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Sepulveda-Vargas v. Caribbean Restaurants, LLC

United States Court of Appeals, First Circuit

April 30, 2018

VICTOR A. SEPÚLVEDA-VARGAS, Plaintiff, Appellant,


          Juan M. Frontera-Suau, with whom Kenneth Colon and Frontera Suau Law Offices, PSC were on brief.

          Alberto J. Bayouth-Montes, with whom Carlos E. George-Iguina and O'Neill & Borges LLC were on brief.

          Before Howard, Chief Judge, Lipez and Thompson, Circuit Judges.


         Today's opinion is a lesson straight out of the school of hard knocks. No matter how sympathetic the plaintiff or how harrowing his plights, the law is the law and sometimes it's just not on his side. See Medina- Rivera v. MVM, Inc., 713 F.3d 132, 138 (1st Cir. 2013) (quoting Turner v. Atl. Coast Line R.R. Co., 292 F.2d 586, 589 (5th Cir. 1961) (Wisdom, J.) ("[H]ard as our sympathies may pull us, our duty to maintain the integrity of the substantive law pulls harder.")

         Stage Setting

         Plaintiff, Victor A. Sepúlveda-Vargas ("Sepúlveda"), sued Defendant, Caribbean Restaurants, LLC ("Caribbean"), alleging a violation of the Americans with Disabilities Act ("ADA" or the "Act"), 42 U.S.C. § 12101, et seq., which prohibits discrimination against a "qualified individual, " see id. § 12112(a), "relevantly defined as a person 'who, with or without reasonable accommodation, can perform the essential functions' of [his] job[.]" Lang v. Wal-Mart Stores E., L.P., 813 F.3d 447, 454 (1st Cir. 2016) (quoting 42 U.S.C. § 12111(8)). Caribbean, which operates the Burger King franchise throughout Puerto Rico, had previously employed Sepúlveda as an assistant manager. In 2011, while Sepúlveda was attempting to make a bank deposit on behalf of Caribbean, he was attacked at gunpoint, hit over the head, and had his car stolen. He suffered, as a result, from post-traumatic stress disorder and major depression disorder. In response to these diagnoses, Sepúlveda requested that Caribbean provide him with a fixed work schedule (as opposed to a rotating one) and that it move him to a Burger King location in an area not prone to crime. That is, Sepúlveda asked Caribbean, which schedules all of its managers such that they rotate among three distinct work shifts (one from 6:00am to 4:00pm, another from 10:00am to 8:00pm, and the last from 8:00pm to 6:00am), to assign him to one specific timeslot consistently. While Caribbean initially acquiesced to this request, it thereafter informed Sepúlveda that he would have to go back to working rotating shifts. Eventually, in 2013, Sepúlveda resigned from his position with Caribbean.

         At the district court below, Sepúlveda argued that although Caribbean recognized he was disabled within the definition of the ADA, it (1) failed to reasonably accommodate him by permanently providing him with a fixed work schedule as opposed to one comprised of rotating shifts and (2) that employees of Caribbean engaged in a series of retaliatory actions against him as a result of his request for a reasonable accommodation, thus creating a hostile work environment.[1] The district court weighed both sides' arguments, ultimately concluding that Sepúlveda was not a "qualified individual" under the ADA and that the supposedly retaliatory acts comprising his hostile work environment claim were insufficient to support his claim. It therefore granted Caribbean's summary judgment motion, a decision from which Sepúlveda appeals. We now affirm.

         Standard of Review

         Reviewing the grant of summary judgment de novo, we construe the record in the light most favorable to the non-movant, resolving all reasonable inferences in that party's favor. See Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir. 2008). In doing so, we will uphold summary judgment 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), and will reverse "only if, after reviewing the facts and making all inferences in favor of the non-moving party [here, Sepúlveda], the evidence on record is 'sufficiently open-ended to permit a rational factfinder to resolve the issue in favor of either side.'" Maymí v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir. 2008) (quoting Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995)).


         In general, for purposes of bringing a failure to accommodate claim under the ADA, a plaintiff must show that: (1) he is a handicapped person within the meaning of the Act; (2) he is nonetheless qualified to perform the essential functions of the job (with or without reasonable accommodation); and (3) the employer knew of the disability but declined to reasonably accommodate it upon request. See Lang, 813 F.3d at 454. The district court's focus below (and the parties' focus in their briefs on appeal) revolves around the second of those three factors, namely, whether in light of Sepúlveda's requested accommodation to be assigned fixed shifts he was still qualified to perform the essential job functions required of Caribbean assistant managers. An essential function is one that is "fundamental" to a position. See Kvorjak v. Maine, 259 F.3d 48, 55 (1st Cir. 2001). "The term does not include 'marginal' tasks, but may encompass 'individual or idiosyncratic characteristics' of the job." Id. (quoting Ward v. Mass. Health Research Inst., Inc., 209 F.3d 29, 34 (1st Cir. 2000)). Unsurprisingly, we have explained that "the complex question of what constitutes an essential job function involves fact-sensitive considerations and must be determined on a case-by-case basis." Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 25 (1st Cir. 2002). In making this case-by-case determination, the ADA instructs us to give consideration "to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job." 42 U.S.C. § 12111(8). And the Equal Employment Opportunity Commission's ("EEOC") implementing regulations of the Act further tell us that beyond the employer's judgment, things to be considered include (but are not limited to) factors like "[t]he consequences of not requiring the incumbent to perform the function[, ]" "[t]he work experience of past incumbents in the job[, ]" and "[t]he current work experience of incumbents in similar jobs." 29 C.F.R. § 1630.2(n)(3). Such considerations are not meant "to enable courts to second-guess legitimate business judgments, but, rather, to ensure that an employer's asserted requirements are solidly anchored in the realities of the workplace, not constructed out of whole cloth." Gillen, 283 F.3d at 25.

         Here, the district court fully considered these factors and concluded that being able to work rotating shifts was an essential function of the assistant manager job with Caribbean. First, the court pointed out that it was uncontested that from Caribbean's perspective, the ability to work rotating shifts was essential. Indeed, Caribbean explained that rotating shifts were necessary for the equal distribution of work among the managerial staff and Sepúlveda conceded this point in his deposition. That is to say, accommodating Sepúlveda permanently would have had the adverse impact of inconveniencing all other assistant managers who would have to work unattractive shifts in response to Sepúlveda's fixed schedule. We have previously explained that such "idiosyncratic characteristics as scheduling flexibility" should be considered when determining the essentiality of a job function. Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 22 (1st Cir. 2004); see also Laurin v. Providence Hosp., 150 F.3d 52 (1st Cir. 1998).[2] The court also explained that SepĂșlveda admitted in his deposition that rotating shifts was a responsibility he had at Caribbean and that this was the case for all other assistant managers. Moreover, the court noted that the job application SepĂșlveda filled out and signed when he was hired made clear that all Caribbean managerial employees had to be able to work different shifts in different restaurants. And it pointed to a newspaper advertisement for the job that listed the need to work rotating shifts as a requirement. While the court did note that Caribbean initially granted SepĂșlveda the accommodation on a temporary basis, that fact did "not mean that it conceded that ...

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