                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-3064
                                   ___________

Dennis Epps,                            *
                                        *
             Appellant,                 *
                                        * Appeal from the United States
      v.                                * District Court for the Eastern
                                        * District of Missouri.
The City of Pine Lawn,                  *
                                        *
             Appellee.                  *
                                   ___________

                             Submitted: June 13, 2003

                                  Filed: December 19, 2003
                                   ___________

Before MELLOY, BEAM, and SMITH, Circuit Judges.
                           ___________

SMITH, Circuit Judge.

      Dennis Epps appeals the district court's1 summary judgment in favor of the City
of Pine Lawn, Missouri ("Pine Lawn"), in Epps's discrimination and workers'
compensation claims. We affirm.




      1
        The Honorable Jean C. Hamilton, United States District Judge for the Eastern
District of Missouri.
                                  I. Background
      Epps served the City of Pine Lawn as a police officer for over thirteen years.
Epps suffered numerous injuries during his employment. Epps filed workers'
compensation claims for at least two of the injuries. Eventually, Epps's injuries left
him unable to perform his job duties. Thereafter, Pine Lawn terminated him.2

       Epps's first pertinent injury occurred August 1, 1998, when he was involved
in an automobile accident while on duty. Epps injured his neck and back. Pine Lawn's
workers' compensation insurance covered the injuries, and Epps received benefits.
The injuries prevented Epps from performing his duties as a police officer, and he
was placed on leave from August 26, 1998, to November 15, 1998. Dr. Peter Mirkin,
Pine Lawn’s designated workers' compensation physician, released Epps to return to
work on November 9, 1998, without restrictions, but recommended that he work not
as a patrolman but "as a detective."

       Epps's next relevant injury occurred on April 13, 1999, when he aggravated the
earlier injuries to his neck and back. However, Epps did not immediately seek
medical attention. Instead, several months later, he visited Dr. Mirkin and complained
of back and neck pain. He described that bending, stooping, or squatting aggravated
the pain. Epps also complained that he had difficulty carrying his gun belt. According
to the record, Epps paid for this visit and subsequent treatment with private health
insurance.

        Dr. Mirkin diagnosed Epps as having degenerative disk disease, and he
concluded that Epps would very likely need to seek a different type of occupation.
Initially, Dr. Mirkin prescribed conservative medical treatment, and he did not


      2
       Epps served as a Pine Lawn police officer from March 14, 1987, to March 20,
2000. As a Pine Lawn police officer, Epps, who reached the rank of sergeant,
performed standard police duties in the field and in an administrative capacity.

                                         -2-
initially recommend surgery. However, in November 1999, Dr. Mirkin operated on
Epps's neck. According to his reports, Dr. Mirkin did not consider Epps's complaints
work-related, and consequently Pine Lawn’s workers' compensation carrier denied
liability for the treatment and surgery.

      Donald Hardy became Chief of Police in July 1999. When he started work, he
reviewed the personnel files of his officers and noticed that Epps "had filed quite a
few workers' compensation claims, and that he missed a lot of work." He also
reviewed Dr. Mirkin's note that Epps had degenerative disk disease, and that he
would likely need to seek a different occupation. On September 29, 1999, Hardy
wrote a memorandum to the Mayor and Board of Aldermen recommending Epps's
termination. Hardy referred to Dr. Mirkin's note, the extensive amount of sick time
used by Epps, and the number of workers' compensation claims Epps filed in
concluding that Epps was unable to perform his duties. The Mayor and Board of
Aldermen did not accept Hardy's recommendation, and Epps remained employed with
Pine Lawn. Epps never returned to work after late September 1999.

       After Epps's neck surgery in November 1999, Hardy prepared a second
memorandum to the Mayor and Board of Alderman on March 17, 2000. In this
memorandum, Hardy again recommended termination after noting that there were no
light-duty assignments available, and that the department's officers were required as
part of their full duties to bend, squat, and run. Hardy again referred to Dr. Mirkin's
note before concluding that Epps would never be able to function as a regular officer.
On March 21, 2000, the Mayor and Board of Aldermen voted to accept Hardy's
recommendation to terminate Epps and then dismissed him. Epps appealed the
termination under the Pine Lawn Municipal Code. Following a hearing, the Board
denied the appeal.

      On February 27, 2001, Epps sued Pine Lawn alleging four separate claims.
Specifically, he claimed that his termination in May of 2000 violated the Americans

                                         -3-
with Disabilities Act ("ADA") and the Missouri Human Rights Act ("MHRA"). He
also claimed that the termination constituted unlawful retaliation under Missouri
Revised Statutes §287.780 for filing a workers' compensation claim, and amounted
to the intentional infliction of emotional distress under Missouri common law. Pine
Lawn moved for summary judgment on all counts. In granting Pine Lawn's motion,
the district court ruled that Epps could not prevail on his ADA and MHRA claims
because he could not establish that Pine Lawn regarded him as disabled. The district
court also held that Missouri's sovereign immunity statute barred Epps's workers'
compensation retaliation and intentional infliction of emotional distress claims.

                                 II. Standard of Review
       We review the district court's grant of summary judgment de novo. Dropinski
v. Douglas County, Neb., 298 F.3d 704, 706 (8th Cir. 2002); Harder v. Acands, 179
F.3d 609, 611 (8th Cir. 1999). In doing so, we apply the same standard as the district
court, viewing the evidence in the light most favorable to the nonmoving party and
giving that party the benefit of all inferences that may reasonably be drawn. Wallace
v. Dorsey Trailers Southeast, Inc., 849 F.2d 341, 342 (8th Cir. 1988). A moving party
is entitled to summary judgment "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

                                    III. Discussion
      Epps argues that the district court erred in finding that he did not establish a
prima facie case of discrimination under the ADA and MHRA. Specifically, the court
found that Epps failed to prove that Pine Lawn perceived him to be disabled.3 In

      3
        Epps's claims under the ADA and the MHRA are governed by the same
standards. Mathews v. Trilogy Communications, Inc., 143 F.3d 1160, 1164 n. 5 (8th
Cir. 1998) (citing Tart v. Hill Behan Lumber Co., 31 F.3d 668, 671 (8th Cir. 1994)
(federal employment discrimination decisions apply to MHRA)); Mo. Rev. St. §
213.055.

                                          -4-
addition, Epps argues that the court erred in determining that Pine Lawn enjoys
discretionary immunity, a more restrictive type of sovereign immunity recognized in
Missouri, from Epps's retaliatory-discharge claim.

                             A. ADA and MHRA Claims
      Epps first argues that the facts showed that Pine Lawn perceived him to be
disabled, thus establishing that particular element of his prima facie case under the
ADA and MHRA. To establish a prima facie case of employment discrimination
under the ADA and MHRA, we use the burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). Under this
framework, Epps must show (1) that he has a disability within the meaning of the
ADA, (2) that he is qualified to perform the essential functions of the job, with or
without reasonable accommodation, and (3) that he suffered an adverse employment
action because of his disability. Fenney v. Dakota, Minn. & E. R.R. Co., 327 F.3d
707, 711 (8th Cir. 2003); Cooper v. Olin Corp., Winchester Div., 246 F.3d 1083,
1087 (8th Cir. 2001).

       Within the meaning of the ADA, the term "disability" includes, among other
things, "being regarded as having," 42 U.S.C. § 12102(2)(C) (1994), "a physical or
mental impairment that substantially limits one or more of the major life activities"
of the individual. 42 U.S.C. § 12102(2)(A). Thus, individuals who are "regarded as"
having a disability, but who are not actually disabled, can still fall within the
protection of the ADA. Sutton v. United Air Lines, Inc., 527 U.S. 471, 489 (1999);
Conant v. City of Hibbing, 271 F.3d 782, 784–785 (8th Cir. 2001). "Major life
activities" include "caring for oneself, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i); accord,
45 C.F.R. § 84.3(j)(2)(ii) (regulation interpreting the Rehabilitation Act of 1973, 29
U.S.C. § 790).4


      4
        The ADA does not define the term "major life activities," but there are two
potential sources of guidance for interpreting that and other terms: the Rehabilitation

                                         -5-
       An individual is substantially limited in performing a major life activity where
that individual is "[u]nable to perform" or is "[s]ignificantly restricted as to the
condition, manner or duration under which" he can perform a particular major life
activity. Id. § 1630.2(j)(1)(i), (ii). A substantial limitation on the major life activity
of working means that an individual must be "significantly restricted in the ability to
perform either a class of jobs or a broad range of jobs in various classes." Id. §
1630.2(j)(3)(i). In "regarded as" actions, the plaintiff must show that the employer or
potential employer "entertain[ed] misperceptions about the individual–it must [have]
believe[d] either that one ha[d] a substantially limiting impairment that one [did] not
have or that one ha[d] a substantially limiting impairment when, in fact, the
impairment [was] not so limiting." Conant, 271 F.3d at 785 (quoting Sutton, 527 U.S.
at 489).

       Summary judgment is proper if a plaintiff fails to establish any element of his
prima facie case. Nesser v. Trans World Airlines, Inc., 160 F.3d 442, 445 (8th Cir.
1998). We hold that the district court properly granted summary judgment to Pine
Lawn because Epps failed to establish that Pine Lawn perceived him to be disabled
within the meaning of the ADA or MHRA. Pine Lawn concluded that Epps could not
perform the particular job of a Pine Lawn police officer. This, however, is insufficient
to establish an ADA or MHRA claim. "The inability to perform a single, particular
job does not constitute a substantial limitation on the major life activity of working."
29 C.F.R. § 1630.2(j)(3)(i). "There is a distinction between being regarded as an
individual unqualified for a particular job because of a limiting physical impairment



Act of 1973 and the Equal Employment Opportunity Commission ("EEOC")
regulations interpreting the ADA. Fenney, 327 F.3d at 714 (citing Toyota Motor Mfg.,
Kentucky, Inc. v. Williams, 534 U.S. 184, 193 (2002)). While regulations interpreting
the Rehabilitation Act of 1973 receive a high degree of deference, the level of
deference accorded EEOC regulations is yet unknown. Fenney, 327 F.3d at 713–714
(citing Toyota, 534 U.S. at 194). However, neither party challenges the
reasonableness of the EEOC regulations or their application to this case; therefore,
we need not address this issue.

                                           -6-
and being regarded as 'disabled' within the meaning of the ADA." Conant, 271 F.3d
at 785. "Accordingly, an employer is free to decide that . . . some limiting, but not
substantially limiting, impairments make individuals less than ideally suited for a
job." Id. (quoting Sutton, 527 U.S. at 490–91).

       In this case, Hardy and the Board of Alderman relied on Dr. Mirkin’s treatment
notes that indicated that Epps should be given the job of a "detective" rather than that
of patrolman and that Epps might be better suited for another type of job within the
department. This medical evidence did not provide that Epps could not perform a
broad range of work, nor does other evidence indicate that Hardy and the Board of
Alderman concluded as much. Rather, the evidence only shows that Hardy and the
Board of Alderman believed that Epps could no longer perform as a policeman for
Pine Lawn based on the particular demands of a Pine Lawn patrolman.5 We affirm the
district court's summary judgment on Epps's ADA and MHRA claims.




      5
         In addition, Epps failed to establish that he was qualified to perform the
essential functions of the job, with or without accommodations. His excessive
absenteeism from work rendered him unable to perform the job, and time off of work
was not a reasonable accommodation in this instance. Attendance at work is a
necessary job function. Nesser, 160 F.3d at 445. "An employee who is 'unable to
come to work on a regular basis [is] unable to satisfy any of the functions of the job
in question, much less the essential ones.'" Id. (quoting Moore v. Payless Shoe
Source, Inc., 139 F.3d 1210, 1213 (8th Cir. 1998)). Even though attendance is an
essential function of the job, the ADA requires employers to reasonably accommodate
the disability, unless the accommodation would impose an undue hardship on the
employer. 42 U.S.C. § 12112(b)(5)(A). The employee must show that a reasonable
accommodation was available. Nesser, 160 F.3d at 446. Epps, however, failed to
show that a reasonable accommodation existed. Epps asserts that the six-month leave
of absence was reasonable; however, Pine Lawn, a small municipality, could not
reallocate Epps's job duties among its small staff of fifteen to twenty-two police
officers. An employer is not required to hire additional people or assign tasks to other
employees to reallocate essential functions that an employee must perform. Hatchett
v. Philander Smith Coll., 251 F.3d 670, 675 (8th Cir. 2001).
                                          -7-
                  B. Retaliatory Discharge and Sovereign Immunity
        Epps next argues that Pine Lawn unlawfully retaliated against him because he
filed a workers’ compensation claim. Epps's claim, however, is barred by the doctrine
of sovereign immunity. Pine Lawn, as a municipality, is protected by discretionary
immunity, a more restrictive type of sovereign immunity recognized in Missouri.
Jungerman v. City of Raytown, 925 S.W.2d 202, 204 (Mo. 1996). Under Missouri's
discretionary immunity doctrine, a city is not liable for the manner in which it
performs discretionary duties, such as an official's "exercise of reason in the adaption
of means to an end and discretion in determining how or whether an act should be
done or course pursued." Id. at 205 (internal quotations omitted). The parties here
agree that Pine Lawn generally enjoys this level of immunity.

       Sovereign immunity has existed by statute in Missouri since 1977, with certain
exceptions that the Missouri courts construe narrowly. See Mo. Rev. Stat. §§ 537.600,
.610. Rather than argue that immunity does not apply, Epps contends that Pine Lawn
waived its immunity by purchasing an insurance policy through the Missouri Public
Entity Risk Management Fund (MOPERM), a statutory entity through which
subscriber public entities are covered by insurance. See Mo. Rev. Stat. §§ 537.700,
.745.1.

        Despite the statutory language maintaining sovereign immunity for subscriber
entities, sovereign immunity can still be waived in certain instances. Under section
537.600, sovereign immunity is waived in automobile cases and cases involving
injury caused by a dangerous condition of public property. Additionally, section
537.610.1 provides that sovereign immunity can be waived by the purchase of
insurance covering tort claims.6 Section 537.610.1 provides an "independent basis for

      6
          Missouri Revised Statute § 537.610.1 provides:

      [E]ach political subdivision of this state . . . may purchase liability
      insurance for tort claims, made against the state or the political
      subdivision . . . . Sovereign immunity for the state of Missouri and its
      political subdivisions is waived only to the maximum amount of and
                                        -8-
waiving sovereign immunity–a basis cemented in the existence of coverage for the
damage or injury at issue under the language of the insurance policy." Hummel v. St.
Charles City R-3 School Dist., 2003 WL 21262853, *2 (Mo. Ct. App. 2003) (quoting
State ex rel. Cass Med. Ctr v. Mason, 796 S.W.2d 621, 624 (Mo. 1990)); State ex rel.
Bd. of Trs. of City of North Kansas City Mem. Hosp. v. Russell, 843 S.W.2d 353, 360
(Mo. 1992). Whether sovereign immunity is waived in a particular case depends on
whether the plaintiff's claim falls within the purposes covered by the defendant's
policy. Casey v. Chung, 989 S.W.2d 592, 593 (Mo. Ct. App. 1998); Fantasma v.
Kansas City Board of Police Comm'rs, 913 S.W.2d 388, 391 (Mo. Ct. App. 1996);
Fields v. Curators of the Univ. of Missouri, 848 S.W.2d 589, 592 (Mo. Ct. App.
1993); Russell, 843 S.W.2d at 360; Cass Med. Ctr., 796 S.W.2d at 623.

       To penetrate a claim of immunity under section 537.610.1, a plaintiff is required
to demonstrate the existence of insurance that covered the plaintiff's claim. Brennan
By and Through Brennan v. Curators of the Univ. of Missouri, 942 S.W.2d 432, 436
(Mo. Ct. App. 1997). Because a public entity's liability for torts is the exception to the
general rule of sovereign immunity, a plaintiff must specifically plead facts
demonstrating that the claim is within this exception to sovereign immunity. See Burke
v. City of St. Louis, 349 S.W.2d 930 (Mo. 1961); see also, e.g., Martin v. City of
Washington, 848 S.W.2d 487, 490–91 (Mo. 1993) (discussing pleading requirements
for dangerous condition exception in section 537.600).

       Epps argues that the MOPERM policy contains language in the "Public Officials
Errors and Omissions" clause that qualifies as a waiver of immunity. For support, Epps
cites Amick v. Pattonville-Bridgeton Terrace Fire Prot. Dist., 91 S.W.3d 603 (Mo.
2002). In Amick, the plaintiff sued the Fire Protection District for retaliatory discharge
after the plaintiff filed a workers' compensation claim. The Missouri Supreme Court


      only for the purposes covered by such policy of insurance purchased
      pursuant to the provisions of this section and in such amount and for
      such purposes provided in any self-insurance plan duly adopted by the
      governing body of any political subdivision of the state.
                                        -9-
determined that the Fire Protection District’s insurance policy waived sovereign
immunity because a clause in the policy provided that the District would pay for
amounts to which the insured "becomes legally obligated to pay as monetary damages
because of a 'wrongful act' to which this insurance applies." Id. at 604. Epps argues that
the "Public Officials Errors and Omission" definition in the MOPERM policy similarly
waives immunity. This definition provides:

      Public Officials Errors and Omissions means any and all breaches of duty
      by the Covered Party arising from negligent action or inaction, mistake,
      misstatement, error, neglect, inadvertence, or omission by the Covered
      Party in the discharge of duties with the Member Agency.

Appendix at 348. After comparing the policy provision in Amick with the MOPERM
provision, we disagree with Epps's assertion that the MOPERM policy provision
waives Pine Lawn's sovereign immunity. The MOPERM "Public Officials Errors and
Omissions" clause clearly speaks to inadvertent or accidental "errors" or "mistakes"
rather than a deliberate act, such as retaliation, as was involved in Amick. The
MOPERM policy here is more restrictive than the policy in Amick, and it does not
contain the broad language from Amick relating to any "wrongful acts" committed by
Pine Lawn. Rather, it specifically provides when and for what type of injury it will pay,
and consistently maintains that it does not waive sovereign immunity beyond those
areas specified by statute or for claims arising under workers’ compensation or other
disability laws.

      Furthermore, the MOPERM policy specifically cites Missouri's sovereign-
immunity statutes at §§ 537.600 and 537.610 that name the exceptions to sovereign
immunity, including the purchase of insurance. The policy notes that liability will not
be broadened beyond the limitations of those statutes. The policy also notes that
MOPERM will not cover any obligation to which Pine Lawn "may be held liable under
any workers' compensation, unemployment compensation or disability benefits law or
under any similar law." Appellant's App. at 344. The wrongful discharge statute under


                                         -10-
which Epps makes his claim is in the Missouri Workers Compensation Act. As such,
we find that Pine Lawn is protected by sovereign immunity.7

                                  IV. Conclusion
      Accordingly, for the foregoing reasons, we affirm the district court's summary
judgment in favor of Pine Lawn on Epps's ADA, MHRA, and retaliatory-discharge
claims.
                       ______________________________




      7
        Because we find that the doctrine of sovereign immunity disposes of this
matter, we do not reach the merits of Epps's retaliatory-discharge claim.
                                        -11-
