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Moebius v. Tharperobbins Co.

United States District Court, D. Massachusetts

November 1, 2016



          MARIANNE B. BOWLER, United States Magistrate Judge

         Pending before this court is a motion for summary judgment filed by defendant TharpeRobbins Company (“TharpeRobbins” or “defendant”). (Docket Entry # 40). Plaintiff Matthew Moebius (“plaintiff”) opposes the motion. (Docket Entry # 51). After conducting a hearing, this court took the motion (Docket Entry # 40) under advisement.


         On March 10, 2015, defendant filed a notice of removal pursuant to 28 U.S.C. §§ 1332, 1441(a) and 1446. (Docket Entry # 1). 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).


         Summary judgment is designed “‘to pierce the boilerplate of 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. Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014). 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 (1stCir. 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 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]


         The TharpeRobbins Company, now known as Engage2Excel, Inc., is in the business of providing employee recognition programs to assist employers in measuring, managing and improving the performance of their employees. (Docket Entry # 42, ¶ 1) (Docket Entry # 52, ¶ 1). Through such programs, TharpeRobbins provides employers with service and performance-based rewards for their employees. (Docket Entry # 42, ¶ 1) (Docket Entry # 52, ¶ 1). In providing such employee recognition programs, TharpeRobbins obtains and manages electronically stored personnel and business data for its employer clients. (Docket Entry # 42, ¶ 2) (Docket Entry # 52, ¶ 2). 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. (Docket Entry # 42, ¶ 2) (Docket Entry # 52, ¶ 2). 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. (Docket Entry # 42, ¶ 3) (Docket Entry # 52, ¶ 3). 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, ¶ 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. (Docket Entry # 42, ¶ 6) (Docket Entry # 52, ¶ 6). 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. (Docket Entry # 42, ¶ 6) (Docket Entry # 52, ¶ 6). Plaintiff was responsible for the switches, firewalls, desktops, servers, help desk, data center and security. (Docket Entry # 42, ¶ 6) (Docket Entry # 52, ¶ 6). Plaintiff reported directly to Cao and Cao had input as to all the work which plaintiff completed, including tasks 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. (Docket Entry # 42, ¶ 5) (Docket Entry # 52, ¶ 5). Before defendant hired Onorato, plaintiff reported directly to Cao; after the hiring of Onorato, plaintiff reported directly to Onorato. (Docket Entry # 42, ¶ 5) (Docket Entry # 52, ¶ 5). Plaintiff's managerial responsibilities were relinquished after June 2, 2014 and all such responsibilities were given to Onorato. (Docket Entry # 53, ¶¶ 8, 37).

         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. (Docket Entry # 54-4, p. 34). 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. (Docket Entry # 45, ¶ 12). 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. (Docket Entry # 54-4. p. 24).

         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. (Docket Entry # 54-4, p. 43). 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).

         Despite suffering from depression, plaintiff attests that he worked over 100 hours from home some weeks. (Docket Entry # 53, ¶ 8). 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 # 42, ¶ 7) (Docket Entry # 52, ¶ 7). Plaintiff did not object to the change in job title, nor did he complain that the job change was in any way discriminatory. (Docket Entry # 42, ¶ 16) (Docket Entry # 52, ¶ 16). Beginning on June 2, 2014 and continuing until his termination on September 2, 2014, plaintiff reported directly to Onorato. (Docket Entry # 42, ¶ 17) (Docket Entry # 52, ¶ 17). 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).

         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. (Docket Entry # 42, ¶ 18) (Docket Entry # 52, ¶ 18). 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. (Docket Entry # 42, ¶ 19) (Docket Entry # 52, ¶ 19). 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. (Docket Entry # 42, ¶ 19) (Docket Entry # 52, ¶ 19). Despite Onorato's counseling, plaintiff's attendance problems persisted. (Docket Entry # 42, ¶ 19) (Docket Entry # 52, ¶ 19). For example, on June 20, 2014, plaintiff failed to return to work after lunch, saying he drank too much coffee. (Docket Entry # 42, ¶ 20) (Docket Entry # 52, ¶ 20). On June 27, 2014, he took the day off without advance notice or permission. (Docket Entry # 42, ¶ 20) (Docket Entry # 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. (Docket Entry # 42, ¶ 20) (Docket Entry # 52, ¶ 20). 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. (Docket Entry # 42, ¶ 21) (Docket Entry # 52, ¶ 21). Onorato explained to plaintiff that he was not satisfied with plaintiff's attendance and requested a greater commitment. (Docket Entry # 42, ¶ 21) (Docket Entry # 52, ¶ 21). 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 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 # 42, ¶ 22) (Docket Entry # 52, ¶ 22). This crash occurred when plaintiff was updating the servers from his home. (Docket Entry # 42, ¶ 23) (Docket Entry # 52, ¶ 23). Plaintiff attests that this problem occurred because of an unanticipated problem as to the update resulting from an outside bug. (Docket Entry # 53, ¶ 23). 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. (Docket Entry # 53, ¶ 27). 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 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. (Docket Entry # 42, ¶ 27) (Docket Entry # 52, ¶ 27). 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 # 42, ¶ 27) (Docket Entry # 52, ¶ 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 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. (Docket Entry # 42, ¶ 30) (Docket Entry # 52, ¶ 30). 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 # 42, ¶ 30) (Docket Entry # 52, ¶ 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 # 42, ¶ 34) (Docket Entry # 52, ¶ 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 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 # 42, ¶ 36) (Docket Entry # 52, ¶ 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. (Docket Entry # 42, ¶ 31) (Docket Entry # 52, ¶ 31). E. 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. (Docket Entry # 42, ¶ 39) (Docket Entry # 52, ¶ 39). Defendant filed the counterclaim alleging that plaintiff could only have obtained such an email if he accessed Cao's or another 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. (Docket Entry # 45, ¶ 34). 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. (Docket Entry # 46-1, pp. 63-64). 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. (Docket Entry # 42, ¶ 42) (Docket Entry # 52, ¶ 42). 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 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. (Docket Entry # 42, ¶ 45) (Docket Entry # 52, ¶ 45). 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. (Docket Entry # 54-1, p. 17) (Docket Entry # 43, ¶ 4). 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 # 54-1, p. 17) (Docket Entry # 43, ¶ 4). 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 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. (Docket Entry # 54-1, p. 18) (Docket Entry # 43, ¶ 5). 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. (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, ¶ 56) (Docket Entry # 52, ¶ 56). Plaintiff testified that he never told Onorato he was depressed. (Docket Entry # 42, ¶ 56) (Docket Entry # 52, ¶ 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 ...

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