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                                                     [DO NOT PUBLISH]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
                     ________________________

                 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      Page: 2 of 4


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, 

, 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., 

, 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., 

, 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, 

, 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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