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Lusco v. DAE Industries

United States District Court, W.D. Kentucky, Louisville Division

September 16, 2019




         This matter comes before the Court on Defendant DAE Industries' Motions to Dismiss, [DE 40], and for Summary Judgment, [DE 46]. Plaintiff Bryan Dejuan Lusco (“Lusco”) responded to the Motions [DE 44, 48], and Defendant submitted replies [DE 45, 49]. These matters are ripe. For the reasons below, the Court GRANTS Defendant's Motion for Summary Judgment [DE 46] and DENIES AS MOOT Defendant's Motion to Dismiss [DE 40].


         DAE Industries (“DAE”) employed Lusco, an African American. Lusco alleges that DAE “terminated” his job “for reporting the harassment, and threats of [his] white Supervisor Steven Tuttle to the company.” [Complaint, DE 1 at 5].

         In his deposition, Lusco stated that he worked as an assembler. [Depo. of Bryan Dejuan Lusco, dated Aug. 28, 2018, DE 46-2 at 484]. However, as part of his job, Lusco would sometimes go on “road trips” for DAE, where he would report to Steve Tuttle, a Caucasian Crew Supervisor. [Id.]. In May 2017, Lusco and Tuttle drove from Louisville, Kentucky to Lake Charles, Louisiana on DAE business with Daquez Duncan and Jermaine Boyd, two other assemblers who are both African American. [Id. at 486]. They drove to Lake Charles in a DAE-owned vehicle and stayed in a hotel near the work-site. [Id. at 486-87]. Jason Bruce, the Project Manager for the Lake Charles project, traveled to Lake Charles separately and stayed in a different, nearby hotel. [Id.].

         While in Lake Charles, Lusco, Duncan, and Boyd went to dinner. [Id. at 486]. After dinner Duncan recorded a video later posted on Facebook (the “Facebook Video”). [Id. at 486; DE 46 at 458; Ex. G]. In that video, Duncan says, “I'm f***ed up, ” calls Boyd “lit, ” says that one of the parties has “had one too many cold ones, ” and suggests that the group is “just riding around getting high and f***ed up.” [DE 46 at 459]. Boyd also states that “[Lusco] been shootin up, so he got his long sleeves on.” [Id. at 458].

         Later in the video, Duncan gets into the front seat of the DAE-owned vehicle, turns the ignition, and states that he “need[s] to stop drinking.” [DE 46 at 459]. Lusco asserts, however, that Duncan never operated the vehicle, and that Lusco was the sole driver of the DAE vehicle that evening. [DE 46-2 at 487-88]. Lusco further asserts that “everybody knows I take 21 pills a day and that I am the designated driver and I don't drink.” [Id. at 490]. The next day, Lusco, Boyd, and Duncan told others at the work-site, including Bruce, about “how hard they had partied on Friday night [and] about various bars they visited, various drinks they shared and the fun they had at strip clubs.” [Decl. of Jason Bruce, dated Aug. 30, 2018, DE 46-1 at 471].

         A few days later, there was a slight drizzle, and after Tuttle described to Lusco, Boyd, and Duncan the work what needed to be done, they said, “N[o] we have told you since we got here that we are not going to work in the rain.” [Decl. of Steve Tuttle, dated Aug. 31, 2018, DE 46-3 at 501]. Tuttle did not want to “listen to the mouth” while he was onsite, so he drove Lusco, Boyd, and Duncan back to the hotel and then returned to the work-site. [Id.] Tuttle and Bruce remained onsite and worked until about 6:30 p.m. [Id.].

         On that same day, David Brodfehrer, Operations Director at DAE, learned about and reviewed the Facebook Video. [Decl. of David Brodfehrer, dated Sept. 27, 2018, DE 46-4 at 504- 05]. After reviewing the video, Bodfehrer “advised [Tuttle and Bruce] that under no circumstances were Mr. Lusco, Mr. Duncan or Mr. Boyd to access or operate the DAE truck.” [Id. at 505]. Tuttle returned to the hotel and informed Lusco, Boyd, and Duncan that they were not permitted to operate the DAE vehicle. [DE 46-3 at 498-99]. According to Tuttle, Lusco, Boyd, and Duncan “got upset and angry when I told them they could not use the Company vehicle, ” and Tuttle “felt threatened by Mr. Lusco who was the most boisterous out of the three individuals.” [Id.].

         During the incident Tuttle called Bruce and “placed [him] on speaker phone, ” from which Bruce could “hear screaming and cursing” and could tell that Lusco, Boyd, and Duncan “were loud, angry and defiant.” [DE 46-1 at 472]. Bruce claims that he heard Lusco say “Jason you get your bitch-ass down here, you need to drive over to this hotel right now so I can show you how I roll. I roll hard. You better bring Lake Charles' finest with you because I roll hard. I ain't no bitch like you.” [Id.]. Lusco disputes that he made this statement.[1] [DE 46-2 at 493].

         Lusco admits that he was “yelling” at Tuttle but credits his outbursts to legitimate grievances against Tuttle. [Id. at 491-92]. Specifically, Tuttle informed Lusco that he would be “back around 10:00 to pick” them up, but Tuttle did not “come back till 6:30 that evening.” [Id. at 494]. Lusco is diabetic and by the time Tuttle returned, Lusco “was worrying about . . . trying to get . . . something to eat because [he] was weak and [his] blood sugar had dropped so low from not having anything to eat.” [Id.]. According to Tuttle's Incident Report, he told Lusco “I will get you something to eat but I can't give you the keys, ” but this offer led to the “yelling start[ing] again.” [DE 46-3 at 502].

         According to Tuttle, after the confrontation in the hotel room, Lusco, Duncan, and Boyd “got into the DAE truck and refused to leave the truck.” [Id. at 499]. They were “told transportation would be arranged for them to return to Louisville, Kentucky by Greyhound bus [, but] refused to accept transportation by bus and refused to leave the truck.” [Id.]. Lusco “threaten[ed] to beat [Tuttle] up right there in the parking lot [and] raised his fist a couple of times then tried to knock [his] phone out of [his] hand.” [Id. at 502]. DAE paid for Lusco, Duncan, and Boyd to fly back to Kentucky the next day. [Pl. Resp. to Def.'s Request for Admission, DE 46-5 at 520].

         Brodfehrer asserts that Tuttle and Bruce informed him that “Lusco, in particular, was aggressive and making threatening comments” and that Lusco “was the one acting ‘all aggressive.'” [DE 46-4 at 506 (quoting a text message from Tuttle to Brodfehrer)]. According to Brodfehrer, “Jason Bruce had arranged to have Steve Tuttle get a room in a separate hotel based on concerns for his safety in relation to Lusco, Duncan and Boyd.” [Id. at 507]. Brodfehrer asserts that he “made the decision to suspend Lusco, Duncan and Boyd on that Tuesday afternoon, May 23, 2017, ” based on “the circumstances that were reported to [him] on May 22, 2017, and [his] personal review of the video.” [Id.]. On Wednesday, May 24, Brodfehrer “made the decision to terminate the employment of Bryan Lusco, Daquez Duncan and Jermaine Boyd [because of] their insubordination and unprofessional conduct on Monday evening, May 22, 2017.” [Id. at 507- 08].

         Lusco filed this Complaint pro se, alleging that DAE terminated his employment and retaliated against him because of his sex and race in violation of Title VII of the Civil Rights Act of 1964. [DE 1 at 4-6].

         II. STANDARD

         Summary judgment is required when “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). The moving party bears the burden of specifying the basis for its motion and showing the lack of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies this burden, the nonmoving party must produce specific facts demonstrating a material issue of fact for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). “Factual differences are not considered material unless the differences are such that a reasonable jury could find for the party contesting the summary judgment motion.” Bell v. City of E. Cleveland, 125 F.3d 855 (6th Cir. 1997) (citing Liberty Lobby, 477 U.S. at 252).

         A district court considering a motion for summary judgment may not weigh evidence or make credibility determinations. See Daugherty v. Sajar Plastics, Inc., 544 F.3d 696, 702 (6th Cir. 2008); see also Adams v. Metiva, 31 F.3d 375, 385 (6th Cir. 1994). The Court must view the evidence and draw all reasonable inferences in a light most favorable to the nonmoving party. See Williams v. Int'l Paper Co., 227 F.3d 706, 710 (6th Cir. 2000). But the nonmoving party must do more than show some “metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Instead, the nonmoving party must present specific facts showing that a genuine factual issue exists by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence . . . of a genuine dispute[.]” Fed.R.Civ.P. 56(c)(1); see also Shreve v. Franklin Cty., Ohio, 743 F.3d 126, 136 (6th Cir. 2014). “The mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party].” Liberty Lobby, 477 U.S. at 252.

         “Conclusory allegations in [a] complaint cannot serve to oppose a motion for summary judgment.” Whittley v. Wal-Mart Stores East, LP., No. 4:15CV-00019-HBB, 2015 WL 5554044, at *3 (W.D. Ky. Sept. 21, 2015) (citing Kendall v. The Hoover Co., 751 F.2d 171, 173 (6th Cir. 1984)). Rule 56(c)(1) requires that a “party asserting that a fact . . . is genuinely disputed must support the assertion by . . . citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A). A complaint may “carr[y] the same ...

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