Victor A. Sepúlveda-Vargas v. Caribbean Restaurants, LLC

United States Court of Appeals
For the First Circuit
No. 16-2451
VICTOR A. SEPÚLVEDA-VARGAS,
Plaintiff, Appellant,
v.
CARIBBEAN RESTAURANTS, LLC,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Salvador E. Casellas, U.S. District Judge]
Before
Howard, Chief Judge,
Lipez and Thompson, Circuit Judges.
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.
April 30, 2018

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THOMPSON, Circuit Judge. 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

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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
1 Sepúlveda also originally brought separate claims of
discrimination under Puerto Rico law. Because the district court
granted summary judgment in favor of Caribbean on the both of the
federal ADA claims, it declined to exercise supplemental
jurisdiction over the remaining Puerto Rico-based claims and

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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)).
dismissed those without prejudice. Sepúlveda makes no challenge
here to their dismissal.

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Discussion
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

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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

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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 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
2 On appeal, Sepúlveda argues that the district court's
reliance on Laurin v. Providence Hospital was erroneous because
that case was decided on materially distinguishable facts. Laurin
involved a hospital's rotating shifts requirement for nurses
working in a 24-hour maternity ward. Id. at 59. Given that
setting, we had little difficulty in concluding that the rotating
shifts requirement was essential. As we explained, "[m]edical
needs and emergencies . . . do not mind the clock, let alone staff-
nurse convenience," and "to suggest otherwise would be tantamount
to maintaining that night work is not an 'essential function' of
a night watchman's job, even though that is the only time the
premises are not otherwise occupied." Id. Though we agree with
Sepúlveda that Laurin provides a more clear cut example of an
"essential" rotating shifts requirement, the district court's
citation to the case does not undermine its otherwise sound
conclusion that Caribbean's rotating shifts requirement was also
an essential job function.

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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 rotating
shifts was a 'non-essential' function." Sepúlveda-Vargas v.
Caribbean Restaurants LLC, No. CV 13-1622 (SEC), 2016 WL 8710980,
at *5 (D.P.R. Sept. 30, 2016). And we agree. "To find otherwise
would unacceptably punish employers from doing more than the ADA
requires, and might discourage such an undertaking on the part of
employers." Phelps v. Optima Health, Inc., 251 F.3d 21, 26 (1st
Cir. 2001). 3
3 Oddly, Sepúlveda seems to think that Phelps is inapplicable
to the instant case because it relied in part on the logic of a
Seventh Circuit case, Basith v. Cook County, 241 F.3d 919 (7th
Cir. 2001), that has slightly distinguishable facts from the those
found here. This argument is strange to us; Phelps says what it
says and, regardless of the underlying facts of a Seventh Circuit
case cited in Phelps, we see no reason how its general admonishment
against punishing an employer for going above and beyond that
required under the ADA is irrelevant to the case at hand. But,
for the sake of thoroughness, we will briefly entertain Sepúlveda's
argument. At core, Sepúlveda appears to believe the following.
In Basith, an employer granted an accommodation purportedly
requested by an employee under the ADA. In doing so, however, the
employer stated, "[a]lthough this is a change in the job functions,
which is not required, I will agree to it." Basith, 241 F.3d at
930. That is, the employer knew the employee was not a "qualified
individual" under the ADA and chose to make a temporary
accommodation for him in spite of this fact. Because, here,
Caribbean's impetus for granting the temporary accommodation was
its mistaken belief that it was required to do so by the ADA,

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As for Sepúlveda's retaliation claim, the ADA forbids
retaliation "against any individual because such individual has
opposed any act or practice made unlawful . . . or because such
individual made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under [the
ADA]." 42 U.S.C. § 12203. These sorts of claims "may succeed
even where [a] disability claim fails." Valle-Arce v. P.R. Ports
Auth., 651 F.3d 190, 198 (1st Cir. 2011). To establish a prima
facie claim of retaliation, it is incumbent for a plaintiff to
show that he was engaged in protected conduct, that he was subject
to an adverse employment action, and that there was a causal
connection between the adverse employment action and the conduct.
See Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 106
(1st Cir. 2007). Not all retaliatory actions, however, suffice to
meet the ADA's anti-retaliation provision. Rather, "a plaintiff
must show that a reasonable employee would have found the
challenged action materially adverse, which in this context means
it well might have dissuaded a reasonable worker from making or
Sepúlveda believes (for reasons that are unclear) that this renders
the logic of Basith and Phelps irrelevant. Not so. Sepúlveda
cites no case (and we can find none) that requires this kind of
"intent to go above and beyond the ADA" in order to apply the logic
of Phelps and, importantly, we provided no such caveat when we
decided Phelps. To the contrary, this Court only held that
evidence of non-required accommodations will not be used against
a company in determining what is or isn't an essential job
function, without mention of whether the employer meant to go above
and beyond the ADA.

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supporting a charge of discrimination." Carmona-Rivera v. Puerto
Rico, 464 F.3d 14, 20 (1st Cir. 2006) (quoting Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). Indeed, we
have explained that "[f]or retaliatory action to be material, it
must produce 'a significant, not trivial harm,'" Colón-Fontánez v.
Municipality of San Juan, 660 F.3d 17, 36 (1st Cir. 2011) (quoting
Carmona-Rivera, 464 F.3d at 20), and that "actions like 'petty
slights, minor annoyances, and simple lack of good manners will
not [normally] create such deterrence.'" Id. at 36-37 (quoting
Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68) (alteration in
original).
At the district court--and again in his briefs filed
with us--Sepúlveda argued that the following actions were
materially adverse: (1) he was scolded by his direct supervisor
for requesting an accommodation from Caribbean's human resources
department even though the direct supervisor had already denied
it; (2) his direct supervisor allegedly accused him of taking four
pills of unnecessary medication, which made him feel embarrassed;
(3) his direct supervisor attempted to briefly change Sepúlveda's
schedule so he could attend a required managers' seminar and the
supervisor articulated that he did not believe Sepúlveda had a
serious medical condition when Sepúlveda tried to get out of
attending the seminar; (4) he was forced to pull down his pants in
front of a restaurant manager to show that he had a skin condition

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requiring medical treatment; (5) his direct supervisor and other
employees called him a "cry baby" on three occasions; (6) he was
forced to take a paid vacation until he passed a health safety
examination Caribbean required and the Commonwealth of Puerto Rico
highly recommends, even though he had been working with an expired
license for some time; (7) he was told to stay past his shift's
end until 11:00pm on one occasion and was admonished when he failed
to abide by this instruction; and (8) he was generally treated
differently than other assistant managers in his working hour
requirements and labor assignments. He also argued that even if
any of these individual actions were not materially adverse, they
certainly rose to that level when looked at collectively and that
together they also amounted to a hostile work environment.
The court below found that none of the actions Sepúlveda
argued to be adverse were--taken on their own--material. For
example, the court explained while it was true that being
reprimanded by his supervisor for going behind his back to Human
Resources for an accommodation and being "accused" of taking four
pills was "linked to a protected activity," each incident was
"insufficient to sustain an adverse employment action."
Sepúlveda-Vargas, 2016 WL 8710980, at *6. The court explained,
that the fact "[the supervisor] may have been angered and
overreacted because Sepúlveda went over his head to request
accommodation, 'while perhaps improper, does not by itself

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constitute and adverse employment action for a retaliation
claim.'" Id. (quoting De Jesus-Sánchez v. Taber Partners I, LLC,
551 F. Supp. 2d 136, 141 (D.P.R. 2007)). As for Sepúlveda's
argument that making a temporary change to his schedule so that he
could attend a required managers' seminar was an adverse action,
the district court explained that even if "[the supervisor's]
approach [by saying he didn't believe Sepúlveda had an ailment]
may have been somewhat rude or insensitive, 'a supervisor's
unprofessional managerial approach and accompanying efforts to
assert her authority are not the focus of the discrimination
laws.'" Id. at *7 (quoting Lee-Crespo v. Schering-Plough Del
Caribe Inc., 354 F.3d 34, 47 (1st Cir. 2003)); see also Colón-
Fontánez, 660 F.3d at 45 (explaining that accusations of being a
"hypochondriac" and "faking it" though uncomfortable "do not rise
to the level of severity or pervasiveness" to sustain a retaliation
claim). The court also rejected Sepúlveda's assertion that he was
forced, on one occasion, to pull down his pants to reveal a medical
skin condition. Not only did Sepúlveda fail to "provide sufficient
details surrounding this incident," but he additionally failed to
demonstrate how he was "forced" to do so or "explain how his
supervisor's disbelief regarding a condition for which he had
requested no accommodation nor provided any medical evidence
before was related to a protected activity." Sepúlveda-Vargas,
2016 WL 8710980, at *7. The court next rejected Sepúlveda's notion

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that being called a "cry baby" was an adverse action. Sepúlveda
alleged that he was told by one employee that she had heard someone
else call him a "cry baby" and further alleged that he had
personally heard two other employees call him the same. The court
rejected the first allegation as hearsay within hearsay. As for
the latter two, it explained that while "it is unclear whether
these statements were related to a protected activity or to some
other workplace issue," even assuming it was connected to a
protected event, "[t]he case law is clear that 'simple teasing,
offhand comments, and isolated incidents (unless extremely
serious)' do not amount to adverse employment action, not even to
establish an objectively hostile or abusive work environment."
Id. (quoting Colón-Fontánez, 660 F.3d at 44).
The remaining assertions by Sepúlveda regarding supposed
adverse actions were all determined to be similarly unmeritorious.
The court concluded that Caribbean's placement of Sepúlveda on
forced paid vacation was not adverse, particularly where it was
mandated because Sepúlveda had an expired health certificate and
Caribbean could get in trouble with the Puerto Rico Department of
Health if Sepúlveda did not pass the required examinations for the
certificate. Id. at *7-8. And the fact that Sepúlveda was on one
occasion told to stay past his shift's end until 11:00pm and was
reprimanded when he defied the instruction was also not tantamount
to an adverse employment action. The restaurant Sepúlveda worked

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at had been closed by the Puerto Rico Department of Health due to
a cockroach infestation and Caribbean required all managers to
stay late on that occasion to ensure the restaurant was properly
cleaned. This in and of itself is not adverse and, to the extent
Sepúlveda may have been treated especially harshly for defying the
instruction to stay until 11:00pm, the court noted that he
"provide[d] no details regarding the severity of the alleged
admonishment and his disciplinary record was not affected." Id.
Next, the court explained that though "Sepúlveda timidly floats
the idea that he was subject to differential treatment in working
hours' requirements, in labor assignment, in understaffing of the
shift he supervised, [and] in being subject to constant verbal
warnings . . . he references fifty paragraphs of his additional
statement of uncontested facts without even bothering to specify
which paragraphs contain the relevant facts as to each of the four
types of disparate treatment alleged therein." Id. Not just that,
but he also "fail[ed] to discuss any case law to support his
contention." Id. The court thus found the argument waived. Id.
Finally, to the extent Sepúlveda argued the actions should be
considered materially adverse when looked at together rather than
individually, (thus comprising a hostile work environment), the
court concluded otherwise, explaining that "[c]ollectively, these
incidents amount to nothing more than the petty insults and minor
annoyances which are insufficient to constitute an adverse

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employment action under the ADA. . . . Drawing all reasonable
inference in his favor, Sepúlveda did not demonstrate from an
objective standpoint, that Caribbean's actions were sufficiently
severe or pervasive to sustain a retaliatory hostile work
environment, and so it fails." Id. at *9 (quoting Colón-Fontánez,
660 F.3d at 36-37).
Our de novo standard of review fails to yield any genuine
issue of material fact that would lead us to draw a conclusion
that differs from the district court. Because the court below got
it right, we need not say anymore on the matter.
Affirmed.

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