                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-1650
                         ___________________________

                                       Paul Voss

                         lllllllllllllllllllllPlaintiff - Appellant

                                            v.

    Housing Authority of the City of Magnolia, Arkansas; and Richard Wyse,
    Individually and in his Official Capacity as Executive Director of Housing
                   Authority of the City of Magnolia, Arkansas

                       lllllllllllllllllllllDefendants - Appellees
                                       ____________

                     Appeal from United States District Court
             for the Western District of Arkansas - El Dorado Division
                                  ____________

                          Submitted: September 27, 2018
                             Filed: February 25, 2019
                                  ____________

Before COLLOTON, GRUENDER, and GRASZ, Circuit Judges.
                        ____________

GRASZ, Circuit Judge.

      Appellant Paul Voss resigned from his position as maintenance supervisor at
the Housing Authority of the City of Magnolia, Arkansas (“Housing Authority”) and
soon after filed a lawsuit against the Housing Authority and his direct supervisor,
Richard Wyse, asserting various discrimination, retaliation, and constitutional claims.
Voss appeals the district court’s1 order granting summary judgment in favor of the
Housing Authority and Wyse. We affirm.

                                  I. Background

      Voss worked at the Housing Authority for approximately fourteen years before
resigning his position in May 2014. When he resigned, Voss was a maintenance
supervisor and was responsible for the technical supervision of maintenance activities
for low-rent housing developments.

      In February 2014, based on a recommendation from an Arkansas state funding
agency, the Housing Authority directed drug testing of its employees. The initial
screening results indicated Voss tested positive for “opiates/morphine.” In March,
Wyse met with Voss regarding the results of the drug test. Wyse told Voss he was
suspended from employment without pay after Voss refused to provide information
requested by Wyse regarding his use of an opiate.

       The day after meeting, Voss provided Wyse a copy of a prescription for
hydrocodone. Wyse asked Voss via email to provide a letter from his healthcare
professional acknowledging the hydrocodone prescription and explaining how and
when Voss took the prescription, as well as whether any side effects of the prescribed
medication could hinder Voss’s ability to perform his work duties. Wyse also asked
Voss to provide a complete list of all prescription medications he was taking so Wyse
could confirm the hydrocodone was what caused the positive test, or alternatively a
clearance letter from Voss’s healthcare professionals addressing the issue. Wyse
soon sent a follow-up letter asking Voss again to have his healthcare providers write
a letter of acknowledgment of the prescribed hydrocodone, “describ[ing] how and


      1
       The Honorable Susan O. Hickey, United States District Judge for the Western
District of Arkansas.

                                         -2-
when to take this said prescription, along with any side effects that could hinder your
ability to perform your duties to oversee the maintenance of the Housing Authority.”
There is no record of Voss responding to these two communications.

      Throughout April and part of May 2014, the Housing Authority communicated
with Voss on several occasions through its attorneys. During these communications,
the Housing Authority told Voss that it had reinstated Voss’s pay retroactively2 and
made sure his health insurance did not lapse during his suspension. By May, the
Housing Authority also dropped its demand that Voss provide more information from
his healthcare providers and Voss agreed to return to work.

       On May 14, Voss ultimately returned to work. During a meeting with Wyse
after his return, Voss stated that he was still taking the hydrocodone. Voss also told
Wyse of certain medical conditions he had, including post-traumatic stress disorder,
but stated these conditions would not affect his ability to do his job. Wyse informed
Voss that he could not operate the Housing Authority’s vehicles and equipment until
Voss provided information from his doctor describing how and when to take the
prescription, along with any side effects that could hinder Voss’s ability to perform
his duties. Wyse also informed Voss that, because of funding issues, Voss would
now need pre-approval from Wyse before placing any orders. Wyse believed there
were plenty of other general office duties that Voss could perform as part of his job.

       On Monday, May 19, Voss submitted a resignation letter. In the letter, Voss
stated he “refuse[d] to work any longer in the retaliatory environment that has existed
between me and most of the rest of the [Housing Authority] staff, especially [Wyse],
since the drug test was done in February.”



      2
       The Housing Authority increased Voss’s salary effective March 16, 2014. It
is unclear when this salary increase was communicated to Voss.

                                         -3-
       In January 2015, after filing a discrimination charge with the U.S. Equal
Employment Opportunity Commission (“EEOC”) and obtaining a right-to-sue letter,3
Voss filed a lawsuit against the Housing Authority and Wyse, both individually and
in his official capacity as Executive Director. Voss alleged numerous claims,
including violations of the Americans with Disabilities Act (the “ADA”) and Title
VII of the Civil Rights Act of 1964 (“Title VII”), all of which were dismissed by the
district court except for Voss’s “ADA claim against the Housing Authority; all of
[Voss’s] procedural due process claims based on alleged deprivation of a
constitutionally protected property interest, and [Voss’s] Title VII Retaliation claim
against the Housing Authority.”

       Following discovery, the Housing Authority and Wyse filed a motion for
summary judgment on the remaining claims. The district court granted them
summary judgment and dismissed the case with prejudice. The district court held
some of Voss’s claims were not properly exhausted and others failed as a matter of
law on the merits. Voss filed a motion under Fed. R. Civ. P. 59(e), asking the district
court to reconsider its summary judgment order and generally arguing the district
court misapplied the legal standard. The district court denied Voss’s motion. Voss
now appeals.

                                    II. Analysis

      On appeal, Voss challenges the district court’s summary judgment order and
denial of his motion to alter or amend the judgment. We review the district court’s


      3
        Roughly a week before returning to work, Voss had submitted a charge of
discrimination to the EEOC, alleging the Housing Authority discriminated against
him based on his disability. The same date as his resignation, Voss submitted an
amended charge of discrimination to the EEOC, alleging both discrimination based
on disability and retaliation. On September 30, 2014, the EEOC issued Voss a right-
to-sue letter.

                                         -4-
grant of summary judgment de novo, viewing all evidence and reasonable inferences
in the light most favorable to Voss. See Torgerson v. City of Rochester, 643 F.3d
1031, 1042 (8th Cir. 2011) (en banc). We review the district court’s denial of Voss’s
motion to reconsider filed under Fed. R. Civ. P. 59(e) for an abuse of discretion. See
Schoffstall v. Henderson, 223 F.3d 818, 827 (8th Cir. 2000).

                                   A. Exhaustion

        We begin our analysis by considering Voss’s challenge to the district court’s
holding that he failed to exhaust all of his claims other than his disability
discrimination and constitutional due process claims. The ADA requires a plaintiff
to file a complaint with the EEOC before filing a suit in federal court. See Sellers v.
Deere & Co., 791 F.3d 938, 943 (8th Cir. 2015). “‘Each incident of discrimination
and each retaliatory adverse employment decision constitutes a separate actionable
unlawful employment practice’ that must be individually addressed before the
EEOC.” Id. at 943 (emphasis added) (quoting Richter v. Advance Auto Parts, Inc.,
686 F.3d 847, 851 (8th Cir. 2012) (per curiam)).

        The only claim Voss mentions in his briefing on appeal with regard to
exhaustion is one for constructive discharge.4 The totality of his exhaustion argument
is that his “[a]mended EEOC charge states that the Defendants retaliated against him
by revoking his duties and that the adverse action was ongoing. That same ongoing
action is what constituted the constructive discharge.” But Voss’s assertion regarding


      4
        Voss does not reference his Title VII, hostile work environment, or demotion
claim, and does not develop any arguments as to how the district court erred as to
these claims in its exhaustion analysis. Consequently, like the district court we
conclude Voss abandoned these claims. See Blakley v. Schlumberger Tech. Corp.,
648 F.3d 921, 931 (8th Cir. 2011) (holding the appellant waived a challenge to the
district court’s conclusion that she failed to exhaust her administrative remedies
because she did not make any supporting arguments on appeal).

                                         -5-
the contents of the EEOC charge is not accurate, as it says nothing about the Housing
Authority revoking his duties. Instead, the only adverse action he alleged in his
charge to the EEOC was his placement on suspension and the threat of discharge. By
not including in his EEOC charge the adverse acts which he maintains forced him to
resign, Voss failed to administratively exhaust his constructive discharge allegation.

                          B. ADA Discrimination Claim

       The district court determined that summary judgment in favor of the Housing
Authority was warranted on Voss’s disability discrimination claim because he did not
establish a prima facie case of discrimination. We agree.

       Employers may not discriminate against employees regarded as having a
disability. See Parker v. Crete Carrier Corp., 839 F.3d 717, 724 (8th Cir. 2016)
(citing 42 U.S.C. §§ 12102(1)(C), 12112(a)). “A plaintiff alleging regarded-as
discrimination may make out a prima facie case using the McDonnell Douglas
burden-shifting framework.” Id. (referring to McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973)).

       To survive summary judgment, it is first Voss’s burden to make a prima facie
case of regarded-as-disabled discrimination by showing: (1) the Housing Authority
regarded him as having a disability, (2) he was qualified to perform the essential
functions of his job with or without reasonable accommodation, and (3) the Housing
Authority took adverse action due to his perceived disability. See id. If Voss
succeeds, the burden of production shifts to the Housing Authority “to proffer a
legitimate, nondiscriminatory reason for the adverse action.” Id. If such a proffer is
made, the burden of production returns to Voss to demonstrate the articulated reason
was a pretext for discrimination. See id.




                                         -6-
       While the Housing Authority and Wyse bore the initial burden of
demonstrating the basis for their motion and identifying the portions of the record
they believe show an absence of a genuine issue of material fact, upon doing so Voss
was obliged to “come forward with ‘specific facts showing that there [was] a genuine
issue for trial.’” Torgerson, 643 F.3d at 1042 (quoting Matsushita Elec. Indus. Co.
v. Zenith Radio Corp, 475 U.S. 574, 587 (1986)). The existence of “some
metaphysical doubt as to the material facts” is not enough to defeat a properly
supported motion for summary judgment. Id. (quoting Matsushita, 475 U.S. at 586).

      In the case at bar, the district court reasoned summary judgment was
appropriate, in part, because Voss could not show that he suffered an adverse
employment action due to a perceived disability. Thus, he failed to satisfy the third
element of his prima facie case. The district court rejected Voss’s argument that his
suspension could qualify as an adverse action because there was no evidence that
Wyse knew of any possible disability before Voss returned to work on May 14 and
explained his medical issues to Wyse.

      We agree with this assessment. Assuming without deciding that Voss’s paid
suspension even qualifies as an adverse action,5 the fact the suspension concluded
before Wyse had possible reason to suspect Voss might be disabled eliminates the
possibility of the third element being satisfied.




      5
        Our case law indicates Voss’s suspension does not qualify as an adverse act.
See Singletary v. Mo. Dep’t of Corr., 423 F.3d 886, 891–92 (8th Cir. 2005) (holding
the employer’s act of putting an employee on administrative leave pending an
investigation did not qualify as an adverse employment action for purposes of a Title
VII claim where the employee maintained his pay, grade, and benefits during his
leave, and was restored to his position promptly after the investigation concluded).
However, it is unnecessary for us to decide the issue since Voss’s claim fails on other
grounds.

                                         -7-
       We reject Voss’s argument that a genuine dispute exists as to whether Wyse
regarded Voss as disabled before May 14 based on Wyse’s knowledge that Voss
failed the drug test on account of his prescribed hydrocodone. The fact Wyse knew
Voss was taking hydrocodone by itself is not enough evidence to infer Wyse regarded
Voss as disabled as that term is defined in the ADA.

      The Housing Authority’s request to Voss for a letter from his healthcare
provider to establish he could still safely perform his work duties does not change our
conclusion. Nothing in the record indicates this request was made because there was
concern a disability prevented Voss from performing aspects of his job. Instead, the
only reasonable inference from the record is that the Housing Authority was
concerned as to whether Voss’s medication interfered with his ability to safely
perform job-related tasks.

       Finally, we reject Voss’s contention that the Housing Authority took adverse
acts after his meeting with Wyse by putting some restrictions on his work. As
discussed above, Voss did not raise any of these acts in his EEOC charge, and thus
they are not exhausted. See Sellers, 791 F.3d at 943 (explaining each retaliatory
adverse employment decision must be individually addressed before the EEOC).
Even if they were exhausted, none of these acts were sufficiently adverse to satisfy
Voss’s burden. See Spears v. Mo. Dep’t of Corr. & Human Res., 210 F.3d 850,
853–54 (8th Cir. 2000) (holding a job transfer involving only minor changes in
working conditions without a reduction in pay or benefits is not an adverse action);
Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir. 1994) (holding a
reassignment without a diminution in title, salary, and benefits created no material
disadvantage and thus was not an adverse employment action). We affirm the district
court’s grant of summary judgment on Voss’s ADA discrimination claim.




                                         -8-
                        C. Procedural Due Process Claim

       We next address Voss’s argument that the district court erred by granting
summary judgment to the Housing Authority and Wyse on his constitutional
procedural due process claim. In order to prevail, Voss must show he possessed a
property interest in his employment pursuant to Arkansas law. See Bennett v.
Watters, 260 F.3d 925, 927 (8th Cir. 2001) (analyzing a federal due process claim
based on Arkansas law regarding entitlement to continued employment). He cannot
do so.

       “A property interest arises from a ‘legitimate claim of entitlement’ to
continuing employment.” Id. (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577
(1972)). “A public employee has a property interest when there are ‘contractual or
statutory limitations on the employer’s ability to terminate an employee,’ such as a
contractual right to be terminated only for cause.” Id. (quoting Winegar v. Des
Moines Indep. Cmty. Sch. Dist., 20 F.3d 895, 899 (8th Cir. 1994)).

      Under Arkansas law, an employer may generally terminate an at-will employee
such as Voss without cause. See Crawford Cty. v. Jones, 232 S.W.3d 433, 438 (Ark.
2006). Two exceptions exist to the Arkansas at-will doctrine: “(1) where an
employee relies upon a personnel manual that contains an express provision against
termination except for cause; and (2) where the employment agreement contains a
provision that the employee will not be discharged except for cause, even if the
agreement has an unspecified term.” Id. Neither exception is applicable here.

       Voss unsuccessfully attempts to evade this result by pointing to a statement in
a policy manual that the Housing Authority was an “equal opportunity employer” and
that “[a]ll personnel actions affecting qualified employees and applicants for
employment will be taken without regard to age, race, creed, color, sex, handicap,
religion . . . .” But when an employee relies on a personnel manual to attempt to

                                         -9-
modify at-will employment, Arkansas law dictates the manual “must contain ‘an
express provision against termination except for cause.’” Bennett, 260 F.3d at 929
(quoting Gladden v. Ark. Children’s Hosp., 728 S.W.2d 501, 505 (Ark. 1987)). “[A]n
implied provision against the right to discharge will not be sufficient to invoke the
exception.” Id. (alteration in original) (quoting St. Edward Mercy Med. Ctr. v.
Ellison, 946 S.W.2d 726, 729 (Ark. App. 1997)). The equal opportunity portion of
the employee manual contains no express provision forbidding termination without
cause and it therefore cannot serve as the basis for a legitimate claim of entitlement
in continuing employment.

      Finally, although his last argument is not entirely clear, Voss seems to also
argue his due process rights were violated because the Housing Authority failed to
follow its own policy regarding suspensions of employees by not properly
substantiating the results of his drug test. In support of his argument, Voss relies on
a provision of what he claims was the Housing Authority’s Operating Policy Manual,
which states:

       Suspension: An employee may be suspended from duty without pay for
       a period not to exceed fifteen (15) days for the following reasons:

       Pending investigation of charges which, if substantiated, would result
       in dismissal. However, if such investigation does not substantiate the
       charges preferred and the employee is retained, the employee shall be
       compensated for the period of suspension at his or her regular rate of
       pay.

       Even if this provision could create some legal entitlement for Voss, his
argument fails because he cannot show this provision was violated. The undisputed
facts reveal Voss was fully paid during this suspension and he was never terminated
because of the results of the drug test. Thus, there is no factual basis to entertain
Voss’s legal theory.


                                         -10-
       Because Voss was an at-will employee and he has failed to articulate any other
basis from which he could claim entitlement to continued employment under
Arkansas law, his constitutional due process claim fails as a matter of law. The
district court was correct to grant summary judgment to the Housing Authority and
Wyse on this claim.6

                                 III. Conclusion

      For the foregoing reasons, we affirm the judgment of the district court.
                     ______________________________




      6
       We also conclude the district court did not abuse its discretion in denying
Voss’s Rule 59(e) motion, which largely repeated the same arguments advanced at
the summary judgment stage. See Schoffstall, 223 F.3d at 827 (holding the district
court did not abuse its discretion in denying a Rule 59(e) motion which merely
restated arguments made in opposition to summary judgment).

                                        -11-
