          Case: 17-10781   Date Filed: 05/17/2018   Page: 1 of 20


                                                        [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-10781
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:13-cv-03553-ODE



GUY W. HARRISON, III,

                                                           Plaintiff-Appellant,

                                 versus

FULTON COUNTY, GEORGIA,

                                                         Defendant-Appellee,

ANGELA PARKER, et al.,

                                                                    Defendants.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                             (May 17, 2018)
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Before MARCUS, ROSENBAUM and HULL, Circuit Judges.

PER CURIAM:

      Guy W. Harrison III, a now-retired employee of the Public Works

Department of Fulton County, Georgia, appeals pro se from the district court’s

order granting summary judgment in favor of defendant Fulton County. After

careful review of the record and briefs, we affirm.

                              I.      BACKGROUND

      In granting summary judgment, the district court adopted the magistrate

judge’s 55-page report and recommendation (the “report”). That report included a

meticulous and thorough review of the evidence and facts in this case. Since the

parties are already familiar with these facts, we recount them more briefly.

A.    Employment with the Public Works Department

      This case arose out of plaintiff Guy Harrison’s employment as a Sewer

System Superintendent with the Fulton County Public Works Department from

July 2000 until he retired on January 14, 2014. This case does not involve

termination or his voluntary retirement. Rather, Harrison claims that, during a part

of his employment, Fulton County failed to promote him, discriminatorily gave

him lower-level job duties, and did not reasonably accommodate his disability.

      In 2006, Harrison was diagnosed with prostate cancer. When he returned

from six months of medical leave in 2007, Harrison (still as a Superintendent) was


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assigned to a new program (but still in the Public Works Department) under the

supervision of David Tucker. Both Harrison and Tucker are African Americans.

      The new program, referred to as Capacity Management Operations and

Maintenance (“CMOM”), was focused on reducing and eliminating water

overflows. At the times relevant to this action, Chris Browning was the Assistant

Director of the Public Works Department, and Alysia Shands was the Human

Resources Manager for the Water Resources Department.

B.    New Work Plan

      In 2008, under the CMOM program, supervisor Tucker developed a work

plan to map, evaluate, and record data about manholes and water valves throughout

Fulton County (the “Work Plan”). Before implementation, Assistant Director

Browning and Human Resources Manager Shands consulted with the personnel

department to ensure that the duties outlined in the Work Plan were consistent with

the job classification for a Superintendent.

      The Work Plan divided duties between Harrison and James Henson, another

Superintendent. Henson, who is white, was required to locate manholes and sewer

fixtures. Harrison was assigned to open and inspect the manholes and sewer

fixtures. In one form or another, all Superintendents were required to perform

physical activity as a part of their work.




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C.    Harrison’s Complaints

      As a result of his new duties, Harrison sought to work closer to home and

later complained to his supervisor that, unlike his white coworker Henson,

Harrison’s duties were below his job classification, he did not receive proper

equipment, and he was required to work in a cubicle instead of an enclosed office.

      During his employment, Harrison also complained to his supervisor that he

had been denied several promotions, including (1) water services manager in July

2008, (2) senior construction project manager in March 2009, (3) deputy land

administrator in January 2011, and, later, (4) Sewer System Superintendent II in

April 2013.

D.    Internal Grievance, Accommodation Request, and First EEOC Charge

      In early 2009, Harrison took a number of steps to express his dissatisfaction.

First, Harrison filed a grievance with Fulton County. Second, he contacted the

Fulton County Office of Disability Affairs (“ODA”) and filed an “Understanding

and Consent to Proceed” form but indicated that he did not wish to proceed with

the reasonable accommodation process. Two months later, in April 2009, Harrison

returned to the ODA and elected to proceed with the reasonable accommodation

process.




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      Third, in March 2009, Harrison participated in an unrelated internal

investigation on behalf of a coworker, James Marks, who had filed an Equal

Employment Opportunity Commission (“EEOC”) charge against Fulton County.

      And fourth, in May 2009, Harrison filed his own EEOC charge against

Fulton County, alleging discrimination in his job duties based on his race, a failure

to reasonably accommodate his disability, and retaliation based on his participation

in the EEOC investigation for James Marks.

E.  Disability Determination and Fulton County’s Responses to Harrison’s
Complaints

      In late May 2009, Harrison’s physician submitted documentation to Fulton

County indicating that Harrison was unable to lift more than 100 pounds and may

need to urinate frequently. In response, on June 2, 2009, the ODA issued a letter

certifying Harrison as disabled for purposes of the Americans with Disabilities Act

(“ADA”) and scheduled an interactive meeting for later in June 2009.

      Before the interactive meeting, the Fulton County Grievance Review

Committee issued a report, finding that the Public Works Department had erred in

its practices and procedures for assigning jobs. The Committee recommended that

the Public Works Department reassign Harrison to tasks consistent with his

“essential job duties.” In response, the Public Works Department restructured

itself back to having four Superintendents split between North and South Fulton



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County and revised the Work Plan to ensure that Harrison had job duties identical

to those of his white coworker, Henson.

      On the day of the interactive meeting, June 19, 2009, Harrison initially met

with an ADA coordinator, Wayne Stokes, and an equal employment officer,

Tilford Belle, about reasonable accommodations. On the issue of frequent

urination, as described by Harrison’s physician, Harrison told Stokes and Tilford

that he had to urinate “maybe once an hour” and that it took him “30 to 45

minutes” to access a restroom while working in the field. According to Harrison,

Stokes and Tilford instructed him to keep a log of each time he used the restroom.

      Harrison later met with several employees of the Public Works Department

at the scheduled interactive meeting and, as a result, received an additional

employee on his team to lift manhole covers for him. After the fact, Harrison

complained to his supervisor that this additional employee was not able to lift the

manhole covers by himself and so Harrison was still required to help.

F.    Second EEOC Charge and Desk Audit

      On June 24, 2009, Harrison filed a second EEOC charge against Fulton

County, alleging discrimination and retaliation based on his disability.

Specifically, Harrison contended that, as a result of his first EEOC charge, Fulton

County had retaliated against him by assigning him duties below his job

classification and requiring him to keep a log of each time he used the restroom.


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      On August 21, 2009, during an ADA meeting, Harrison also informed

Fulton County that his job assignment under the now-revised Work Plan was not

sufficient and that the additional employee could not lift the manhole covers by

himself. Fulton County responded by instructing Harrison to comply with his

physician’s orders and avoid engaging in any “heavy lifting.”

      On September 10, 2009, Fulton County conducted a desk audit of whether

Superintendents were assigned duties that aligned with their job classifications.

By memorandum dated September 11, 2009, the audit concluded that the duties

performed by both Harrison and Henson were “not closely aligned with the

essential duties as described in the job classification” of a Superintendent.

      In October 2009, Fulton County removed Harrison from having to perform

any fieldwork and moved him to a different office location that had different

duties. Harrison does not complain about this move but says the move did not

come fast enough.

G.    EEOC Determination and Right-to-Sue Letters

      Almost two years later, on September 14, 2011, Harrison received an EEOC

determination related to his two EEOC charges. The EEOC letter indicated that

there was “reasonable cause to conclude that [Harrison] was discriminated against

because of his race . . . , his disability and in retaliation for opposing unlawful

employment practices . . . .” and offered Harrison and Fulton County to join in


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conciliation. After conciliation failed, the Department of Justice (“DOJ”) sent

Harrison a right-to-sue letter (dated July 10, 2012) indicating that Harrison had

90 days to file suit. This right-to-sue letter also indicated that it should not be

interpreted as a “judgment [by the DOJ] as to whether or not [Harrison’s] charge is

meritorious.” Just over a year later, on July 30, 2013, Harrison received a second,

and otherwise identical, DOJ right-to-sue letter as to the same two EEOC charges.

      Before the district court, Harrison argued that he did not receive the first

right-to-sue letter dated July 10, 2012 and thus he was justified in suing under the

second letter. Harrison’s claims were allowed to proceed.

H.    Pro Se Complaint and Counseled Second Amended Complaint

      On October 28, 2013, proceeding pro se, Harrison filed this lawsuit against

Fulton County and various employees of the Public Works Department. The

defendants moved to dismiss the complaint, and Harrison retained counsel.

Harrison later amended his complaint twice and removed the claims against the

individual employees of the Public Works Department. This left Fulton County as

the only defendant.

      In his second amended complaint, Harrison asserted eleven claims against

Fulton County: (1) racially hostile work environment and race discrimination

under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.

(Count 1); (2) failure to accommodate and hostile work environment under the


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ADA, as amended, 42 U.S.C. § 12101, et seq. (Count 2); (3) retaliation under

Title VII (Count 3); (4) race-based failure to promote and racially hostile work

environment under 42 U.S.C. § 1981 (Count 4); (5) retaliation in violation of

§ 1981 (Count 5); (6) negligent hiring, training, supervision, and retention under

Georgia law (Count 6); (7) gross negligence and negligence per se under Georgia

law (Count 7); (8) punitive damages (Count 8); (9) attorney’s fees and costs (Count

9); (10) racially hostile work environment under 42 U.S.C. § 1983 (Count 10); and

(11) retaliation in violation of § 1983 (Count 11).

I.    Fulton County’s Motion to Dismiss

      Fulton County moved to dismiss Harrison’s second amended complaint.

On July 29, 2015, the district court granted in part and denied in part Fulton

County’s motion, merging Harrison’s claims under § 1981 and § 1983 and

allowing five of his eleven claims to proceed: (1) race discrimination under

Title VII from Count 1; (2) failure to accommodate under the ADA from Count 2;

(3) retaliation under Title VII from Count 3; (4) race discrimination under § 1983,

merged from Counts 5 and 11; and (5) retaliation under § 1983, merged from

Counts 4 and 10. Harrison later conceded that his only viable § 1983 claim




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involved the alleged race-based failure to promote him to Sewer System

Superintendent II in April 2013.1

J.   Magistrate Judge’s Report on Fulton County’s Motion for Summary
Judgment

       After a period for discovery, Fulton County moved for summary judgment

on Harrison’s remaining claims. Harrison opposed the motion. In the 55-page

report dated October 31, 2016, the magistrate judge recommended that the district

court grant Fulton County’s motion for summary judgment in its entirety.

       As to Harrison’s § 1983 race-based failure-to-promote claim, the magistrate

judge determined that the only position within the applicable statute of limitations

was the Sewer System Superintendent II position from 2013 and that Harrison had

failed to state a prima facie case because the individual ultimately hired for this

position was also an African American.




       1
          To bring a claim under Title VII, an employee must file a charge with the EEOC. See
42 U.S.C. § 2000e-5(e)(1) (stating that “[a] charge under this section shall be filed within one
hundred and eighty days after the alleged unlawful employment practice occurred . . . .”); Shiver
v. Chertoff, 549 F.3d 1342, 1344 (11th Cir. 2008). Harrison has never filed an EEOC charge
relating to either the deputy land administrator position from January 2011 or the Sewer System
Superintendent II position from April 2013. Thus, Harrison may not assert a Title VII claim
based on an alleged race-based failure to promote him to either of these positions. Rather, his
only race-based failure-to-promote claim is under § 1983.
         Similarly, the statute of limitations for a § 1983 claim arising out of events occurring in
Georgia is two years. See Lovett v. Ray, 327 F.3d 1181, 1182 (11th Cir. 2003) (noting that, in
§ 1983 cases, federal courts apply the state’s statute of limitations for personal injury actions).
Because Harrison filed this action in October 2013, the § 1983 statute of limitations has run on
all alleged promotional opportunities prior to October 2011.
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      As to Harrison’s retaliation claim under Title VII, the magistrate judge

determined that Harrison failed to show a causal connection between any of

Harrison’s EEOC activity and any adverse employment action. Harrison’s first

EEOC charge in May 2009 occurred after his new manhole duties were assigned in

2008. Likewise, Harrison had not submitted any probative evidence that he was

denied a promotion between his assisting a coworker, James Marks, in March 2009

and his filing an EEOC charge in May 2009. Lastly, as to Harrison’s EEOC

charge in June 2009, the magistrate judge determined that Fulton County’s request

that Harrison keep a restroom log was not an adverse employment action.

      As to race discrimination under Title VII, the magistrate judge determined

that Harrison’s challenged work assignments were not adverse employment actions

because they were not accompanied by any tangible harm (e.g., a decrease in

salary). Likewise, Harrison could not show disparate treatment because Harrison’s

white coworker received similar below-classification job assignments as well. The

magistrate judge also noted that the tasks delegated under the CMOM program

were from Harrison’s supervisor, David Tucker, who was also an African

American, and was thus unlikely to discriminate against Harrison.

      As to Harrison’s failure-to-accommodate claim under the ADA, the

magistrate judge determined that: (1) Harrison’s first specific demand for an

accommodation was in April 2009; (2) Harrison’s physician did not send


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documentation until late May 2009; and (3) Fulton County granted a timely and

reasonable accommodation by providing Harrison with an additional employee to

lift manhole covers for him in June 2009.

      Along with the report, the magistrate judge issued an order telling each party

that they had 14 days to file objections to the report, that their objections must

specify with particularity any alleged error, and that challenges not preserved by a

specific objection to the report would be deemed waived on appeal, as follows:

      Pursuant to 28 U.S.C. § 636(b)(1), each party may file written
      objections, if any, to the Report . . . within [14 days] of service of this
      Order. Should objections be filed, they shall specify with particularity
      the alleged error(s) made (including reference by page number to any
      transcripts if applicable) and shall be served upon the opposing party.
      The party filing objections will be responsible for obtaining and filing
      the transcript of any evidentiary hearing for review by the District
      Court. If no objections are filed, the Report . . . may be adopted as the
      opinion and order of the District Court, and on appeal, the Court of
      Appeals will deem waived any challenge to factual and legal findings
      to which there was no objection, subject to interests-of-justice plain
      error review. 11th Cir. R. 3-1.

K.    Harrison’s Counseled Objections

      Through counsel, Harrison filed four pages of timely objections to the

report. In his objections, Harrison contended that the magistrate judge did not

follow the summary judgment standard because the judge inferred Fulton County’s

motives and decided facts in the light least favorable to Harrison. After this

general contention, Harrison objected specifically to these three determinations by

the magistrate judge: (1) Browning and Shands consulted with the personnel
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department to ensure the duties in the Work Plan were consistent with a

Superintendent’s job duties; (2) Harrison had not established he was the only

Superintendent without an enclosed office; and (3) Harrison was not required to lift

manhole covers after he was provided with an additional employee for this

purpose.

L.    District Court’s Summary Judgment Order and Harrison’s Appeal

      In its order dated January 18, 2017, the district court overruled Harrison’s

three objections and adopted the magistrate judge’s report. The district court found

that each of the magistrate judge’s determinations was supported by the record

evidence and that Harrison’s objections were without merit. Accordingly, the

district court granted summary judgment in favor of Fulton County. Harrison

pro se appealed.

                               II.    DISCUSSION

      On appeal, Harrison contends that the record evidence presented genuine

issues of material fact and that the district court erred by granting summary

judgment in favor of Fulton County. Likewise, he seeks to reargue the merits of

each of his claims. For the reasons that follow, we affirm the district court’s grant

of summary judgment.

A.    Standard of Review and General Principles




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      Summary judgment is appropriate where “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). In considering a motion for summary

judgment, the district court must draw all reasonable inferences in the light most

favorable to the non-moving party. Quigg v. Thomas Cty. Sch. Dist., 814 F.3d

1227, 1235 (11th Cir. 2016). Generally, we review a district court’s grant of

summary judgment de novo and apply the same legal standard as the district

court. Id.; Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000)

(en banc).

      The same is true where a district court adopts a magistrate judge’s findings

and recommendations as the district court’s own ruling. In such cases, however,

this Court “will generally not review a magistrate judge’s findings or

recommendations if a party failed to object to those recommendations below.”

Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1257 (11th Cir. 2017) (emphasis added).

This principle was solidified in Eleventh Circuit Rule 3-1, which provides that—

subject to notice regarding the timing and consequences of objections—the failure

to object to specific portions of a report before the district court results in the

waiver of those challenges on appeal. 11th Cir. R. 3-1. If, however, the

challenging party demonstrates that the interests of justice instruct against a




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waiver, this Court may still review the report’s findings and recommendation for

plain error. Id.

      To establish plain error, the challenging party must show: (1) an error

occurred; (2) that error was plain; (3) it affected substantial rights; and (4) it

seriously affected the fairness of the judicial proceeding. See United v. Olano, 507

U.S. 725, 732, 113 S. Ct. 1770, 1776 (1993); Farley v. Nationwide Mut. Ins. Co.,

197 F.3d 1322, 1329 (11th Cir. 1999) (“Plain error review is an extremely stringent

form of review. Only in rare cases will a trial court be reversed for plain error.”).

B.    Properly Overruled Objections

      As an initial matter, we note that, before the district court, Harrison

specifically objected to only three findings in the magistrate judge’s report.

Consistent with the summary judgment standard, we review these challenges

de novo. See Chapman, 229 F.3d at 1023. Under this standard of review, we

consider whether the district court properly overruled Harrison’s three objections

to the report, and we conclude that it did.

      Harrison’s first specific objection to the report was that the magistrate judge

improperly credited Assistant Director Browning’s testimony that he and Shands

met with personnel to ensure that the duties outlined in the 2008 Work Plan were

consistent with a Superintendent’s job classification. But, as the district court

pointed out, the record demonstrates that Browning agreed to this fact in his


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deposition. Harrison offered no evidence to rebut Browning’s testimony, but

rather Harrison challenged only whether it was sufficient to establish that the

meeting occurred. The district court properly concluded that Browning’s

testimony was sufficient to establish this fact for purposes of summary

judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553

(1986) (“Rule 56(e) . . . requires the nonmoving party to go beyond the pleadings

and . . . designate ‘specific facts showing that there is a genuine issue for trial.’”);

Dawkins v. Fulton Cty. Gov’t, 733 F.3d 1084, 1089 (11th Cir. 2013) (citing same).

We agree because Browning’s testimony on that point was not contradicted by any

other person’s testimony.

      Harrison’s second objection involved his own Statement of Material Facts,

wherein his counsel asserted that Harrison was the only Superintendent required to

work in a cubicle instead of an enclosed office. Although Harrison claimed that

the magistrate judge unfairly credited Browning’s testimony while scrutinizing his

own, that claim has no merit. The magistrate judge accepted Browning’s

testimony as true for purposes of summary judgement because it was not disputed

by Harrison’s evidence. The magistrate judge did not accept Harrison’s counsel’s

allegation in his Statement of Material Facts—that other Superintendents were

given offices—because it was not supported by any of Harrison’s record citations

or by any testimony. See Fed. R. Civ. P. 56(e) (stating that, if a party fails to


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properly support an assertion of fact, the court may consider the fact undisputed

and grant summary judgment).

         In his deposition, Harrison talked only about his lack of an office but did not

point to any other Superintendent who had an enclosed office. Similarly, Tilford

Belle testified that Harrison “had concerns about working at a cubicle” but could

not recall whether Henson worked at a cubicle. Even viewed in a light most

favorable to Harrison, neither his testimony nor that of Belle established anything

about the office situation of the other Superintendents. The district court properly

determined as much and did not err in overruling Harrison’s objection on this

issue.

         Harrison’s third and final objection focused on the magistrate judge’s

conclusion that Fulton County provided a reasonable accommodation when, at the

June 19, 2009 interactive meeting, the county assigned an additional employee to

lift manhole covers for Harrison. Harrison argued that the magistrate judge failed

to consider Harrison’s subsequent complaint to Fulton County that the additional

employee was not able to lift the manhole covers by himself, which meant

Harrison still had to help lift the manhole covers. Thus, Harrison argued, the

accommodation of an additional employee was not reasonable.

         This argument misses the mark. Fulton County’s accommodation

established that Harrison was not required to lift or to help lift the manhole covers,


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and Fulton County even reiterated as much during the August 21, 2009 ADA

meeting. Specifically, Fulton County instructed Harrison to comply with his

physician’s orders and not to engage in any “heavy lifting.” To the extent that he

complied with Fulton County’s instruction, Harrison did not suffer any adverse

employment action as a result of his compliance. Indeed, in October 2009, after

Harrison complained to Fulton County about the additional employee’s inability to

lift manhole covers, Fulton County removed Harrison from the field entirely. The

district court properly overruled Harrison’s third objection to the magistrate

judge’s report.

C.    Waiver and Plain Error

      As to the unobjected-to portions of the report, we note that Harrison was

explicitly informed of the time period for filing objections, as well as the

consequences of a decision not to object to specific portions of the report. Under

this Circuit’s Rule 3-1, Harrison has waived all other arguments on appeal that

seek to challenge the magistrate judge’s report or its findings or determinations as

adopted by the district court. Although this principle is sometimes applied less

stringently to parties proceeding pro se, it is undisputed that Harrison had counsel

before the district court.

      Even assuming arguendo that Harrison’s arguments were not waived,

nowhere in his appellate briefs does he assert that, in the interests of justice, this


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Court should assess the district court’s rulings for plain error. Construed broadly,

however, Harrison’s reply brief on appeal does suggest that this Court should

address his claims on the merits because the DOJ and EEOC determined his “rights

were violated.” Harrison ignores the DOJ’s express disclaimer that it passed no

judgment on the merits of Harrison’s claims. In any event, we find no plain error

with respect to the unobjected-to portions of the magistrate judge’s report.

      Specifically, there was no plain error in the magistrate judge’s conclusion—

and hence the district court’s conclusion—that Harrison had failed to state a prima

facie case for each of his claims. First, as to Harrison’s § 1983 race-based

failure-to-promote claim, the individual ultimately hired for the Sewer System

Superintendent II position was also an African American. Second, as to Harrison’s

retaliation claim under Title VII, he established no causal connection between

protected conduct and any adverse employment action. Namely, Harrison’s Work

Plan job assignments in 2008 predated both Harrison’s and his coworker’s 2009

EEOC charges. In addition, Harrison failed to show any other adverse

employment action resulting from his cooperation with the 2009 EEOC charge

filed by his coworker, James Marks.

      Third, as to discrimination under Title VII, Harrison’s work assignments

were not adverse employment actions and were also assigned to his white

coworker. Fourth, as to reasonable accommodations under the ADA, Fulton


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County granted Harrison a reasonable and timely accommodation by providing

him an additional employee to lift manhole covers. This offered accommodation

occurred shortly after Fulton County received documents from Harrison’s

physician and within two months of Harrison’s first request for accommodation.

      We conclude that the district court properly overruled each of Harrison’s

objections to the magistrate judge’s report and that there was otherwise no plain

error in the unobjected-to portions of the magistrate judge’s report. The district

court properly granted summary judgment in favor of defendant Fulton County.

                              III.   CONCLUSION

      Accordingly, we affirm the district court’s grant of summary judgment in

favor of defendant Fulton County.

      AFFIRMED.




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