Sepulveda-Vargas v. Restaurants, LLC

2016 | Cited 0 times | D. Puerto Rico | September 30, 2016

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OPINION AND ORDER Before the Court is Motion for Summary Judgment on discrimination and retaliation claims under the Americans with Disabilities Act, 42

U.S.C. § 12102, et seq. (ADA), and several claims under Puerto Rico law. The motion is GRANTED.

I. Factual and Procedural Background Caribbean Restaurants, LLC d/b/a Burger King (Caribbean) employs over 5,500 employees as part of its fast food restaurant chain in Puerto Rico. Plaintiff Victor Sepúlveda (Sepúlveda) started working for Caribbean on July 15, 2008, through t Track Management Training Program. He was quickly promoted to assistant manager where he was responsible, among other things, for assisting and supervising other employees; making sure the restaurants were properly cleaned for opening and closing; and handling cash and inventory. As assistant manager, he had to work as required by operational and administrative needs. This meant working regular and irregular hours on weekdays, weekends, and holidays. He was also required to work in different restaurants and rotate shifts with other managerial staff, such as managers and sub-managers.

On February 28, 2011, Sepúlveda was assaulted and carjacked while attempting to make a bank deposit for Caribbean. After the incident, he went on leave of absence

to receive psychiatrist, Dr. Juan Fumero, diagnosed him with post-traumatic stress disorder and

depression.

On November 9, 2011, the SIF released Sepúlveda to return to work while on treatment. Upon returning, he asked Francisco Salas (Salas) the Area Manager in charge of supervising the restaurants where Sepúlveda worked for an accommodation. The details surrounding this request and the agreement reached are heavily contested. Salas posits that that he agreed to assign Sepúlveda exclusively to the mid-shift for a period of three weeks, after which Sepúlveda would go back to rotating-shifts. Sepúlveda, on the other hand, alleges that he requested a fixed schedule not necessarily the mid-shift and to be assigned to a restaurant with a low incidence of crime.

It is unclear whether Sepúlveda intended his request to be permanent or temporary. Nevertheless, Sepúlveda claims that after three or four weeks it became evident that Salas was not going to grant his request. He therefore obtained a letter from the SIF evincing his need for the accommodation. The letter dated December 6, 2011, indicates that Sepúlveda was receiving treatment for an emotional condition and that the occupational physician recommended that he be assigned to a fixed-shift and that Caribbean should consider assigning him to a store with less risk of robbery. The letter states that this was necessary was the only accommodation that could allow him to remain in the labor force. Docket

# 41-1, pp. 91-92. Two days later, Sepúlveda submitted the letter directly to Zaimarie epartment. This was the first written evidence of a disability and need for a reasonable accommodation that Sepúlveda provided to Caribbean. In that meeting, Rivera asked Sepúlveda to specify the duration of the accommodation, see Docket # 41-15, p. 1, but the record does not reveal whether he ever responded to that inquiry.

Sepúlveda alleges that, during a telephone conversation on December 10, 2011, Salas berated him for requesting the accommodation directly from Human Resources since Salas had already denied it. Salas also said that granting the request would be unfair to other employees and allegedly mentioned that Sepúlveda had taken four pills. Sepúlveda said that this made him feel humiliated. Docket # 41, ¶ 29 & Docket # 41- 15. Days later, Sepúlveda went back for treatment at the SIF and returned to work on March 2012. Then, both parties agreed that Sepúlveda would work only in a restaurant located inside the food court of Plaza Centro Shopping Center in Caguas on a fixed- shift from 1:00 p.m. to 10:00 p.m. Although Caribbean initially understood that this accommodation was going to be temporary, see Docket ## 34-15 & 34-17, Sepúlveda remained assigned to the same restaurant and shift until he resigned on October 2013.

On April 20, 2012, Salas told Sepúlveda that all managerial employees had to attend a mandatory seminar later that month. Because the seminar started at 7:00 a.m. and was to take place in a remote location, Sepúlveda complained that his compulsory attendance violated his accommodation. After a heated discussion, Sepúlveda started crying and called his father to pick him up. He went on medical leave for some time and was ultimately excused from attending the seminar and from attending similar seminars on October 2012 and April 2013.

Caribbean requires all its managerial employees to have a valid certification on food handling approved by the Puerto Rico Department of Health. To comply with this requirement, all management staff had to obtain a so-called ServSave Certificate. On May 10, 2012, Salas notified Sepúlveda that he had to take a ServSafe course and examination scheduled for May 31 since his certificate had expired. 1

Docket # 34-21. 1 Although the certificate says that it expires in five years, see Docket #41-10, Caribbean Restaurants contends that the Puerto Rico Department of Health requires the certificate to be renovated every three years. Id. While neither party has produced conclusive evidence as to the requirements set by the Puerto Rico Department of Health, it is uncontested that Caribbean Restaurants required that at least one employee per shift had to have a ServSafe certificate less than three years old and that only the managerial staff were certified. See Docket # 41-1, p. 63. The Court website states that the certification expires every three years. See https://www.servsafe.com/ss/help/foodhandler/en/index.aspx (last accessed on 9/30/2016). Moreover a google

Sepúlveda responded that he could not attend the course because it started at 8:00 a.m., and thus interfered with his fixed schedule. Sepúlveda then contacted Pier Vargas from Human Resources regarding this issue. She told him that he could not work without a valid certificate but that she would approve paid vacation leave until another course that did not interfere with his accommodation could be scheduled. Salas then enrolled Sepúlveda in another course scheduled for June 7 and 8. This course was ultimately cancelled and rescheduled. Sepúlveda passed the ServSafe examination later in June and returned to work immediately thereafter.

resignation in October 2013, several incidents occurred involving other employees and managerial staff, which are narrated with more detail in the sections below. According to Sepúlveda, these incidents were discriminatory and retaliatory, which prompted him to file two discrimination charges before the Equal Employment Opportunity Commission (EEOC) on June 15 and October 29, 2012. See Docket # 6, p. 4. During this time period and further into his tenure at Caribbean, Sepúlveda experienced financial difficulties and marital problems which eventually culminated in a divorce. He also tried to commit suicide on two occasions. The first was on August 2012. That time he was hospitalized and received Temporary Non-Occupational Disability Insurance benefits, until his return to work sometime around September 13, 2012. His second attempt was on February 2013. Sepúlveda eventually returned to work on March 21, 2013. See Docket # 59, ¶¶ 71 86.

On April 25, 2013, Dr. Fumero recommended Sepúlveda to abstain from work for six months, which he did, Docket # 59, ¶ 86, but never returned to work. On

entities that offer the course, which say that in Puerto Rico the license is valid only for three years. See e.g. http://www.asorepr.com/registro_servsafe (last accessed on 9/30/2016); and https://foodsafetycertificationpr.com/2016/09/15/curso-de-manejo-seguro-de-alimentos-santurce/ (last seen on 9/30/2016).

August 14, 2013, he filed this disability discrimination and retaliation suit bringing federal claims under the ADA counterpart to the ADA, Law No. 44 of July 2, 1995, P.R. Laws Ann. tit. 1, §§ 501 et

seq. -retaliation statute, Law No. 115 of December 20, 1991, 29 P.R. Laws Ann. § 194a(a); and Law No. 80 of May 30, 1976, which mandates compulsory severance pay for employees dismissed without cause. There, Sepúlveda alleged that Caribbean failed to comply with the reasonable accommodation that had been granted and that it retaliated against him by creating a hostile work environment. Two months after filing the complaint, Sepúlveda turned in his resignation letter stating his employment situation had become unbearable and therefore he had no choice but to resign.

On summary judgment, Caribbean sustains that Sepúlveda cannot establish a prima facie disability discrimination because he was not able to rotate shifts, which, according to Caribbean, is an essential function of an assistant manager at its restaurants. It also argues that it did in fact provide the accommodation requested and that Sepúlveda was not subject to any adverse action cognizable under either federal or Commonwealth discrimination laws.

II. Standard of Review

genuine dispute as to any material fact and the movant is entitled to judgment as a -finder could resolve in favor of either party and a material fact is one that could affect the Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir. 2015). At Casas Office Machs., Inc. v. Mita Copystar Am., Inc., 42 F.3d 668 (1st Cir. 1994), and must Soto-Padró v. Public Bldgs. Authority, 675 F.3d 1 (1st Cir. 2012). A court must similarly resolve all

reasonable inferences in favor of the non-moving party. Tolan v. Cotton, 134 S.Ct. 1861, 1863 (2014) (per curiam).

Once the movant properly configures a summary-judgment motion, the burden shifts onto the nonmovant Geshke v. Crocs, Inc., 740 F.3d 74, 77 (1st Cir. 2014)

Tropigas de P.R., Inc. v. , 637 F.3d 53, 56 (1st Cir. 2011). So the nonmovant cannot rest on conclusory allegations and improbable inferences. Advanced Flexible Circuits, Inc. v. GE Sensing & Inspection Technologies GmbH, Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir. RTR Technologies, Inc. v. Helming, 707 F.3d 84, 93 (1st Cir. 2013), suffice to forestall the entry of summary judgment. Failure to shoulder this Lawton v. State Mut. Life Assur. Co., 101 F.3d 218, 223 (1st Cir. 1996).

III. Applicable Law and Analysis

can perform the esse Id. §12111(8).

Refusing to provide a reasonable accommodation to a disabled employee is, of course, a form of discrimination. Lang v. Wal-Mart Stores E., L.P., 813 F.3d 447, 454 for summary judgment on a failure-to- accommodate claim, a plaintiff must show: (a) that he is disabled within the meaning of the ADA; (b) that he could perform the essential functions of his post either with or without a reasonable accommodation; and (c) that the employer, knowing of his disability, refused to reasonably accommodate him. See id. (citing Rocafort v. IBM Corp., 334 F.3d 115, 119 (1st Cir. 2003)).

Here, Caribbean concedes that Sepúlveda was disabled within the meaning of

unable to work in rotating shifts, which Caribbean sustains is an essential function of an assistant manager at its restaurants. Sepúlveda, on the other hand, does not challenge that he was unable to work rotating shifts, but asserts that this was not an essential function of his job.

a. Failure to accommodate need not accommodate a disability by foregoi of the employment position. Laurin v. Providence Hosp., 150 F.3d 52, 56 (1st Cir. 1998) (collecting cases). A function is considered essential if it is Richardson v. Friendly Ice Cream Corp., 594 F.3d 69, 75 (1st Cir. 2010) 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) to that a particular function is essential Richardson, 594 F.3d at 76 (quoting Tobin v. Liberty Mut. Ins. Co., 433 F.3d 100, 107

(1st Cir. 2005)).

-exclusive list of evidence that the employer may present to meet its burden. To wit,

(i) (ii) Written job descriptions prepared before advertising or

interviewing applicants for the job; (iii) The amount of time spent on the job performing the function; (iv) The consequences of not requiring the incumbent to perform the

function; (v) The terms of a collective bargaining agreement; (vi) The work experience of past incumbents in the job; and/or (vii) The current work experience of incumbents in similar jobs. 29 C.F.R. § 1630.2.

consideration shall be given 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. § 12111(8). Consistent with this directive, the Court must give substantial weight -faith view of what the job entails. Richardson, 594 F.3d at 76. After all, judicial inquiry into essential functions intended to second guess the employer or to require the employer to lower company

standards, Mulloy v. Acushnet Co., 460 F.3d 141, 147 (1st Cir. 2006) (quoting Mason v. Avaya Communications, Inc., 357 F.3d 1114, 1119 (10th Cir. 2004) to ensure that an employers asserted requirements are solidly anchored in the realities of the workplace, not constructed out of whole cloth. Gillen, 283 F.3d at 25.

Here, it is uncontested that Caribbean considers rotating shifts an essential function of an assistant manager. Both parties agree that assistant managers substitute and relieve managers in other stores depending on the needs of each store, see Docket # 41-2, p. 6. According to Caribbean, rotating shifts is essential for the equal distribution of work between the managerial staff. See Docket ## 34-2, ¶ 12 & 41-3, p. 63. Sepúlveda concedes that the purpose of rotating shifts i Cf. Laurin, 150 F.3d at 59 (finding rotating shifts an essential function where some shifts were -faith belief that rotating shifts is an essential part of an assistant managers is consistent with the reason given by Salas when he first refused to give Sepúlveda a fixed-shift that it would be unfair to the other managers.

-faith view of what a job entails, though important, Gillen, 283 F.3d at 25. Still, the bulk of the evidence supports position that rotating shifts was an essential function of an assistant manager. For instance, the job application that Sepúlveda signed when he

sought employment from Caribbean stated that the restaurant industry operated seven days a week and that its employees had to be able to work in different shifts and in different restaurants. Docket # 34-4, p. 2. Caribbean also submitted a newspaper ad listing the requirements of the position, including among others, availability to work in rotating shifts, and having a car in adequate conditions. Docket # 34-3. 2

Finally, Sepúlveda admitted that rotating shifts was part of his responsibilities. Indeed, as far as he could tell, this was the case for all the other assistant managers. 3

Faced with this overwhelming evidence, Sepúlveda offers two parries. First, he points out that the Director of Human Resources thought that Caribbean was required by law to provide the requested accommodation. This may be true. But Sepúlveda requires more than it actually does burdens the employer with a legal obligation to

permanently treat an employee according to such mistaken belief. That Caribbean accommodated Sepúlveda does not mean that it conceded that rotating shifts was a - 4

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) (collecting cases). Second, Sepúlveda mentions that Caribbean has not conducted any studies to determine which functions are essential and which are not. Yet, nothing in 2 Sepúlveda makes much of the fact that Caribbean has an internal description for Assistant Managers, which is not handed to any managerial employee but still Caribbean chose not to submit it as evidence or produce it But Sepúlveda cannot rely on unsupported speculation concerning the content of this document. If Sepúlveda thought that this Rivera-Almodovar v. Instituto Socioeconomico Comunitario, Inc., 730 F.3d 23, 27 (1st Cir. 2013), which he did not file. 3 Sepúlveda said that there were some assistant managers that did not rotate at some point after he worked at the restaurant in Plaza 3. But when asked, he could not recall any names. See Docket # 41-1 pp. 12-13. This will not suffice. 4 duration of his request. See Docket ## 34-15 & 34-17.

which functions are essential to a particular job need be based on particular studies. To -faith belief is not only competent evidence that a particular function is essential; it also carries substantial weight in the analysis. See Richardson, 594 F.3d at 76; 42 U.S.C. § 12111(8).

Caribbean shouldered its burden of providing evidence that working rotating shifts was an essential function of assistant managers at its restaurant and Sepúlveda countered with nothing. Since Sepúlveda could not rotate shifts, Caribbean was under no obligation to accommodate him. See Laurin, 150 F.3d at 56. In spite of this, the record reveals that Caribbean did provide Sepúlveda with most, if not all, of the accommodations that he properly requested, regardless of the reasonableness of the request. But the Court need not address his argument to the contrary because

retaliation claim.

b. Retaliation and Hostile Work Environment Sepulveda also claims that Caribbean took various adverse employment actions against him. Given that these act a reasonable accommodation, Caribbean argues that these must be analyzed through the lens of a retaliation claim. Sepúlveda does not raise any objections on this front, and so the Court proceeds accordingly.

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, Figueroa Guzmán v. WHM Carib, LLC, --- F. Supp. 3d ---, 2016 WL 944257, at *4

(D.P.R. Mar. 14, 2016) (quoting Valle Arce v. Puerto Rico Ports Auth., 651 F.3d 190, 198 (1st Cir. 2011)) Case 3:13-cv-01622-SEC Document 66 Filed 09/30/16 Page 10 of 18 engaged in protected conduct; (2) he experienced an adverse employment action; and (3) there was a causal connection between the protected conduct and the adverse Quiles-Quiles v. Henderson, 439 F.3d 1, 8 (1st Cir. 2006). Here, Caribbean concedes that Sepúlveda a reasonable accommodation and filing of charges before the EEOC are protected activities under the ADA. The Court thus evaluates whether Sepúlveda proffered sufficient evidence to establish that he suffered an adverse employment action that is causally linked to these protected activities.

- Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006), but from retaliation that produces a significant harm. See Carmona-Rivera v. Puerto Rico, 464 F.3d 14, 20 (1st Cir. 2006). [F]ederal employment discrimination laws do not est for the workplace. Quiles-Quiles, 439 F.3d at 7 (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)). Neither Calhoun v. Acme Cleveland Corp., 798 F.2d 559, 561 (1st Cir. 1986) The workplace is not a cocoon, and those who labor in it are expected to have reasonably thick skins thick enough, at least, to survive the ordinary slings and arrows that workers routinely encounter in a Suárez v. Pueblo Intl, Inc., 229 F.3d 49, 54 (1st Cir. 2000). And an s decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience. Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68. To establish an adverse employment action, a plaintiff 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 Id. (internal quotations and citations omitted).

First, Sepúlveda complains that during a telephone conversation on December 2011, Salas scolded and talked to him in a loud voice for requesting the

accommodation directly from Human Resources after Salas had already denied it. Sepúlveda taking four pills, which made him feel like an addict. Although this incident is

definitely linked to a protected activity, it is insufficient to sustain an adverse employment action. See Lee-Crespo v. Schering-Plough Del Caribe Inc., 354 F.3d 34, 47 (1st Cir. 2003) s unprofessional managerial approach and accompanying efforts to assert her authority are not the focus of the discrimination laws. That Salas may have been angered and overreacted because Sepúlveda went itself constitute an De

Jesus-Sánchez v. Taber Partners I, LLC, 551 F. Supp. 2d 136, 141 (D.P.R. 2007).

The next incident with Salas occurred more than five months later. On April 2012, Salas attempted to make a temporary change in schedule and store location so Sepúlveda in Guayama at 7:00 a.m. 5

All the managerial staff was required to attend this type of seminar twice a year. A heated discussion ensued after Sepúlveda complained that the change in schedule violated his accommodation. According to Sepúlveda, Salas did not believe that Sepúlveda had a serious medical condition; he believed # 59, p. 116. After Salas displayed a text message from Human Resources saying that attendance to the seminar was mandatory, Sepúlveda fell into an emotional crisis, started crying, and called his father to pick him up from work. Sepúlveda was ultimately excused from attending this seminar as well as similar seminars scheduled for October 2012 and April 2013. account of the incident, it is insufficient to establish an adverse employment action. s unprofessional managerial approach and accompanying efforts to assert

5 According to google maps, it takes approximately less than an hour without traffic to drive from Plaza Centro Shopping Center to Guayama.

her authority are not the focus of the discrimination laws. Lee-Crespo, 354 F.3d at 47; see also Colón-Fontánez, 660 F.3d at 45 (calling the plaintiff a hypochondriac or among others, was insufficient to establish an objectively hostile or abusive environment).

According to Sepúlveda, Salas went further and transmitted his disbelief in Sepúlved Sepúlveda claims that this had dire consequences; one time, he was forced to pull down his pants to show a restaurant manager that he had a skin condition that required immediate medical attention. Sepúlveda, however, did not provide sufficient details surrounding this incident. Although he might have felt compelled to pull down his pants, there is no evidence that demonstrates, from an objective standpoint, that he Moreover, although the incident may have produced some discomfort, Sepúlveda does

requested no accommodation nor provided any medical evidence before was related to a protected activity.

Next, Sepúlveda s To start, there is no evidence that Salas

on March 2012, an employee named Aida Rodríguez told him that Salas and one of the restaurant managers -2, p. 9. But this testimony is hearsay within hearsay. See Fed. R. Evid. 802-805. As such, it is inadmissible and thus insufficient to defeat summary judgment. See Fed. R. Civ. P. 56(c)(4). one his supervisors, and the second in December by

an employee named Angelise. See Docket # 41-2, pp. 9-10. It is unclear whether these statements were related to a protected activity or to some other workplace issue. But

or his filing of EEOC charges, these three isolated incidents are insufficient to

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. Colón-Fontánez, 660 F.3d at 44 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998))(internal quotations omitted); see also Brown v. Advocate S. Suburban Hosp., 700 F.3d 1101, 1108 (7th Cir. 2012 being called a trouble maker, a cry baby, or a spoiled child would dissuade a reasonable person from complaining of discrimination ).

Sepúlveda also complains that he was forced to take paid vacation leave until he took and passed the ServSafe examination. 6

He points out that he had been working with an expired certificate for some time and alleges that other employees were permitted to work with an expired certification. True, Caribbean allowed Sepúlveda to work with an expired certificate after he returned from medical leave at the SIF. Yet, this does not necessarily mean that it had to continue allowing him to work without a valid certificate. In this regard, it is uncontested that Caribbean required at least one managerial staff, such as Sepúlveda, in each restaurant to have a ServSafe certificate. Otherwise, Caribbean maintains, it could get in trouble with the Puerto Rico Department of Health. It is also uncontested that sometimes Sepúlveda was the only managerial staff at his restaurant.

Sepúlveda provides no legal authority to support his suggestion that forced vacation under these circumstances constitutes an adverse employment action. Arguably, this could be indicative of retaliation in the form of disparate treatment if Sepúlveda was the only employee forced to take vacation under similar circumstances. But Sepúlveda proffers no competent evidence to support his allegation that other managerial employees were allowed to work with expired certificates. Moreover, he makes no effort to explain how the forced vacation with pay under these circumstances 6 The record does not reveal how long Sepúlveda on vacation leave but he was paid eighty hours for this.

Carmona-Rivera, 464 F.3d at 20; one that would discourage a reasonable person from complaining of discrimination. See Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68

Sepúlveda also claims that Caribbean tried to force him to stay in the restaurant until 11:00 p.m. This happened around January 2013; right after the Puerto Rico Department of Health closed the restaurant due to a cockroach infestation problem. Then, Caribbean requested all managers, including Sepúlveda, to remain two hours after closing to make sure that the restaurant was properly cleaned. Docket # 59, ¶ 67. Sepúlveda says that he was the only manager required to stay until 11:00 p.m. Notwithstanding, it is uncontested that Sepúlveda stayed until 11:00 p.m. only once. Id., ¶ 68. He says that he was subsequently admonished verbally for not staying until 11:00 p.m. but provides no details regarding the severity of the alleged admonishment and his disciplinary record was not affected. In short, Sepúlveda failed to show that the alleged admonishment produced harm significant enough to constitute a retaliatory adverse employment action.

Lastly, Sepúlveda timidl

shift he supervised, [and] in being subject to consta p. 17. Following this conclusory statement, 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 surprisingly, Sepúlveda fails to discuss any case law to support his contention. Instead, in a separate section, he recites boiler plate law regarding retaliation claims under the ADA without explaining how it applies to the particular facts of this case. Id., pp. 17- Simply noting an argument in passing without explanation is insufficient to avoid waiver Rocafort, 334 F.3d at 121 (parenthetically quoting DiMarco Zappa v. Cabanillas, 238 F.3d 25, 34 (1st Cir. 2001)). So is the recitation of applicable law unaccompanied by an explanation of how the law applies

to the facts of the particular case. MicroStrategy Inc. v. Bus. Objects Americas, 238 x 605, 610 (Fed. Cir. 2007) (unpublished). The Court need not entertain such an ill-developed argument because developi legal precede job, not Perfect Puppy, Inc. v. City of E. Providence, R.I., 807 F.3d 415, 418 (1st Cir. 2015) (parenthetically quoting Town of Norwood v. F.E.R.C., 202 F.3d 392, 405 (1st Cir. 2000)).

Summing up, none of the incidents described above constitutes an actionable adverse employment actio retaliation claim. retaliatory actions that are not materially adverse when considered individually may collectively amoun See Valle-Arce v. Puerto Rico Ports Auth., 651 F.3d 190, 199 (1st Cir. 2011) (Parenthetically quoting Billings v. Town of Grafton, 515 F.3d 39, 54 n. 13 (1st Cir. 2008)).

To succeed on a hostile work environment claim, Sepulveda must prove that

insult that [was] sufficiently severe or pervasive to alter the conditions of ... [his] employment and create an abusive worki Colón Fontánez, 660 F.3d at 43 (quoting Quiles Quiles, 439 F.3d at 7) standard cannot be triggered solely s subjective beliefs, no matter how sincerely held. Suárez, 229 F.3d at 54. Instead, the plaintiff must show that the harassment was both subjectively offensive, [such] that a reasonable person would and that the plaintiff in fact perceived it to be so. Noviello v. City of Boston, 398 F.3d 76, 92 (1st Cir. 2005) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787 (1998)). In assessing whether the harassment is actionable, courts consider the totality the severity of the conduct; its frequency; and whether it unreason s work performance Colón-Fontánez, 660 F.3d at 44.

The incidents that Sepúlveda deemed important enough to specifically address in by Salas; an incident were Sepúlveda had to demonstrate to an incredulous supervisor that he needed medical attention; two isolated incidents of employees calling him a paid vacation leave; and once having to stay an additional hour to supervise cleaning shortly after his restaurant was closed due to an infestation problem. Collectively, these incidents amount to nothing more than the petty insults and minor annoyances which are insufficient to constitute an adverse employment action under the ADA. Colón-Fontánez, 660 F.3d at 36 37. Drawing all reasonable inferences in his favor, Sepúlveda did not demonstrate from an objective standpoint, that sufficiently severe or pervasive to sustain a retaliatory hostile work environment claim, and so it fails.

c. Supplemental Claims supplemental claims P.R. Laws Ann. tit. 1, §§ 501 et seq -retaliation statute, Law No. 115 of December 20, 1991, 29 P.R. Laws Ann. § 194a(a), and their tort claims under Articles 1802 and 1803 of the Puerto Rico Civil Code, P.R. Laws Ann. tit. 31, §§ 5141 & 5142.

When deciding whether to exercise jurisdiction over state law claims, district comity, judicial economy, convenience, and fairness Redondo Const. Corp. v. Izquierdo, 662 F.3d 42, 49 (1st Cir. 2011). [I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors ... will point toward declining to exercise jurisdiction over the remaining state- Id. (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n. 7 (2010) (italics in the original). Because Caribbean did not address the applicable factors as they relate to the case at hand, the Court follows

the general rule and declines to exercise supplemental jurisdiction over the Commonwealth law claims. These claims are therefore dismissed without prejudice.

IV.

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