Executive Summary: Recently, the United States Court of Appeals for the First Circuit, in Sepulveda-Vargas v. Caribbean Restaurants, LLC, affirmed a lower court’s decision in favor of the employer in a lawsuit alleging violations of the Americans with Disabilities Act (ADA), finding that the plaintiff, an assistant manager, was not a “qualified individual” under the ADA based on his inability to work rotating shifts, since the ability to work rotating shifts was an essential job function of the assistant manager position. The Court of Appeals further found that a temporary accommodation, which permitted the plaintiff to work a fixed schedule, did “not mean that [the employer] conceded that rotating shifts was a ‘non-essential’ function.” Finally, the First Circuit found that the employee’s claim of a retaliatory hostile environment was properly dismissed, since the district court found that “collectively [the alleged incidents] amount[ed] to nothing more than the petty insults and minor annoyances which are insufficient to constitute an adverse employment action under the ADA.” The First Circuit is the federal appeals court with jurisdiction over the federal district courts in Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island.
Background of the Case
Sepulveda-Vargas (Sepulveda) was employed by Caribbean Restaurants, LLC (Caribbean) as an assistant manager. Caribbean operates a chain of fast food restaurants throughout Puerto Rico. During his employment, while attempting to make a bank deposit, Sepulveda “was attacked at gunpoint, hit over the head, and had his car stolen.” As a result of the incident he was diagnosed with “post-traumatic stress disorder and major depression.” Thereafter, Sepulveda requested, as an accommodation, that he be provided with a “fixed work schedule” and assigned to a location in a lower crime area. Caribbean requires all managers to “rotate among three distinct work shifts.” Caribbean initially granted the accommodation, but later informed Sepulveda that he would be required to work rotating shifts like other managers. Sepulveda subsequently resigned and sued Caribbean claiming the company violated the ADA by failing to provide him with a permanent fixed work schedule as a reasonable accommodation and by retaliating against him for requesting a reasonable accommodation, which created a “hostile work environment.” The lower court granted Caribbean’s motion for summary judgment, finding that Sepulveda was not a “qualified individual” under the ADA and that the alleged acts of retaliation were insufficient to support his hostile environment claim. Sepulveda appealed the lower court’s ruling to the First Circuit.
The First Circuit’s Decision
The First Circuit began its analysis by reviewing the prima facie elements of a failure to accommodate claim under the ADA, noting a plaintiff must establish 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.”
The Court of Appeals noted that the lower court focused on whether Sepulveda was qualified to perform the essential job functions of a Caribbean assistant manager in light of his requested accommodation for “fixed shifts.” The First Circuit next found that “an essential function” is one that is “‘fundamental’ to a position” as opposed to a “marginal task.” The Court of Appeals further noted that the essential function inquiry is “fact-sensitive” and “must be determined on a case-by-case basis.” In making this determination, the First Circuit noted the ADA directs courts to consider the “employer’s judgment as to what functions of a job are essential” and to accept as evidence of a position’s essential job functions a written job description prepared by the employer “before advertising or interviewing applicants for the job.” In addition to considering the employer’s judgment, the Court of Appeals noted the Equal Employment Opportunity Commission’s (EEOC) regulations that impact the essential function inquiry. The EEOC regulations set forth several considerations which “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.’”
In finding that the ability to work a rotating shift was an essential function of a Caribbean assistant manager, the Court of Appeals first noted it was “uncontested” from “Caribbean’s perspective [that], the ability to work rotating shifts was essential” as it was “necessary for the equal distribution of work among the management staff,” a fact Sepulveda admitted in his deposition. The Court of Appeals also noted Sepulveda’s admission that he and other Caribbean assistant managers were responsible for working rotating shifts. Further, the First Circuit noted that the job application completed by Sepulveda made it clear that all management employees “had to be able to work different shifts in different restaurants” and that a newspaper ad for the position “listed the need to work rotating shifts as a requirement.” The Court of Appeals concluded its analysis of the failure to accommodate claim by noting its agreement with the lower court that the temporary accommodation provided to Sepulveda was not tantamount to a concession that “rotating shifts was a ‘non-essential’ function,” since a contrary finding “would unacceptably punish employers from doing more than the ADA requires….”
Analyzing Sepulveda’s retaliation claim, the Court of Appeals noted that, as part of his prima facie case, the plaintiff had the burden to 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 supporting a charge of discrimination.” The Court of Appeals further noted that a retaliatory action is not material unless it “produce[s] ‘a significant, not trivial harm’” and that “‘petty slights, minor annoyances, and simple lack of good manners will not [normally] create such deterrence.’” Examining the various alleged acts of retaliation cited by Sepulveda, the Court of Appeals agreed with the lower court that no discrete act was “material” and “[c]ollectively, these incidents amount to nothing more than the petty insults and minor annoyances which are insufficient to constitute an adverse employment action under the ADA.” The First Circuit concluded by affirming the lower court’s order granting summary judgment to the employer.
Employers’ Bottom Line: The First Circuit’s decision in Caribbean illustrates the importance of employers having written job descriptions that set forth the essential functions of each position which bear directly on the issue of whether an applicant/employee is a “qualified individual” under the ADA. Moreover, the Caribbean decision is helpful authority for employers who wish to temporarily excuse an employee’s compliance with one or more essential functions as a short-term accommodation.
If you have any questions regarding this decision or other labor or employment related issues, please feel free to contact the author of this Alert, Greg Grisham, ggrisham@fordharrison.com. Greg is a partner in our Nashville office. Of course, you may also contact the FordHarrison attorney with whom you usually work.