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Trotta v. Cajun Conti, LLC

United States District Court, E.D. Louisiana

January 13, 2017


         SECTION “R” (2)



         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 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 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 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]

         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.


         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)).

         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 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 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.


         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 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 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] 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 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, ...

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