Williаm 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.
Before KRAVITCH and BIRCH, Circuit Judges, and SCHWARZER, Senior District Judge.
Appeal from the United States District Court for the Northern District of Georgia. (No. 1:92-cv-252-JEC), Julie E. Carnes, Judge.
In this appeal, filed pursuant to the
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 pоlice 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 At Waters’ direction, Holbrook no longer maintained “on call”
During both Abernathy and Wаter‘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
II. DISCUSSION
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.”
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
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.”
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
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 Holbrook‘s assertions concerning the relatively low crime rate in Alpharetta, nor do we dispute that a police department may be able to predict in general terms what types of evidence will need to be collected at a given crime scene, Holbrook has not shown—and, in our view, cannot show—what types of criminal investigations an Alpharettа police detective may be called upon to investigate in the future nor what evidence it may be necessary to collect at that time. The record indicates that it is not possible to anticipate, in every instance, precisely what evidence will need to be collected and what duties will need to be performed in any given investigation; more importantly, notwithstanding the historical record, we can speculate but not foretell with absolute certainty what crimes may
Holbrook further urges, however, that even were we to determine that the on-site investigation of a crime scene is an essential part of bеing a police detective, reasonable accommodations nonetheless could have been made to facilitate his effective performance of all aspects of his job. Holbrook points to the undisputed fact that the police department took measures to accommodate him in the past and that these measures arguably were not unduly burdensome to the department. As previously noted, the ADA defines a qualified individual as one who ”with or without reasonable accommodation, can perform the essential funсtions of the employment position ...“.
[a]n employer or other covered entity may restructure a job by reallocating or redistributing non-essential, marginal job functions ... An employer or other covered entity is not required to reallocate essential functions. The essential functions are by definition those that the individual who holds the job would have to perform, with or without accommodation, in order to be considered qualified for the position.
Holbrook contends that the department easily could have accommodated him with a “minor shuffling of case assignments” as it had for several years. We agree that the record unambiguously reveals that the police department made certain adjustments to accommodate Holbrook in the past. In addition, viewing the facts in the light most fаvorable to Holbrook, we acknowledge that the types of criminal investigations that Holbrook cannot perform alone have occurred in the past with relative infrequency. As we have discussed with respect to identifying the essential aspects of being an Alpharetta police detective, however, the police department cannot predict in advance what crimes will be committed in any given week or what evidence will appear at any given crime scene; indeed, being prepared to respond to unexрected events is, in part, precisely what defines a police officer or detective. It is undisputed that if the “unexpected” happened and more than one
Having concluded that the complete investigation of any crime scene—including the collection of evidence—is an essential part of Holbrook‘s job, we further hold that the City of Alpharetta was not legally required, under the ADA, to accommodate Holbrook‘s disability with respect to this function. In this case there appears to be little doubt that, for quite some time and perhaps with relatively minor disruption or inconvenience, the City of Alpharetta was able to accommodate Holbrook with respect to those essential functions he concedes he cannot perform without assistance. It is equally apparent, however, that the City of Alpharetta‘s previous accommodation may have exceeded that which the law requires. We do not seek to discourage other employers from undertaking the kinds of accommodations of a disabled employee as those performed by the City of Alpharetta in Holbrook‘s case; indeed, it seems likely that the City retained a productive and highly competent employee based partly on its willingness to make such accommodations. However, we cannot say that the City‘s decision to cease making those accommodations that pertained to the essential functions of Holbrook‘s job was violative of the ADA.4
B. Title II of the ADA
In his original complaint, Holbrook set forth allegations of discrimination on the basis of his disability pursuant to Title II of the ADA, applicable to the services, programs, or activities of state and local governments. The district court dismissed the Title II claims after finding that Title II did not become effective until July 26, 1992, several months after the events alleged in the complaint occurred.
Title II of the ADA is entitled “Public Services” and provides, in relevant part:
Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
(a) No qualified individual with a disability shall, on the basis of disability, be subjected to discrimination in employment under any service, program, or activity conducted by a рublic entity.
(b)(1) For purposes of this part, the requirements of title I of the Act, as established by the regulations of the Equal Employment Opportunity Commission ..., apply to employment in any service, program, or activity conducted by a public entity if that public entity is also subject to the jurisdiction of title I.
(2) For purposes of this part, the requirements of section 504 of the Rehabilitation Act of 1973, as established by the regulations of the Department of Justice in 28 CFR part 41, as those requirements pertain to employment, apply to employment in any service, program, or activity conducted by a public entity if that public entity is not also subject to the jurisdiction of title I.
The Department of Justice regulations implementing Title II provide that EEOC‘s Title I regulations will constitute the employment nondiscrimination requirements for those state and local governments covered by Title I (governments with 25 or more employees after July 26, 1992; governments with 15 or more employees after July 26, 1994). If a government is not covered by Title I, or until it is covered, the Title II employment nondiscrimination requirements will be those in the Depаrtment of Justice coordination regulations applicable to federally assisted programs under Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability by recipients of federal financial assistance.
EEOC, A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act (1992) (emphasis added).
Title II thus incorporates by reference the substantive, detailed regulations prohibiting discrimination against disabled individuals contained in Title I. Title I became effective on July 26, 1992. The above regulations suggest that the provisions of Title II extending the protections afforded to employees in the private sector under Title I to state and local government workers became effective only when Title I went into effect. As explicitly described in the EEOC manual, the Rehabilitation Act provided a remedy for discrimination in public employment prior to the effective date of Title I. We conclude that Title II of the ADA did not become effective until the date on which Title I became
C. 42 U.S.C. § 1983
1. First Amendment
Holbrook contends that the discrimination initially inflicted on him by the City of Alpharetta escalated after he filed a state ante litem claim under
A state may not demote or discharge a public employee in retaliation for protected speech. Bryson v. City of Waycross, 888 F.2d 1562, 1565 (11th Cir.1989) (citing Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987)). The question of whether a public employee‘s speech is constitutionally protected turns upon whether the speech relates to matters of public concern or to matters of merely personal interest to the employee. Ferrara v. Mills, 781 F.2d 1508, 1512 (11th Cir.1986). “Whether an employee‘s speech addresses a matter of public concern must be dеtermined by the content, form, and context of a given statement, as revealed by the whole record.” Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983).
2. ADA and Rehabilitation Act
Holbrook also contends that the City of Alpharetta‘s discriminatory conduct is actionable under section 1983 as a violation of the ADA and the Rehabilitation Act. The City of Alpharetta responds that section 1983 is not available as a remedy to address a violation of the ADA or the Rehabilitation Act because both statutes create comprehensive internal enforcement mechanisms.
District courts in our circuit have reached contrary conclusions with regard to the question of whether
Section 504 of the Rehabilitation Act and Title I of the ADA contain simple and broad prohibitions of discrimination on the basis of handicap or disability. It is clear that plaintiff‘s allegations fall within the scope of both § 504 and Title I of the ADA, and that plaintiff‘s claims under § 1983 are based upon the same alleged injuries as are plaintiff‘s § 504 and ADA claims. It does not appear that plaintiff‘s § 1983 claims add anything to plaintiff‘s substantive rights under either statute, other than possibly circumventing these statutes’ administrative procedures and going directly to federal court. In light of the broad remedial scope of § 504 of the Rehabilitation Act and Title I of the ADA [and] their clear applicability to the alleged injuries in this case, ... the court concludes that Congress did not intend to permit § 1983 claims based upon alleged injuries remediable under § 504 of the Rehabilitation Act and Title I of the ADA.
Id. at 455 (quoting Holmes v. City of Chicago, 1995 WL 270231 (N.D.Ill.1995)).
We find the reasoning advanced by the district courts in both Veal and Holmes to be persuasive in deciding the issue before us. As noted by those courts, both the Rehabilitation Act and the ADA provide extensive, comprehensive remedial frameworks that address
III. CONCLUSION
In this case, Holbrook argues that the City of Alpharetta and all other named defendants discriminated against him on the basis of his disability by reducing his assignments as a police detective, failing to promote him, and constructively discharging him. The district court granted summary judgment in favor of the defendants on all counts of the complaint. We conclude that the district court correctly found at summary judgment that the City of Alpharetta could not reasonably accommodate Holbrook under Title I of the ADA and thе Rehabilitation Act. We further conclude that