Trotta v. Cajun Conti LLC et al

Filing 67

ORDER & REASONS granting 57 Motion for Summary Judgment. Signed by Judge Sarah S. Vance on 1/13/2017. (mmm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOSEPH TROTTA

CIVIL ACTION

VERSUS

NO. 15-1186

CAJUN CONTI, LLC, ET AL

SECTION “R” (2)

ORDER AND REASONS
Defendants Cajun Conti, LLC and Cajun Bourbon, LLC move 1 for
summary judgment on Plaintiff Joseph Trotta’s retaliation claim under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, 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 prima facie case of retaliation and the Court GRANTS
defendants’ motion.

I.

BACKGROUND
This case arises from the termination of Joseph Trotta’s employment

with defendants Cajun Conti, LLC, and Cajun Bourbon, LLC. Defendants are

1

R. Doc. 57.

two restaurants in the French Quarter in New Orleans, Louisiana.2 In March
of 2013, plaintiff was hired as an at-will employee to work as a manager at
both restaurants. While employed by defendants, plaintiff reported directly
to Ramsey Dibeh, the Director of Operations for defendants,3 and then to
Rami Badr, the Vice President of Operations for defendants.4 On August 3,
2014, Dibeh notified Trotta that his employment with defendants was
terminated. 5 Trotta filed this suit on April 14, 2015. 6
The parties dispute why Trotta was terminated. Defendants submit the
sworn declarations of Rami Badr and Ramsey Dibeh, who attest, and Trotta
does not dispute, 7 that throughout the duration of Trotta’s employment,
Trotta was frequently reprimanded for various performance issues. 8 Badr
and Dibeh also attest that in early August, 2014, they learned that a former
employee filed a charge of discrimination with the Equal Employment

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 Joseph 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 Rami Badr); R. Doc. 57-9
(Declaration of Ramsey Dibeh).
2
2

Opportunity Commission that alleged that Trotta sexually harassed her.9
Therefore, defendants assert that Trotta was fired because another employee
accused Trotta of sexual harassment and because he frequently displayed
poor work performance, including but not limited to:
(1) failing to keep the stove and kitchen clean and sanitary under
his management, (2) failing to ensure items were put away in the
kitchen, (3) failing to maintain the courtyard, (4) failing to
restock the kitchen, (5) failing to maintain quality food
presentations, (6) failing to provide good customer service under
his management, (7) failing to communicate with his co-workers,
(8) demonstrating 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
$100 on his shift. 10
Trotta argues that his performance issues and the sexual harassment claim
are pretextual and that Trotta was actually terminated because he gave a
statement to the EEOC regarding defendants’ termination of another
employee, Arthur Alexander.11
According to Trotta’s declaration, on or about June 2, 2014, Dibeh
instructed Trotta to terminate Alexander, despite Trotta’s belief that
Alexander had done nothing wrong.12 After Alexander’s termination, on

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
9

10

June 24, 2014, Alexander filed an EEOC charge of discrimination against
Cajun Bourbon, alleging that he was discriminated 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
involvement with Alexander’s claim besides coworker Neely Hargis,15 and
Hargis testified at his deposition that he told no one of Trotta’s
involvement.16 Trotta also acknowledged that he had no evidence that
defendants knew of his involvement with Alexander’s claim when he was
terminated. 17 Dibeh, Badr and Tiffany Thoman, the Executive Administrator
and corporate deponent for defendants, all attest that they did not become
aware of Trotta’s involvement in the Alexander charge until after Trotta was
terminated. 18

Thoman also testified in her deposition that defendants

became aware of Alexander’s EEOC claim on the same day they became
aware that Trotta was accused of sexual harassment. 19

13
14
15
16
17
18

10.

19

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 ¶
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 amended, 42 U.S.C. § 2000e, et seq.
Defendants now move for summary judgment.

II.

LEGAL STANDARD
A.

Summary Judgment

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); 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 refrains from
making credibility determinations or weighing the evidence.” Delta & Pine
Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (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) (quoting Wright & Miller, Fed. Prac. and
Proc. Civ.2d § 2738 (1983)).
5

If the dispositive issue is one on which the moving party will bear the
burden of proof at trial, the moving party “must 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 omitted). The nonmoving party
can then defeat the motion by either countering with sufficient evidence of
its own, 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. Id. at 325; see also 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
6

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 332).
B.

Retaliation Under Title VII

In addition to prohibiting discrimination in employment on the basis
of race, color, religion, sex, or national origin, Title VII also makes it unlawful
for an employer to discriminate against an employee who has opposed an
employment practice made unlawful by Title VII, 42 U.S.C. § 2000e-3(a). In
order to state a prima facie retaliation claim, a plaintiff must allege “(1) that
[he] engaged in activity protected by Title VII, (2) that an adverse
employment action occurred, and (3) that a causal link existed between the
protected activity and the adverse action.” Raggs v. Miss. Power & Light Co.,
278 F.3d 463, 471 (5th Cir. 2002).
The Fifth Circuit has held that if the plaintiff does not have direct
evidence of retaliation, then the McDonnell Douglas burden-shifting
framework applies to the retaliation claim. See, e.g., Satterwhite v. City of
Houston, 602 F. App’x 585, 587 (5th Cir. 2015) (citing Byers v. Dallas
Morning News, Inc., 209 F.3d 419, 427 (5th Cir. 2000). If the plaintiff makes
a prima facie showing, the burden shifts to the defendant to articulate a
legitimate, non-retaliatory reason for the adverse employment action. See
Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir. 2008). If
7

the defendant meets 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 prima facie case cannot
survive a summary judgment challenge. Byers, 209 F.3d at 427.
III. DISCUSSION
Defendants’ motion for summary judgment argues that Trotta cannot
make out a prima facie retaliation claim, and that even if Trotta has
established a prima facie claim, Trotta cannot establish that defendants’
stated reason for termination was pretextual.
A.

Trotta’s Prima Facie Claim
1.

Protected Activities

Trotta attests that he gave a declaration to the EEOC on behalf of
former 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. § 2000e-3(a) (making it unlawful for an employer
to discriminate against anyone who has “made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or hearing

R. Doc. 57-1 at 7 n.38 (“Defendants will not dispute that Plaintiff
engaged in protected activity under Title VII.”).
8
20

under this subchapter”). Thus, Trotta has established the first element of his
prima facie case of retaliation.
2.

Materially Adverse Employment Action

Next, Trotta must show that defendants took an “adverse employment
action” against him. Aryain, 534 F.3d at 484. In the retaliation context, a
plaintiff must show that a reasonable employee would have found the
challenged employment action “materially adverse.” Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). An employment action is
materially adverse if “it well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Id. (citations and internal
quotation marks omitted). An employment action is not materially adverse
if it amounts only to “petty slights or minor annoyances that often take place
at work and that all employees experience.” Id.
Trotta asserts that the defendants engaged in two retaliatory acts: (1)
reassigning Trotta to work the kitchen at Oceana Grill between late June and
August of 2014; 21 and (2) terminating Trotta’s employment. Defendant

Trotta states in his opposition brief that he was reassigned on
June 30, 2014. R. Doc. 62 at 6; R. Doc. 62-1 at 4 ¶ 5. His declaration,
however, does not mention the reassignment and Trotta gave conflicting
deposition testimony on when the reassignment took place. Compare R.
Doc. 62-4 at 3 (when asked when he reassigned, Trotta responds “It was, I
believe, in–maybe started in June of–I don’t remember the year, 2014
probably) with R. Doc. 57-5 at 50 (when asked if he was reassigned in July,
9
21

concedes that Trotta’s termination was an adverse employment action but
disputes that Trotta’s reassignment was adverse. 22 Therefore, while it is clear
that Trotta suffered adverse employment action, because temporal proximity
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. 2001), the Court must resolve whether Trotta’s
reassignment was adverse to determine 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 move for twelve hours while in his
new position, and that defendants previously used a transfer to the kitchen
as a form of punishment for another employee. 23 Trotta also points to the
deposition testimony of Neely Hargis, who testified that while at Oceana,
Trotta was treated differently than other managers and that Hargis
witnessed Trotta standing in one position for extended periods of time.24

Trotta responds “I believe that’s true,” and when asked if it was correct to say
that Trotta was assigned at Oceana between July and August of 2014, Trotta
responds “yes, I believe so.”). Therefore, the exact date of Trotta’s
reassignment 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 email in the record from Dibeh to Trotta sent on
February 4, 2014, 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 2014, 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 manager,28 and that Trotta
admitted 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
complained of must be materially adverse in that the action “might well have
dissuaded a reasonable worker from making or supporting a charge of
discrimination.” White, 548 U.S. at 68. Further, the Court has noted that
“[c]ontext matters” and that whether an action is materially adverse will
depend upon the particular circumstances of the employee and the case. Id.
at 69. Additionally, the Fifth Circuit has noted that a “lateral reassignment
to a position with equal pay could amount to a materially adverse action in
some circumstances,” 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 more arduous or less prestigious, whether the new position had
worse hours, whether it would objectively be viewed as a demotion or as
embarrassing, and whether the new position stripped the employee of
“significant responsibilities.” Aryain, 534 F.3d at 485 (citations omitted); see
also Serna v. City of San Antonio, 244 F.3d 479, 485 (5th Cir. 2001).
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
reassignment to the kitchen at Oceana was a materially adverse action. The
evidence suggesting that Trotta was made to stand in one place for twelve
hours is undercut by Trotta’s own admissions that he never actually stood in
one place for twelve hours at a time and that while he was working in the
kitchen he was also working in the restaurant itself for at least part of the
time.30 And while Trotta may certainly have been standing in one place for
a period of time while at Oceana, this is not uncommon for employees in a
kitchen. The Fifth Circuit has held that physical activity which is routine to
a job does not automatically make a transfer to that job materially adverse.
See Aryain at 486 (finding assignment to position in which employee would
need to constantly pick up, lift, and carry supplies not materially 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. 2016).
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 employee to the kitchen as a punishment and Dibeh’s February
email threatening to keep Trotta in the kitchen, in light of the competing
evidence in the record that Trotta himself requested to be in the kitchen at
that time, do not create a genuine issue of material fact as to whether the
reassignment was materially 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 embarrassing, the
he objected to his transfer at the time, or that he was stripped of significant
responsibilities. Id.; see also Aryain, 534 F.3d at 485. Given that Trotta
initially requested to work in the kitchen, that he viewed the time there as
valuable, and that his schedule, full-time status and salary were unchanged,
the record as a whole does not indicate a genuine issue of material fact that
this reassignment would cause a reasonable worker to be dissuaded from
supporting a charge of discrimination, White, 548 U.S. at 68, and therefore

31

R. Doc. 57-5 at 41-42.
13

his reassignment to the kitchen was not an adverse employment action. See
Bumbarger v. New Enterprise Stone and Lime Co., Inc., 170 F. Supp. 3d 801,
849 (W.D. Pa. 2016) (granting summary judgment on plaintiff’s retaliation
claim because transfer to new position so that plaintiff could receive
requested training was not materially adverse); Hyde v. K.B. Home, Inc., 355
F. App’x 266, 270 (11th Cir. 2009) (finding that reduction in responsibility
alone does not amount to adverse employment action).
Still, his termination was certainly adverse, so the Court will proceed
to the third element of the prima facie case.
3.

Causation

Trotta must also demonstrate a causal connection between his
protected activity and his termination. In establishing the causal link, Trotta
is not required to show that his protected activity was the “sole factor
motivating the employer’s challenged decision,” Gee v. Principi, 289 F.3d
342, 345 (5th Cir. 2002), but the plaintiff must produce some evidence
showing that “the employer’s decision to terminate was based in part on
knowledge of the employee’s protected activity.”

Sherrod v. American

Airlines, Inc., 132 F.3d 1112, 1122 (5th Cir. 1998). Dibeh, Badr, and Thoman
all attest that they had no knowledge of Trotta’s involvement in Alexander’s

14

EEOC claim until after Trotta was terminated.32 Trotta does not dispute that
he did not tell Dibeh or Badr of his involvement with Alexander’s claim
before his termination, 33 Trotta admits that he told only Hargis of his
involvement,34 and Hargis testified at his deposition that he did not tell
anyone of Trotta’s involvement in Alexander’s claim. 35 Finally, Trotta admits
that he has no evidence that either Dibeh or Badr knew of his protected
activity before his termination.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 time of his termination.
In an attempt make up for this lack of evidence, Trotta relies primarily
on the temporal proximity of his statement to the EEOC on June 24, 2014
and his termination on August 3, 2014, alleged inconsistencies relating to
when defendants became aware of the complaints of both Alexander and the
employee who accused Trotta of sexual assault, as well as a statement
allegedly made to Trotta by Alexander before his termination, and by Badr
to Trotta after his termination.37

32

10.

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.

34
35
36
37

15

At the outset, plaintiff is wrong to suggest that temporal proximity
alone is sufficient to establish the third element of the prima facie case. It is
true that the Fifth Circuit considers the temporal proximity between
protected activity and adverse employment actions in determining if a causal
link exists, see, e.g., Evans, 246 F.3d at 354; Strong v. Univ. Healthcare Sys.,
L.L.C., 482 F.3d 802, 808 (5th Cir. 2007), but the Fifth Circuit has also
repeatedly (as well as recently) found that temporal proximity by itself is not
sufficient to establish the causal link for the third element of the prima facie
case. See Zaffuto v. City of Hammond, 308 F.3d 485, 493-94 (5th Cir. 2002)
(finding that despite temporal proximity 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 material fact as
to issue of causal connection); Thompson v. Somervell Cty., Tex., 431 F.
App’x 338, 342 (5th Cir. 2011) (per curiam) (“[E]ven at the prima facie stage,
temporal proximity can only establish a causal link when it is connected to
the decision maker’s knowledge of the protected activity.”); Chen v. Ochsner
Clinic Found., 630 F. App’x 218, 226 (5th Cir. 2015) (per curiam) (“[S]ince
‘[t]he record contains nothing connected the allegedly protected activity and
the alleged retaliation,’ mere proximity in time, without more, cannot
establish a prima facie case.” (citing Zaffuto, 308 F.3d at 493)); see also
16

Butler v. Shinseki, No. 10-0857, 2011 WL 3419619, at *7 (E.D. La. Aug. 4,
2011) (stating that “under Fifth Circuit law, a plaintiff cannot rely solely on
temporal proximity to establish [his or] her prima facie case”). Additionally,
the Supreme Court has suggested that mere temporal proximity alone,
without evidence of the employer’s knowledge of the protected activity,
cannot establish the causal link. See Clark Cty. Sch. Dist. v. Breeden, 532
U.S. 268, 273 (2001) (stating that “[t]he cases that accept mere temporal
proximity between an employer’s knowledge of the protected activity and
an adverse employment action as sufficient evidence of causality to establish
a prima facie case . . .”).
The cases cited by plaintiff in opposition, Evans v. City of Houston and
Richard v. Cingular Wireless LLC, 233 F. App’x 334 (5th Cir. 2007), merely
establish, as acknowledged above, that temporal proximity is relevant for the
third element of the prima facie case. But neither Evans nor Cingular stand
for the proposition that temporal proximity alone satisfies the causal
element, and both Evans and Cingular had evidence in the record that the
employer had knowledge of the protected activity. See Evans, 246 F.3d at
352 n.7 (noting that city was aware of employee’s testimony about racial
discrimination 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 termination because plaintiff had complained to
Cingular’s internal Ethics Line about purported racial discrimination before
his termination). Therefore, in light of the above case law, the Court does not
find that the temporal proximity of 40 days between Trotta’s protected
activity and his termination alone satisfies the third element of the prima
facie case.
The Fifth Circuit has also repeatedly held that to establish a prima facie
retaliation claim, plaintiffs must show at least some evidence that the
decisionmakers 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. 2003); see also, e.g., Medina v. Ramsey Steel Co.,
238 F.3d 674, 684 (5th Cir. 2001); Stephens v. Erickson, 569 F.3d 779, 788
(7th Cir. 2009) (“Clearly, a superior cannot retaliate against an employee for
a protected activity about which he has no knowledge.”). As described above,
Dibeh, Badr, and Thoman all attest to their lack of any knowledge of Trotta’s
protected activity before his termination, and Trotta has put forth no direct
evidence (and has conceded he has none) of their knowledge before his
termination.

Trotta also does not argue that there were other

decisionmakers responsible for his termination. Instead, Trotta suggests
that the Court should reject the evidence in the record and infer defendants’
18

knowledge based on 1) an alleged statement from Alexander to Trotta on
approximately July 25, 2014 that his EEOC claim was going to mediation; 38
2) alleged inconsistencies over when defendants became aware of the EEOC
complaints;39 and 3) a statement by Badr to Trotta three days after Trotta
was terminated.40 None of these create a reasonable inference that the
decisionmakers knew of Trotta’s protected activity before he was terminated,
especially in light of the other evidence in the record.
First, Trotta relies on Alexander’s alleged statement for the truth of the
matter asserted and is therefore hearsay and not competent summary
judgment evidence. See Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245
F.3d 507, 510 n.5 (5th Cir. 2001) (“[b]ecause these statements are hearsay,
they are not competent summary judgment evidence”); see also Fed. R. Civ.
P. 56(c)(2) (“a party may object that the material cited to support or dispute
a fact cannot be presented in a form that would be admissible in evidence”).
There is no testimony from Alexander in the record, or any other competent
evidence in the record showing that Alexander’s case was set for mediation
by July 25, 2014. 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 mediation in late July does not suggest the defendants were
aware of Trotta’s involvement in Alexander’s case.
Because Alexander’s statement is hearsay, Trotta also cannot rely on it
to argue that Thoman’s deposition testimony 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 harassment claim against Trotta before August, and therefore Dibeh,
Badr, and Thoman’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. §
1601.14. Though Trotta submits a copy of Alexander’s charge with his
opposition to this motion, 42 Trotta does not provide any documentary
evidence of defendants’ actual receipt of the charge. While it may be true
that defendants should have been notified, there is competent evidence in
the record indicating that they were not notified within 10 days.43 Trotta
provides no basis to reject Thoman’s sworn deposition testimony 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
involvement. Trotta points to nothing suggesting that notice of Alexander’s
claim included information about Trotta’s involvement. Indeed, Alexander’s
claim itself makes no mention of Trotta’s involvement in giving a declaration
in support of Alexander.45
Finally, Trotta points to a meeting he had with Badr three days after he
was terminated to suggest that Badr was aware of his protected activity.
Trotta testified that after Dibeh terminated him, Trotta sent a text message
to Badr expressing his belief that he was terminated because of his statement
to the EEOC. 46 Trotta did not name Alexander in the text. 47 Three days after
Trotta was terminated, Trotta met with Badr, and according to Trotta’s
testimony Badr brought up Alexander (despite Trotta’s not naming him in
the text or mentioning his name) and asked Trotta “why didn’t you just come
to me 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 mean why didn’t I come 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 meant
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 termination. By the time the meeting
between Badr and Trotta occurred, Trotta had already been terminated, he
already texted Badr that he believed he was terminated because of his
involvement in an EEOC claim, and defendants had been made aware that
they had two EEOC claims against them, one which was a complaint against
Trotta. Moreover, Trotta admitted in his deposition that he did not have “any
information or any evidence that Rami [Badr] knew that [Trotta] had been
interviewed by the EEOC before [Trotta] sent th[e] text message.”50
Again, Dibeh, Badr, and Thoman all swear that they were not aware of
Trotta’s involvement before his termination. Trotta admits that he has no
direct evidence that any of them were aware of his involvement. Trotta’s
arguments regarding temporal proximity 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.
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evidence attesting to their lack of knowledge, there is no genuine issue of
material fact as to any causal link between the protected activity and the
adverse employment action, 51 and Trotta cannot make out a prima facie
case.52 Summary judgment is thus appropriate in defendant’s favor. See
Manning, 332 F.3d at 883-84 (affirming summary judgment when plaintiff
could not establish causal link in retaliation case because plaintiff’s evidence
did not show that decisionmakers were aware of protected activity before the
adverse action); Butler, 2011 WL 3419619, at *7 (granting summary
judgment 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).

Because of the total lack of evidence as to the defendants’
knowledge, Trotta would still not be able to make out his prima facie case
even assuming arguendo that his transfer to the kitchen was an adverse
employment action.
52
Because Trotta cannot make out a prima facie case, the Court will
not address whether defendants had a legitimate, non-retaliatory reason for
Trotta’s termination or if any legitimate reason is a pretext for the actual
retaliatory reason. See, e.g., Butler, 2011 WL 3419619, at *7.
23
51

IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS defendants’ motion.

13th
New Orleans, Louisiana, this _____ day of January, 2017.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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