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Dutton v. Ascend Learning Holdings, LLC

United States District Court, D. Montana, Missoula Division

February 13, 2017

TAMMY DUTTON, Plaintiff,
v.
ASCEND LEARNING HOLDINGS, LLC; ASSESSMENT TECHNOLOGIES INSTITUTE, LLC; and JOHN DOES A-E, Defendants.

          ORDER

          Dana L. Christensen, Chief District Judge United States District Court

         United States Magistrate Judge Jeremiah C. Lynch entered his Findings and Recommendation on January 27, 2017, recommending denial of Defendants' Motion for Summary Judgment. Defendants timely filed objections and are therefore entitled to de novo review of those Findings and Recommendation to which they specifically object. 28 U.S.C. § 636(b)(1)(C). This Court reviews for clear error those findings and recommendations to which no party objects. See McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981); Thomas v. Arn, 474 U.S. 140, 149 (1985). “Clear error exists if the Court is left with a definite and firm conviction that a mistake has been committed.” United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000). Because the parties are familiar with the factual background of this case, it will not be repeated here.

         I. First Objection

         Defendants lodge two objections to the Findings and Recommendation.

         First, Defendants argue that Judge Lynch erred by finding that:

At some point before [Plaintiff Tammy] Dutton was told of her discharge on February 10, 2015, [Andrew] Tricomi-Duran notified [Jeff] Wilson that Dutton had filed a workers' compensation claim. Armed with that knowledge, Wilson prepared the talking points for [Jaimie] Fiorucci-Hughes to address while advising Dutton that she was being discharged and participated in the February 10, 2015, telephone call.

(Doc. 61 at 6.) The Defendants contend this factual statement is in error because the undisputed facts of this case show that Jeff Wilson (“Wilson”), Ascend's Human Resources Director, did not know of Plaintiff Tammy Dutton's (“Dutton”) workers' compensation claim before drafting the script for the termination meeting. To support this argument, Defendants rely on the testimony of Human Resources Coordinator Andrew Tricomi-Duran (“Tricomi-Duran”) who testified that he told Wilson about the claim when Dutton “was terminated or [when] her employment ended.” (Doc. 69-2 at 4.) Based upon this statement, Defendants argue, retaliation was a literal and factual impossibility because Wilson and Jaimie Fiorucci-Hughes (“Fiorucci-Hughes”) did not know about the claim when the decision to terminate Dutton was made.

         Upon review of the record, the Court finds that there is a genuine dispute of fact as to whether Wilson knew about Dutton's claim when he drafted the termination script. Wilson testified that he did not know about the claim when the decision was made to terminate Dutton. (Doc. 69-3 at 3.) However, he stated he was aware of the claim when Dutton was actually terminated on February 10, 2015. (Id.) Wilson testified that he learned about Dutton's claim from Tricomi-Duran. (Id.) Tricomi-Duran testified that he would have only told Wilson about the claim when he was told that Dutton had been terminated. (Doc. 69-2 at 4.) However, Tricomi-Duran testified that he told Wilson about the claim after Dutton had already been fired:

Dutton's attorney: Now, earlier today, Jeff Wilson testified that he remembers you telling him that Tammy had a work comp claim at some point. And so do you remember talking to Jeff Wilson about Tammy's work comp claim?
Tricomi-Duran: It only would have been when I was told she was terminated or her employment ended. I would have only mentioned it then.
Dutton's attorney: Why is that?
Tricomi-Duran: There would have been no other reason.
Dutton's attorney: Well, why did you tell him when she ...

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