Why it matters

Where working rotating shifts is an essential job function, the plaintiff cannot move forward on his Americans with Disabilities (ADA) action for the failure to accommodate his request for a fixed schedule, the U.S. Court of Appeals for the First Circuit recently determined. While making a bank deposit on behalf of his employer, Burger King, Victor Sepulveda-Vargas was attacked at gunpoint, resulting in post-traumatic stress disorder. He then requested a fixed work schedule at a Burger King located in a safer neighborhood. The employer initially granted the request but later told Sepulveda-Vargas he would need to resume working rotating shifts, as all assistant managers at the franchises are required to do. Sepulveda-Vargas sued, alleging that the employer failed to accommodate him with a fixed work schedule in violation of the ADA. Affirming summary judgment in favor of the employer, the First Circuit called the case “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.” Sepulveda-Vargas was unable to perform the essential job functions required of assistant managers because he could not work a rotating schedule, the court said, ending his ADA action.

Detailed discussion

An assistant manager for Caribbean Restaurants, LLC, the operator of the Burger King franchise throughout Puerto Rico, Victor Sepulveda-Vargas went to make a bank deposit on behalf of his employer. He was attacked at gunpoint, hit over the head and had his car stolen. As a result, he suffered from post-traumatic stress disorder and major depression disorder.

Sepulveda-Vargas requested a fixed work schedule at a Burger King located in a safer neighborhood. The employer initially acquiesced but later told him he would need to resume working rotating shifts (one from 6:00 a.m. to 4:00 p.m., another from 10:00 a.m. to 8:00 p.m. and the last from 8:00 p.m. to 6:00 a.m.), as all assistant managers are required to do.

Instead, Sepulveda-Vargas resigned and sued, alleging that the employer failed to reasonably accommodate him with a fixed work schedule in violation of the Americans with Disabilities Act (ADA) and that employees of Caribbean engaged in a series of retaliatory actions against him as a result of his request for the accommodation.

A district court granted summary judgment in favor of the employer, and the U.S. Court of Appeals for the First Circuit affirmed, finding that Sepulveda-Vargas was not qualified to perform the essential job functions required of Caribbean assistant managers because he could not work rotating shifts.

The employer explained that the ability to work rotating shifts was necessary for the equal distribution of work among the managerial staff, a point Sepulveda-Vargas conceded in his deposition.

“[A]ccommodating Sepulveda-Vargas permanently would have had the adverse impact of inconveniencing all other assistant managers who would have to work unattractive shifts in response to Sepulveda-Vargas’s fixed schedule,” the court wrote. “We have previously explained that such ‘idiosyncratic characteristics as scheduling flexibility’ should be considered when determining the essentiality of a job function.”

In addition, a newspaper advertisement for the job listed the need to work rotating shifts as a requirement, and the job application the plaintiff 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, the court noted.

Although the employer initially granted Sepulveda-Vargas the accommodation on a temporary basis, that fact did not mean that rotating shifts was a nonessential function, the court added, as to find otherwise would unacceptably punish employers for doing more than the ADA requires, and might discourage such an undertaking on the part of employers.

Turning to the retaliation claim, the court disagreed with Sepulveda-Vargas that the actions listed were materially adverse. For example, allegedly being accused by his direct supervisor of taking four pills of unnecessary medication, which made him feel embarrassed, was insufficient to sustain an adverse employment action, the court said, while being called a “cry baby” on multiple occasions—even assuming the comments were related to a protected activity—fell into the category of “simple teasing, offhand comments, and isolated incidents.”

To the extent Sepulveda-Vargas argued that the actions should be considered materially adverse when looked at together rather than individually, the court concluded otherwise, finding that the incidents amounted to nothing more than “petty insults and minor annoyances.”

To read the opinion in Sepulveda-Vargas v. Caribbean Restaurants, LLC, click here.