ADA Was Not Violated by Granting, Then Revoking Accommodation

A company operating Burger King franchises did not violate the Americans with Disabilities Act (ADA) by briefly offering a fixed shift to an assistant manager to accommodate his disability, then revoking the offer and requiring him to work a rotating shift, the 1st U.S. Circuit Court of Appeals ruled.

Caribbean Restaurants LLC operates Burger King restaurants throughout Puerto Rico and hired the plaintiff as an assistant manager. In 2011, while the plaintiff was attempting to make a bank deposit for Caribbean, he was attacked at gunpoint, was hit over the head and had his car stolen. As a result, he suffered from post-traumatic stress disorder and major depression disorder.

Caribbean schedules all of its managers so that they rotate among three different work shifts: one from 6 a.m. to 4 p.m., another from 10 a.m. to 8 p.m., and the last from 8 p.m. to 6 a.m. In response to his diagnoses, the plaintiff requested that Caribbean provide him with a fixed work schedule and that it move him to a Burger King location in an area not prone to crime.

Caribbean initially granted the plaintiff's request to work a fixed shift but later informed him that he would have to go back to working rotating shifts. Eventually, in 2013, the plaintiff resigned from his position at Caribbean.

After his resignation, the plaintiff sued Caribbean, alleging a violation of the ADA. The plaintiff argued that Caribbean recognized that he had a disability within the definition of the ADA and failed to reasonably accommodate him by permanently providing him with a fixed work schedule. He also claimed that employees of Caribbean harassed him through a series of retaliatory actions against him in response to his accommodation requests.

Caribbean moved for summary judgment, which the district court granted. The district court found that the plaintiff was not a qualified individual under the ADA and that he could not prove a retaliatory hostile work environment. The plaintiff appealed the decision to the 1st Circuit.

On appeal, the court reviewed the evidence in the light most favorable to the plaintiff. To establish a failure to accommodate under the ADA, a plaintiff must show that he or she has a disability and is qualified to perform the essential functions of the position with or without reasonable accommodation. The court considered whether the plaintiff was qualified to perform the essential functions of the assistant manager position despite his request to stop working a rotating shift.

The evidence showed that Caribbean applied the rotating shift requirement to all assistant managers to equally distribute work among the managerial staff. Accommodating the plaintiff permanently would have inconvenienced the other assistant managers, who would have had to work unattractive shifts due to the plaintiff's fixed schedule.

While Caribbean initially granted the plaintiff the accommodation of a fixed shift on a temporary basis, this did not mean that it conceded that working rotating shifts was not an essential function of the position. The court found that if it treated Caribbean's brief accommodation as a concession, it would wrongly punish the company for doing more than the ADA requires and might discourage other employers from assisting employees with disabilities beyond what is required.

[SHRM members-only how-to guide: How to handle an employee's request for an ADA accommodation]

The court reasoned that to establish retaliation, the plaintiff must show that a reasonable employee would find the actions taken against him to be materially adverse. The plaintiff alleged that his supervisor questioned his medical condition and his medication and criticized him concerning scheduling issues and for requesting a fixed shift from human resources. He also claimed that employees called him a "cry baby." The court found that the plaintiff's evidence was not strong enough to support several of the allegations, which were not severe enough to satisfy the materiality requirement.

The appeals court thus affirmed the district court's decision to dismiss the employee's claims.

Sepúlveda-Vargas v. Caribbean Restaurants, LLC, 1st Cir., No. 16-2451 (April 30, 2018).

Professional Pointer: Employers should effectively address employees' requests for accommodations and be willing to go at least as far as, if not exceed, what the law requires. In most instances, an employer will not be obligated to continue a temporary accommodation if it is not reasonable or to retain an employee who cannot perform an essential function of the position.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.