Dutton v. Ascend Learning Holdings, LLC et al

Filing 81

ORDER ADOPTING FINDINGS AND RECOMMENDATIONS; denying 40 Motion for Summary Judgment; adopting in part Findings and Recommendations re 61 Findings and Recommendations. Signed by Chief Judge Dana L. Christensen on 2/13/2017. (dle)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
TAMMY DUTTON,

CV 15–147–M–DLC-JCL

Plaintiff,
ORDER
vs.
ASCEND LEARNING HOLDINGS,
LLC; ASSESSMENT
TECHNOLOGIES INSTITUTE, LLC;
and JOHN DOES A–E,
Defendants.
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

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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
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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 TricomiDuran. (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 was
terminated?
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Tricomi-Duran:

Why did I tell him [when] she was
terminated?

Dutton’s attorney:

Yeah. Why did you tell him at all?

Tricomi-Duran:

Oh, I would just mention it as -- just to let
them know at that time being --

Dutton’s attorney:

Okay.

Tricomi-Duran:

I mean, being in HR, in those situations,
things can come back around. So I wanted
him to just be aware of that, and I had
spoken to her, too.

Dutton’s attorney:

Okay. First of all, who -- who had you
spoken to?

Tricomi-Duran:

Tammy.

Dutton’s attorney:

Okay. In what way?

Tricomi-Duran:

She called me after she found out that she
was terminated. I don't know if the same --

Dutton’s attorney:

Okay.

Tricomi-Duran:

I don't know if it was the same day, but it
was very -- it could have been the same day
that she found out.

(Id. at 3-4.) Based upon this testimony, it appears that Dutton had already been
fired and Tricomi-Duran had already discussed the termination with Dutton before
he told Wilson about the claim. However, this contradicts Wilson’s testimony that
he knew about the claim before the February 10, 2015 termination meeting. Thus,
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Wilson is either misrepresenting or mistaken about when he found out about the
workers’ compensation claim, or Tricomi-Duran is. This discrepancy creates a
credibility issue for the jury and presents a genuine issue of fact as to whether
Wilson knew about the claim when either the decision to terminate Dutton was
made or when he drafted the termination script.
Regardless, though, the Court agrees with Defendants that is not clear that
Wilson knew about the claim when he drafted the termination hearing script.
However, based upon the discussed factual record, it is also not clear that he was
unaware of the claim when the script was drafted. As such, the Court modifies the
Findings and Recommendation to read:
At some point before Dutton was told of her discharge on February 10,
2015, Wilson testified that Tricomi-Duran had notified him that Dutton had filed a
workers’ compensation claim. (Doc. 44-1 at 10.) Possibly armed with that
knowledge, Wilson prepared the talking points for Fiorucci-Hughes to address
while advising Dutton that she was being discharged and participated in the
February 10, 2015, telephone call.
II. Second Objection
Next, Defendants object to Judge Lynch’s conclusion that the motion should
be denied because the temporal proximity between when Dutton filed her claim
and when she was terminated “support[s] a reasonable inference that Ascend
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discharged her for filing a workers compensation claim in violation [of Montana
Code Annotated] § 39–7–317(1) . . . .” (Doc. 61 at 8.) Primarily, Defendants
contend that because it is undisputed that Fiorucci-Hughes did not know about the
claim when she decided to terminate Dutton, temporal proximity of the two events
cannot support a claim of retaliation. Defendants cite to Clark County School
District v. Breeden, 532 U.S. 268 (2001) (per curium) in support.
In Breeden, the United States Supreme Court determined that the temporal
proximity between the filing of a lawsuit and the transfer of an employee, the
alleged retaliatory action, could not “establish a dispute substantial enough to
withstand the motion for summary judgment.” Breeden, 532 U.S. at 274.
However, in Breeden, no one in the company was aware of the lawsuit when the
decision to transfer the employee was contemplated. Id. at 272 (though the
lawsuit was filed before transfer was discussed, the employer was not aware of
complaint until one day after transfer was contemplated).
Here, in contrast, Wilson was aware of the workers’ compensation claim
before Dutton was terminated. Further, Tricomi-Duran knew about the claim
before Fiorucci-Hughes discussed Dutton’s termination with Wilson. This is
important for two reasons. First, unlike in Breeden where no one in the
organization was aware of the lawsuit before the alleged retaliatory action was

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discussed, Ascend, through Tricomi-Duran, knew about the claim before the
decision to terminate Dutton was made. Second, as discussed in Defendants’ first
objection, there appears to be a discrepancy as to when Tricomi-Duran told Wilson
about the workers’ compensation claim. This discrepancy creates a fact issue for
the jury in that it could support the inference that Ascend discharged Dutton in
retaliation for filing the claim. This is an issue for the jury. Defendants’ second
objection is thus overruled.
Accordingly, the Court reviews the remainder of Judge Lynch’s Findings
and Recommendation for clear error and, finding none,
IT IS ORDERED that Judge Lynch’s Findings and Recommendation (Doc.
61) are ADOPTED IN PART and MODIFIED IN PART in accordance with the
above Order.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary
Judgment (Doc. 40) is DENIED.
Dated this 13th day of February, 2017.

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