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Barney Vince Russo, An Individual v. Clearwire Us

April 30, 2013

BARNEY VINCE RUSSO, AN INDIVIDUAL,
PLAINTIFF,
v.
CLEARWIRE US, LLC; CLEAR WIRELESS, LLC; CLEARWIRE CORPORATION; AND SPRINT NEXTEL CORPORATION,
DEFENDANTS.



The opinion of the court was delivered by: Philip M. Pro United States District Judge

ORDER

Currently before the Court is Defendants Clearwire US, LLC; Clear Wireless, LLC; and Clearwire Corporation's (collectively, "Clearwire") Motion to Dismiss (Doc. #14), filed on November 2, 2012. Plaintiff Barney Vince Russo ("Russo") filed an Opposition (Doc. #24) on November 27, 2012. Clearwire filed a Reply (Doc. #30) on December 17, 2012.

I. BACKGROUND

The following factual recitation is derived from Russo's Complaint. (Notice of Removal (Doc. #1), Ex. B ["Compl."].) For purposes of Clearwire's Motion to Dismiss, the Court accepts the Complaint's factual allegations as true. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Clearwire hired Russo as a retention representative on March 26, 2007. (Compl. at 4.) At that time, Clearwire's managers were aware that Russo has macular degeneration and is legally blind. (Id.) Clearwire's managers also were aware that Russo needed certain accommodations relating to computer use and other tasks because of his eye condition. (Id. at 3-4.) To accommodate Russo's disability, Clearwire hired Russo's wife, Natalie Russo ("Natalie"), with the understanding that the two would be working the same shifts so she could assist him with taking his lunch and his medication. (Id.)

Early in his employment, Russo was asked to fill in for another employee and conduct a customer retention training session. (Id. at 5.) His impressive performance prompted Clearwire to ask him to conduct the training sessions on a regular basis and also to re-write portions of the company's training materials. (Id.) Russo worked as a customer retention trainer for the remainder of his employment with Clearwire, performing training sessions in Las Vegas, Nevada; Milton, Florida; and, via webcam, Ireland. (Id.) Clearwire allowed Russo to select an assistant, Adam Owen ("Owen"), who aided him throughout the day with drafting and responding to emails. (Id.)

Throughout Russo's employment, Clearwire repeatedly acknowledged that he excelled in his position. (Id. at 5-6.) He was nominated for the "Clearly the Best Award," a quarterly employee recognition award, twelve consecutive times, although he was passed over each time. (Id. at 6.) On one such occasion, in early 2009, a manager, Joann Abraham ("Abraham"), told him, in front of others, that he deserved the award and should have received it but that the company was concerned he would be precluded from taking advantage of the prize -- an all-expenses-paid trip to Hawaii -- as his disability prevents him from flying. (Id.) Russo also alleges that, on at least three occasions, employees he had trained were promoted to management positions over him. (Id.)

In November of 2009, Clearwire was acquired by, or otherwise merged with, Defendant Sprint Nextel Corporation ("Sprint"). (Id.) Following the merger, Sprint installed a new management team to replace Clearwire's management team. (Id.)

Around the time of the merger, Clearwire manager Amy Monaco ("Monaco") discouraged Russo from applying for an open management position in a new training department, assuring him that his retention department would maintain its current training duties. (Id. at 7.) On another occasion, Abraham told him not to apply for an open trainer position because he "could not travel" due to his eye condition and because the position required "a lot of computer work." (Id.) Russo alleges he was discouraged from applying for other open management positions because he "could not do all of the computer work."

When the new training department opened, Owen was transferred there, leaving Russo without an assistant. (Id.) Russo approached managers Monaco and Karla Knowlton ("Knowlton") and asked them to secure for him a computer program designed to help the visually impaired read emails and do other computer work. (Id. at 8-9.) The managers did not respond to repeated requests for this computer program for between twelve and fourteen weeks. (Id. at 9.) On January 20, 2010, Clearwire installed a dictation program on Russo's computer that was designed for people who could not type. (Id.) This program was not the one Russo had requested and was of no use to him. (Id.)

After Clearwire failed to provide him with a proper computer program, Russo asked Monaco and Knowlton for an administrative assistant. (Id. at 9-10.) His request was denied, but they agreed to provide him with a "reader," Frank Zahbrowski ("Zahbrowski"), who would read Russo his emails twice a day for thirty minutes each morning and afternoon. (Id.) According to Russo, however, a supervisor called Zahbrowski away from these duties "roughly 75 percent of the time," making Zahbrowski of little help to Russo. at 10.)

On December 5, 2009, Russo's call center was moved to a new building ("building three"), which had "very bright and harsh fluorescent lighting," impairing the little vision Russo had left and causing him to bump into things around the office. (Id. at 8.) When Russo asked to be moved to a part-time schedule to alleviate his problems with the lighting, supervisors asked him to provide a note from his doctor verifying that he was capable of working at all. (Id.) He provided the note, but his request for a part-time schedule was not granted for another three weeks. (Id.) Clearwire denied Russo's requests to move to another building or to have the lighting changed. (Id. at 10-11.)

At some point, Clearwire attempted to change Natalie's work schedule such that she and Russo would not be working together at the same time, but Natalie refused to change schedules. (Id. at 10.) Clearwire terminated Natalie on February 4, 2010, ordering her to leave the premises without helping Russo with his lunch or medication. (Id.) This left Russo without assistance with those tasks for the remainder of his employment. (Id. at 10-12.)

Shortly thereafter, Russo resigned, with his last day of work to be April 22, 2010. at 11.) He informed Monaco and Knowlton that the situation with the lighting was causing him physical pain. (Id.) Monaco and Knowlton told him that because of his situation, he would be allowed to resign without providing two weeks notice, and that if the conditions with the lighting changed, they would call him and he would be eligible for re-hire. (Id.) By this time, Russo's difficulties were causing him to suffer anxiety, insomnia, recurring dreams, and the stress-induced progression of his macular degeneration. (Id. at 16-17.)

In June 2010, two months after Russo had left Clearwire, the company hired a contractor to adjust the lights in response to the complaints of several non-disabled employees. (Id.) The time for the renovations was chosen "because that blind guy had left." (Id.) Clearwire then moved Russo's former division back to its previous location and out of building three. (Id.) However, Russo was not contacted for re-hire. (Id. at 11-12.)

On January 19, 2011, Russo filed a complaint with the Equal Employment Opportunity Commission ("EEOC") and the Nevada Equal Rights Commission ("NERC"), alleging Clearwire discriminated against him on the basis of his disability by refusing to offer him reasonable ...


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