United States Court of Appeals,
Eleventh Circuit.
No. 95-8691.
William A. HOLBROOK, Plaintiff-Appellant,
v.
CITY OF ALPHARETTA, GEORGIA, et al., Defendants-Appellees.
May 22, 1997.
Appeal from the United States District Court for the Northern District of Georgia. (No. 1:92-cv-252-JEC), Julie E. Carnes, Judge.
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
* Honorable William W. Schwarzer, Senior U.S. District Judge for the Northern District of California, sitting by designation. 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
1 Holbrook challenges the district court's order granting summary judgment in favor of the City of Alpharetta on his claims of constructive discharge under both the ADA and the Rehabilitation Act as well as state law claims of negligent supervision and intentional infliction of emotional distress. We find Holbrook's enumerations of error with respect to these causes of action to be without merit and affirm for the reasons stated in the district court's opinion. 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 2 such individual holds or desires." 42 U.S.C. § 12111(8). 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
2 The Rehabilitation Act, 29 U.S.C. § 791-796(1), provides, in pertinent part, that "[t]he standards used to determine whether this section has been violated in a complaint alleging [nonaffirmative action] employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. § 12111 et seq.)." 29 U.S.C. § 794(d). Our analysis of Holbrook's claims brought pursuant to Title I of the ADA thus apply with equal force to his claims under the Rehabilitation Act. 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).
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
3 Holbrook does not contend that he can drive an automobile under any circumstances, but notes that his employer has accommodated him in the past by allowing another officer to drive Holbrook to locations outside the office when necessary. 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 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 Alpharetta 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 be committed in the City of Alpharetta in the future. Even
assuming that an Alpharetta police detective spends a relatively
small amount of time performing the type of field work that
Holbrook concedes he cannot undertake, the record establishes—and
Holbrook has not proven to the contrary—that the collection of all
evidence at the scene of a crime is an essential function of being
a police detective in the City of Alpharetta.
Holbrook further urges, however, that even were we to
determine that the on-site investigation of a crime scene is an
essential part of being 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 functions of
the employment position ...". 42 U.S.C. § 12111(8) (emphasis
added). Holbrook therefore was qualified for the position of
police detective with the City of Alpharetta Police Department if
he could perform those elements of his job we have found to be
essential—and that he concedes he cannot perform
unassisted—provided the proposed accommodation to his disability is
found to be reasonable. Significantly, what is reasonable for each
individual employer is a highly fact-specific inquiry that will
vary depending on the circumstances and necessities of each
employment situation. Federal regulations promulgated pursuant to the ADA expressly note that
[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.
29 C.F.R. Part 1630, Appendix at 344. See also Milton v. Scrivner,
Inc., 53 F.3d 1118, 1124 (10th Cir.1995) ("An employer is not
required by the ADA to reallocate job duties in order to change the
essential functions of a job."); Larkins v. CIBA Vision Corp., 858
F.Supp. 1572, 1583 (N.D.Ga.1994) ("[R]easonable accommodation does
not require an employer to eliminate essential functions of 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 favorable 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 unexpected events is,
in part, precisely what defines a police officer or detective. It
is undisputed that if the "unexpected" happened and more than one rape or murder occurred simultaneously in Alpharetta, or if what
appeared to be a burglary turned out also to involve a homicide,
this minor "reshuffling" of case assignments proposed by Holbrook
necessarily would require the reallocation of an essential part of
his job.
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
4 It is critical to note that our conclusion is mediated by the facts presented in this case. Our decision is informed by several specific factors, including the unique nature of police work, the particular realities of a small police department in which each of three detectives is expected to be able to respond The district court properly granted summary judgment on Holbrook's
Title I ADA and Rehabilitation Act claims.
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.
42 U.S.C. § 12132. Federal regulations promulgated pursuant to the
ADA state:
(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 public 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.
to any situation, and the types of accommodations proposed by Holbrook. We do not imply that an employer invariably is absolved from having to make reasonable accommodations for a disabled employee whenever a given job involves any measure of unpredictability, nor do we suggest that police departments in general cannot be held strictly to the standards set forth in the ADA. (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.
28 C.F.R. § 35.140 (1996). The relevant Equal Employment
Opportunity Commission (EEOC) guide further states:
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 Department 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 effective, July 26, 1992 and, prior to that date, a plaintiff's
remedy for discrimination under Title II of the ADA was the
Rehabilitation Act of 1973. Holbrook's Title II claims alleged in
his first complaint all involve events occurring before July 26,
1992. The district court correctly determined that Holbrook's
Title II claims, therefore, are properly analyzed under the
Rehabilitation Act.5
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 O.C.G.A. § 36-33-5(b) for discrimination, a
prerequisite to bringing a legal action against the City. Holbrook
submits that the alleged retaliation violated his First Amendment
right and, thus, is actionable under 42 U.S.C. § 1983. The
district court found that the filing of an ante litem claim did not
constitute protected First Amendment activity. We agree with the
district court's resolution of this issue.
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
5 Holbrook's Rehabilitation Act claims are discussed in tandem with his Title I ADA claims in the previous section of this opinion. v. Mills, 781 F.2d 1508, 1512 (11th Cir.1986). "Whether an
employee's speech addresses a matter of public concern must be
determined 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).
Here, the record does not support Holbrook's assertion that
his ante litem notice alleging discrimination on the basis of his
disability was a matter of public concern. The notice solely
complains of Holbrook's personal grievance with respect to his
alleged treatment by the City of Alpharetta; it does not refer to
any practice or course of conduct by the police department against
disabled individuals beyond Holbrook and does not seek redress
beyond improving Holbrook's personal employment situation. See R5-
64, Exh. R. Although we recognize that a matter of concern to an
individual employee may intersect, at times, with a matter of
widespread public interest, "a public employee may not transform a
personal grievance into a matter of public concern by invoking a
supposed popular interest in the way public institutions are run."
Ferrara, 781 F.2d at 1516. We conclude that Holbrook's ante litem
notice against the City of Alpharetta does not constitute speech
protected by the First Amendment.6 The district court did not err
in granting summary judgment on this claim.
6 It is important to note that our decision with respect to Holbrook's ante litem notice is limited to the facts of this case and does not preclude a legal determination, given a different set of circumstances, that an individual anti-discrimination grievance could also be a matter of public concern giving rise to First Amendment protection. Again, in this case the allegations expressed in the notice pertain solely to Holbrook and do not implicate, in broader terms, the City of Alpharetta's treatment of disabled people, as Holbrook suggests. 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.
No circuit court has had occasion to resolve whether state
and local employees who allege a violation of the ADA may bring an
action under section 1983 in lieu of or in addition to an action
under either of these statutes. As a general proposition,
plaintiffs may bring a cause of action pursuant to section 1983 to
remedy violations of both the federal constitution and federal
statutes. Maine v. Thiboutot, 448 U.S. 1, 5, 100 S.Ct. 2502, 2504-
05, 65 L.Ed.2d 555 (1980). The Supreme Court has held that a
plaintiff alleging a violation of a federal statute will be
permitted to sue under section 1983 unless " "(1) the statute does
not create enforceable rights, privileges, or immunities within the
meaning of § 1983,' or (2) "Congress has foreclosed such
enforcement of the statute in the enactment itself.' " Wilder v.
Virginia Hosp. Assoc., 496 U.S. 498, 508, 110 S.Ct. 2510, 2517, 110
L.Ed.2d 455 (1990) (quoting Wright v. Roanoke Redevelopment and
Hous. Auth., 479 U.S. 418, 423, 107 S.Ct. 766, 770, 93 L.Ed.2d 781
(1987)).
District courts in our circuit have reached contrary
conclusions with regard to the question of whether section 504 of
the Rehabilitation Act creates an enforceable right—or, conversely, forecloses enforcement—pursuant to section 1983. In Bodiford v.
Alabama, 854 F.Supp. 886 (M.D.Ala.1994), for instance, the district
court held that the defendants had failed to demonstrate that
Congress explicitly intended to preclude access to section 1983 for
a claim based on the alleged violation of the Rehabilitation Act.
The court thus found that a section 1983 "laws" claim could be
based on the Rehabilitation Act. See id. at 893. In Veal v.
Memorial Hospital, 894 F.Supp. 448 (M.D.Ga.1995), however, the
court arrived at the opposite determination and found that "the
remedial scheme created by § 504 of the Rehabilitation Act ...
communicates the intention of Congress to preclude § 1983 actions."
Id. at 454. In reaching this conclusion, the court adopted the
reasoning of another district court:
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 every aspect of Holbrook's claims under section 1983. To permit a
plaintiff to sue both under the substantive statutes that set forth
detailed administrative avenues of redress as well as section 1983
would be duplicative at best; in effect, such a holding would
provide the plaintiff with two bites at precisely the same apple.
We conclude that a plaintiff may not maintain a section 1983 action
in lieu of—or in addition to—a Rehabilitation Act or ADA cause of
action if the only alleged deprivation is of the employee's rights
created by the Rehabilitation Act and the ADA. See also Johnson v.
Ballard, 644 F.Supp. 333, 337 (N.D.Ga.1986) (where plaintiff
brought section 1983 claim for violation of Title VII, court
resolved that " "it would be anomalous to hold that when the only
unlawful employment practice consists of the violation of a right
created by Title VII, the plaintiff can bypass all of the
administrative processes of Title VII and go directly into court
under § 1983.' ") (quoting Day v. Wayne County Bd. of Auditors, 749
F.2d 1199, 1204 (6th Cir.1984)).
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 the Rehabilitation Act. We further conclude that (1) Holbrook's Title II claims properly must be analyzed under the
Rehabilitation Act, (2) Holbrook's state ante litem notice did not
constitute protected speech under the First Amendment, and (3)
Holbrook may not bring a cause of action under 42 U.S.C. § 1983
solely for alleged violations of the ADA and the Rehabilitation
Act. We therefore AFFIRM.