in an activity protected by Title VII; (2) his
employer took an adverse employment action against him; and (3) a
causal connection exists between the protected activity and the
adverse employment action. McCoy v. City of Shreveport, 492 F.3d
551, 556-57 (5th Cir. 2007). Once the plaintiff makes a prima
facie case, "the burden then shifts to the defendant to
demonstrate a legitimate nondiscriminatory purpose for the
employment action." Pineda v. United Parcel Serv., Inc., 360 F.3d
483, 487 (5th Cir. 2004). If the defendant meets this burden,
then the "the plaintiff must prove that the employer's stated
reason for the adverse action was merely a pretext for the real,
discriminatory purpose." Id.
Greco admits that he never reported the alleged harassment
to a manager or supervisor. The "protected activities" to which
Greco refers are his alleged complaints directly to Dickinson, as
well as his complaint to Dyer one month after his termination.
Defendants argue that Greco has failed to present evidence that
he engaged in a protected activity or that there was a causal
connection between that activity and his termination.

27

Even assuming that Greco's complaints qualify as "protected
activities," he has failed to establish a nexus between the
complaints and his termination. First, it would have been
impossible for Sandrock to terminate Greco based on his complaint
to Dyer, as it had not yet occurred. Second, Greco has presented
no evidence that Sandrock knew of Greco's alleged complaints to
Dickinson before she fired him. Greco never informed Sandrock of
the harassment, and other than pointing out that Dickinson and
Sandrock were roommates at the time, he provides no evidence
suggesting that Dickinson instructed or encouraged Sandrock to
terminate Greco. Moreover, Sandrock stated in her affidavit that
(1) Dickinson did not have any influence over her decision to
terminate Greco; (2) Greco never reported any harassment to her
during his employment; and (3) at the time of Greco's
termination, she was unaware that Greco felt he had been sexually
harassed by Dickinson.93 Rather, the evidence, including her own
sworn statements, indicates that she terminated Greco for
violating the restaurant's rule against eating unpurchased food,
consistent with her previous written warning. Moreover, Greco's
termination occurred roughly one and a half months after
Dickinson's initial suspension.
Greco argues that the stated reason for his termination was
pretextual, because, as Dickinson admitted in his deposition, he

93

R. Doc. 28-11 at 2.
28

frequently observed employees consuming food on their shifts but
rarely disciplined them.94 Overlooking that Dickinson's
disciplinary practices say nothing about Sandrock's views on the
subject, the fact remains that Greco had a lengthy disciplinary
history

including multiple "final warnings" throughout the

course of his employment. Moreover, Greco may argue that his
termination was pretextual only if he first establishes a prima
facie case of retaliation. Until he does so, The Velvet Cactus is
not obligated to explain its reasons for his termination. Because
Greco has failed to present any facts indicating the existence of
a nexus between his alleged rejection of Dickinson's advances and
Sandrock's decision to terminate him, he has not demonstrated a
genuine issue of fact as to his prima facie case. Accordingly,
the Court grants summary judgment dismissing this claim.
C.

Plaintiff's State Law Claims

Greco asserted a state law claim for battery against
Dickinson in the verified complaint.95 He now argues that he also
asserted state law sexual harassment claims, as well as a claim
for assault, but these claims do not appear on the face of the
complaint. The Court declines to exercise jurisdiction over the
battery claim and any other state-law claims that may exist. See

94

R. Doc. 44-2 at 61-62, 69-71.

95

29

Chavers v. Hall, 488 Fed. App'x 874, 878 (5th Cir. 2012) (“When
all federal claims are dismissed or otherwise eliminated from a
case prior to trial, we have stated that our general rule is to
decline to exercise jurisdiction over the pendent state law
claims.”) (internal citations and quotation marks omitted);
Parker & Parsley Petroleum Co. v. Dresser Indus., 972 F.2d 580,
585 (5th Cir. 1992) (“Our general rule is to dismiss state claims
when the federal claims to which they are pendent are
dismissed.”).
IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS defendants'

motions for summary judgment, dismissing all federal claims with
prejudice and all state-law claims without prejudice.

27th
New Orleans, Louisiana, this ______ day of June, 2014.
______________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

30