Wing v. Transfirst, LLC
Filing
79
MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 6/29/2018. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(mg)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
GARY WING,
Plaintiff,
v.
TRANSFIRST, LLC, n/k/a TSYS
BUSINESS SOLUTIONS, LLC and
TOTAL SYSTEM SERVICES, INC.
Defendants
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Case No. 3:16-cv-00678
Judge Aleta A. Trauger
MEMORANDUM
The magistrate judge issued a Report and Recommendation (“R&R”) (Doc. No. 73) on
May 7, 2018, recommending that the defendants’ Motion for Summary Judgment (Doc. No. 66)
be granted and that this case be dismissed. On May 29, 2018, plaintiff Gary Wing filed a
document styled “Respectful Response to Judge Frendsley’s [sic] Report and Recommendation.”
(Doc. No. 74.) The court construed this filing as timely objections to the R&R under Rules 6(d)
and 72(b)(2) of the Federal Rules of Civil Procedure and directed the defendant to respond.
(Doc. No. 75.) The defendant has now complied. (See Doc. No. 78.)
For the reasons set forth herein, the court will overrule the plaintiff’s objections and
accept the R&R in its entirety. The defendant’s Motion for Summary Judgment will be granted,
and the two remaining claims in this case will be dismissed with prejudice.
I.
Factual and Procedural Background
The court presumes familiarity with the previous orders entered in this case, as well as
with the R&R, and summarizes herein those facts and events strictly relevant to the plaintiff’s
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objections.
Gary Wing initiated this action on March 25, 2016 by filing a Complaint (Doc. No. 1)
against his former employer, TransFirst, LLC, n/k/a TSYS Business Solutions, LLC
(“TransFirst”), asserting a violation of the Sarbanes–Oxley Act (“SOX”), 18 U.S.C. § 1514A,
and retaliatory discharge in violation of the Tennessee Public Protection Act (“TPPA”), Tenn.
Code Ann. § 50-1-304. He filed an Amended Complaint on February 22, 2017, reasserting SOX
and TPPA claims against TransFirst, adding defendant Total System Services, Inc. (“TSYS”),
which had in the intervening period acquired TransFirst, and adding new claims against both
defendants for violation of the Racketeer Influenced and Corrupt Organizations Act of 1970
(“RICO”), 18 U.S.C. § 1961, and retaliatory discharge under Tennessee common law.
On June 16, 2017, the court entered a Memorandum and Order granting in part and
denying in part the defendants’ Motion to Dismiss, dismissing the SOX and RICO claims but
allowing the TPPA and common law retaliatory discharge claims to proceed against both
defendants. (Doc. Nos. 49, 50.) The court then referred the matter to the magistrate judge. 1
The magistrate judge entered a Scheduling Order in July 2017, setting deadlines for
discovery and dispositive motions and scheduling a discovery conference for December 8, 2017.
(Doc. No. 54.) The Scheduling Order specifically provided that responses to any motion for
summary judgment must be filed within twenty one days after the filing of the summary
judgment motion. The plaintiff was expressly notified that
dispositive motions must be responded to as set forth [in the Scheduling Order],
unless an extension is granted by the Court, and that failure to respond to the
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Wing was initially represented by attorney Andy Allman. The Tennessee Supreme
Court suspended Allman from the practice of law effective October 9, 2016, and Wing was given
60 days to obtain new counsel. The plaintiff was represented by attorney Todd Cole from
December 7, 2016 until Cole was granted leave to withdraw on April 20, 2017. Since that date,
the plaintiff has proceeded pro se.
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motion and to statements of facts may result in the Court taking the facts alleged
in the matter as true and granting the relief requested. In responding to the
motions for summary judgment, plaintiff may not just rely on the complaint.
Plaintiff must show there is a material dispute of fact with citation to the record,
affidavits or other matter of evidence. Plaintiff should read and comply with
Federal Rule of Civil Procedure 56 and Local Rule 56.01.
(Id. at 3.)
On February 9, 2018, the defendants filed their timely Motion for Summary Judgment,
supporting Memorandum of Law, three witness declarations with attached evidentiary material,
and a Statement of Undisputed Material Facts. The plaintiff never responded to the motion or the
statement of facts.
The magistrate judge entered the R&R on May 7, 2018. Citing Local Rules 7.01(b) and
56.01(c) and (g), the magistrate judge construed the plaintiff’s failure to respond to the
defendant’s Statement of Undisputed Material Facts to indicate that the facts asserted by the
defendants are not disputed for purposes of their motion. Finding no material factual disputes,
the magistrate judge proceeded to determine whether, based on the undisputed facts, the
defendants were entitled to judgment in their favor as a matter of law on the plaintiff’s remaining
claims.
The magistrate judge concluded that both the TPPA and common law retaliatory
discharge claims should be dismissed. Specifically, he found that the plaintiff could not establish
a prima facie case under the TPPA, because the undisputed facts failed to establish that he was
terminated solely because of his refusal to participate in or to remain silent about illegal activity.
He found that the plaintiff’s common law claim failed because all of the improper practices by
TransFirst that he complained about are either actually illegal or fraudulent and deceptive to
TransFirst customers, as a result of which the TPPA provides the exclusive avenue for relief.
Alternatively, the magistrate judge also determined that no reasonably jury could find that the
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plaintiff’s alleged protected conduct was a substantial cause of his termination. The magistrate
judge therefore recommends that the defendants’ Motion for Summary Judgment be granted.
II.
Standard of Review
When a party files objections to a magistrate judge’s report and recommendation
regarding a dispositive motion, the district court must review de novo any portion of the report
and recommendation to which objections are “properly” lodged. Fed. R. Civ. P. 72(b)(3); see
also 28 U.S.C. § 636(b)(1)(B) & (C). Only “specific written objections” to the magistrate judge’s
proposed factual findings and legal conclusions are “proper” under Rule 72(b). Likewise, the
applicable statute contemplates de novo determination only “of those portions of the report or
specified proposed findings or recommendations to which objection is made.” 28 U.S.C. §
636(b)(1)(C) (emphasis added).
In conducting its review, the district court “may accept, reject, or modify the
recommended disposition; receive further evidence; or return the matter to the magistrate judge
with instructions.” Fed. R. Civ. P. 72(b)(3).
III.
Discussion
In this case, the plaintiff has not properly objected to any specific factual findings or to
the magistrate judge’s conclusions of law. Instead, the plaintiff complains, first, that the
defendants did not work with him in the discovery process and that their statements of fact “left
out pertinent information that can be easily addressed” through the testimony of thirteen
individuals to whom, the plaintiff claims, subpoenas are to be issued this week. (Doc. No. 74, at
1–2.) The plaintiff disregards the fact that the magistrate judge’s Scheduling Order called for
discovery to be “completed by January 11, 2018.” (Doc. No. 54, at 2.) The magistrate judge
eliminated any ambiguity in that deadline by explaining that “all written discovery should be
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served far enough before the discovery completion date, i.e. at least thirty days prior to the
discovery completion deadline, so that responses or objections to any written discovery can be
made prior to the completion deadline.” (Id.) The plaintiff is not entitled, at this late date, to
subpoena witnesses or to take additional discovery. If he had difficulty obtaining discovery from
the defendants during the discovery period, his recourse was to seek the court’s assistance,
through filing motions to compel or otherwise, prior to the expiration of the discovery deadline.
The deadlines have passed, and that route is now closed.
The plaintiff next complains that the court should take into consideration that any
testimony provided by current TransFirst or TYSY employees could be influenced by their
desire not to lose their jobs. This objection, too, is beside the point, because the court’s job, at
this juncture, is not to weigh competing testimony or to resolve issues of credibility. The plaintiff
here has never submitted his own sworn statement, or that of any witness, that would contradict
or call into question the veracity of the three sworn statements submitted by the defendants. As a
result, there are no factual conflicts to be resolved at a trial. Moreover, the plaintiff
acknowledges that “testimony given by former employees now after Transfirst/TSYS closed [the
Franklin] office down in August of 2017 would be truthful and not influenced.” (Doc. No. 74, at
2.) The witness declarations submitted by the defendants indicate that none of them is still
employed by TransFirst or TSYS. Kari D’Ottavio voluntarily resigned her employment with
TransFirst in June 2017 and has chosen to remain unemployed (Doc. No. 68 ¶ 2); Joe LoCurto
was employed by TransFirst until he retired on July 1, 2016 (Doc. No. 69 ¶ 2); and Ben
Juillerat’s employment with TransFirst terminated in April 2017 when he was laid off (Doc. No.
70 ¶ 2). In other words, none of the witnesses upon whose testimony the defendant relies is a
current TransFirst or TSYS employee.
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Next, although the plaintiff does not actually dispute any of the material facts upon which
the R&R’s conclusions are based, he does purport to “clarify” ten of the eighteen facts the
magistrate judge identified as material, specifically undisputed facts 6 through 15. (See
Statement of Undisp. Mat. Facts, Doc. No. 71 ¶¶ 6–15; R&R, Doc. No. 73, at 8–9; Objections,
Doc. No. 74, at 2–8.) The plaintiff apparently seeks to provide additional background
information or justification of these facts from his perspective. The information the plaintiff
seeks to add, however, is completely irrelevant to the magistrate judge’s findings of fact.
That is, even if the court were to accept as true the plaintiff’s unsworn “clarifications” for
purposes of ruling on the defendants’ Motion for Summary Judgment, the outcome of this case
would not change. The bottom line is that the plaintiff makes no effort to challenge the two most
important undisputed facts in the record: (1) that Kari D’Ottavio, then vice president of human
resources, and Joe LoCurto, then vice president of TransFirst’s commercial services division,
alone, made the decision to terminate the plaintiff’s employment based on a well documented
series of transgressions and warnings; and (2) neither D’Ottavio nor LoCurto was aware until
this lawsuit was filed that the plaintiff had engaged in protected activity for purposes of either the
TPPA or a common law retaliatory discharge claim. (Doc. No. 73, at 9 (referencing Doc. No. 71,
Undisputed Facts 23 and 24).)
Nor does the plaintiff challenge the magistrate judge’s legal conclusion that, without
proof that the decision makers were aware that the plaintiff had engaged in conduct protected by
statute, the plaintiff could not prove claims under either the TPPA or Tennessee common law. To
establish a retaliation claim under the TPPA, the plaintiff would have to prove that he was
“terminated solely for refusing to participate in, or for refusing to remain silent about, illegal
activities,” Tenn. Code Ann. § 50-1-304(b); Sykes v. Chattanooga Hous. Auth., 343 S.W. 3d 18,
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27 (Tenn. 2011). To establish a claim for retaliatory discharge under Tennessee common law, he
would be required to establish, among other things, that “a substantial factor in the employer’s
decision to discharge [him] was [his] exercise of protected rights or compliance with clear public
policy.” Hugo v. Millennium Labs., Inc., 590 F. App’x 541, 544 (6th Cir. 2014) (quoting Crews
v. Buckman Labs. Int’l, Inc., 78 S.W. 3d 852, 862 (Tenn. 2002)). If the decision makers were
unaware that the plaintiff had engaged in protected conduct, then that conduct could not have
played any part in the decision to terminate him.
The plaintiff has not properly objected to any of the magistrate judge’s factual findings or
legal conclusions; he has not established the existence of material factual disputes; and the
defendants are clearly entitled to judgment as a matter of law.
IV.
Conclusion
For the reasons set forth herein, the court will overrule the plaintiff’s objections and
accept the magistrate judge’s R&R in its entirety. The defendants’ Motion for Summary
Judgment will be granted, and this case will be dismissed.
An appropriate order is filed herewith.
ENTER this 29th day of June 2018.
ALETA A. TRAUGER
United States District Judge
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