United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
REBECCA GRADY JENNINGS DISTRICT JUDGE.
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].
FACTUAL AND PROCEDURAL BACKGROUND
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].
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.
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].
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].
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
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.”
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. [DE 46-2 at 493].
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].
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].
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].
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].
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).
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.
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