          United States Court of Appeals
                     For the First Circuit


No. 16-2451

                   VICTOR A. SEPÚLVEDA-VARGAS,

                      Plaintiff, Appellant,

                               v.

                   CARIBBEAN RESTAURANTS, LLC,

                      Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Salvador E. Casellas, U.S. District Judge]


                             Before

                       Howard, Chief Judge,
               Lipez and Thompson, Circuit Judges.


     Juan M. Frontera-Suau, with whom Kenneth Colon and Frontera
Suau Law Offices, PSC were on brief.
     Alberto J. Bayouth-Montes, with whom Carlos E. George-Iguina
and O'Neill & Borges LLC were on brief.


                         April 30, 2018
            THOMPSON, Circuit Judge.             Today's 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.                       See Medina–

Rivera v. MVM, Inc., 713 F.3d 132, 138 (1st Cir. 2013) (quoting

Turner v. Atl. Coast Line R.R. Co., 292 F.2d 586, 589 (5th Cir.

1961) (Wisdom, J.) ("[H]ard as our sympathies may pull us, our

duty to maintain the integrity of the substantive law pulls

harder.")

                                  Stage Setting

            Plaintiff,        Victor    A.    Sepúlveda-Vargas    ("Sepúlveda"),

sued Defendant, Caribbean Restaurants, LLC ("Caribbean"), alleging

a violation of the Americans with Disabilities Act ("ADA" or the

"Act"), 42 U.S.C. § 12101, et seq., which prohibits discrimination

against a "qualified individual," see id. § 12112(a), "relevantly

defined as a person 'who, with or without reasonable accommodation,

can perform the essential functions' of [his] job[.]"                     Lang v.

Wal-Mart Stores E., L.P., 813 F.3d 447, 454 (1st Cir. 2016)

(quoting 42 U.S.C. § 12111(8)).                 Caribbean, which operates the

Burger   King     franchise     throughout      Puerto   Rico,   had    previously

employed Sepúlveda as an assistant manager.                      In 2011, while

Sepúlveda was attempting to make a bank deposit on behalf of

Caribbean, he was attacked at gunpoint, hit over the head, and had

his car stolen.         He suffered, as a result, from post-traumatic


                                        - 2 -
stress disorder and major depression disorder.             In response to

these diagnoses, Sepúlveda requested that Caribbean provide him

with a fixed work schedule (as opposed to a rotating one) and that

it move him to a Burger King location in an area not prone to

crime.   That is, Sepúlveda asked Caribbean, which schedules all of

its managers such that they rotate among three distinct work shifts

(one from 6:00am to 4:00pm, another from 10:00am to 8:00pm, and

the last from 8:00pm to 6:00am), to assign him to one specific

timeslot consistently.      While Caribbean initially acquiesced to

this request, it thereafter informed Sepúlveda that he would have

to go back to working rotating shifts.               Eventually, in 2013,

Sepúlveda resigned from his position with Caribbean.

           At   the   district   court   below,     Sepúlveda   argued   that

although   Caribbean     recognized      he   was   disabled    within    the

definition of the ADA, it (1) failed to reasonably accommodate him

by permanently providing him with a fixed work schedule as opposed

to one comprised of rotating shifts and (2) that employees of

Caribbean 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.1          The district court weighed




     1  Sepúlveda also originally brought separate claims of
discrimination under Puerto Rico law. Because the district court
granted summary judgment in favor of Caribbean on the both of the
federal ADA claims, it declined to exercise supplemental
jurisdiction over the remaining Puerto Rico-based claims and


                                  - 3 -
both sides' arguments, ultimately concluding that Sepúlveda was

not a "qualified individual" under the ADA and that the supposedly

retaliatory acts comprising his hostile work environment claim

were insufficient to support his claim.            It therefore granted

Caribbean's   summary   judgment    motion,    a   decision   from   which

Sepúlveda appeals.   We now affirm.

                         Standard of Review

          Reviewing the grant of summary judgment de novo, we

construe the record in the light most favorable to the non-movant,

resolving all reasonable inferences in that party's favor.             See

Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir. 2008).          In

doing so, we will uphold summary judgment where "the movant shows

that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law," Fed. R. Civ.

P. 56(a), and will reverse "only if, after reviewing the facts and

making all inferences in favor of the non-moving party [here,

Sepúlveda], the evidence on record is 'sufficiently open-ended to

permit a rational factfinder to resolve the issue in favor of

either side.'"   Maymí v. P.R. Ports Auth., 515 F.3d 20, 25 (1st

Cir. 2008) (quoting Nat'l Amusements, Inc. v. Town of Dedham, 43

F.3d 731, 735 (1st Cir. 1995)).




dismissed those without prejudice.         Sepúlveda makes no challenge
here to their dismissal.


                                   - 4 -
                                      Discussion

              In    general,    for   purposes       of    bringing      a    failure    to

accommodate claim under the ADA, a plaintiff must show 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.                See Lang, 813 F.3d at 454.                  The

district court's focus below (and the parties' focus in their

briefs on appeal) revolves around the second of those three

factors,      namely,     whether     in    light     of       Sepúlveda's      requested

accommodation to be assigned fixed shifts he was still qualified

to perform the essential job functions required of Caribbean

assistant      managers.        An    essential      function       is    one    that    is

"fundamental" to a position.               See Kvorjak v. Maine, 259 F.3d 48,

55 (1st Cir. 2001).          "The term does not include 'marginal' tasks,

but may encompass 'individual or idiosyncratic characteristics' of

the job."     Id. (quoting Ward v. Mass. Health Research Inst., Inc.,

209 F.3d 29, 34 (1st Cir. 2000)).                         Unsurprisingly, we have

explained     that    "the     complex     question       of    what   constitutes       an

essential job function involves fact-sensitive considerations and

must be determined on a case-by-case basis."                        Gillen v. Fallon

Ambulance Serv., Inc., 283 F.3d 11, 25 (1st Cir. 2002).                         In making

this case-by-case determination, the ADA instructs us to give


                                           - 5 -
consideration "to 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." 42 U.S.C. § 12111(8).                And the Equal

Employment     Opportunity       Commission's    ("EEOC")    implementing

regulations of the Act further tell us that beyond the employer's

judgment, things to be considered 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."    29 C.F.R. § 1630.2(n)(3).      Such considerations are

not meant "to enable courts to second-guess legitimate business

judgments, but, rather, to ensure that an employer's asserted

requirements     are   solidly   anchored   in   the   realities   of   the

workplace, not constructed out of whole cloth."         Gillen, 283 F.3d

at 25.

             Here, the district court fully considered these factors

and concluded that being able to work rotating shifts was an

essential function of the assistant manager job with Caribbean.

First, the court pointed out that it was uncontested that from

Caribbean's perspective, the ability to work rotating shifts was

essential.     Indeed, Caribbean explained that rotating shifts were

necessary for the equal distribution of work among the managerial


                                    - 6 -
staff and Sepúlveda conceded this point in his deposition.           That

is to say, accommodating Sepúlveda permanently would have had the

adverse impact of inconveniencing all other assistant managers who

would have to work unattractive shifts in response to Sepúlveda's

fixed       schedule.   We   have    previously   explained   that   such

"idiosyncratic characteristics as scheduling flexibility" should

be considered when determining the essentiality of a job function.

Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 22 (1st Cir.

2004); see also Laurin v. Providence Hosp., 150 F.3d 52 (1st Cir.

1998).2      The court also explained that Sepúlveda admitted in his

deposition that rotating shifts was a responsibility he had at

Caribbean and that this was the case for all other assistant

managers.       Moreover, the court noted that the job application

Sepúlveda filled out and signed when he was hired made clear that



        2
       On appeal, Sepúlveda argues that the district court's
reliance on Laurin v. Providence Hospital was erroneous because
that case was decided on materially distinguishable facts. Laurin
involved a hospital's rotating shifts requirement for nurses
working in a 24-hour maternity ward.      Id. at 59.    Given that
setting, we had little difficulty in concluding that the rotating
shifts requirement was essential.     As we explained, "[m]edical
needs and emergencies . . . do not mind the clock, let alone staff-
nurse convenience," and "to suggest otherwise would be tantamount
to maintaining that night work is not an 'essential function' of
a night watchman's job, even though that is the only time the
premises are not otherwise occupied." Id. Though we agree with
Sepúlveda that Laurin provides a more clear cut example of an
"essential" rotating shifts requirement, the district court's
citation to the case does not undermine its otherwise sound
conclusion that Caribbean's rotating shifts requirement was also
an essential job function.


                                    - 7 -
all Caribbean managerial employees had to be able to work different

shifts in different restaurants.         And it pointed to a newspaper

advertisement for the job that listed the need to work rotating

shifts as a requirement.     While the court did note that Caribbean

initially   granted    Sepúlveda   the   accommodation   on   a   temporary

basis, that fact did "not mean that it conceded that rotating

shifts   was   a   'non-essential'   function."      Sepúlveda-Vargas    v.

Caribbean Restaurants LLC, No. CV 13-1622 (SEC), 2016 WL 8710980,

at *5 (D.P.R. Sept. 30, 2016).       And we agree.    "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."    Phelps v. Optima Health, Inc., 251 F.3d 21, 26 (1st

Cir. 2001).3


     3 Oddly, Sepúlveda seems to think that Phelps is inapplicable
to the instant case because it relied in part on the logic of a
Seventh Circuit case, Basith v. Cook County, 241 F.3d 919 (7th
Cir. 2001), that has slightly distinguishable facts from the those
found here. This argument is strange to us; Phelps says what it
says and, regardless of the underlying facts of a Seventh Circuit
case cited in Phelps, we see no reason how its general admonishment
against punishing an employer for going above and beyond that
required under the ADA is irrelevant to the case at hand. But,
for the sake of thoroughness, we will briefly entertain Sepúlveda's
argument. At core, Sepúlveda appears to believe the following.
In Basith, an employer granted an accommodation purportedly
requested by an employee under the ADA. In doing so, however, the
employer stated, "[a]lthough this is a change in the job functions,
which is not required, I will agree to it." Basith, 241 F.3d at
930. That is, the employer knew the employee was not a "qualified
individual" under the ADA and chose to make a temporary
accommodation for him in spite of this fact.        Because, here,
Caribbean's impetus for granting the temporary accommodation was
its mistaken belief that it was required to do so by the ADA,


                                   - 8 -
              As for Sepúlveda's retaliation claim, the ADA forbids

retaliation "against any individual because such individual has

opposed any act or practice made unlawful . . . or because such

individual made a charge, testified, assisted, or participated in

any manner in an investigation, proceeding, or hearing under [the

ADA]."    42 U.S.C. § 12203.       These sorts of claims "may succeed

even where [a] disability claim fails."           Valle-Arce v. P.R. Ports

Auth., 651 F.3d 190, 198 (1st Cir. 2011).            To establish a prima

facie claim of retaliation, it is incumbent for a plaintiff to

show that he was engaged in protected conduct, that he was subject

to an adverse employment action, and that there was a causal

connection between the adverse employment action and the conduct.

See Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 106

(1st Cir. 2007).      Not all retaliatory actions, however, suffice to

meet the ADA's anti-retaliation provision.           Rather, "a plaintiff

must   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


Sepúlveda believes (for reasons that are unclear) that this renders
the logic of Basith and Phelps irrelevant.      Not so.   Sepúlveda
cites no case (and we can find none) that requires this kind of
"intent to go above and beyond the ADA" in order to apply the logic
of Phelps and, importantly, we provided no such caveat when we
decided Phelps.    To the contrary, this Court only held that
evidence of non-required accommodations will not be used against
a company in determining what is or isn't an essential job
function, without mention of whether the employer meant to go above
and beyond the ADA.


                                   - 9 -
supporting a charge of discrimination."        Carmona-Rivera v. Puerto

Rico, 464 F.3d 14, 20 (1st Cir. 2006) (quoting Burlington N. &

Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).          Indeed, we

have explained that "[f]or retaliatory action to be material, it

must produce 'a significant, not trivial harm,'" Colón-Fontánez v.

Municipality of San Juan, 660 F.3d 17, 36 (1st Cir. 2011) (quoting

Carmona-Rivera, 464 F.3d at 20), and that "actions like 'petty

slights, minor annoyances, and simple lack of good manners will

not [normally] create such deterrence.'"         Id. at 36-37 (quoting

Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68) (alteration in

original).

             At the district court--and again in his briefs filed

with   us--Sepúlveda   argued   that     the   following   actions   were

materially adverse: (1) he was scolded by his direct supervisor

for requesting an accommodation from Caribbean's human resources

department even though the direct supervisor had already denied

it; (2) his direct supervisor allegedly accused him of taking four

pills of unnecessary medication, which made him feel embarrassed;

(3) his direct supervisor attempted to briefly change Sepúlveda's

schedule so he could attend a required managers' seminar and the

supervisor articulated that he did not believe Sepúlveda had a

serious medical condition when Sepúlveda tried to get out of

attending the seminar; (4) he was forced to pull down his pants in

front of a restaurant manager to show that he had a skin condition


                                - 10 -
requiring medical treatment; (5) his direct supervisor and other

employees called him a "cry baby" on three occasions; (6) he was

forced to take a paid vacation until he passed a health safety

examination Caribbean required and the Commonwealth of Puerto Rico

highly recommends, even though he had been working with an expired

license for some time; (7) he was told to stay past his shift's

end until 11:00pm on one occasion and was admonished when he failed

to abide by this instruction; and (8) he was generally treated

differently than other assistant managers in his working hour

requirements and labor assignments.               He also argued that even if

any of these individual actions were not materially adverse, they

certainly rose to that level when looked at collectively and that

together they also amounted to a hostile work environment.

             The court below found that none of the actions Sepúlveda

argued to be adverse were--taken on their own--material.                         For

example,     the   court    explained     while    it    was    true   that     being

reprimanded by his supervisor for going behind his back to Human

Resources 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."

Sepúlveda-Vargas, 2016 WL 8710980, at *6.                 The court explained,

that   the   fact    "[the    supervisor]        may   have    been    angered    and

overreacted    because      Sepúlveda     went    over   his    head    to   request

accommodation,      'while    perhaps     improper,      does    not    by    itself


                                     - 11 -
constitute      and   adverse    employment      action   for    a    retaliation

claim.'"      Id. (quoting De Jesus-Sánchez v. Taber Partners I, LLC,

551 F. Supp. 2d 136, 141 (D.P.R. 2007)).                  As for Sepúlveda's

argument that making a temporary change to his schedule so that he

could attend a required managers' seminar was an adverse action,

the district court explained that even if "[the supervisor's]

approach [by saying he didn't believe Sepúlveda had an ailment]

may   have    been    somewhat   rude   or    insensitive,      'a   supervisor's

unprofessional managerial approach and accompanying efforts to

assert her authority are not the focus of the discrimination

laws.'"       Id. at *7 (quoting Lee-Crespo v. Schering-Plough Del

Caribe Inc., 354 F.3d 34, 47 (1st Cir. 2003)); see also Colón-

Fontánez, 660 F.3d at 45 (explaining that accusations of being a

"hypochondriac" and "faking it" though uncomfortable "do not rise

to the level of severity or pervasiveness" to sustain a retaliation

claim).      The court also rejected Sepúlveda's assertion that he was

forced, on one occasion, to pull down his pants to reveal a medical

skin condition. Not only did Sepúlveda fail to "provide sufficient

details surrounding this incident," but he additionally failed to

demonstrate 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

before was related to a protected activity."                  Sepúlveda-Vargas,

2016 WL 8710980, at *7. The court next rejected Sepúlveda's notion


                                    - 12 -
that being called a "cry baby" was an adverse action.          Sepúlveda

alleged that he was told by one employee that she had heard someone

else call him a "cry baby" and further alleged that he had

personally heard two other employees call him the same.        The court

rejected the first allegation as hearsay within hearsay.         As for

the latter two, it explained that while "it is unclear whether

these statements were related to a protected activity or to some

other workplace issue," even assuming it was connected to a

protected event, "[t]he case law is clear that 'simple teasing,

offhand   comments,   and   isolated     incidents   (unless   extremely

serious)' do not amount to adverse employment action, not even to

establish an objectively hostile or abusive work environment."

Id. (quoting Colón-Fontánez, 660 F.3d at 44).

          The remaining assertions by Sepúlveda regarding supposed

adverse actions were all determined to be similarly unmeritorious.

The court concluded that Caribbean's placement of Sepúlveda on

forced paid vacation was not adverse, particularly where it was

mandated because Sepúlveda had an expired health certificate and

Caribbean could get in trouble with the Puerto Rico Department of

Health if Sepúlveda did not pass the required examinations for the

certificate.   Id. at *7-8.   And the fact that Sepúlveda was on one

occasion told to stay past his shift's end until 11:00pm and was

reprimanded when he defied the instruction was also not tantamount

to an adverse employment action.       The restaurant Sepúlveda worked


                                - 13 -
at had been closed by the Puerto Rico Department of Health due to

a cockroach infestation and Caribbean required all managers to

stay late on that occasion to ensure the restaurant was properly

cleaned.   This in and of itself is not adverse and, to the extent

Sepúlveda may have been treated especially harshly for defying the

instruction    to   stay    until   11:00pm,   the    court   noted    that    he

"provide[d] no details regarding the severity of the alleged

admonishment and his disciplinary record was not affected."                   Id.

Next, the court explained that though "Sepúlveda timidly floats

the idea that he was subject to differential treatment in working

hours' requirements, in labor assignment, in understaffing of the

shift he supervised, [and] in being subject to constant verbal

warnings . . . he references fifty paragraphs of his additional

statement of uncontested facts without even bothering to specify

which paragraphs contain the relevant facts as to each of the four

types of disparate treatment alleged therein." Id. Not just that,

but he also "fail[ed] to discuss any case law to support his

contention."    Id.   The court thus found the argument waived.               Id.

Finally, to the extent Sepúlveda argued the actions should be

considered materially adverse when looked at together rather than

individually, (thus comprising a hostile work environment), the

court concluded otherwise, explaining that "[c]ollectively, these

incidents amount to nothing more than the petty insults and minor

annoyances    which   are    insufficient      to    constitute   an   adverse


                                    - 14 -
employment action under the ADA. . . . Drawing all reasonable

inference in his favor, Sepúlveda did not demonstrate from an

objective standpoint, that Caribbean's actions were sufficiently

severe   or     pervasive   to   sustain    a   retaliatory   hostile   work

environment, and so it fails."       Id. at *9 (quoting Colón-Fontánez,

660 F.3d at 36-37).

              Our de novo standard of review fails to yield any genuine

issue of material fact that would lead us to draw a conclusion

that differs from the district court.           Because the court below got

it right, we need not say anymore on the matter.

              Affirmed.




                                   - 15 -
