Ryan Foley, et al v. Morgan Stanley Smith Barney, L

Filing

Opinion issued by court as to Appellant Ryan H. Foley. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 13-11413

Date Filed: 05/20/2014

Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-11413
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D.C. Docket No. 0:11-cv-62476-KMW

RYAN H. FOLEY,
Plaintiff - Counter
Defendant - Appellant,
versus
MORGAN STANLEY SMITH BARNEY FA NOTES HOLDINGS, LLC,
Intervenor Plaintiff Appellee,
MORGAN STANLEY SMITH BARNEY, LLC,
a Delaware limited liability company,
Defendant - Counter
Claimant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 20, 2014)

Case: 13-11413

Date Filed: 05/20/2014

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Before MARTIN, DUBINA, and SENTELLE, * Circuit Judges.
PER CURIAM:
Appellant, Ryan H. Foley (“Foley”), appeals the district court’s order
granting summary judgment to Appellee, Morgan Stanley Smith Barney, LLC and
Morgan Stanley Smith Barney FA Notes Holdings, LLC (referred to as “Morgan
Stanley”), on his claims of discrimination brought pursuant to the Americans with
Disabilities Act (“ADA”) and the Florida Civil Rights Act of 1992 (“FCRA”).
This court reviews de novo a district court’s order granting summary
judgment on ADA claims. Holly v. Clairson Indus. LLC, 492 F.3d 1247, 1255
(11th Cir. 2007).
After reviewing the record, reading the parties’ briefs, and having the benefit
of oral argument, we affirm the district court’s grant of summary judgment in favor
of Morgan Stanley on Foley’s discrimination claims. First, we agree with the
district court that Foley is not a qualified individual under the ADA. As the district
court correctly found, Morgan Stanley’s security policy is an integral part of its
business, and adherence to that policy is an essential requirement of a financial
advisor’s job. Even Foley acknowledged that the taking of an office computer was
a violation of an important firm policy. The employee handbook states that the
firm’s information assets are the property of the firm, and each employee has an
*

Honorable David Bryan Sentelle, United States Circuit Judge for the District of
Columbia Circuit, sitting by designation.
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obligation to protect the assets of the firm, including its securities, premises,
technology, propriety and confidential information, and intellectual property.
Thus, we conclude that Foley’s unprofessional conduct rendered him otherwise
unqualified to perform the essential functions of his job.
Furthermore, Foley is not a qualified individual with a disability because he
cannot show that Morgan Stanley had “actual or constructive knowledge” of his
disability. See Hilburn v. Murata Electronics N. Am., Inc., 181 F.3d 1220, 1226
(11th Cir. 1999). It is undisputed in the record that Foley never requested an
accommodation relating to his alleged bipolar disorder at any time before he took
the computer. This failure to request an accommodation is fatal to his claim. See
Gaston v. Bellingrath Gardens & Home, Inc., 167 F.3d 1361, 1363 (11th Cir.
1999).
However, if we concluded that Foley is a qualified individual under the
ADA, his claims still fail because he cannot show that Morgan Stanley terminated
him because of his disability.
Lastly, Foley’s contention that there is direct evidence to support his
discrimination claims also fails. Foley failed to show any direct evidence that
Morgan Stanley knowingly terminated him because of his bipolar disorder. He
relies on the fact that Morgan Stanley made its termination decision immediately
after it learned that Foley had removed his office computer. However, that is not
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direct evidence of discrimination. That is evidence of Morgan Stanley’s adherence
to company policy. Foley failed to show that Morgan Stanley acted with unlawful
discriminatory animus when it terminated his employment. See Wascura v. City of
South Miami, 257 F.3d 1238, 1247 (11th Cir. 2001).
Because we conclude from the record that there is no merit to any of the
arguments Foley makes in this appeal, we affirm the district court’s order granting
summary judgment in favor of Morgan Stanley.
AFFIRMED.

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