VICTOR A. SEPÚLVEDA-VARGAS, Plaintiff, Appellant,
CARIBBEAN RESTAURANTS, LLC, Defendant, Appellee.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
PUERTO RICO [Hon. Salvador E. Casellas, U.S. District Judge]
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.
Howard, Chief Judge, Lipez and Thompson, Circuit Judges.
THOMPSON, CIRCUIT JUDGE.
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.")
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.
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. 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.
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)).
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.
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). The court also
explained that Sepúlveda 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
Sepúlveda 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
Sepúlveda the accommodation on a temporary basis, that
fact did "not mean that it conceded that ...