Collier v. Milliken & Company , 47 F. App'x 645 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
THOMAS L. COLLIER, 
Plaintiff-Appellant,
v.  No. 02-1251
MILLIKEN & COMPANY,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
Henry M. Herlong, Jr., District Judge.
(CA-01-395-7-20AK)
Submitted: August 28, 2002
Decided: September 25, 2002
Before WILKINS, LUTTIG, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
John P. Mann, MANN LAW FIRM, L.L.C., Greenville, South Caro-
lina, for Appellant. William Steinhaus, John C. Glancy, OGLETREE,
DEAKINS, NASH, SMOAK & STEWART, P.C., Atlanta, Georgia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 COLLIER v. MILLIKEN & COMPANY
OPINION
PER CURIAM:
Thomas L. Collier appeals the district court’s order accepting the
recommendation of the magistrate judge and granting summary judg-
ment in favor of Milliken & Co., (Milliken), in this action brought
under the Americans with Disabilities Act (ADA), 42 U.S.C.
§§ 12101-12213 (2000).* Collier alleged Milliken failed to make a
reasonable accommodation for his Bell’s Palsy. Finding no reversible
error, we affirm.
We review a grant of summary judgment de novo. Higgins v. E.I.
DuPont de Nemours & Co., 863 F.2d 1162, 1167 (4th Cir. 1988).
Summary judgment is appropriate only if there are no genuine issues
of material fact and the moving party is entitled to judgment as a mat-
ter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). We must view the factual evidence, and all infer-
ences drawn therefrom, in the light most favorable to the non-moving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
To establish a prima facie case concerning Milliken’s failure to
accommodate, Collier must show: (1) he was an individual with a dis-
ability within the meaning of the ADA; (2) Milliken had notice of his
disability; (3) with reasonable accommodation Collier could perform
the essential functions of the position; and (4) Milliken refused to
make such accommodations. See Rhoads v. FDIC, 257 F.3d 373, 387,
n.11 (4th Cir. 2001), cert. denied, ___ U.S. ___, 122 S. Ct. 1309(2002).
Initially, Milliken claims Collier’s appeal must fail because Collier
failed to contest the magistrate judge’s finding that Collier did not
have a disability. See Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir.
1982); see also Wells v. Shriners Hosp., 109 F.3d 198, 199-201 (4th
*Although in his complaint Collier alleged a violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (2000),
Collier does not challenge the denial of this claim on appeal. Therefore,
Collier has abandoned this claim. See Pleasurecraft Marine Engine Co.
v. Thermo Power Corp., 272 F.3d 654, 657 (4th Cir. 2001).
COLLIER v. MILLIKEN & COMPANY 3
Cir. 1997). In his objections to the magistrate judge’s report, as
recounted by the district court, Collier asserted that the magistrate
judge erred in finding that Milliken did not regard him as disabled.
Because the disability element of the ADA prima facie case may be
satisfied by a showing that the plaintiff is "regarded as having" a
physical or mental impairment that qualifies as a disability, 42 U.S.C.
§ 12102(2)(C), Collier’s objection may have been adequate to pre-
serve this issue. We need not resolve this close question, however,
because even assuming the adequacy of Collier’s objections to the
magistrate judge’s report, Collier did not show Milliken refused to
offer a reasonable accommodation, and thus did not make out a prima
facie case.
A review of the record demonstrates Collier’s doctor restricted him
from working around machines. When Collier’s treating physician
changed Collier’s restrictions, Milliken found an open position it
believed complied with these restrictions. Milliken attempted to gar-
ner the doctor’s opinion, and extended Collier’s paid medical leave
during this process. Collier refused to accept the position, claiming
the job was a physical impossibility. However, his doctor declined to
state one way or the other whether Collier could perform the job, and
Collier admitted the physical impossibility of the job was his opinion,
and not a medical opinion.
Collier argues he was terminated for refusing a job that his doctor
specifically stated he should not do; however, this proposition is not
supported by the record. Further, Collier does not point to any other
job that was open at the time Milliken identified the proposed job as
an appropriate position, and in any event, Milliken was not required
to offer Collier a job in one of his preferred areas. Baert v. Euclid
Beverage, Ltd., 149 F.3d 626, 633 (7th Cir. 1998). Collier failed to
show that Milliken refused to offer a reasonable accommodation.
Accordingly, we affirm on the reasoning of the district court. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid in the decisional process.
AFFIRMED