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ADA Appellant Loses in 'School of Hard Knocks'

By William Vogeler, Esq. on May 03, 2018 | Last updated on March 21, 2019

Victor Sepulveda-Vargas, working late as an assistant manager at Burger King, had a really bad day.

While attempting to make a deposit, he was attacked at gunpoint, hit over the head and had his car stolen. But that was just the beginning of what an appeals court called, "a lesson straight out of the school of hard knocks."

In Sepulveda-Vargas v. Caribbean Restaurants, LLC, the former Burger King manager sued because his employer declined his request to change his shift. The U.S. First Circuit Court of Appeals said sometimes the law is just not on your side.

Reasonable Accommodation

Sepulveda suffered post-traumatic stress and depression from the attack. He wanted to work at a location that was less prone to crime, and he didn't want to work on a rotating shift that put him at risk.

His employer acquiesced at first, but then said it could not put him on a fixed shift because other managers would have to work unattractive shifts to accommodate him. So Sepulveda quit and sued under the Americans With Disabilities Act.

A trial judge dismissed his case after concluding that being able to work rotating shifts was an essential function of the assistant manager job. 

On appeal, the First Circuit judges pointed out that they said the same thing in Calero-Cerezo v. U.S. Dept. of Justice.

Essentiality of Job Function

"We have previously explained that such 'idiosyncratic characteristics as scheduling flexibility' should be considered when determining the essentiality of a job function," the appeals court said in affirming the trial court.

The appeals court also dispensed with Sepulveda's claim that his supervisor retaliated against him for complaining.

The supervisor may have been "angered and overreacted because Sepulveda went over his head to request accommodation," but the judges said that "does not by itself constitute an adverse employment action for a retaliation claim."

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