and whether there is any burden that a move in for summary judgment must meet whether whether or not a movement can completely ignore the allegations in a complaint and argue what they want to argue in a motion for s there is there the the defendant often meets no burden in there some are just in motion they simply argue they simply present facts and they don't show that those facts  suspended and without pay and initially eventually with pay because of a perceived disability because he was taking prescription medication and the his employer thought that that made e mail saying that because of this because you take an oxy caught own you need to show me they you that you can perform your work duties assure that you can drive a truck you can do things like that things that he had been doing for fourteen years that they concede he does wail it's part of their argument to argue that he was not disabled wouldn't that be more of a concern though about the side effects of taking oxy code it could be it could be both it could be that that the underlying disability causes causes issues but also the side effects of taking i c called on itself could be a perceived disability not that not that they did disable mr defense is that because he took oxy caught on he needed to prove to them that he was not disabled he needed they required that he prove to them that he could perform his work duties if he had been performing for fourteen years and that they admit that there was no reason for them to believe he couldn't perform part of their argument that he was not disabled was that he had no reason and his employer mr wise had no reason to believe he was disabled and they use that to say well on and not only do they require it but they actually suspended him from his job because of it first off requiring it and requiring a list of on his medications is itself a violation of the americans with disabilit tied specifically to a job function in which case they admit that it's not they admit that he did his job just fine for the past fourteen years and they had no reason to believe he couldn't so that in itself is a violation of the americans violation but they suspended him from work until he provided it and this was mentioned lasted for over two months and they suspend him but initially they suspended him without pay and they sent several letters all of which are part of the record all of all possible medications that he could take back to give a positive test result for an opioid then they were and the way he phrased it is that he needs a complete list of or that are related in any way whatever that means so he's not only inquiring about the specific oxy caught on but he's also saying is there anything else wrong with you with that question that question necessarily contemplates that there might be something else wrong with you and we need to know what it is after that there are several follow up letters from the council of the housing authority and from mr wise where they specifically say you cannot return to work until you show us the right to you have a doctor tell us that you're not limited in a major life it to essentially they don't work like that they say that you're not limited in your job functions because of taking the oxy caught on and that explicitly was the reason for keeping him out of work for two months of eventually they let him come back to work probably also my advice that that was a violation of the a b a just assuming there they let him come back to work  but when he came back they said they had stripped away his ability to operate equipment his ability to drive vehicles which he had done in his position as a man a supervisor for four years and they can find him to a de they did allow him to make purchases that he had been able to make before without prior approval essentially the job he came back to was an entirely different job and not only that but when he came back mr vos does allege that that he was told tried to keep you off or forever obviously had to rehire you but i'll get you next time and the the treatment that he received after he returned was an example of the i'll get you next time therefore it d had a meeting with mr wise and both sides agree that at that meeting at least that he was told that that that mr valls had p t s d now their position is that is that the  there is it could try our fact could believe could infer from that that he also had some qualms with the underlying disability there's a he would not be taken actually caught on in multiple medications for nothing  and therefore there there is some evidence that a trial fact could perceive that that even at the time that he requested this list of all medications that he had in his mind that mr vas has some other underlyin disability but but the the taking medications is another there is some case law to suggest that that of employer perceiving that someone is disabled because of medication is limited by the taking of oxy cuomo let me ask you this is the is that an adverse action if you suspended initially without pay but then given full pay and a raise when he comes back it isn't it  adverse because during that month he still has to take care of whatever he had to take care of it says adverse if it is as it would be if an employer delay pay for a month and any time i understand the point you want to save the rest of your time can hear me now yes that's also adjustable by the way the whole podium one plan thank you let me address first some of mr sprinkles arguments and statements it's clear from the record and if you look at appendix page sixty one at the very most he lost or worth not paid for two weeks there is nothing in the record that says that he that mr vos even lost any pay because that could have been just one pay period and he was if you look at the law lawyer's letter it says that he was paid back all back pay so he's only off for two weeks before he was repaid secondly we have is your point about how it might not have been any loss of pay well there's nothing in the record about that your honor but assuming that you get paid on a regular basis he was suspended initially on march the thirteenth effect of march the fourteenth backpack and all of its benefits so the pay was not for a month secondly the question about not asking for the list is simply incorrect all the lawyer's letters mr wise's letters that begin on fifty a day show that what they were asking for was hey you're taking an opiate could you please have your doctor send us something that says number one is that what caused the positive drug test and number two is that going to impair your ability that to perform your jobs safely mr voss it's unrebutted among other things drove a housing authority vehicle and operated heavy equipment for his position so we needed something and anything else he does not allege in his two charges number one that the change in job duties that is not being allowed to operate the truck and machinery and getting permission before expends any housing authority funds were violations of any law that's not in his charges he does not allege constructive discharge or constructive germination in his charges he does not allege hostile work environment and i won't even go into the fact that he didn't allege any title seven violations so since these were not mentioned in his charges there bar for failure to exhaust administrative remedies with the e s c so now that leaves us with two claim there were included in the e e o c charge and his due process climb first of all we have the leave slash suspension secondly we have the threat of discharge and thirdly we have the due process  employment at will very quickly on the employment it will issue due process it's clear under arkansas law that mr voss was an employee at will that's had no procedural due process rights at all  charges since he didn't file a timely charge then does claim should be dismissed as administrative lee not administratively exhausted each incident of discrimination and each retaliatory adverse employment decision should employment employment practice that he had to address first with the e e o c and did not do that that's what the e e o c is there for this court recognized in cellars versus deer in company that the failure to mention a demotion kleiman a charge prevents the plaintiff from pursuing that in a subsequent loss to the hostile work environment claim that mr vos rice was not also not administratively exhausted and certainly work related to his claims of  discrimination importantly mr vos never alleged in any claim of discrimination any charge that he was constructively discharge so that two should be dismissed for failure to exhaust administr remedies he did not allege in his charges any retaliation of title seven and that should also be dismissed for not being administratively exhausted first nothing in his amended charges would have led the e e o c to investigate when it was a mail to the housing authority or to mr wise so we don't know when mr wise received it but what we do know is that on may fourteenth in the morning mr vos return to work and they had a conversation about his change in duties so there can be no retaliation for even following that first charge of discrimination and the second charge was filed may sixteenth two thousand and fourteen and signed by the e time and he certainly didn't make any allegations in his charge of may sixteenth about the reason he was going to quit so we know that the change of duck job duties occurred at a discreet time between the filing of the two charges and after he quit was the main may nineteenth two thousand and fourteen charge mr dress and all the arguments that were made this morning about the claim that was exhausted yes i'm going to get into that next so even though those claims were exhausted we still need to look at what are these other items that are discrete acts and whether he proved any of these  adverse employment action films what about the appeals argument that he was perceived as disabled when they requested a list of medications and they knew that he was taking your honor there's ample case fly out there that cited in our brief that just asking somebody for a list of medications or the fact that somebody is taking medications is not an adverse employment action action and does not lead to a perception of disability in this day and age when somebody fail a drug screen it's important that the employer know whether that drug is going to impact their job duties and performance responsibilities and that's not just a business necessity but it's  it's important for safety reasons for the public and for the individual himself the fact that he had that positive drug screen and then we asked for that acknowledgement does not establish that we regarded him as disabled and we cited to fuller versus farmland foods which reject the argument that the request that the plaintiffs dr smith to report following a public positive drug tests demonstrated that the plaintiff was regarded as disciple we also nebraska case we also cited a northern district of illinois case which granted summary judgment because the plaintiff had no evidence that his employer regarded him as disabled after the positive positive drug test so  page twenty six the fact that the prescription opiates themselves created a disability was not argued in the appellant's brief we know from his his own admission to mr wise that he took these opiates for pain management for siad ika bad knees and arthritis not p t s d there is no admissible evidence that he had any side effects from the opiates that the housing authority was aware of any side effects or that we regarded him as disabled because of the side effects did at that answered question your honor yes what does the record show about when the employer became explaining the safety issue in addition to finding that mr vos was not regarded as disable the district court had some alternative grounds for granting summary judgment even if they regarded him as disabled the he failed to establish the third element of his claim he could not establish that he suffered an adverse employment action because he was regarded as a having a disability as to what actions the have that he said he had to take those hydrocodone it's because of his medical condition again so i attica and other pain in his knees and legs so that's why i was off work because we needed something from the doctor about why he was taken opiates and what he could safely perform and we argued that in our brief and we also decided to a second sir lopez versus halle's go owners was taking the opiates and if that would impair his ability to safely perform the job mr boss also a state fail to establish an adverse employment action as part of the third prong of his facial case an adverse employment action is a tangible change in working conditions that produce a material employment disadvantage he got a raise his paid in change he could go back to driving as soon as the doctor said that he was safe to do that there was no adverse tangible adverse employment action at all taken against him in higgins versus consolidates this court said there was no discrimination exception to the body of the motion for summary judgment and that a recommendation to terminate is an recommendation to terminate is not an adverse employment action because there is no resulting material change in the employment situation so just as in a recommendation to terminate cannot be an adverse employment action this threat to terminate is not at the level of an adverse employment action and as far as the discrimination exception to the of every of every case and not just non employment cases but leave itself was not considered an adverse employment action since he received his pay all his benefits returned to his previous  position and he was certainly not able to establish that there was an adverse employment action in the singletary case keep your this court has previously held that an investigatory suspension with pay is not an adverse employment non retaliatory reasons for its actions were a pretext for discrimination or affiliation the court didn't reach the issue of pretexts below because it found three separate grounds that vos did not establish a promise   pork that thank you very well thank you for your argument mr sprinkle if you can make or a bottle that he that he also he said i have no other way of knowing if you are taking any other prescriptions that contain opioid opioid opiates and so he requested a list of any other prescriptions and sensibly not limited and to distinguish those cases none of those cases were like this case all of those cases were about a positive drug screening and that and the employer trying to find the reason for the positive drug screening in this case the employer got the reason for the positive drug screening it was the hide to quote own then he then the employer took another step that clearly violates the a d a s saying ok this  because the reason for your positive drug screening which is what the other case are trying to get at limits you in my opinion you must leave work and initially without pay isn't that a little more than their opinion though i mean doesn't isn't it pretty well known that hydroco e has a warning that says you know use caution operating machinery and driving vehicles and they wouldn't they be taking a big risk to allow him to drive out in the public knowing that he's taking hydrocodone they wouldn't because they have no no reason in the context of this case to believe that and then it they have no reason they admit that he's been there for fourteen years and that he had been taken have to call on the entire time and they admit that that there was no indication of his work history and they had no indication that he couldn't do what he had been doing up until the day that they that they suspended him the only reason was this him telling them that he took h limited violates the eighty a and also you know requiring a doctor to say he's not limit is not many doctors that would do that so that would place it on reasonable restraint because i'm a doctor wouldn't want to put it himself areas of saying  have the other one is that it's far as arguing that that the perception that the higher the called on create a disability was argued in the initial complaint and it was argued in in the brief it wasn't laid out extremely long because it was argued that complained it was not refuted and that gets us back to the initial issue of the whether or not a motion of summary judgment has to actually demonstrate that the complaint is not true this one does not believe that