Moebius v. Tharperobbins Co.

• Decision Date: 01 November 2016
• Docket Number: CIVIL ACTION NO. 15-10751-MBB
• Parties: MATTHEW MOEBIUS, Plaintiff, v. THARPEROBBINS COMPANY, Defendant.
• Court: U.S. District Court — District of Massachusetts

MATTHEW MOEBIUS, Plaintiff, v. THARPEROBBINS COMPANY, Defendant.

CIVIL ACTION NO. 15-10751-MBB

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

November 1, 2016

MEMORANDUM AND ORDER RE: DEFENDANT THARPEROBBINS COMPANY'S MOTION FOR SUMMARY JUDGMENT (DOCKET ENTRY # 40)

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 Matthew Moebius ("plaintiff") opposes the motion. (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. (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).

STANDARD OF REVIEW

Summary judgment is designed "'to pierce the boilerplate ofthe 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 (1^st Cir. 2014) (quoting Wynne v. Tufts University School of Medicine, 976 F.2d 791, 794 (1^st 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 (1^st 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 (1^st 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 (1^st 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 (1^st 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, 752F.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 (1^st Cir. 2011); see Serra v. Quantum Servicing, Corp., 747 F.3d 37, 40 (1^st 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 (1^st 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 (1^st 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 andimproving 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 taskswith 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...