Holbrook v. City of Alpharetta, Ga.

• Decision Date: 22 May 1997
• Docket Number: No. 95-8691,95-8691
• Citation: 112 F.3d 1522
• Parties: , 6 A.D. Cases 1409, 10 NDLR P 48, 10 Fla. L. Weekly Fed. C 957 William A. HOLBROOK, Plaintiff-Appellant, v. CITY OF ALPHARETTA, GEORGIA, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1522

112 F.3d 1522

65 USLW 2767, 6 A.D. Cases 1409, 10

NDLR P 48,

10 Fla. L. Weekly Fed. C 957

William A. HOLBROOK, Plaintiff-Appellant, v. CITY OF ALPHARETTA, GEORGIA, et al., Defendants-Appellees.

No. 95-8691.

United States Court of Appeals Eleventh Circuit.

May 22, 1997.

Steven Keith Leibel and David C. Ates, Steven K. Leibel & Associates, Atlanta, GA, for plaintiff-appellant.

Benton J. Mathis, Jr., Christopher Evan Parker and Nancy F. Rigby, Drew, Eckly & Farnham, Atlanta, GA, Charles Sammy Thomas, Bovins, Kyle & Burch, Atlanta, GA, for defendants-appellees.

Before KRAVITCH and BIRCH, Circuit Judges, and SCHWARZER ^*, Senior District Judge.

BIRCH, Circuit Judge:

In this appeal, filed pursuant to the Americans with Disabilities Act, 42 U.S.C. § 12101-12213, we must decide the following issues of first impression in our circuit: (1) to what extent is evidence of past accommodation of a disabled employee determinative of an employer's ability to accommodate that employee in the future; (2) are claims brought pursuant to Title II of the ADA involving events that occurred prior to the effective date of Title I actionable under the ADA or the Rehabilitation Act of 1973; (3) can a plaintiff bypass the administrative procedures set forth under the ADA by filing a civil rights action pursuant to 42 U.S.C. § 1983 alleging violations of the ADA? In addition, we must resolve whether a public employee's filing of a state ante litem claim can be construed as protected speech under the First Amendment. The district court granted summary judgment in favor of the defendants on all claims. For the reasons that follow, we affirm.

I. BACKGROUND

Plaintiff-appellant, William A. Holbrook, was employed as a detective by the City of Alpharetta Police Department at the time the events giving rise to this action occurred. In November, 1987, Holbrook sustained injuries following an accident. As a result of complications arising from the accident coupled with visual problems caused by diabetes, Holbrook experienced retinal detachment in both eyes. Holbrook subsequently underwent eye surgery that restored partial vision to his left eye; he remained without visual function in his right eye. Although Holbrook was unable to work for approximately ten months following the accident, he continued to receive a full salary and benefits from the police department during this period.

Holbrook had worked as a narcotics detective prior to the accident. After his return to work, Holbrook was unable to drive a car and was assigned detective work that primarily could be handled within the office. On occasion, Holbrook also accompanied other detectives to crime scenes to conduct investigations and remained "on call" for evening duty. Holbrook generally required transportation to a crime scene during routine and "on call" duty. During the period immediately following Holbrook's return to work, the Chief of Police of the Alpharetta Police Department was Larry Abernathy. In September, 1991, E.L. Waters replaced Abernathy in this capacity and began to modify Holbrook's duties as a detective. At Waters' direction, Holbrook no longer maintained "on call" status and was limited to duties that could be performed largely within the office setting. In addition, Sergeant Mulvihill was hired as a supervisor of the detective division and substantially reduced Holbrook's case assignments. Holbrook's job title, wages, and benefits remained the same.

During both Abernathy and Water's respective tenures as police chief, Holbrook applied for promotions to supervisory-level status. Holbrook's initial requests were rejected because there were no openings for supervisor positions. Waters, however, eventually hired Mulvihill as a sergeant in charge of the criminal investigation division in which Holbrook worked. This position had not been posted or advertised.

In December, 1991, Holbrook filed an ante litem claim for damages pursuant to O.C.G.A. § 36-33-5 against the City of Alpharetta for discriminatory conduct. On January 30, 1992, Holbrook filed the instant lawsuit in federal court alleging violations of Title II of the Americans with Disabilities Act of 1990 ("ADA"), section 504 of the Rehabilitation Act, the Georgia Equal Employment for the Handicapped Act, and 42 U.S.C. § 1983. The district court granted summary judgment in favor of the City of Alpharetta and the remaining defendants on all claims excepting Holbrook's cause of action under the Rehabilitation Act. Holbrook subsequently amended his complaint, adding claims brought pursuant to Title I of the ADA along with new section 1983 and state law claims. The district court granted summary judgment in favor of the defendants with respect to all remaining claims.

II. DISCUSSION

We review de novo the district court's order granting summary judgment. See Earley v. Champion Int'l. Corp., 907 F.2d 1077, 1080 (11th Cir.1990). Summary judgment is appropriate where there is no genuine issue of material fact. Fed.R.Civ.P. 56(c). Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (citation omitted). On a motion for summary judgment, we must review the record, and all its inferences, in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). ¹

A. Title I of the ADA and Section 504 of the Rehabilitation Act

Title I of the ADA provides that no covered employer shall discriminate against "a qualified individual with a disability because of the disability of such individual" in any of the "terms, conditions, [or] privileges of employment." 42 U.S.C. § 12112(a). The ADA imposes upon employers the duty to provide reasonable accommodations for known disabilities unless doing so would result in undue hardship to the employer. 42 U.S.C. § 12112(b)(5)(A); Morisky v. Broward County, 80 F.3d 445, 447 (11th Cir.1996). In order to establish a prima facie case of discrimination in violation of the ADA, the plaintiff must prove that (1) he has a disability; (2) he is a qualified individual; and (3) he was subjected to unlawful discrimination because of his disability. Id. A "qualified individual with a disability" is an "individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). ² The plaintiff retains at all times the burden of persuading the jury that reasonable accommodations were available. Moses v. American Nonwovens, Inc., 97 F.3d 446, 447 (11th Cir.1996). The employer, on the other hand, has the burden of persuasion on whether an accommodation would impose an undue hardship. Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1183 (6th Cir.1996).

Holbrook contends that the City of Alpharetta Police Department discriminated against him on the basis of his disability by continually refusing to assign him the full duties of a police detective and accommodate him as required by the statute. Holbrook further avers that these actions constituted constructive discharge and forced him effectively to terminate his employment with the police department. The City of Alpharetta responds that Holbrook was not a "qualified individual" within the meaning of the ADA because he was unable to perform essential functions of his job with or without reasonable accommodations.

The ADA provides that in determining what functions of a given job are deemed to be essential, "consideration shall be given to the employer's judgment ... 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). Regulations promulgated under the ADA further identify three factors that can be considered pursuant to an inquiry regarding whether a particular task is an essential part of a job: (1) the reason the position exists is to perform the function; (2) there are a limited number of employees available among whom the performance of the job function can be distributed; and (3) the function is highly specialized so that the incumbent in the position was hired for his or her expertise or ability to perform the particular function. 29 C.F.R. § 1630.2(n)(2)(i)-(iii) (1996).

Holbrook does not dispute that he is unable to perform two functions of a police detective, driving an automobile and collecting certain kinds of evidence at a crime scene. He argues, however, that neither of these functions is essential to his job. He further urges that even assuming we were to find these functions to be essential in nature, he nonetheless can perform the necessary tasks given his employer's reasonable accommodation of his disability. ³ Based on our independent review of the record and deposition testimony, we conclude that Holbrook has not shown that the functions he admittedly cannot perform are non-essential. It is undisputed both that the collection of evidence is part of the job description of a police detective in the City of Alpharetta and that a Georgia driver's license is a requirement for the job. R5-64, Exh. B, Att. 1. It is also undisputed that Holbrook cannot perform independently a full-scale investigation of many types of crime scenes and, unlike any other detective or police officer in the Alpharetta Police Department, must be accompanied by a fellow detective should the need for such an investigation arise. Moreover, Holbrook acknowledges that the collection of evidence is a specialized task requiring training.

Holbrook urges that the types of field work that he cannot perform involve crimes that historically occur rarely in Alpharetta. Although we do not doubt...