United States District Court, N.D. Mississippi, Aberdeen Division
MICHAEL P. MILLS JUDGE JUDGEISSISSIPPI
cause comes before the court on the motion of defendant White
Communications, LLC (“White”) for summary
judgment, pursuant to Fed.R.Civ.P. 56. Plaintiff Tony Allen
Locastro has responded in opposition to the motion, and the
court, having considered the memoranda and submissions of the
parties, concludes that the motion is well taken and should
a disability discrimination case arising out of
plaintiff's termination from his position as an IT
manager for defendant White, a company which serves as a
contractor providing installation services to Directv. It is
undisputed that plaintiff is disabled, based on, inter
alia, post-traumatic stress disorder
(“PTSD”) and arthritis in his leg following an
incident in which he was electrocuted while serving in the
Navy. Plaintiff has sought a variety of federal disability
benefits, with mixed results. Plaintiff was deemed 100%
disabled by the Veteran's Administration
(“VA”), but his applications for Social Security
disability benefits were denied.
August 2014, plaintiff began working as an IT manager for
White, with the understanding that he would be doing most of
his work remotely from his home in Fulton, Mississippi, with
only occasional travel required to defendant's home
office in Iowa. Plaintiff testified in his deposition,
however, that beginning in late 2015, defendant's general
manager Jeff White began asking him to move to Iowa, where he
could perform additional services which he could not perform
remotely. In June 2015, plaintiff finally notified White that
he would be unable to move to Iowa, citing his own disability
and that of his autistic son.
was laid off in August 2016, and he contends that he was
terminated based upon his refusal to move to Iowa. For its
part, defendant maintains that it fired plaintiff not for any
disability or for his refusal to move to Iowa, but because it
decided to eliminate its entire IT department, including
plaintiff's position, after it underwent a so-called
“tech acquisition” with a company called
Synergies. During this tech acquisition, Synergies purchased
White's tech assets, site managers, and offices and, in
exchange, defendant received an ownership interest in
Synergies. White had been discussing this tech acquisition
with Synergies since March 2015, and it finally went forward
in September of 2016. During and after the tech acquisition,
defendant laid off all of its staff, including Locastro, with
the exception of the retail staff and back office employees
who supported Synergies. Based upon this and other evidence,
defendant has presently moved for summary judgment, arguing
that no genuine issue of fact exists regarding its potential
liability and that it is entitled to judgment as a matter of
considering the parties' arguments, this court concludes
that plaintiff's ADA claims in this case fail for two,
independently sufficient, reasons. First, plaintiff has
failed to establish that he was qualified for the job in
question, based upon his own deposition testimony and sworn
statements which he made in the course of applying for
disability benefits. Second, this court concludes that, even
assuming that plaintiff was qualified, continuing to work
remotely from Mississippi as a salaried employee was not a
reasonable accommodation for his disability, in light of the
drastically changing circumstances at the company. This court
discusses these two conclusions in sections I and II below.
Additionally, this court notes in section III that there are
serious factual and legal weaknesses in plaintiff's
attempts to connect his refusal to move to Iowa to his own
disability or to that of his son. While this court does not
grant summary judgment on the basis of these weaknesses, it
does note them for the record.
Was plaintiff qualified for his position?
court's view, the first reason why plaintiff's ADA
claims in this case fail is because the evidence developed in
discovery conclusively demonstrates that he was not qualified
for the position he occupied. To be considered
“qualified” under the ADA, the plaintiff must
show that he is able to perform the essential functions of
the relevant position with or without reasonable
accommodation. Credeur v. La. ex rel. Office of Attorney
Gen., 860 F.3d 785, 792 (5th Cir. 2017) (quoting 42
U.S.C. § 12111(8)); Turco v. Hoechst Celanese
Corp., 101 F.3d 1090, 1093 (5th Cir. 1996) (The Fifth
Circuit has “defined an otherwise qualified person as
one who is able to meet all of the program's requirements
in spite of his handicap.”) The relevant time for
determining whether an employee can perform the essential
functions of the job is at the time the position was
eliminated. Amsel v. Texas Water Dev. Bd., 464
Fed.Appx. 395, 400 (5th Cir. 2012).
functions' are ‘fundamental[, '] as opposed to
‘marginal[, '] job duties, 29 C.F.R. §
1630.2(n)(1), such that a job is ‘fundamentally
altered' if an essential function is removed.”
Credeur, 860 F.3d at 792 (alterations omitted).
Determining whether a function is “essential” is
done on a case-by-case basis. Id. The ADA provides
where this inquiry should begin:
For the purposes of this subchapter, consideration shall be
given to the employer's judgment as to what functions of
a job are essential, and if an employer has prepared a
written description before advertising or interviewing
applicants for the job, this description shall be considered
evidence of the essential functions of the job.
42 U.S.C. § 12111(8).
court notes that the qualification analysis in this case is
rather unique, since defendant acknowledges that it
believed that plaintiff was qualified for his
position while he was working for it, and it is only
plaintiff's own statements uncovered in discovery which
changed its views in this regard. And, indeed,
plaintiff's statements are highly damaging to his ADA
claims, since he clearly and repeatedly asserted that he was
not qualified for his job and that he only managed to deceive
his employer regarding this issue because he was working
court's view, plaintiff's sworn statements in his
deposition and in his applications for disability benefits
read something like an inverse job interview, pursuant to
which the applicant does his very best to assure the employer
that he is not the right man for the job. In his
deposition, plaintiff appeared to “touch all the
bases” regarding his lack of qualification to be an IT
manager, beginning with his repeated insistence that he has
no interest in computers or “anything
electronic.” Specifically, plaintiff testified in his
A: I rarely touch a computer if I have to - if I don't
have to at home. That's the last thing that I will touch,
is computers. I hate computers. Or anything electronic, for
Q: And that's currently?
A: Yes, sir.
Q: Okay. And how long has that been a problem?
A: It has gotten worse over the past couple of years, but it
was already getting that way while I worked at White
[Plaintiff's Dep. at 75]. While plaintiff is to be
commended for his candor, it is difficult for this court to
imagine an admission which is much more damaging, on the
qualification issue, than an IT manager admitting that he
“hates computers” and has lost interest in
in his deposition, plaintiff appeared to do this admission
“one better.” While discussing the nature of his
disability, plaintiff flatly testified that he is unable to
do his job and, crucially, that he lost that ability
approximately a year into his tenure at White. Specifically,
plaintiff testified that:
Q: Okay. Do you believe that you can no longer do the job
that you once had at White Communications?
A: Yes, I do.
Q: You believe you can't?
A: I believe that I cannot do that job.
Q: Okay. Whether you were in Mississippi or Iowa, right?
A: That's correct.
Q: When do you believe you became unable to perform that job?
A: I believe it was right before the - the server changeover
in Iowa, which was probably about a year into it.
Q: So at that point going forward, you believe that the
issues that you are currently dealing with and form the basis
of your disability application, those issues were such that
it was too difficult ...