About Us  |  About Cheetah®  |  Contact Us

Working rotating shifts was essential job function and refusal to do so doomed ADA claim

By Kathleen Kapusta, J.D.

In “a lesson straight out of the school of hard knocks,” the First Circuit affirmed the grant of summary judgment against the ADA claims of a Burger King assistant manager who suffered from PTSD and depression after being attacked at gunpoint and who resigned when his employer refused his request for a permanent fixed work schedule instead of one comprised of rotating shifts. Being able to work rotating shifts was an essential function, said the court, and the fact that the employer temporarily granted him the accommodation of a fixed schedule did not mean it conceded that rotating shifts was a nonessential function. “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 v. Caribbean Restaurants, LLC, April 30, 2018, Thompson, O.).

While attempting to make a bank deposit on behalf of Caribbean Restaurants, which operates the Burger King franchise throughout Puerto Rico, the employee was attacked at gunpoint, hit over the head, and had his car stolen. Suffering from PTSD and major depressive disorder as a result, he requested a fixed work schedule at a Burger King located in a safer area. Although Caribbean schedules all its managers so that they rotate among three distinct work shifts (6:00am to 4:00pm; 10:00am to 8:00pm; and 8:00pm to 6:00am), it initially acquiesced to his request. When it later told the employee he would have to resume working rotating shifts, he resigned.

Lower court proceedings. He then sued, claiming that Caribbean failed to reasonably accommodate him by permanently providing him with a fixed work schedule and that his coworkers 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. Finding that he was not a qualified individual under the ADA and that the alleged retaliatory acts were insufficient to support his hostile work environment claim, the district court granted summary judgment to Caribbean.

Essential job function. At issue on appeal was whether, in light of the employee’s requested accommodation to be assigned fixed shifts, he was still qualified to perform the essential job functions required of Caribbean assistant managers. In determining what constitutes an essential job function, the ADA, observed the court, requires consideration of “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.” Further, pursuant to the EEOC’s implementing regulations, things to be considered include factors like the consequences of not requiring the incumbent to perform the function, the work experience of past incumbents in the job, and the current work experience of incumbents in similar jobs.

The district court fully considered these factors when it concluded that being able to work rotating shifts was an essential function of the assistant manager job with Caribbean, the appeals court observed. From Caribbean’s perspective, it was uncontested that the ability to work rotating shifts was essential as they were necessary for the equal distribution of work among the managerial staff. Thus, permanently accommodating the employee would have had the adverse impact of inconveniencing all other assistant managers who would have to work unattractive shifts in response to his fixed schedule.

Temporary accommodation only. Further, the employee admitted that all assistant managers worked rotating shifts and the job application he filled out, as well as the newspaper advertisement for the job, made clear that managerial employees had to be able to work different shifts in different restaurants. And while Caribbean did initially grant him the accommodation on a temporary basis, this did not mean it conceded that rotating shifts was a nonessential function, said the court, reasoning that to “find otherwise would unacceptably punish employers from [sic] doing more than the ADA requires, and might discourage such an undertaking on the part of employers.”

Retaliation. Turning to his retaliation claim, the court found that none of the alleged adverse actions were, taken on their own, material. While being scolded by his supervisor for going behind his back to HR 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 finding. As for his assertion that making a temporary change to his schedule so he could attend a required managers’ seminar was an adverse action, the appeals court agreed with the court below that “a supervisor’s unprofessional managerial approach and accompanying efforts to assert her authority are not the focus of the discrimination laws.”

And while he claimed he was forced to pull down his pants to reveal a medical skin condition, not only did he fail to provide sufficient details surrounding this incident, he also didn’t show 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 was related to a protected activity.

Noting that his remaining assertions regarding supposed adverse actions were all determined to be similarly unmeritorious, the court found that even collectively, they amounted to little more than petty insults and minor annoyances that are insufficient to constitute an adverse employment action under the ADA.