The Law @ Work

First Circuit OK’s Employer’s Decision to Grant Accommodation then Change Its Mind

by Erica E. Flores

We’ve all heard the discouraging mantra that “no good deed goes unpunished.”  And while it may be a “glass half empty” way of looking at things, the unpleasant truth is that, sometimes, people and businesses make decisions out of kindness or a sense of responsibility that they will come to regret.  Employers are no different.  In fact, we have written about these kinds of situations twice recently – in Companies Not Subject to the FMLA May Still Violate the FMLA (April 20, 2018) and Do Employers Have to Give a Reason for Terminating an Employee? (Feb. 12, 2018).  Happily, however, the law does not always punish employers who try to do right by their employees.  In fact, sometimes, the law works to encourage businesses to do just that, as the First Circuit Court of Appeals recognized in a recent decision, Sepúlveda-Vargas v. Caribbean Restaurants, LLC, No. 16-2451 (1st Cir. 2018).

Employer grants disabled employee’s request to work fixed schedule.

Victor Sepúlveda-Vargas (“Sepúlveda”) was an assistant manager for a group of Burger King restaurants owned by Caribbean Restaurants in Puerto Rico.  Like all of Caribbean’s assistant managers, he was required to work a rotating schedule at several different restaurants.  In February 2011, while he was attempting to deposit money at a bank on Caribbean’s behalf, he was attacked at gunpoint, hit over the head, and had his car stolen.  As a result of the attack, he was diagnosed with post-traumatic stress disorder and major depression and requested a fixed schedule at a single restaurant in a low-crime area as an accommodation.  The employer granted that request.

Employer changes its mind.

After some time, Caribbean concluded that accommodating Sepúlveda permanently would inconvenience all other assistant managers who would have to work unattractive shifts to accommodate his fixed schedule.  From that point forward, Sepúlveda worked a fixed shift at a single restaurant.

Sepúlveda attempted to commit suicide twice and took additional leave.  He returned to work on both occasions, but shortly after his second return, his physician recommended that he refrain from working for six months, and that time, Sepúlveda did not return.

Employer didn’t violate the ADA by taking away the accommodation.

Sepúlveda filed suit under the Americans with Disabilities Act, alleging that Caribbean discriminated against him by failing to reasonably accommodate his disability and retaliated against him by creating a hostile work environment.  Caribbean moved for summary judgment, arguing that he could not prove his discrimination claim because he was unable to perform an essential function of his job, working a rotating schedule at various restaurants, with or without a reasonable accommodation.  The district court agreed and the First Circuit affirmed on appeal.

Both courts reasoned that Caribbean’s decision to give him the fixed shift that he requested at the time did not preclude it from later arguing that it was not legally required to do so in court.  As the district court put it, “that Caribbean accommodated Sepúlveda does not mean that it conceded that rotating shifts was a ‘non-essential’ function.  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.”  The fact that Caribbean accommodated him because it thought it had to, moreover, was not relevant.  As the First Circuit explained, “evidence of non-required accommodations will not be used against a company in determining what is or isn’t an essential job function,” regardless of why the employer granted them.

“Rude or Insensitive Comments” didn’t amount to retaliation or harassment.

Employers are forbidden from retaliating against disabled employees for engaging in protected conduct, which includes, among other things, filing a Charge of Discrimination and requesting a reasonable accommodation.  Sepúlveda claimed that the company retaliated against him and harassed him.  According to Sepúlveda, among other things, his direct supervisor accused him of taking unnecessary medication, stated that he did not believe that Sepúlveda had a serious medical condition, and called him a “cry baby” (as did co-workers).  He also claimed he was forced to pull down his pants in front of a restaurant manager to show that he had a skin condition requiring medical treatment.  The Court disagreed with Sepúlveda that the behavior amounted to retaliation or harassment, stating that an unprofessional managerial approach and rude and insensitive comments, if they had occurred, were insufficient to support his claims.

Takeaway:  It’s okay to go above and beyond the duty of reasonable accommodation.

The Americans with Disabilities Act – along with its Massachusetts counterpart, Chapter 151B – is a frequent source of employee relations challenges.  When is a job function “essential”?  How can employers lawfully determine whether an employee’s disability is to blame for his or her inability to perform such a function?  Where is the line between a “reasonable accommodation” and an “undue hardship”?  What does it mean to interact in “good faith,” what information may an employer demand from an employee’s doctors, can employers seek corroboration from other doctors, what happens if the process breaks down, etc., etc., etc.?  As any good lawyer will tell you, the answers to these questions invariably depend on the specific facts and circumstances of each case.  In the Sepúlveda case, the Court began its discussion by stating that its “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.”  Like Caribbean, employers sometimes choose to go above and beyond for their employees who are going through difficult times.  But thanks (at least in part) to the employment professionals at Caribbean, employers can provide accommodations they may have no legal obligation to provide without increasing their legal risk.

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