United States District Court, D. Montana, Missoula Division
L. Christensen, Chief District Judge United States District
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.
lodge two objections to the Findings and Recommendation.
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
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