Moebius v. TharpeRobbins Company
Filing
60
Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER Re: Defendant Tharperobbins Company's Motion for Summary Judgment (Docket Entry # 40 ). Defendant's motion for summary judgment (Docket Entry # 40 ) is DENIED as to Count II for disability discrimination in violation of chapter 151B and Count III for disability discrimination in violation of the ADA. The deadline to file dispositive motions has passed and there shall be no extensions. This court will conduct a status conference on November 28, 2016 at 2:45 p.m. to set a trial date. (Patton, Christine)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MATTHEW MOEBIUS,
Plaintiff,
V.
CIVIL ACTION NO.
15-10751-MBB
THARPEROBBINS COMPANY,
Defendant.
MEMORANDUM AND ORDER RE:
DEFENDANT THARPEROBBINS COMPANY’S MOTION FOR SUMMARY JUDGMENT
(DOCKET ENTRY # 40)
November 1, 2016
BOWLER, U.S.M.J.
Pending before this court is a motion for summary judgment
filed by defendant TharpeRobbins Company (“TharpeRobbins” or
“defendant”).
(Docket Entry # 40).
(“plaintiff”) opposes the motion.
Plaintiff Matthew Moebius
(Docket Entry # 51).
After
conducting a hearing, this court took the motion (Docket Entry #
40) under advisement.
PROCEDURAL BACKGROUND
On March 10, 2015, defendant filed a notice of removal
pursuant to 28 U.S.C. §§ 1332, 1441(a) and 1446.
# 1).
(Docket Entry
Federal jurisdiction is based on the parties’ diversity
of citizenship under 28 U.S.C. § 1332(a), as plaintiff is a
citizen of Massachusetts, defendant is incorporated in North
Carolina and the amount in controversy exceeds $75,000.
(Docket
Entry # 1).
Plaintiff filed a second amended complaint (Docket Entry #
31) on September 25, 2016 setting out the following claims:
wrongful termination in violation of public policy (Count I);1
disability discrimination in violation of Massachusetts General
Laws chapter 151B (“chapter 151B”), section 4 (Count II); and
disability discrimination in violation of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 (Count III).
(Docket Entry # 31).
On October 8, 2015, defendant filed an answer to the second
amended complaint.
(Docket Entry # 32).
In the answer,
defendant set out the following counterclaims against plaintiff:
misappropriation of trade secrets in violation of Massachusetts
General Laws chapter 93, section two (Count I); misappropriation
of trade secrets (Count II); conversion (Count III); breach of
contract (Count IV); violation of Massachusetts General Laws
chapter 93A for unfair and deceptive practices (Count V); and
violation of the Electronic Communications Privacy Act, 18
U.S.C. §§ 2701 et seq. (Count VI).
STANDARD OF REVIEW
Summary judgment is designed “‘to pierce the boilerplate of
1
The parties stipulated to the dismissal of Count I.
Entry # 39).
2
(Docket
the pleadings and assay the parties’ proof in order to determine
whether trial is actually required.’”
Tobin v. Federal Express
Corp., 775 F.3d 448, 450 (1st Cir. 2014) (quoting Wynne v. Tufts
University School of Medicine, 976 F.2d 791, 794 (1st Cir.
1992)).
It is appropriate “if the movant shows that 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).
It is inappropriate “if the record is sufficiently open-ended to
permit a rational factfinder to resolve a material factual
dispute in favor of either side.”
Pierce v. Cotuit Fire
District, 741 F.3d 295, 301 (1st Cir. 2014).
“Genuine issues of fact are those that a factfinder could
resolve in favor of the nonmovant, while material facts are
those whose ‘existence or nonexistence has the potential to
change the outcome of the suit.’”
Green Mountain Realty Corp.
v. Leonard, 750 F.3d 30, 38 (1st Cir. 2014)).
The evidence is
viewed “in the light most favorable to the non-moving party” and
“all reasonable inferences” are drawn in his favor.
Johnson, 752 F.3d 490, 495 (1st Cir. 2014).
Ahmed v.
In reviewing a
summary judgment motion, a court may examine “all of the record
materials on file,” Geshke v. Crocs, Inc., 740 F.3d 74, 77 (1st
Cir. 2014), “including depositions, documents, electronically
stored information, affidavits or declarations . . . or other
material.”
Fed.R.Civ.P. 56(c)(1); see Ahmed v. Johnson, 752
3
F.3d at 495.
“Unsupported allegations and speculation,”
however, “do not demonstrate either entitlement to summary
judgment or the existence of a genuine issue of material fact
sufficient to defeat summary judgment.”
Rivera-Colon v. Mills,
635 F.3d 9, 12 (1st Cir. 2011); see Serra v. Quantum Servicing,
Corp., 747 F.3d 37, 40 (1st Cir. 2014) (“allegations of a merely
speculative or conclusory nature are rightly disregarded”).
Defendant filed a LR. 56.1 statement of undisputed facts.
Uncontroverted statements of fact in the LR. 56.1 statement
comprise part of the summary judgment record.2
See Cochran v.
Quest Software, Inc., 328 F.3d 1, 12 (1st Cir. 2003) (plaintiff’s
failure to contest date in LR. 56.1 statement of material facts
caused date to be admitted on summary judgment); Stonkus v. City
of Brockton School Department, 322 F.3d 97, 102 (1st Cir. 2003).
Adhering to this framework, the record sets out the following
facts.3
FACTUAL BACKGROUND
The TharpeRobbins Company, now known as Engage2Excel,
Inc., is in the business of providing employee recognition
programs to assist employers in measuring, managing and
2
Statements of law in the statement of undisputed facts are not
considered.
3
Additional facts are included in the discussion section where
relevant to a particular argument. Allegations in the factual
background are noted as such and are not considered facts for
purposes of the summary judgment motion.
4
improving the performance of their employees.
42, ¶ 1) (Docket Entry # 52, ¶ 1).
(Docket Entry #
Through such programs,
TharpeRobbins provides employers with service and performancebased rewards for their employees.
(Docket Entry # 52, ¶ 1).
(Docket Entry # 42, ¶ 1)
In providing such employee
recognition programs, TharpeRobbins obtains and manages
electronically stored personnel and business data for its
employer clients.
¶ 2).
(Docket Entry # 42, ¶ 2) (Docket Entry # 52,
TharpeRobbins utilizes proprietary software to provide
its clients with a role-based platform, which the clients may
access from the Internet through a cloud-based portal.
Entry # 42, ¶ 2) (Docket Entry # 52, ¶ 2).
(Docket
For such data-based
employee recognition programs to be successful, it is essential
that the electronically stored personnel and business data be
kept confidential and secure.
(Docket Entry # 42, ¶ 2) (Docket
Entry # 52, ¶ 2).
Since 2007 and at all times pertinent to this action, Neal
Cao (“Cao”) has been employed as TharpeRobbins’ chief
information officer.
52, ¶ 3).
(Docket Entry # 42, ¶ 3) (Docket Entry #
Cao’s responsibility was to manage information
technology, including applications, development, network
infrastructure and security, and TharpeRobbins’ business systems
at its facilities in Attleboro, Massachusetts and Statesville,
North Carolina.
(Docket Entry # 42, ¶ 3) (Docket Entry # 52, ¶
5
3).
In that capacity, Cao supervised the information technology
(“IT”) teams and the team members individually in both Attleboro
and Statesville including plaintiff who at all times relevant
worked at the Attleboro office.
(Docket Entry # 42, ¶¶ 4, 6)
(Docket Entry # 52, ¶¶ 4, 6) (Docket Entry # 54-4, p. 6).4
A.
Plaintiff’s Employment with TharpeRobbins
When Cao joined TharpeRobbins, plaintiff was TharpeRobbins’
director of network infrastructure services and had worked at
TharpeRobbins’ Attleboro facility for approximately seven years.
(Docket Entry # 42, ¶ 5) (Docket Entry # 52, ¶ 5).
As
TharpeRobbins’ director of network infrastructure, plaintiff
developed the software and network infrastructure that
TharpeRobbins used for its employees and clients.
# 42, ¶ 6) (Docket Entry # 52, ¶ 6).
(Docket Entry
Plaintiff’s duties
included managing four employees, managing the network
infrastructure security and maintaining the operation of the IT
systems in both Attleboro and Statesville.
¶ 6) (Docket Entry # 52, ¶ 6).
(Docket Entry # 42,
Plaintiff was responsible for
the switches, firewalls, desktops, servers, help desk, data
center and security.
52, ¶ 6).
(Docket Entry # 42, ¶ 6) (Docket Entry #
Plaintiff reported directly to Cao and Cao had input
as to all the work which plaintiff completed, including tasks
4
Page numbers refer to the page number of the docketed filing
and not to the page number of the deposition or filing itself.
6
with respect to security and network infrastructure.
(Docket
Entry # 54-4, p. 6).
For several years, plaintiff’s job performance was good.
(Docket Entry # 42, ¶ 7) (Docket Entry # 52, ¶ 7).
He worked
long hours to build and maintain the network infrastructure and
he assisted TharpeRobbins’ employees with software and system
issues.
(Docket Entry # 42, ¶ 7) (Docket Entry # 52, ¶ 7).
As
proof of this, Cao nominated plaintiff for a TharpeRobbins’
employee of the year award in 2011, which plaintiff received.
(Docket Entry # 42, ¶ 7) (Docket Entry # 52, ¶ 7).
In March
2013 and February 2014, Cao gave plaintiff good employee
reviews, recognizing his superior knowledge as to technology and
other skills.
(Docket Entry # 54-4, pp. 74-80).
Plaintiff held the position of director of network
infrastructure services until June 2, 2014, when his title was
changed to senior network engineer because defendant hired
Richard T. Onorato (“Onorato”) as TharpeRobbins’ director of
network infrastructure.
# 52, ¶ 5).
(Docket Entry # 42, ¶ 5) (Docket Entry
Before defendant hired Onorato, plaintiff reported
directly to Cao; after the hiring of Onorato, plaintiff reported
directly to Onorato.
52, ¶ 5).
(Docket Entry # 42, ¶ 5) (Docket Entry #
Plaintiff’s managerial responsibilities were
relinquished after June 2, 2014 and all such responsibilities
were given to Onorato.
(Docket Entry # 53, ¶¶ 8, 37).
7
B.
Plaintiff’s Job Performance
Beginning in late 2013 and continuing through 2014,
plaintiff attests that he began taking more days off due to
feelings of depression, which he claims worsened as a result of
divorcing his wife and a fear of losing the relationship with
his only son.
(Docket Entry # 53, ¶¶ 2-3).
The days which he
was taking off were covered by paid time off (“PTO”) that
plaintiff had accumulated during his time working for defendant.
(Docket Entry # 54-4, p. 42).
Cao agreed that plaintiff “wasn’t
taking any absences for which he didn’t have PTO already
allocated.”
(Docket Entry # 54-4, p. 42).
Cao stated that prior to this time toward the end of 2013,
plaintiff’s attendance was not in question.
4, p. 34).
(Docket Entry # 54-
According to defendant, however, plaintiff’s
performance began to decline toward the end of 2013 and the
beginning of 2014; one example of which was his failure to fully
implement a new web application firewall.
12).
(Docket Entry # 45, ¶
Plaintiff attests that the firewall was fully installed
but had software issues which the designer could not resolve.
(Docket Entry # 53, ¶ 6).
Other than this, plaintiff completed
all his objectives for 2013.
(Docket Entry # 54-4. pp. 24-25).
Cao acknowledges that failure to install this application on
time had no adverse consequences on TharpeRobbins.
Entry # 54-4. p. 24).
8
(Docket
As plaintiff’s supervisor, it was Cao’s job to set the
objectives and assign work to plaintiff for the year.
In 2014,
those objectives could not be met because Cao asked plaintiff to
prioritize other tasks such as troubleshooting the file server
replication and evaluating the network infrastructure
reliability and security.
(Docket Entry # 54-4. p. 25).
Cao
asked plaintiff to prioritize tasks such as these over his
objectives because they were more urgent.
(Docket Entry # 54-4.
p. 25).
Cao attests that on several occasions in late 2013 and
early 2014 he told plaintiff that he wanted him to be more
present at the facility instead of working from home because it
was necessary to manage his team members and maintain the
computer servers.
(Docket Entry # 45, ¶ 13).
Plaintiff,
however, attests that he told Cao on more than two occasions,
once in November 2013 and again in summer and spring 2014, that
he needed to work from home because of his severe depression.
(Docket Entry # 53, ¶ 3).
Cao was aware that plaintiff was
going through a divorce and admits that he noticed a change in
plaintiff’s “health” during this time period.
54-4, p. 43).
(Docket Entry #
Plaintiff told Cao that the divorce had been the
biggest personal crisis he had encountered in his life (Docket
Entry # 54-4, p. 41) and Cao knew that plaintiff had taken
“mental days” off.
(Docket Entry # 54-4, p. 44).
9
Despite suffering from depression, plaintiff attests that
he worked over 100 hours from home some weeks.
53, ¶ 8).
(Docket Entry #
Plaintiff also states that there was no work that he
could not do from home, though Cao believed that plaintiff’s
absences hindered his ability to effectively manage his team and
maintain the computer servers.
(Docket Entry # 45, ¶ 13).
Because of this concern that plaintiff’s work performance was
deteriorating, Cao decided to hire Onorato, an IT professional
with whom Cao had worked at a previous employer.
(Docket Entry
# 54-4, p. 45).
On May 27, 2014, Cao met with plaintiff to advise him of
staffing changes in the department.
Cao told plaintiff that
beginning June 2, 2014 he would have the title of senior network
engineer and report to Onorato and that the change in his title
would not affect his compensation.
(Docket Entry # 52, ¶ 7).
(Docket Entry # 42, ¶ 7)
Plaintiff did not object to the
change in job title, nor did he complain that the job change was
in any way discriminatory.
Entry # 52, ¶ 16).
(Docket Entry # 42, ¶ 16) (Docket
Beginning on June 2, 2014 and continuing
until his termination on September 2, 2014, plaintiff reported
directly to Onorato.
52, ¶ 17).
(Docket Entry # 42, ¶ 17) (Docket Entry #
As Onorato was now plaintiff’s direct supervisor,
Cao allowed Onorato to address any issues that arose with
plaintiff.
(Docket Entry # 42, ¶ 17) (Docket Entry # 52, ¶ 17).
10
In June and July 2014, Onorato observed that plaintiff,
whose cubicle was immediately adjacent to Onorato’s office, was
frequently absent from the Attleboro facility and often
unavailable.
18).
(Docket Entry # 42, ¶ 18) (Docket Entry # 52, ¶
Onorato kept a contemporaneous log of his interactions
with plaintiff in which he detailed his absences from work.
(Docket Entry # 42, ¶ 18) (Docket Entry # 52, ¶ 18) (Docket
Entry # 44-1).
The log details numerous instances in June 2014
when plaintiff was late returning from lunch, failed to return
after lunch, or left work early.
(Docket Entry # 42, ¶ 19)
(Docket Entry # 52, ¶ 19) (Docket Entry # 44-1).
On several occasions, Onorato counseled plaintiff about his
absences from the office.
Entry # 52, ¶ 19).
(Docket Entry # 42, ¶ 19) (Docket
In a meeting on June 18, 2014, Onorato told
plaintiff that he needed him in the office Monday through Friday
eight hours a day because plaintiff’s presence was critical to
the success of the team.
Entry # 52, ¶ 19).
(Docket Entry # 42, ¶ 19) (Docket
Despite Onorato’s counseling, plaintiff’s
attendance problems persisted.
(Docket Entry # 52, ¶ 19).
(Docket Entry # 42, ¶ 19)
For example, on June 20, 2014,
plaintiff failed to return to work after lunch, saying he drank
too much coffee.
¶ 20).
(Docket Entry # 42, ¶ 20) (Docket Entry # 52,
On June 27, 2014, he took the day off without advance
notice or permission.
(Docket Entry # 42, ¶ 20) (Docket Entry #
11
52, ¶ 20).
On July 2, 2014, he was an hour late for work.
(Docket Entry # 42, ¶ 20) (Docket Entry # 52, ¶ 20).
On July 7,
2014, plaintiff took a personal day off without advance notice
or permission.
20).
(Docket Entry # 42, ¶ 20) (Docket Entry # 52, ¶
On July 9, 2014, plaintiff emailed Onorato at lunch, said
he had a flat tire and did not return until after 3:00 p.m.
On
July 11, 2014, plaintiff left at lunch and returned only after
Onorato asked him to come back to the office, arriving at 3:20
p.m.5
(Docket Entry # 42, ¶ 20) (Docket Entry # 52, ¶ 20).
On
July 14, 2014, Onorato met with plaintiff again to discuss
plaintiff’s poor attendance.
Entry # 52, ¶ 21).
(Docket Entry # 42, ¶ 21) (Docket
Onorato explained to plaintiff that he was
not satisfied with plaintiff’s attendance and requested a
greater commitment.
52, ¶ 21).
(Docket Entry # 42, ¶ 21) (Docket Entry #
Following this meeting, plaintiff’s attendance
improved for a few weeks, but began to slip again in August 2014
while Onorato was on vacation.
(Docket Entry # 42, ¶ 21)
(Docket Entry # 52, ¶ 21).
C.
Data Server Crash
5
By not raising a hearsay objection, plaintiff waived the issue
solely for purposes of the summary judgment motion. See Coons
v. Industrial Knife Co., Inc., 620 F.3d 38, 44 (1st Cir. 2010)
(“district court was ‘free to disregard’ the state law argument
that was not developed in Coons’ brief”); see, e.g., Franks v.
Indian Rivers Mental Health Center, 2012 WL 47366444, at *13 n.8
(N.D.Ala. Sept. 30, 2012) (finding hearsay objection waived on
summary judgment).
12
Early on Wednesday, August 13, 2014, two servers that store
the electronic data for TharpeRobbins’ customers crashed.
(Docket Entry # 42, ¶ 22) (Docket Entry # 52, ¶ 22).
Plaintiff
called Onorato early that morning to inform him that the servers
had crashed and were inoperable.
(Docket Entry # 52, ¶ 22).
(Docket Entry # 42, ¶ 22)
This crash occurred when plaintiff
was updating the servers from his home.
23) (Docket Entry # 52, ¶ 23).
(Docket Entry # 42, ¶
Plaintiff attests that this
problem occurred because of an unanticipated problem as to the
update resulting from an outside bug.
23).
(Docket Entry # 53, ¶
Plaintiff attests that he had never seen such a bug during
his career in the technology area.
(Docket Entry # 53, ¶ 23).
Typically, a crash like this can be resolved within six
hours if the encryption keys and backup files are available.
(Docket Entry # 53, ¶ 36).
However, when plaintiff went to
retrieve the backup files and encryption keys, he discovered
that the keys were not in the appropriate location.
Entry # 53, ¶ 27).
(Docket
Using the Recuva program, plaintiff
determined that John Haigh (“Haigh”), an IT employee who was in
charge of monitoring the backup files and encryption keys, was
the reason the files disappeared although Haigh denied having
deleted the backup files and encryption keys.
(Docket Entry #
54-3, pp. 34-35) (Docket Entry # 53, ¶¶ 29-31).
Recuva allowed
plaintiff to show the backup files in place and to see where the
13
files had previously been stored.
(Docket Entry # 53, ¶ 29).
The information provided by Recuva indicated that the files had
existed on July 16, 2014, which was seven weeks after Onorato
had been hired.
(Docket Entry # 53, ¶ 31).
Plaintiff believes
that Haigh deleted the backup files in July as part of the
installation of an update.
(Docket Entry # 53, ¶ 35).
On Friday, August 15, 2014, plaintiff was still working
from home to restore the systems and was unable to find the
critical backup file for the SQL database which was needed to
finish restoring the system.
Entry # 52, ¶ 27).
(Docket Entry # 42, ¶ 27) (Docket
When plaintiff told Onorato that he could
not find the SQL database backup file, Onorato called plaintiff
and asked him to come into the office to work together to find
the file for the SQL database.
(Docket Entry # 52, ¶ 27).
(Docket Entry # 42, ¶ 27)
Later that day, on August 15, 2014,
plaintiff came into the office and, together with Onorato, was
able to find the SQL database backup file and restore the
systems at which point the servers became operational.
(Docket
Entry # 42, ¶ 27) (Docket Entry # 52, ¶ 27).
Although the crash of the servers placed defendant out of
business for two days and at a considerable risk, defendant did
not experience any loss of revenue or clients.
(Docket Entry #
42, ¶ 28) (Docket Entry # 52, ¶ 28) (Docket Entry # 54-4, pp.
35-36).
However, had the backup files not been found, defendant
14
could have lost all of the data in its system permanently.
(Docket Entry # 53, ¶ 38).
D.
Termination
In late August of 2014, Onorato determined that plaintiff
should be terminated because Onorato believed that plaintiff
caused the server outage, failed to locate the encryption keys
and failed for more than two days to locate the backup data
necessary to restore the system, thereby egregiously putting the
company at risk.
¶ 30).
(Docket Entry # 42, ¶ 30) (Docket Entry # 52,
Onorato decided that this conduct constituted grounds
for terminating plaintiff’s employment and he so informed his
supervisor, Cao, and TharpeRobbins’ senior vice president for
talent, Susan Tolle (“Tolle”).
(Docket Entry # 52, ¶ 30).
(Docket Entry # 42, ¶ 30)
Cao and Tolle supported Onorato’s
decision to terminate plaintiff’s employment for unsatisfactory
performance, culminating in his failure to restore the servers
after the crash on August 13, 2014.
(Docket Entry # 52, ¶ 34).
(Docket Entry # 42, ¶ 34)
Although Onorato had the authority
to terminate plaintiff directly, Cao agreed to deliver the news
of the termination to plaintiff on September 2, 2014.
(Docket
Entry # 54-4, pp. 33-34).
While plaintiff concedes that he did not disclose his
severe depression to Onorato (Docket Entry # 42, ¶ 31) (Docket
Entry # 52, ¶ 31), plaintiff attests to previously informing Cao
15
of his depression when Cao was plaintiff’s direct supervisor
(Docket Entry # 54-4, pp. 45-46) (Docket Entry # 54-1, p. 18).
At no point after the termination did plaintiff attribute his
job performance problems to depression or disability, nor did he
complain to Tolle, Cao or Onorato of discrimination based on
alleged depression or disability.
(Docket Entry # 52, ¶ 36).
(Docket Entry # 42, ¶ 36)
Onorato was only made aware of
plaintiff’s depression after plaintiff submitted a complaint to
the Massachusetts Commission Against Discrimination (“MCAD”) in
July 2015.
E.
(Docket Entry # 42, ¶ 31) (Docket Entry # 52, ¶ 31).
Defendant Brings Counterclaim for Misappropriation
On or about December 4, 2014, Brett Tharpe, who was
TharpeRobbins’ chief executive officer, received a letter dated
December 3, 2014 from Christopher J. Trombetta, Esq., an
attorney representing plaintiff, asserting for the first time
that plaintiff had been terminated in violation of Massachusetts
public policy for refusing to make false representations to
clients.
(Docket Entry # 42, ¶ 38) (Docket Entry # 52, ¶ 38).
Attached to this letter were copies of confidential
TharpeRobbins documents, including a confidential email from Cao
to other members of TharpeRobbins’ leadership team.
Entry # 42, ¶ 39) (Docket Entry # 52, ¶ 39).
(Docket
Defendant filed
the counterclaim alleging that plaintiff could only have
obtained such an email if he accessed Cao’s or another
16
employee’s email, which plaintiff had the ability to do.
(Docket Entry # 45, ¶ 33).
Accessing another employee’s email
would have been a violation of TharpeRobbins policy.
Entry # 45, ¶ 34).
(Docket
Furthermore, a confidentiality agreement
signed by plaintiff required him to return all TharpeRobbins
confidential business documents and client information to
TharpeRobbins upon termination.
(Docket Entry # 45, ¶ 34).
Plaintiff states that a physical copy of the email was
given to him by Cao sometime in July 2015 when plaintiff was
still employed by defendant on an occasion when he went to see
Cao in Cao’s office at Cao’s request.
63-64).
(Docket Entry # 46-1, pp.
TharpeRobbins notes that when it requested, through its
attorney, that plaintiff return all confidential documents,
plaintiff refused to return them.
(Docket Entry # 45, ¶ 34)
(Docket Entry # 46-1, pp. 11-13).
V.
Plaintiff’s Allegation of Disability Discrimination
Plaintiff filed and served both a complaint and an amended
complaint alleging that plaintiff had been fired in violation of
Massachusetts public policy for his failure to make false
representations to clients.
Entry # 52, ¶ 42).
(Docket Entry # 42, ¶ 42) (Docket
Neither the original nor the first amended
complaint alleged discrimination on the basis of a disability.
(Docket Entry # 42, ¶ 42) (Docket Entry # 52, ¶ 42).
On or
about July 21, 2015, TharpeRobbins received notice from the MCAD
17
of the complaint filed by plaintiff.
In the MCAD complaint,
filed June 16, 2015, plaintiff alleged that he was discriminated
against on the basis of disability.
(Docket Entry # 42, ¶ 43)
(Docket Entry # 52, ¶ 43).
As TharpeRobbins’ senior vice president for talent, Tolle
was responsible for compiling and issuing the TharpeRobbins
employee handbook.
52, ¶ 45).
(Docket Entry # 42, ¶ 45) (Docket Entry #
At her direction, TharpeRobbins issued a new
employee handbook in 2013 and copies were distributed to all
employees, including plaintiff.
Plaintiff signed a handbook
acknowledgment form, acknowledging his receipt of the handbook
on May 23, 2013.
(Docket Entry # 42, ¶ 45) (Docket Entry # 52,
¶ 45).
The employee handbook states that TharpeRobbins is an equal
opportunity employer.
Entry # 43, ¶ 4).
(Docket Entry # 54-1, p. 17) (Docket
As stated in the employee handbook’s equal
opportunity policy, TharpeRobbins prohibits discrimination on
the basis of disability, as well as other protected categories,
in all facets of employment.
(Docket Entry # 43, ¶ 4).
(Docket Entry # 54-1, p. 17)
The policy states that any employee
who believes that he or she has been discriminated in violation
of the policy should immediately talk with his or her
supervisor, the talent department, or any member of the
18
leadership team.
(Docket Entry # 54-1, p. 17) (Docket Entry #
43, ¶ 4).
The employee handbook also contains a policy specifically
regarding the “Americans with Disabilities Act/Reasonable
Accommodations,” which states that TharpeRobbins is “committed
to working with and providing reasonable, necessary
accommodations to employees with physical and/or mental
disabilities.”
(Docket Entry # 54-1, p. 18) (Docket Entry # 42
¶ 47) (Docket Entry # 52 ¶ 47).
The policy encourages employees
to provide their supervisors with information on any limitations
or restrictions in performing the essential duties of their
positions.
5).
(Docket Entry # 54-1, p. 18) (Docket Entry # 43, ¶
The company’s “open door policy” provides that any employee
who has a problem or question concerning his or her job should
first talk it over with his or her immediate supervisor, someone
on the leadership team, or a member of the talent department.
The policy states:
“The door is always open for communication
concerning both personal and work-related concerns.”
(Docket
Entry # 54-1, p. 19) (Docket Entry # 43, ¶ 6).
Tolle was familiar with plaintiff and had several
conversations with him during his employment at TharpeRobbins.
(Docket Entry # 43, ¶ 7).
In none of their conversations did
plaintiff ever mention that he suffered from depression or was
disabled, nor did he ever suggest a need for any accommodation.
19
(Docket Entry # 42, ¶ 50) (Docket Entry # 52, ¶ 50).
Cao
insists that plaintiff spoke of a depression on only one
occasion.
On that occasion, in about April or May 2014,
plaintiff told Cao that at a young age he was diagnosed with
depression and, as a result, he was still on some medication.
(Docket Entry # 45, ¶ 36).
Conversely, plaintiff stated in
deposition, and Cao denied, that in late 2013 or early 2014 he
told Cao that he suffered from depression and it made him
uncomfortable to be in the office and it was much easier for him
to work from home.6
(Docket Entry # 46-1, pp. 25-27).
Plaintiff
cites this as the reason why he was not always in the office or
would leave work early.
(Docket Entry # 46-1, ¶ 43).
Cao
admits to generally giving plaintiff permission to work from
home when he requested it, but there were times when Cao desired
plaintiff to work from the office to complete projects that
required teamwork.
(Docket Entry # 46-1, pp. 34-36).
Plaintiff
attests that all of these task could have been completed from
home using e-mail or telephone.
(Docket Entry # 46-1, pp. 34-
36).
Plaintiff admits that he never told anyone at TharpeRobbins
other than Cao that he was depressed, the reason being that he
wanted to keep his depression confidential.
(Docket Entry # 42,
6
This factual dispute is resolved in plaintiff’s favor.
20
¶ 56) (Docket Entry # 52, ¶ 56).
Plaintiff testified that he
never told Onorato he was depressed.
(Docket Entry # 52, ¶ 56).
(Docket Entry # 42, ¶ 56)
Plaintiff further testified that
from January 1, 2012 through the date of his deposition,
February 22, 2016, he received treatment or counseling for
depression on only one occasion, when he sought a medication
adjustment from his personal doctor in May or June 2014.
(Docket Entry # 42, ¶ 58) (Docket Entry # 52, ¶ 58).
On November 17, 2015, TharpeRobbins served its second set
of requests for production of documents on plaintiff’s attorney.
(Docket Entry # 42, ¶ 59) (Docket Entry # 52, ¶ 59).
Among
other items, the document requests sought copies of all of
plaintiff’s medical, psychological and counseling records from
January 2, 2012 through the present, and all documents
supporting his claim that he is an individual with a disability
pursuant to the ADA.
52, ¶ 59).
(Docket Entry # 42, ¶ 59) (Docket Entry #
Plaintiff produced the documents in his possession
and he also provided responses to defendant’s second set of
interrogatories, the answers to which describe the effects of
plaintiff’s condition.
(Docket Entry # 54, ¶ 2).
On behalf of TharpeRobbins, a subpoena for documents was
served on plaintiff’s purported medical provider, Glenn Tucker,
M.D. (“Dr. Tucker”), on February 26, 2016.
respond to the subpoena.
Dr. Tucker did not
(Docket Entry # 42, ¶ 60) (Docket
21
Entry # 52, ¶ 60).
The only medical information produced by
plaintiff was a document signed by Dr. Tucker on March 20, 2014,
seven months before his termination, indicating that plaintiff
suffered from depression and suicidal thoughts.
53-1, pp. 2-3).
(Docket Entry #
The document lists a variety of medications
prescribed for the plaintiff to alleviate the symptoms of his
depression and other problems with his health such as Lexapro,
Budeprion, Melatonin, Adderall, aspirin, Taclonex, Dovonex,
Elidel, Cialis, Flonase and multivitamins.
(Docket Entry # 53-
1, pp. 2-3).
DISCUSSION
Disability discrimination under chapter 151B and the ADA
are analyzed under the same burden shifting framework where, as
here, there is no direct evidence of discrimination.
See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973);
Matthews v. Ocean Spray Cranberries, Inc., 686 N.E.2d 1303,
1312-14 (Mass. 1997); accord Sensing v. Outback Steakhouse of
Fla., L.L.C., 575 F.3d 145, 153-54 (1st Cir. 2009) (noting that
federal law construing ADA should be followed in interpreting
Massachusetts disability law); Whitney v. Greenberg, Rosenblatt,
Kull & Bitsoli, P.C., 258 F.3d 30, 32, n.1 (1st Cir. 2001)
(applying same analysis to evaluate discrimination claims
brought under chapter 151B and ADA); Labonte v. Hutchins &
Wheeler, 678 N.E.2d 853, n.5 (Mass. 1997) (noting that because
22
Massachusetts employee discrimination law “closely mirror[s] the
[ADA]” the Massachusetts Supreme Judicial Court “look[s] toward
Federal courts to see how they have addressed [the] issue”).
This framework dictates that the plaintiff bears the initial
burden to establish the elements of a prima facie case.
See
McDonnell Douglas Corp. v. Green, 411 U.S. at 802; accord
Matthews v. Ocean Spray Cranberries, Inc., 686 N.E.2d at 131214.
The rather minimal showing functions to raise an inference
of discrimination.
Tex. Dep’t of Community Aff. v. Burdine, 450
U.S. 248, 253-54 (1981).
Once this inference is established, the burden of
production shifts “to the employer to articulate some
legitimate, non-discriminatory reason” for the employment
action.
McDonnell Douglas Corp. v. Green, 411 U.S. at 802;
accord Matthews v. Ocean Spray Cranberries, Inc., 686 N.E.2d at
1312-14.
If this intermediary burden of production is satisfied
by the defendant, the plaintiff gets a “fair opportunity to show
that [the defendant’s] stated reason” is pretextual.
McDonnell
Douglas Corp. v. Green, 411 U.S. at 804; accord Matthews v.
Ocean Spray Cranberries, Inc., 686 N.E.2d at 1312-14.
Accordingly, “the plaintiff bears the ‘ultimate burden of
persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff.’”
Gu v. Boston Police
Dep’t, 312 F.3d 6, 11 (1st Cir. 2002) (quoting Tex. Dep’t of
23
Community Aff. v. Burdine, 450 U.S. at 253).
I.
Prima Facie Case
“Under McDonnell Douglas Corp. v. Green, a plaintiff in a
disability discrimination case must first make out a threefactor prima facie case.”
Jones v. Nationwide Life Ins. Co.,
696 F.3d 78, 86 (1st Cir. 2012).
“[T]he plaintiff must show that
he (1) is disabled within the meaning of the ADA; (2) is
qualified to perform the essential functions of his job with or
without a reasonable accommodation; and (3) was discharged or
otherwise adversely affected in whole or in part because of his
disability.”
Id.
Likewise, “to establish prima facie case
under 151B “plaintiff must show that [he] was terminated, that
[he] is ‘handicapped,’ that [he] is a ‘qualified handicapped
person,’ and that [he] was terminated because of [his]
handicap.”
Russell v. Cooley Dickinson Hosp., Inc., 772 N.E.2d
1054, 1060 (Mass. 2002).
“A ‘qualified handicapped person’ is
defined under [chapter 151B] as ‘a handicapped person who is
capable of performing the essential functions of a particular
job, or who would be capable of performing the essential
functions of a particular job with reasonable accommodation to
his handicap.”
Id.; see Richardson v. Friendly Ice Cream Corp.,
594 F.3d 69, 74 (1st Cir. 2010).
A.
Disabled within Meaning of ADA and Chapter 151B
24
Defendant argues that, although plaintiff has suffered from
depression, plaintiff produced no evidence to show that his
depression substantially limited a major life activity.
Entry # 41, pp. 11-12).
(Docket
Defendant further states that Onorato,
the ultimate decision maker in this case, had no knowledge of
plaintiff’s depression and that Cao was only told once by
plaintiff of his depression.
(Docket Entry # 41, pp. 9-10).
Plaintiff contends that depression is a recognized disability.
(Docket Entry # 59, pp. 13-15).
He also argues that Cao was
made aware of his severe depression which resulted from his
divorce.
(Docket Entry # 59, p. 15).
Finally, plaintiff points
to the employee handbook which does not require him to produce
proof of his depression unless requested by his employer.
(Docket Entry # 54-1, p. 18).
The statutory definitions of “disability” under the ADA and
“handicap” under chapter 151B are “essentially the same.”
Faiola v. APCO Graphics, Inc., 629 F.3d 43, 47 n.2 (1st Cir.
2010).
A “disability” within the meaning of the ADA is analyzed
under a three-part analysis.
Velez del Valle v. Mobile Paints,
349 F.Supp.2d 219, 226 (1st Cir. 2004); City of New Bedford v.
Mass. Comm’n Against Discrimination, 799 N.E.2d 578, 588-89
(Mass. 2003) (applying the same three-part test when
interpreting chapter 151B).
First, the court asks if the
disability is “a physical or mental impairment.”
25
42 U.S.C. §
12102(2); Velez del Valle v. Mobile Paints, 349 F.Supp.2d at
226; accord City of New Bedford v. Mass. Comm’n Against
Discrimination, 799 N.E.2d at 588-89.
A mental impairment is
defined by ADA regulations as “any mental or psychological
disorder, such as mental retardation, organic brain syndrome,
emotional or mental illness, and specific learning
disabilities.”
29 C.F.R. § 1630.2(h)(2).
Second, the court
determines whether the disability “substantially limits one or
more of the major life activities of such individual.”
42
U.S.C. § 12102(2); Velez del Valle v. Mobile Paints, 349
F.Supp.2d at 226; accord City of New Bedford v. Mass. Comm’n
Against Discrimination, 799 N.E.2d at 588-89.
“Working” is
specifically included as a major life activity.
42 U.S.C. §
12102(2)(A).
“Third, the court asks whether the ‘impairment
substantially limits the activity found to amount to be a major
life activity.’”
42 U.S.C. § 12102(2); Velez del Valle v.
Mobile Paints, 349 F.Supp.2d at 226; accord City of New Bedford
v. Mass. Comm’n Against Discrimination, 799 N.E.2d at 588-89;
Boston Police Dep’t v. Kavaleski, 2014 Mass. Super. LEXIS 133,
*18 (D.Mass. Aug. 14, 2014) (under third prong “we ask whether
the impairment substantially limited the major life activity”).
Factors to consider in determining whether an individual is
substantially limited in a major life activity include “the
26
nature and severity” of the impairment, see 29 C.F.R. §
1630.2(j)(2)(i), and the expected duration of the impairment,
see 29 C.F.R. § 1630.2(j)(2)(ii).
To be substantially limiting,
“the impairment’s impact must . . . be permanent or long-term.”
Carroll v. Xerox Corp., 294 F.3d 231, 239 (1st Cir. 2002) (citing
29 C.F.R. § 1630.2(j)(2)(ii)-(iii)); accord Muse v. UPS, 2008
Mass.App. LEXIS 1054, *10 (Mass.App.Ct. Jan. 9, 2008) (“[l]ongterm residual effects bolster a finding of handicap, while a
quick recovery weighs against it”) (citation omitted).
“This circuit has recognized depression as a mental
impairment that may constitute, at least in some circumstances,
a disability under federal law.”
Calero-Cerezo v. United States
DOJ, 355 F.3d 6, 20 (1st Cir. 2004); Criado v. IBM Corp., 145
F.3d 437, 442 (1st Cir. 1998); see also Equal Employment
Opportunity Comm’n v. Amego, Inc., 110 F.3d 135, 141 (1st Cir.
1997) (assuming for summary judgment purposes that plaintiff’s
depression and post-traumatic stress disorder rendered him “a
disabled person within the meaning of the ADA”); see, e.g.,
Pacheco v. Bentley College, 2004 Mass. Super. LEXIS 668, *19-20
(D.Mass. March 3, 2004) (defendants’ summary judgment motion
denied as to former employee’s claims that defendants
discriminated against her based on her chronic depression and
anxiety under chapter 151B).
Plaintiff, however, must offer
evidence showing that the depression substantially limited a
27
major life activity, i.e., his ability to perform the essential
functions of his job.
Roman-Oliveras v. Puerto Rico Elec. Power
Auth., 655 F.3d 43, 48-49 (1st Cir. 2011).
Under this framework,
“‘it is insufficient . . . to merely submit evidence of a
medical diagnosis of an impairment.’ . . . ‘Rather, those
seeking [chapter 151B] protection must offer evidence that ‘the
extent of the limitation [caused by their impairment] in terms
of their own experience . . . is substantial.’”
City of New
Bedford v. Mass. Comm’n Against Discrimination, 799 N.E.2d at
589 (quoting Carroll v. Xerox Corp., 294 F.3d at 238) (citation
omitted).
Here, not only did plaintiff offer a diagnosis from his
doctor (Docket Entry # 53-1), but he went further by offering a
sworn affidavit that his condition was severely impaired by the
divorce of his wife and fear of losing the relationship with his
only son.
(Docket Entry # 53, ¶ 4).
The doctor’s note
indicates that plaintiff was suffering from depression in March
2014, seven months before he was terminated.
53-1).
(Docket Entry #
The doctor wrote that plaintiff “agrees to go to the ER
if the suicidal thoughts become more intrusive or if he starts
to consider [suicide].”
(Docket Entry # 53-1).
In his
affidavit, plaintiff attests that his depression caused him to
lose confidence, become withdrawn, suffer from anxiety, lack
28
energy, have difficulty interacting with co-workers and have
suicidal ideations.
(Docket Entry # 53, ¶ 4).
The fact that plaintiff was missing work because of his
depression is confirmed by certain testimony in plaintiff’s and
Cao’s depositions.
Cao admits in his deposition that in April
or May 2014, plaintiff told him that at a young age he was
diagnosed with depression and that he was still taking
medication.
(Docket Entry # 45, ¶ 36); see Carroll v. Xerox
Corp., 294 F.3d at 239 (stating that, to be substantially
limiting, “the impairment’s impact must . . . be permanent or
long-term”).
While it is true that on a few occasions Cao asked
plaintiff to be in the office eight hours a day, Monday through
Friday (Docket Entry # 54-3, pp. 12-13), plaintiff told Cao that
when he was in “that mode because of [his] depression” he would
need to work from home.
(Docket Entry # 54-3, p. 13).
Moreover, in Cao’s deposition, Cao states he noticed a change in
plaintiff’s “health” which Cao presumed was a result of the
divorce.
(Docket Entry # 54-4, p. 43).
Construing the evidence in the light most favorable to
plaintiff, this court finds that the first element of the prima
facie case is satisfied.
For purposes of summary judgment,
plaintiff made a sufficient showing that he did in fact have a
disability that significantly impaired his ability to perform
his job.
29
B.
Reasonable Accommodation
The second element of the prima facie case under the ADA
requires that plaintiff be a qualified individual who is “‘able
to perform the essential functions of’” his position “‘with or
without reasonable accommodation.’”
Phelps v. Optima Health,
Inc., 251 F.3d 21, 25 (1st Cir. 2001) (quoting Ward v. Mass.
Health Research Inst., Inc., 209 F.3d 29, 32-33 (1st Cir. 2000)).
Similarly, under chapter 151B, an employer is barred from
dismissing an employee who is “capable of performing the
essential functions of the position involved with reasonable
accommodation.”
Mass. Gen. Laws ch. 151B, § 4(16).
is often divided “into two steps:
The inquiry
(1) whether the employee
could perform the essential functions of the job; [and] (2) if
not, whether any reasonable accommodation by the employer would
enable him to perform those functions.”
Ward v. Mass. Health
Research Inst., Inc., 209 F.3d at 33; Phelps v. Optima Health,
Inc., 251 F.3d at 25; see Dube v. Nat’l Fiber Tech., LLC, 2007
Mass. Super. LEXIS 392 (D.Mass. May 3, 2007) (plaintiff “must
present credible evidence that” he “was qualified to perform
essential functions of the job with or without reasonable
accommodation”).
1.
Essential Functions
The summary judgment facts provide sufficient evidence that
plaintiff was qualified for the position because he had held the
30
position for a significant number of years and was knowledgeable
about the network infrastructure.
(Docket Entry # 45, ¶ 10).
He also received the employee of the year award in 2011 and was
given good employee reviews in 2012 and 2013.
45, ¶ 10).
(Docket Entry #
It is apparent that plaintiff would have been fully
capable of performing his duties from the office had he not
suffered from severe depression or had he only suffered from
mild depression.
Defendant argues that, although plaintiff was knowledgeable
in maintaining the servers, his attendance was unsatisfactory,
causing him to be unavailable in the office to attend meetings
and participate in other tasks which required team effort.
(Docket Entry # 41, p. 12).
Plaintiff contends that his
presence was not necessary because he could perform all of the
essential functions from home which he had been doing for many
years before Onorato was ever hired.
(Docket Entry # 59, pp.
16-17).
“An essential function ‘is ‘fundamental to a position
rather than marginal.’’”
Cairo v. Starbucks Corp., 2013 WL
5229968, *8 (D.Mass. Sept. 13, 2013) (quoting Richardson v.
Friendly Ice Cream Corp., 594 F.3d at 74); 29 C.F.R. §
1630.2(n)(1) (“the term essential functions means the
fundamental job duties of the employment position the individual
with a disability holds or desires”).
31
“Whereas an essential
function ‘does not include marginal tasks,’ it ‘may encompass
individual or idiosyncratic characteristics of the job.’”
Cairo
v. Starbucks Corp., 2013 WL 5229968, at *8 (quoting Jones v.
Nationwide Life Ins. Co., 696 F.3d at 88 (internal quotations
marks and citations omitted)).
“Three nonexclusive reasons why
a job function is essential are that:
‘(1) the position exists
for the purpose of performing the function; (2) there are a
limited number of employees among whom responsibility for the
function can be distributed; and/or (3) the function is highly
specialized and the incumbent was hired for his or her expertise
or ability to perform it.’”
Id. at *8 (quoting Richardson v.
Friendly Ice Cream Corp., 594 F.3d at 75, citing ADA
implementing regulation 29 C.F.R. § 1630.2(n)(2)); accord
Cargill v. Harvard Univ., 804 N.E.2d 377, 385-86 (Mass.App.Ct.
2004) (applying same standard when interpreting chapter 151B).
“A court may examine ‘[t]he employer’s judgment as to which
functions are essential.’”
Cairo v. Starbucks Corp., 2013 WL
5229968, at *9 (quoting Jones v. Walgreen Co., 679 F.3d 9, 14
(1st Cir. 2012)).
“‘Employer’s good faith view of what a job
entails’ is important although ‘not dispositive’ in the
calculus.”
Cairo v. Starbucks Corp., 2013 WL 5229968, *9
(quoting Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 25
(1st Cir. 2002)); see Ward v. Massachusetts Health Research
Inst., Inc., 209 F.3d at 34 (“[w]hile we generally give
32
substantial weight to the employer’s view of job requirements in
the absence of evidence of discriminatory animus, it is only one
factor in the analysis”) (citation omitted).
“‘The consequences
of not requiring the incumbent to perform the function’ also
provide evidence of an essential function.”
Cairo v. Starbucks
Corp., 2013 WL 5229968, at *9 (quoting 29 C.F.R. §
1630.2(n)(3)(iv)).
Other “[e]vidence of whether a particular
function is essential includes, but is not limited to:
‘[t]he
employer’s judgment as to which functions are essential;’
‘[w]ritten job descriptions prepared before advertising or
interviewing applicants for the job;’ ‘[t]he work experience of
past incumbents in the job;’ and ‘[t]he current work experience
of incumbents in similar jobs.’”
29 C.F.R. § 1630.2(n)(3);
Mulloy v. Acushnet Co., 460 F.3d 141, 147 (1st Cir. 2006).
In Rios-Jimenez, the court explained that, “At the risk of
stating the obvious, attendance is an essential function of any
job.”
Rios-Jimenez v. Sec’y of Veterans Affairs, 520 F.3d 31,
42 (1st Cir. 2008); see also Browning v. Liberty Mut. Ins. Co.,
178 F.3d 1043, 1048 (8th Cir. 1999) (“[i]t is axiomatic that in
order for [an employee] to show that [he] could perform the
essential functions of [his] job, [he] must show that [he] is at
least able to show up for work”).
The majority view likewise
posits that an employee cannot perform the essential functions
of his job if he does not show up for work.
33
Browning v. Liberty
Mut. Ins. Co., 178 F.3d at 1048.
The circumstances in Rios-
Jimenez, however, involved a plaintiff who was absent from the
workplace and did not work from home during those absences.
Rios-Jimenez v. Sec’y of Veterans Affairs, 520 F.3d at 35-36.
The inquiry in the case at bar entails whether being present at
the facility, as opposed to working at home, was one of the
essential functions of the position.
See Mulloy v. Acushnet
Co., 460 F.3d at 148.
In the case at bar, after Onorato was hired on June 2, 2014
as director of network infrastructure services, plaintiff was
demoted to senior network engineer.
18).
(Docket Entry # 45, ¶¶ 17-
From then on, plaintiff no longer had the essential
function of supervising employees and he was subordinate to
Onorato instead of Cao.
(Docket Entry # 53, ¶ 37).
Plaintiff
retained responsibility of the servers in light of his expertise
and knowledge of the network infrastructure which he created for
TharpeRobbins.
(Docket Entry # 44, ¶ 15).
According to Cao’s performance review of plaintiff
completed in February 2014, plaintiff was fully capable of
performing the essential functions of his job.
54-4, pp. 74-80).
(Docket Entry #
The performance review shows that plaintiff
performed at an average level or above average level in every
category except for one in which plaintiff received a below
average rating with regard to his “participation in company
34
appreciation events during work and outside of work hours, as
able.”
(Docket Entry # 54-4, pp. 77-78).
There is little, if
any, evidence that such participation was an essential function
of his job.
In addition, plaintiff attests that he completed nearly
every task assigned to him in 2013 and during the beginning of
2014, except for the web application firewall which could not be
installed because of problems with the product’s design which
the designer could not even resolve.
(Docket Entry # 53, ¶ 6).
Cao admits in his deposition that any other tasks that plaintiff
did not complete could have been a result of Cao giving
plaintiff other tasks to prioritize over his primary objectives.
(Docket Entry # 54-4, p. 25).
In sum, construing the facts in plaintiff’s favor, a
reasonable juror could find that plaintiff was performing the
essential functions of his position and that being present in
the office at all times was a marginal requirement and not an
essential function of plaintiff’s job.
2.
Reasonable Accommodation
Neither plaintiff nor defendant extensively address this
element of the prima facie case.
Defendant essentially argues
that plaintiff would not be able to perform the essential
functions of his job if he were permitted to work from home,
which is why Onorato wanted plaintiff to be in the office eight
35
hours a day, Monday through Friday.
(Docket Entry # 41, p. 13).
Defendant claims that plaintiff’s presence in the office was
essential to the completion of important network infrastructure
projects.
(Docket Entry # 41, p. 15).
In plaintiff’s statement
of facts in his memorandum in opposition to defendant’s motion
for summary judgment, plaintiff indicates that working from home
was a reasonable accommodation because it allowed plaintiff to
work longer hours and because his responsibilities concerned
only technology issues which could be addressed from his
computer.
(Docket Entry # 59, p. 5).
“A reasonable accommodation” is one that “‘enable[s] a
qualified individual with a disability to perform the essential
functions of [his] position.’”
Ward v. Massachusetts Health
Research Inst., Inc., 209 F.3d at 36 (quoting 29 C.F.R. §
1630.2(o)(ii)); accord Godfrey v. Globe Newspaper Co., Inc., 928
N.E.2d 327, 334 (Mass. 2010) (“reasonable accommodation” is one
“that will enable [employee] to perform the essential functions
of his job”).
“An employer is obligated to provide a reasonable
accommodation (as long as it is not unduly burdensome) where a
protected employee has requested an accommodation or the
employer otherwise knew that one was needed.”
Murray v. Warren
Pumps, LLC, 821 F.3d 77, 84 (1st Cir. 2016) (citing Jones v.
Nationwide Life Ins. Co., 696 F.3d at 89); accord Godfrey v.
Globe Newspaper Co., Inc., 928 N.E.2d at 334.
36
“Ordinarily, the employer’s duty to accommodate is
triggered by a request from the employee.”
Freadman v. Metro.
Prop. & Cas. Ins. Co., 484 F.3d 91, 102 (1st Cir. 2007); accord
Russell v. Cooley Dickinson Hosp., Inc., 772 N.E.2d at 1066.
The employee’s request for an accommodation, however, “must be
sufficiently direct and specific, and it must explain how the
accommodation is linked to the [employee’s] disability” in order
to trigger the employer’s responsibility to accommodate.
Jones
v. Nationwide Life Ins. Co., 696 F.3d at 89; see also Ocean
Spray Cranberries, Inc. v. Mass. Comm’n Against Discrimination,
808 N.E.2d 257, 270-71 (Mass. 2004).
Plaintiff submits that TharpeRobbins, knowing of his
depression, should have accommodated his disability by
continuing to give him the flexibility to work from home.
(Docket Entry # 59, p. 15).
Cao admits in his deposition that
plaintiff informed him that the divorce was the worst personal
crisis of his life and that, as a result of this crisis,
plaintiff would need to work from home because of his severe
depression.
(Docket Entry # 54-4, p. 14).
Cao also admits
noticing plaintiff’s physical condition worsening around the
time of the divorce.
(Docket Entry # 54-4, p. 43).
Although
the issue is decidedly close, when viewing the facts in
plaintiff’s favor this court finds these circumstances a
sufficient request for an accommodation.
37
The inquiry therefore devolves to whether the type of
accommodation plaintiff sought, i.e., working from home, was a
reasonable request that was not unduly burdensome to defendant.
Murray v. Warren Pumps, LLC, 821 F.3d at 84.
“An employer need
not accommodate a disability by foregoing an essential function
of the job.”
Laurin v. Providence Hosp., 150 F.3d 52, 56 (1st
Cir. 1998); see also Dziamba v. Warner & Stackpole LLP, 778
N.E.2d 927, 933 (Mass.App.Ct 2002) (“[t]o fulfill their
obligation of a reasonable accommodation to a handicap,
employers need not make substantial changes in the standards of
a job”); see also Simon v. Harvard Vanguard Med. Assoc., 2015
U.S. Dist. Lexis 154911, *20 (D.Mass. Nov. 16, 2015) (stating
that “in a modern wired economy, there are many jobs that can be
satisfactorily performed from home”).
Plaintiff “bears the
burden of proving that a ‘proposed accommodation would enable
[him] to perform the essential functions of [his] job’ and that,
‘at least on the face of things, [the accommodation] is feasible
for the employer under the circumstances.’”
Richardson v.
Friendly Ice Cream Corp., 594 F.3d at 81.
If a job’s essential function entails plaintiff interacting
with customers or managing staff employees on a daily basis,
something the employee cannot do from home, then obviously that
employee would have to work from the office.
See Kvorjak v.
Maine, 259 F.3d 48, 55-58 (1st Cir. 2001) (concluding that
38
permanent, full-time, work-at-home arrangement employee sought
would not allow him to perform an essential function that
required personal contact, interaction, and coordination with
others in the workplace).
Viewing the facts in plaintiff’s favor, plaintiff’s request
to work from home was feasible under the circumstances because
plaintiff was an experienced computer engineer who was able to
accomplish tasks with or without supervision.
For summary
judgment purposes, plaintiff sufficiently demonstrates that the
essential functions of his job could have been completed at home
almost as easily as they could have been completed in the
office.
(Docket Entry # 42, ¶ 23) (Docket Entry # 52, ¶ 23).
Plaintiff attests that while he held the position as director of
network infrastructure it was a normal practice to work from
home.
(Docket Entry # 53, ¶ 18).
Notably, when defendant hired
Onorato, the company took away plaintiff’s managerial
responsibilities leaving plaintiff with the sole duty of
maintaining the network infrastructure security and reliability.
(Docket Entry # 45, ¶ 12).
Cao stated in his deposition that, although plaintiff had
poor attendance, he never took an absence that was not covered
by PTO, which plaintiff accumulated during his employment with
TharpeRobbins.
(Docket Entry # 54-4, p. 42).
Also, when
plaintiff was not able to come back to the office, he always
39
made himself available to Onorato from home if anything came up.
(Docket Entry # 44-1, pp. 3-5).
In fact, a reasonable juror
could find that, except for the crash, plaintiff performed his
work from home without incident such that it was not unduly
burdensome to defendant for plaintiff to work at home.
Also,
viewing the record in plaintiff’s favor, the crash occurred
because of an unanticipated problem with the update resulting
from an outside bug as opposed to plaintiff working from home.
(Docket Entry # 53, ¶ 23).
Finally, in his deposition and
affidavit plaintiff attests to working over 100 hours a week
from home.
(Docket Entry # 53, ¶ 8).
While this number appears
excessive, Cao states in his deposition that he knew plaintiff
was working a significant amount of hours a day from home.
(Docket Entry # 54-4, pp. 18-19).
Taking evidence in the light most favorable to plaintiff,
plaintiff has offered sufficient evidence from which a
reasonable juror could conclude that working from home was a
reasonable accommodation that was not unduly burdensome to
defendant and one that would enable plaintiff to perform the
essential functions of his job.
C.
Discharge Because of Disability
Defendant maintains that it terminated plaintiff not
because of his disability, but for legitimate, nondiscriminatory reasons discussed below in section II.
40
(Docket
Entry # 41, pp. 13-14).
Moreover, defendant asserts that
plaintiff cannot point to any evidence showing a link between
plaintiff’s disability and termination.
13).
(Docket Entry # 41, p.
Plaintiff simply argues that this element is satisfied
because he was terminated from TharpeRobbins.
To establish the final element of a prima facie case,
plaintiff must show that defendant “took an adverse employment
action against him because of, in whole or in part, his
protected disability.”
Tobin v. Liberty Mut. Ins. Co., 433 F.3d
100, 104 (1st Cir. 2005); see also Jones v. Nationwide Life Ins.
Co., 696 F.3d at 86.
Massachusetts “[c]ases have employed the
phrase ‘adverse employment action’ to refer to the effects on
working terms, conditions, or privileges that are material, and
thus governed by the statute, as opposed to those effects that
are trivial and so not properly the subject of a discrimination
action.”
King v. City of Boston, 883 N.E.2d 316, 323
(Mass.App.Ct. 2008).
In the case at bar, plaintiff clearly suffered an adverse
employment action because he was terminated from TharpeRobbins.
The issue thus reduces to whether the termination resulted, at
least in part, because of his disability.
At his deposition, Cao, when asked the reasons for
plaintiff’s termination, responded, “starting with . . . not
being in the office consistently.”
41
(Docket Entry # 54-4, p. 33)
(ellipses added).
Therefore, a reasonable juror could find that
plaintiff was terminated, in part, because of his poor
attendance.
(Docket Entry # 54-4, p. 33).
“According to the
First Circuit, ‘[a]sserting that [a] termination was based on
[an employee]’s absenteeism rather than her disability does not
justify [an employer]’s action where the absence was the
requested accommodation.’”
Miller v. Verizon Commc’n, Inc., 474
F.Supp.2d 187, 200 (D.Mass. 2007) (quoting Criado v. IBM Corp.,
145 F.3d 437 at 444); see Humphrey v. Mem’l Hosps. Ass’n, 239
F.3d 1128, 1139-40 (9th Cir. 2001) (“[f]or purposes of the ADA,
with a few exceptions, conduct resulting from a disability is
considered to be part of the disability, rather than a separate
basis for termination”).
Here too, the summary judgment record
evidences that plaintiff’s poor attendance in the office
resulted from his disability for which he sought the reasonable
accommodation of working from home.
See, e.g., Miller v.
Verizon Commc’n, Inc., 474 F.Supp.2d at 200 (denying summary
judgment and noting, in context of discussing third prima facie
element, that, “[p]laintiff’s requested accommodation, a
modified schedule, resulted in her being absent”).
Therefore,
terminating plaintiff, at least in part, because of his poor
attendance gives rise to the inference that he was terminated
because of his disability.
Taking the evidence in the light most favorable to
42
plaintiff, this court finds that a reasonable juror could
conclude that defendant terminated plaintiff, at least in part,
because of his disability.
In sum, plaintiff adequately
establishes the prima facie requirements to survive summary
judgment with respect to the ADA and chapter 151B claims.
II.
Pretext
Where the employee establishes a prima facie disability
discrimination claim, “the burden shifts to the defendant to
articulate a legitimate, non-discriminatory reason for the
employment decision and to produce credible evidence to show
that the reason advanced was the real reason.”
Sec’y of Veterans Affairs, 520 F.3d at 41.
Rios-Jimenez v.
“If the defendant is
able to offer such a reason, the burden then shifts back to the
plaintiff to establish that the proffered reason is pretext
intended to conceal discriminatory intent.”
Id.
“The ultimate
burden of proving unlawful action rests at all times with [the
plaintiff]”.
Id.
Defendant asserts that even if plaintiff can establish the
prima facie elements of a disability claim under the ADA and
chapter 151B, defendant made a legitimate business decision
because Onorato had a reasonable and good faith belief that
plaintiff’s performance was deficient.
15).
(Docket Entry # 41, p.
First, defendant asserts that it was plaintiff’s
responsibility to maintain the reliability and security of the
43
servers which he failed to do properly, culminating in the
server crash on August 13, 2014.
16).
(Docket Entry # 41, pp. 15-
Second, defendant contends that plaintiff failed to
complete his objectives for 2013, for example, by failing to
fully implement the web application firewall.
41, pp. 15-16).
(Docket Entry #
Third, defendant argues that plaintiff’s poor
attendance was also a legitimate reason to terminate him.
(Docket Entry # 41, pp. 15-16).7
Based on the evidence in the summary judgment record,
defendant articulates and the evidence in the record amply
supports legitimate, non-discriminatory reasons for terminating
plaintiff.
The burden, therefore, shifts back to plaintiff to
show that defendant’s reasons are merely a pretext and, with
respect to the ADA claim, that defendant terminated plaintiff in
whole or in part because of his disability.
Tobin v. Liberty
Mut. Ins. Co., 433 F.3d at 105.
Defendant argues that plaintiff’s personal opinion
unsupported by factual evidence cannot raise an issue of fact on
pretext.
(Docket Entry # 41, p. 18).
Moreover, defendant
asserts that Onorato was the ultimate decision maker and
plaintiff admits that he never informed Onorato of his
depression.
(Docket Entry # 41, p. 17).
Finally, defendant
7
Each of these arguments is discussed individually below.
44
argues that even if it was mistaken in its belief that plaintiff
was at fault for the server crash in August 2014, this is not
enough to demonstrate that defendant’s decision was motivated by
discriminatory animus.8
(Docket Entry # 41, p. 18).
As correctly asserted by plaintiff (Docket Entry # 59, p.
16), “pretext can be shown by weaknesses, implausibilities,
inconsistencies, incoherencies or contradictions in the
employer’s proffered legitimate reasons for its actions.”
Gomez-Gonzalez v. Rural Opportunities, Inc., 626 F.3d 654, 66263 (1st Cir. 2010).
Furthermore, as also asserted by plaintiff
(Docket Entry # 59, p. 16-17), questionable grounds for
termination also infer a lack of credence and create an issue of
material fact as to whether the grounds were pretextual.
See
id.; see also Hodgens v. General Dynamics Corp., 144 F.3d 151,
172 (1st Cir. 1998).
Defendant’s first reason for terminating plaintiff was his
failure to maintain the security and reliability of the servers.
(Docket Entry # 41, p. 15).
Although both parties agree that
the crash occurred while plaintiff was updating servers (Docket
Entry # 42, ¶ 23) (Docket Entry # 52, ¶ 23), there is a dispute
as to who was responsible for the server crash. Defendant argues
8
As explained below, a showing of pretext alone, i.e., that
defendant’s reasons were not the real reasons for the
termination, is sufficient to avoid summary judgment on the
chapter 151B claim.
45
the crash was plaintiff’s fault because it was his
responsibility to maintain the security and reliability of the
servers.
(Docket Entry # 41, p. 5).
Conversely, as argued by
plaintiff (Docket Entry # 59, p. 7), a reasonable juror could
find that the crash occurred because of an outside bug (Docket
Entry # 53, ¶ 23).
Viewing the facts in plaintiff’s favor, the crash would not
have occurred had Cao heeded warning that there were holes in
the security of the servers.
(Docket Entry # 53, ¶¶ 7, 15-16).
Moreover, had the keys been in the proper file, the system could
have been up and running within a matter of hours.
Entry # 53, ¶ 36).
(Docket
For purposes of summary judgment only,
plaintiff aptly and correctly points out that it was not his job
to manage other employees, i.e., Haigh, nor was it his job to
maintain the backup files and encryption keys.
54-3, pp. 34-35) (Docket Entry # 53, ¶¶ 29-31).
(Docket Entry #
Plaintiff
attests that Haigh deleted the backup files and encryption keys
during the installation of an update.
35).
(Docket Entry # 53, ¶
Furthermore, the record indicates that the servers were
restored after plaintiff used the Recuva program to relocate the
backup files and the encryption keys.
(Docket Entry # 54-3, pp.
34-35) (Docket Entry # 53, ¶¶ 29-31).
These facts are
sufficient to create a genuine dispute of material fact.
46
Next, defendant argues that plaintiff’s termination was
based on his failure to complete other projects in 2013, such as
the web application firewall which was not fully installed until
2014.
(Docket Entry # 41, pp. 15-16).
Plaintiff asserts and
the record supports another dispute of material fact.
At his
deposition, Cao testified that the reason plaintiff did not
complete his objectives for 2013, which Cao himself set for
plaintiff, was because Cao asked plaintiff to prioritize other
tasks, which were seemingly more urgent, ahead of plaintiff’s
primary objectives.
(Docket Entry # 54-4, p. 25).
Moreover,
plaintiff attests that he completed all of his objectives for
2013 despite having to prioritize more urgent matters above
these objectives.
(Docket Entry # 53, ¶ 8).
Plaintiff further
attests that the reason he was unable to install the web
application firewall was because the software had bugs that the
designer of the product was not able to resolve.
# 53, ¶ 6).
(Docket Entry
Viewing the record as a whole and resolving
disputed facts in plaintiff’s favor, a genuine issue of material
fact exists as to whether plaintiff completed his objectives for
2013 sufficient to discount defendant’s reason as pretextual.
The third reason defendant provides for plaintiff’s
termination is his regular tardiness, absences and leaving work
early without permission.
(Docket Entry # 41, pp. 15-17).
respect to the absences and late arrivals during Onorato’s
47
With
tenure, the record allows a reasonable juror to find that
plaintiff’s disability, namely, his depression, caused him to
arrive late, not return from lunch a number of times and take
days off.
(Docket Entry # 42, ¶ 20) (Docket Entry # 52, ¶ 20).
Cao admitted that he knew the time plaintiff was taking off was
a result of the divorce.
(Docket Entry # 54-4, p. 42).
At his
deposition, Cao stated that beginning around the time of the
divorce in November 2012 he noticed plaintiff began taking more
time off with short notice.
(Docket Entry # 54-4, p. 42).
Notably, Cao also testified that plaintiff “wasn’t taking any
absences for which he didn’t have PTO already allocated” and
that this remained true up until the date of his termination in
September 2014.
(Docket Entry # 54-4, p. 42).
Plaintiff attests that he informed Cao of his depression on
at least two separate occasions.
(Docket Entry # 53, ¶ 3).
The
first occasion was in November 2013 when plaintiff came to Cao’s
office and told him he had been diagnosed with depression as a
child and continued taking medication for it.
45, ¶ 36).
(Docket Entry #
The second occasion, which Cao disputes took place,
happened in spring/summer 2014 after plaintiff’s divorce when he
told Cao that the divorce was the biggest personal crisis of his
life and, as a result of his worsening depression, plaintiff
would need to work from home.
(Docket Entry # 54-4, p. 43).
Plaintiff admits that he did not inform Onorato of his condition
48
(Docket Entry # 42, ¶ 31) (Docket Entry # 52, ¶ 31), but attests
in his affidavit that he told Cao about his worsened depression
and his need to work from home.
(Docket Entry # 53, ¶ 3).
Viewing the evidence in the light most favorable to plaintiff,
he therefore informed Cao of his severe depression and his need
to work from home.
“Limitations that result from a disability that affect the
employee’s performance of the essential functions of the job may
have to be reasonably accommodated.”
Crevier v. Town of
Spencer, 600 F.Supp.2d 242, 254-255 (D.Mass. 2008).
As
previously explained albeit admittedly addressing the third
prima facie case element, the Miller court recognized that in
the First Circuit “‘[a]sserting that [a] termination was based
on [an employee]’s absenteeism rather than [his] disability does
not justify [an employer]’s action where the absence was the
requested accommodation.’”
Miller v. Verizon Commc’n, Inc., 474
F.Supp.2d at 200 (internal citation omitted).
When the employer
knows of an employee’s disability, “‘conduct resulting from a
disability is considered to be part of the disability, rather
than a separate basis for termination.’
This rule includes
excessive absenteeism related to the disability.”
Trujillo v.
United States Postal Serv., 330 F.App’x 137, 139 (9th Cir. 2009)
49
(internal citation omitted) (unpublished);9 Yarberry v. Gregg
Appliances, Inc., 625 F.App’x 729, 740 (6th Cir. 2015);10 see also
McInteer v. Ashley Distrib. Servs., 40 F.Supp.3d 1269, 1285-86
(C.D.Cal. 2014) (“[i]t is undisputed that Plaintiff’s absences
resulted from his disability and thus are considered part of the
disability.
By citing his absences as a basis for termination,
Defendants ipso facto cited his disability”).
Accordingly, plaintiff has sufficiently created a genuine
issue of material fact as to each alleged legitimate, nondiscriminatory reason proffered by defendant for which plaintiff
could have been terminated.
Plaintiff is also correct in
stating that Massachusetts is a pretext-only jurisdiction.
(Docket Entry # 59, pp. 16-17).
In particular, “an employee may
survive summary judgment by producing evidence ‘that the
respondent’s facially proper reasons given for its action
against him [or her] were not the real reasons for that action,’
even if that evidence does not show directly that the true
reasons were, in fact, discriminatory.”
Verdrager v. Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, P.C., 50 N.E.3d 778, 794
(Mass. 2016) (internal citation omitted); Haddad v. Wal-Mart
Stores, Inc., 914 N.E.2d 59, 66 (Mass. 2009).
9
10
See Fed.R.App.P. 32.1; 9th Cir. R. 36-3.
See Fed.R.App.P. 32.1; 6th Cir. R. 28(f).
50
The chapter 151B claim, therefore, survives summary
judgment.
Discriminatory animus in plaintiff’s ADA claim,
however, is discussed in the following section.
III.
Discriminatory Animus
Defendant argues that plaintiff has not offered sufficient
evidence of a discriminatory animus.
(Docket Entry # 41, p. 9).
First, defendant reasons that neither Cao nor Onorato-the
ultimate decision maker-has ever showed any discriminatory
animus toward plaintiff.
(Docket Entry # 41, p. 12).
Second,
defendant argues that the temporal proximity between when
plaintiff told Cao of his disability in November 2013 and the
date of termination on September 2, 2014 is insufficient to
establish discriminatory animus.
17).
(Docket Entry # 41, pp. 16-
Plaintiff argues that Cao was aware of plaintiff’s
disability and that he wished to terminate what he perceived to
be a disabled employee.
(Docket Entry # 59, pp. 18-19).
Unlike chapter 151B, an ADA claim requires that plaintiff
show “‘that the proffered legitimate reason is in fact a pretext
and that the job action was the result of the defendant’s
retaliatory animus.’”
Jones v. Walgreen Co., 679 F.3d at 21
(internal citation omitted).
analysis:
This is separated into a two-step
whether “(1) the employer’s given reason for the
employment decision is a pretext; and (2) [whether] the true
reason is discriminatory animus.”
51
Salgado-Candelario v.
Ericsson Caribbean, Inc., 614 F.Supp.2d 151, 173 (D.P.R. 2008).
As discussed in the previous section, plaintiff has satisfied
the first element.
The second element, however, requires
further analysis.
As explained by the First Circuit in Hodgens, in assessing
discriminatory motive, a court may consider:
factors, including “among other things, ‘the historical
background of the . . . decision’; ‘the specific sequence
of events leading up to the challenged decision’;
‘departures from the normal procedural sequence’; . . .
‘[any] contemporary statements by members of the
decisionmaking body, and substantive departures . . .,
particularly if the factors usually considered important by
the decisionmaker strongly favor a decision contrary to the
one reached.’”
Hodgens v. General Dynamics Corp., 144 F.3d at 168-69; see
Walker v. City of Holyoke, 523 F.Supp.2d 86, 105 (D.Mass. 2007).
In addition, as defendant correctly asserts, “chronological
proximity does not by itself establish causality.”
Wright v.
CompUSA, Inc., 352 F.3d 472, 478 (1st Cir. 2003); accord Gil v.
Vortex, LLC, 697 F.Supp.2d 234, 243 (D.Mass. 2010).
Plaintiff’s argument, that Cao was aware of his disability,
is insufficient to prove discriminatory animus.
“‘[T]he mere
fact that an employer is aware of an employee’s impairment is
insufficient to demonstrate either that the employer regarded
the employee as disabled or that the perception caused the
adverse employment action.’”
Rivera-Mercado v. Scotiabank de
Puerto Rico-International, 571 F.Supp.2d 279, 287 (D.P.R. 2008)
52
(citation omitted).
It is nevertheless “true that ‘evidence
constituting a prima facie case along with evidence of pretext
can defeat summary judgment provided that the evidence is
adequate to enable a rational factfinder reasonably to infer
that unlawful discrimination was a determinative factor in the
adverse employment action.’”
Velez v. Thermo King de P.R.,
Inc., 585 F.3d 441, 452 (1st Cir. 2009); Cornwell v. Dairy
Farmers of Am., Inc., 369 F.Supp.2d 87, 106 (D.Mass. 2005).
Under the circumstances, it is also appropriate to “heed[]
the First Circuit’s warning that courts should exercise caution
before granting summary judgment for employers on such issues as
pretext and motive.”
F.Supp.2d at 200.
Miller v. Verizon Commc’n, Inc., 474
“The reason for such caution . . . is
‘because of the availability of seemingly neutral rationales
under which an employer can hide its discriminatory intent.’”
Id. (internal citation omitted).
This court finds that a reasonable juror could infer that
the unlawful discrimination was a determinative factor in the
adverse employment action.
Plaintiff has sufficiently
established all the elements of a prima facie case and has
created a genuine issue of material fact as to each of
defendant’s non-discriminatory reasons for terminating
plaintiff.
Plaintiff has shown that defendant had knowledge of
his disability and terminated him, at least in part, for poor
53
attendance which resulted from his disability.
Considering the
entire record, plaintiff has sufficiently established
discriminatory animus for purposes of summary judgment only and,
as such, the ADA claim (Count III) survives.
CONCLUSION
In accordance with the foregoing discussion, defendant’s
motion for summary judgment (Docket Entry # 40) is DENIED as to
Count II for disability discrimination in violation of chapter
151B and Count III for disability discrimination in violation of
the ADA.
The deadline to file dispositive motions has passed
and there shall be no extensions.
This court will conduct a
status conference on November 28, 2016 at 2:45 p.m. to set a
trial date.
/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge
54
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