Ann Garcia v. Salvation Army

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANN GARCIA, No. 16-16827

Plaintiff-Appellant,

D.C. No.

v. 2:14-cv-02225-DGC

SALVATION ARMY, OPINION

Defendant-Appellee.

Appeal from the United States District Court

for the District of Arizona

David G. Campbell, District Judge, Presiding

Argued and Submitted November 13, 2018

San Francisco, California

Filed March 18, 2019

Before: Mary M. Schroeder and Paul J. Watford, Circuit

Judges, and Edward R. Korman, * District Judge.

Opinion by Judge Korman

*

The Honorable Edward R. Korman, United States District Judge

for the Eastern District of New York, sitting by designation.

2 GARCIA V. SALVATION ARMY

SUMMARY **

Employment Discrimination

The panel affirmed the district court’s summary

judgment in favor of the Salvation Army, the defendant in

an employment discrimination action under Title VII and the

Americans with Disabilities Act.

The panel held that Title VII’s religious organization

exemption is not jurisdictional and is subject to procedural

forfeiture. Absent prejudice resulting from the Salvation

Army’s failure to timely raise the defense, however, the

religious organization exemption foreclosed plaintiff’s Title

VII claims because the Salvation Army’s purpose and

character were primarily religious. The panel held that the

exemption does not apply only to hiring and firing decisions,

but rather extends to both retaliation and hostile work

environment claims.

Affirming the district court’s grant of summary

judgment on plaintiff’s ADA claim, the panel held that there

was no triable issue whether the Salvation Army failed to

engage in an interactive process in good faith with the

plaintiff up to the time she was cleared for work after a

period of leave. After the clearance for work, the plaintiff

could not show that she was disabled.

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

GARCIA V. SALVATION ARMY 3

COUNSEL

Menno Goedman (argued), Boies Schiller Flexner LLP,

Washington, D.C.; Kathleen Hartnett, Boies Schiller Flexner

LLP, Palo Alto, California; for Plaintiff-Appellant.

R. Shawn Oller (argued) and Ryan G. Lockner, Littler

Mendelson, P.C., Phoenix, Arizona; for Defendant-

Appellee.

OPINION

KORMAN, District Judge:

The Salvation Army is an evangelical ministry founded

in 1865 by William Booth, a former Methodist minister. 1

The Salvation Army’s religious tenets differed from

traditional Methodism in rejecting the importance of

sacraments and emphasizing strong central governance. 2 To

that end, Booth—“General” of the Salvation Army—

1

Unless otherwise indicated, the following historical context is

gleaned from the record. Otherwise—and purely for background

purposes—we take judicial notice of certain historical facts that “can be

accurately and readily determined from sources whose accuracy cannot

reasonably be questioned.” Fed. R. Evid. 201(b); see Singh v. Ashcroft,

393 F.3d 903, 905 (9th Cir. 2004).

2

Protestantism, ENCYCLOPÆDIA BRITANNICA,

https://www.britannica.com/topic/Protestantism (published Dec. 13,

2018).

4 GARCIA V. SALVATION ARMY

adopted the military-style hierarchy of the British Army3

under which ranked officers were the equivalent of

ministers. 4 In keeping with Protestantism’s nineteenth

century “camp revival,” Booth took his ministry to the

streets 5 and began establishing mission centers catering to

London’s poor. 6

What started as a single ministry in the East End of

London spread to the shores of the United States in 1880 7

and now operates in more than 80 countries through 16,000

evangelical centers and 3,000 social welfare institutions

worldwide. 8 The Salvation Army describes itself as “an

evangelical part of the universal Christian church,” whose

professed mission is “to preach the gospel of Jesus Christ

and to meet human needs in His name without

discrimination.” Here in the United States, the Salvation

3

William Booth, ENCYCLOPÆDIA BRITANNICA,

https://www.britannica.com/biography/William-Booth (published Aug.

16, 2018).

4

Salvation Army, ENCYCLOPÆDIA BRITANNICA,

https://www.britannica.com/topic/Salvation-Army (published May 11,

2018).

5

Protestantism, supra note 2.

6

Salvation Army, supra note 4.

7

William Booth, supra note 3.

8

Salvation Army, supra note 4.

GARCIA V. SALVATION ARMY 5

Army operates through 501(c)(3) nonprofit corporations. 9 In

2012 and 2013, direct public donations made up the lion’s

share of the Salvation Army’s total revenue; sales to the

public comprised fifteen percent.

Ann Garcia’s relationship with the Salvation Army dates

to 1999, when she began attending religious services at the

Estrella Mountain Corps in Avondale, Arizona. In 2002, the

Corps hired Garcia to work as an assistant to the pastor, a

position she held until July 2010, when Arlene and Dionisio

Torres became the new pastors. No longer in need of an

assistant, Arlene Torres reassigned Garcia to the position of

social services coordinator in January 2011. In that role,

Garcia aided clients under the supervision of Arlene Torres.

In late 2011, Garcia and her husband “left the Church” and

stopped attending the Salvation Army’s religious services,

but Garcia continued her work as social services coordinator.

Afterward, her relationship with Torres began to deteriorate.

Tensions reached new heights in July 2013, when a client

filed a lengthy complaint letter against Garcia, claiming that

she “refused to provide help to [the client’s] family.” After

Torres informed Garcia that a complaint had been lodged,

Garcia demanded to see it. Torres refused, claiming that the

complaint was confidential. Three days later, Garcia filed an

internal grievance of her own against Torres, claiming that

she “fe[lt] discriminated against and excluded and isolated”

9

We take judicial notice of the Salvation Army’s nonprofit status,

as reflected in the publicly available IRS determination letters at Docket

Entry No. 45. See Fed. R. Evid. 201(b); Anderson v. Holder, 673 F.3d

1089, 1094 n.1 (9th Cir. 2012) (“We may take judicial notice of records

and reports of administrative bodies.” (internal quotation marks

omitted)).

6 GARCIA V. SALVATION ARMY

at work ever since leaving the church. The specter of the

undisclosed client grievance continued to disturb Garcia.

She would go on to submit complaints to the EEOC and

Arizona state authorities for religious discrimination and

retaliation.

Following a lengthy period of medical leave due to

fibromyalgia, the Salvation Army fired Garcia after she

failed to report to work despite being cleared by her doctor.

Garcia then filed a second complaint with the EEOC and

state authorities alleging that, by declining to disclose the

client complaint, the Salvation Army failed to accommodate

her disability.

Garcia’s EEOC charges were dismissed, and right-to-sue

letters issued. Garcia subsequently brought two lawsuits

against the Salvation Army: one under Title VII of the Civil

Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e, et seq.,

and another under the Americans with Disabilities Act

(ADA), 42 U.S.C. § 12112, et seq., which were

consolidated. In sum, Garcia alleged that the Salvation Army

subjected her to a hostile work environment because she

stopped attending religious services and retaliated against

her for filing an internal grievance complaining of religion-

based mistreatment. The resulting stress precipitated health

problems that the Salvation Army failed to accommodate.

The district judge (Campbell, J.) granted summary

judgment to the Salvation Army, holding that Title VII’s

religious organization exemption (ROE) protects the

Salvation Army from suit, even if it failed to timely assert

the defense. Garcia v. Salvation Army, 2016 WL 4732845,

at *4 (D. Ariz. Sept. 12, 2016). He reasoned that the ROE is

GARCIA V. SALVATION ARMY 7

jurisdictional—a matter of courts’ Article III power to hear

cases and controversies—and cannot be forfeited. Id. The

district judge also dismissed Garcia’s ADA claims on the

merits. Id. at *5–6.

Garcia appeals, raising two legal questions regarding the

application and scope of the ROE. First, whether the ROE is

jurisdictional, depriving federal courts of subject matter

jurisdiction when invoked. And second, whether the ROE

extends beyond hiring and firing decisions to hostile work

environment and retaliation claims. She also challenges the

district judge’s dismissal of her ADA claims (to which the

ROE does not apply). We first address the application of the

ROE before turning to the merits of the ADA claim.

DISCUSSION

Title VII Claims

A. The ROE Applies to the Salvation Army

The ROE provides that Title VII’s protections against

discrimination

shall not apply to an employer with respect

to . . . a religious corporation, association,

educational institution, or society with

respect to the employment of individuals of a

particular religion to perform work connected

with the carrying on by such corporation,

association, educational institution, or

society of its activities.

8 GARCIA V. SALVATION ARMY

42 U.S.C. § 2000e-1(a). The entity seeking the benefit of the

statute bears the burden of proving it is exempt. EEOC v.

Kamehameha Schs./Bishop Estate, 990 F.2d 458, 460 (9th

Cir. 1993).

In applying the ROE, we determine whether an

institution’s “purpose and character are primarily religious”

by weighing “[a]ll significant religious and secular

characteristics.” EEOC v. Townley Eng’g & Mfg. Co., 859

F.2d 610, 618 (9th Cir. 1988). It does not suffice that an

institution be “merely ‘affiliated’ with a religious

organization.” Id. at 617. Although we construe the ROE

narrowly, often the organization seeking the exemption is

“clearly” religious. Id. at 618.

This is such a case. See, e.g., Rev. Rul. 59-129, 1959-1

C.B. 58 (noting that the Salvation Army is a “church” under

the Internal Revenue Code); Schleicher v. Salvation Army,

518 F.3d 472, 478 (7th Cir. 2008) (“The Salvation Army,

which has existed in the United States since 1880, is

acknowledged to be a completely legitimate church . . . .”);

McClure v. Salvation Army, 460 F.2d 553, 554 (5th Cir.

1972) (“The Salvation Army is a church . . . .”). The

Salvation Army holds regular religious services. It offers

social services to customers regardless of their religion “to

reach new populations and spread the gospel.” Indeed, the

Salvation Army’s mission statement describes it as

an evangelical part of the universal Christian

church. Its message is based on the Bible. Its

ministry is motivated by the love of God. Its

mission is to preach the gospel of Jesus Christ

GARCIA V. SALVATION ARMY 9

and to meet human needs in His name

without discrimination. 10

The record establishes that, as a church, the Salvation Army

is “clearly” religious. See Townley, 859 F.2d at 618 (“[T]he

central function of [the ROE] has been to exempt churches,

synagogues, and the like, and organizations closely affiliated

with those entities.”). Accord Lown v. Salvation Army, Inc.,

393 F. Supp. 2d 223, 246–54 (S.D.N.Y. 2005) (applying

ROE to the Salvation Army); Clark v. Salvation Army, LLC,

2008 WL 11375384, at *1–2 (N.D. Ala. June 16, 2008)

(same).

Garcia argues that the Salvation Army does not qualify

for the ROE because it does not satisfy the fourth factor of a

four-part test discussed in Spencer v. World Vision, Inc., 633

F.3d 723, 724 (9th Cir. 2011) (per curiam), which asks

whether an entity “engage[s] primarily or substantially in the

exchange of goods or services for money beyond nominal

amounts.” Garcia contends this factor is not satisfied

because the Salvation Army generates a large-dollar amount

of sales revenue, even though that amount constitutes a small

portion (fifteen percent) of its total income. Moreover, in

2012, 82 cents of every dollar spent by the Salvation Army

went toward its program services. These considerations

aside, the concurring opinions of Judges O’Scannlain and

Kleinfeld, who wrote separately on how to evaluate the

fourth Spencer factor, support the Salvation Army’s

10

The Salvation Army’s mission statement is consistent with the

Supreme Court’s various articulations of what constitutes a “religion.”

See generally Note, Ari J. Diaconis, The Religion of Alcoholics

Anonymous (AA): Applying the Clergy Privilege to Certain AA

Communications, 99 Cornell L. Rev. 1185, 1213–17 (2014).

10 GARCIA V. SALVATION ARMY

entitlement to ROE protection. Under Judge O’Scannlain’s

approach, the ROE applies if the first three factors identified

in the per curiam opinion are satisfied and the organization

is a nonprofit. Spencer, 633 F.3d at 734 (O’Scannlain, J.,

concurring). The Salvation Army easily satisfies that test.

While Judge Kleinfeld would alternatively ask how the

organization charges for its services, he cites the Salvation

Army as a group that satisfies this criterion because it “gives

its homeless shelter and soup kitchen services away, or

charges nominal fees.” Id. at 747 (Kleinfeld, J., concurring).

B. The ROE Reaches Claims for Retaliation and Hostile

Work Environment

Even assuming the ROE applies to the Salvation Army,

Garcia argues that it does not reach her claims for retaliation

and hostile work environment. In her view, the ROE applies

only to hiring and firing decisions. Although we have not

addressed this question, other courts have held that the ROE

extends to both retaliation and hostile work environment

claims. See, e.g., Kennedy v. St. Joseph’s Ministries, Inc.,

657 F.3d 189, 192–94 (4th Cir. 2011); Saeemodarae v.

Mercy Health Servs., 456 F. Supp. 2d 1021, 1040–41 (N.D.

Iowa 2006); Lown, 393 F. Supp. 2d at 254; Hopkins v.

Women’s Div., Gen. Bd. of Glob. Ministries, 238 F. Supp. 2d

174, 180 (D.D.C. 2002); Aguillard v. La. Coll., 341 F. Supp.

3d 642, 647–48, 652 (W.D. La. 2018); Clark, 2008 WL

11375384, at *1. We agree.

First, the ROE’s text reaches beyond hiring and firing.

Congress “painted with a broader brush, exempting religious

organizations from the entire subchapter of Title VII with

respect to the employment of persons of a particular

GARCIA V. SALVATION ARMY 11

religion.” Kennedy, 657 F.3d at 194 (internal quotation

marks omitted) (emphasis added). The “entire subchapter”

of Title VII includes protections against retaliation and

discriminatory harassment amounting to a hostile work

environment. 11 See 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a).

And “employment” encompasses “the breadth of the

relationship between the employer and employee,” not just

hiring and firing. Kennedy, 657 F.3d at 193 (deriving term’s

definition from settled common-law meaning); see

Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323–24

(1992) (setting out common-law factors for evaluating an

employment relationship, including all aspects of

employer’s control over employee’s actions); cf. 20 C.F.R.

§ 404.1007(a) (“In general, you are a common-law

employee if the person you work for may tell you what to do

and how, when, and where to do it.”).

Limiting “employment” to hiring and firing decisions is

also inconsistent with the term’s use throughout Title VII.

For example, Section 2000e-2(a)(1) defines “unlawful

11

Garcia relies on EEOC v. Pacific Press Publishing Association,

676 F.2d 1272 (9th Cir. 1982), abrogated on other grounds as

recognized by Am. Friends Serv. Comm. Corp. v. Thornburg, 951 F.2d

957, 960 (9th Cir. 1991), for the proposition that Congress did not intend

the ROE to cover retaliation claims. Pacific Press, however, dealt with

sex-based Title VII claims against a religious publisher. Id. at 1274. The

plaintiff there claimed that her employer paid her less than her male

coworkers and retaliated against her when she filed charges. Id. The

employer sought to avoid liability on the grounds that the employee’s act

of filing a lawsuit violated its religious tenets. See id. at 1275. There, we

held that religious employers facing sex-, race-, and national origin-

based claims are not immune from liability for “retaliatory actions

against employees who exercise their rights under the statute.” See id. at

1276. We did not hold that religion-based retaliation claims are beyond

the reach of the ROE. Id.

12 GARCIA V. SALVATION ARMY

employment practice” as “to fail or refuse to hire or

discharge any individual, or otherwise to discriminate

against any individual with respect to his compensation,

terms, conditions, or privileges of employment.” There,

“‘employment’ . . . encompasses more than hiring or firing;

if the term were so limited, the second clause would be

superfluous.” Kennedy, 657 F.3d at 193. We agree that

“‘[e]mployment,’ as used throughout Title VII, simply

covers a much broader understanding than mere hiring and

firing.” Id. Indeed, Garcia conceded at oral argument that a

protected organization may lawfully demote an employee

based on religious preference. Accepting as much upends

her theory that the ROE covers only hiring-and-firing

decisions. 12

In a final effort to avoid the ROE’s reach, Garcia

maintains that she has not pleaded a cause of action labeled

“religious discrimination.” Even so, the complaint centers

around religious discrimination. Specifically, the first

sentence of Count 1 (retaliation) alleges that the Salvation

Army subjected Garcia to “discrimination based on

religion.” The complaint then goes on to specify alleged

12

Garcia also notes that the 2000 edition of the EEOC Compliance

Manual suggests that the ROE “only applies to hiring and discharge.”

U.S. Equal Emp’t Opportunity Comm’n, Compliance Manual § 2-

III(B)(4)(b)(i) (issued May 12, 2000) (hereinafter “EEOC Compliance

Manual”)). However, the foregoing analysis demonstrates that there is

no statutory ambiguity for agency guidance to resolve. See Chevron,

U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984)

(“If the intent of Congress is clear, that is the end of the matter . . . .”). In

any event, “this interpretation, which is viewed under Skidmore

deference, contains no attendant rationale, lacks the power to persuade,

and does not warrant deference.” Kennedy, 657 F.3d at 194 n.9.

GARCIA V. SALVATION ARMY 13

incidents of mistreatment and concludes that they all

occurred “after [Garcia] engaged in protected activity by

filing an internal grievance from what [she] believe[s] was

discrimination based on religion.” 13 Count 2 (hostile work

environment) simply repleads all the allegations in Count 1.

It is true, as Garcia notes, that Title VII treats workplace

discrimination and retaliation claims in separate provisions.

See 42 U.S.C. §§ 2000e-2(a), 2000e-3(a). Yet both types of

claims require a nexus to discrimination. See id. Because the

ROE permits religious organizations to discriminate based

on religion, retaliation claims based on religious

discrimination fail against protected organizations because

the practice “opposed” is not “unlawful.” See id. § 2000e-

3(a). Likewise, hostile work environment claims must

involve status-based harassment, id. § 2000e-2(a)(1);

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 63–64

(1986), and fail against protected organizations where the

alleged harassment is based on religion.

C. The ROE Bars Garcia’s Claims

The Salvation Army failed to raise the ROE as an

affirmative defense in its responsive pleading, which would

normally result in forfeiture. 14 See Fed. R. Civ. P. 12(h)(1)–

13

Indeed, Garcia’s internal grievance took issue with her treatment

“ever since [she and her husband] left the church.” And Garcia’s EEOC

charge—for which she checked the form’s “religious discrimination”

and “retaliation” boxes—states, “Ever[] since I left the Church my

immediate supervisor . . . has been subjecting me to disparate treatment.”

14

“[F]orfeiture is the failure to make the timely assertion of a right[;]

waiver is the intentional relinquishment or abandonment of a known

14 GARCIA V. SALVATION ARMY

(2). The district judge, however, held that the ROE is

jurisdictional, and as such, the defense cannot be

relinquished. See Fed. R. Civ. P. 12(h)(3) (“If the court

determines at any time that it lacks subject-matter

jurisdiction, the court must dismiss the action.” (emphasis

added)).

1. The ROE is Nonjurisdictional and Subject to

Forfeiture

In Arbaugh v. Y & H Corp., 546 U.S. 500, 516 (2006),

the Supreme Court established the “bright line” rule that

“when Congress does not rank a statutory limitation on

coverage as jurisdictional, courts should treat the restriction

as nonjurisdictional in character.” Three factors guide our

analysis. See Leeson v. Transamerica Disability Income

Plan, 671 F.3d 969, 976–77 (9th Cir. 2012). First is whether

the provision is “clearly labeled jurisdictional.” Id. at 976

(quotation marks omitted). Second is whether the provision

is “located in a jurisdiction-granting provision.” Id. at 976–

77. Third is whether some “other reasons necessitate[] that

the provision be construed as jurisdictional.” Id. at 977.

The ROE is not labeled jurisdictional. See 42 U.S.C.

§ 2000e-1(a). It does not use the term “jurisdiction” nor

speak in jurisdictional terms about the power of United

States courts to hear cases under Title VII. Compare id. with

28 U.S.C. §§ 1345, 1348, 1350. Rather, it appears in a

separate provision from that establishing federal courts’

jurisdiction over Title VII claims, which militates against

right.” Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 17

n.1 (2017) (quoting United States v. Olano, 507 U.S. 725, 733 (1993)).

Thus, the case before us concerns a procedural forfeiture.

GARCIA V. SALVATION ARMY 15

classifying it as jurisdictional. See 42 U.S.C. § 2000e-5(f)(3)

(conferring jurisdiction over Title VII claims to federal

district courts). Put otherwise, the ROE limits entitlement to

relief in a narrow class of cases, not “the authority of federal

courts to adjudicate claims under [Title VII].” Leeson, 671

F.3d at 978. The district judge erred by ranking the ROE

jurisdictional where Congress did not. See Arbaugh, 546

U.S. at 516.

The Salvation Army maintains that a claim cannot

possibly arise under Title VII where Congress has mandated

Title VII “shall not apply.” But that is precisely the

consequence of Arbaugh. Title VII imposes no liability on

employers with fewer than 15 employees. See 42 U.S.C.

§ 2000e(b). Yet the defendant in Arbaugh—an employer

with fewer than 15 employees—forfeited this argument by

failing to raise it until after trial. Arbaugh, 546 U.S. at 503–

04, 510, 516. The employer was held liable, even though

Congress did not intend Title VII to reach it. Id. at 516. Such

is the consequence of failing to raise a nonjurisdictional

defense. See id. at 510–11.

Our decision in United States v. Hui Hsiung, 778 F.3d

738 (9th Cir. 2015), provides a useful analog. There, we held

that the Foreign Trade Antitrust Improvements Act

(FTAIA), 15 U.S.C. § 6a, which limits conduct covered by

the Sherman Act, is nonjurisdictional. Hui Hsiung, 778 F.3d

at 752–53. Section 4 of the Sherman Act confers upon

federal district courts jurisdiction “to prevent and restrain

violations of sections 1 to 7 of this title.” 15 U.S.C. § 4. The

FTAIA, like the ROE, provides that “[s]ections 1 to 7 of this

title shall not apply,” unless certain conditions are satisfied.

Id. § 6a (emphasis added). Nevertheless, we held that the

16 GARCIA V. SALVATION ARMY

impact of the FTAIA on Sherman Act claims “is a merits

question, not a jurisdictional one.” Hui Hsiung, 778 F.3d at

752. As the Supreme Court has explained, “to ask what

conduct [a statute] reaches is to ask what conduct [the

statute] prohibits, which is a merits question.” Morrison v.

Nat’l Austl. Bank Ltd., 561 U.S. 247, 254 (2010). The ROE,

like the FTAIA, “removes conduct from [Title VII’s] reach,”

bearing on the question of “what conduct [Title VII]

prohibits,” not the power of courts to hear a case. Hui

Hsiung, 778 F.3d at 752 (internal quotation marks and

alterations omitted).

Indeed, the Seventh Circuit has held that Title VII’s

domestic-work requirement, embodied in Section 2000e-

1(a) alongside the ROE, is nonjurisdictional, as it “appears

outside of the statute’s jurisdictional provision” and “[t]here

is no other reason to believe that Congress intended to ‘rank’

the restrictions as jurisdictional.” Rabe v. United Air Lines,

Inc., 636 F.3d 866, 869 (7th Cir. 2011); see also Maguire v.

Marquette Univ., 814 F.2d 1213, 1216 (7th Cir. 1987)

(application of 42 U.S.C. § 2000e-2(e)(1), permitting

educational institutions “to hire and employ employees of a

particular religion” under certain circumstances, is not a

question of subject matter jurisdiction). And the only court

to expressly address whether the ROE itself is jurisdictional

found that it is not. See Smith v. Angel Food Ministries, Inc.,

2008 WL 5115037, at *4 (M.D. Ga. Dec. 4, 2008), on

reconsideration 611 F. Supp. 2d 1346 (M.D. Ga. 2009).

We recognize that a number of courts have suggested

that the ROE can never be waived or forfeited. See, e.g., Hall

v. Baptist Mem’l Health Care Corp., 215 F.3d 618, 625 (6th

Cir. 2000); Ark Encounter, LLC v. Parkinson, 152 F. Supp.

GARCIA V. SALVATION ARMY 17

3d 880, 915 n.25 (E.D. Ky. 2016); Saeemodarae, 456 F.

Supp. 2d at 1038–39; Siegel v. Truett-McConnell Coll., Inc.,

13 F. Supp. 2d 1335, 1345 (N.D. Ga. 1994). These cases,

like the district court’s opinion below, can be traced to the

Third Circuit’s decision in Little v. Wuerl, 929 F.2d 944 (3d

Cir. 1991), where a Catholic school invoked the ROE after

declining to rehire a Protestant teacher. The teacher argued

that the school “waived” the ROE, because it knew she was

Protestant when it hired her. Id. at 951. Little held that the

ROE was not “a privilege or interest” that could be waived

but rather “a decision by Congress that the government

interest in eliminating religious discrimination by religious

organizations is outweighed by the rights of those

organizations to be free from government intervention,”

meaning that “no act by Little or the Parish could expand the

statute’s scope.” Id. Other courts subsequently concluded

that the ROE “cannot be waived by either party.” E.g., Hall,

215 F.3d at 625.

Little is inapposite because it concerned the validity of

an implied waiver defense based on an organization’s pre-

suit conduct—not a procedural forfeiture. See Little, 929

F.2d at 951. A statutory defense is not unrelinquishable per

se simply because it embodies Congress’s intent to limit a

class of claims. To the contrary, even where Congress has

mandated that a statute “shall not apply” under certain

circumstances, we have routinely applied forfeiture

principles. See, e.g., Magana v. Commonwealth of the

Northern Mariana Islands, 107 F.3d 1436, 1445 (9th Cir.

1997) (failure to plead FLSA exemption can result in

forfeiture); Brennan v. Valley Towing Co., Inc., 515 F.2d

100, 104 (9th Cir. 1975) (same). See generally 5 Charles

Alan Wright & Arthur R. Miller, Federal Practice and

18 GARCIA V. SALVATION ARMY

Procedure § 1271 (3d ed. 2004) (collecting cases). We see

no reason to treat the ROE differently.

2. Absent Prejudice, the ROE May Be First Raised

at Summary Judgment

Although statutory exemptions are not among the

affirmative defenses enumerated in Rule 8(c), see Fed. R.

Civ. P. 8(c), we have explained that they must be raised in a

party’s “initial responsive pleading.” See Magana, 107 F.3d

at 1445. Accordingly, the Salvation Army was required to

plead the ROE as an affirmative defense. Cf. Oden v.

Oktibbeha County, 246 F.3d 458, 466–67 (5th Cir. 2001)

(holding that Title VII’s personal-staff exception must be

pleaded as an affirmative defense). This makes sense given

that the defendant “bear[s] the burden of proving [it is

exempt],” Kamehameha, 990 F.2d at 460, and the facts

necessary to invoke the exemption are “outside of the

plaintiff’s prima facie case,” Wright & Miller, supra,

§ 1271.

The Salvation Army did not raise the ROE in its answer

but insists that it pleaded enough to put Garcia on notice.

First, it pleaded that Garcia failed to state a claim upon which

relief can be granted, a defense which may be raised up and

until the close of trial. Fed. R. Civ. P. 12(h)(2). But simply

stating that the plaintiff failed to state a claim is insufficient

to provide notice of a specific affirmative defense. See

Simmons v. Navajo County, 609 F.3d 1011, 1023 (9th Cir.

2010) (“The key to determining the sufficiency of pleading

an affirmative defense is whether it gives plaintiff fair notice

of the defense.” (quoting Wyshak v. City Nat’l Bank, 607

F.2d 824, 827 (9th Cir. 1979))), abrogated in part by Castro

GARCIA V. SALVATION ARMY 19

v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016) (en

banc). And independent of Rule 12(b)(6), Rule 8(c) requires

that “[i]n responding to a pleading, a party must

affirmatively state any avoidance or affirmative defense.”

Fed. R. Civ. P. 8(c).

The Salvation Army also pleaded “that any adverse

employment actions taken against plaintiff were taken for

lawful, legitimate, non-retaliatory, and non-discriminatory

reasons.” On its face, this defense does not refer to the ROE

but rather the standard for rebutting a prima facie claim of

discrimination on the merits. See Coghlan v. Am. Seafoods

Co. LLC, 413 F.3d 1090, 1094 (9th Cir. 2005). Thus, the

Salvation Army failed to timely raise the ROE.

Even so, “[i]n the absence of a showing of prejudice . . .

an affirmative defense may be raised for the first time at

summary judgment.” Camarillo v. McCarthy, 998 F.2d 638,

639 (9th Cir. 1993). There is no prejudice to a plaintiff where

an “affirmative defense would have been dispositive” if

asserted “when the action was filed.” Owens v. Kaiser

Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001).

Rather, a party must point to a “tangible way in which it was

prejudiced by the delay.” See Ledo Fin. Corp. v. Summers,

122 F.3d 825, 827 (9th Cir. 1997).

The only prejudice Garcia asserts is that she was denied

discovery to test the Salvation Army’s defense. But as a

former member of the Salvation Army’s congregation,

Garcia was intimately familiar with its religious focus and

mission. See, e.g., ER 133–34 (deposition excerpts

describing Garcia’s participation in religious services); ER

633 (Garcia’s opposition to motion for summary judgment

20 GARCIA V. SALVATION ARMY

indicating “[s]he believed she would be working in an

environment that was respectful, [c]haritable and

encouraging and above all Christ[-]like”). And the Salvation

Army’s status as a nonprofit corporation is public, along

with its yearly financial reports. Absent prejudice, the

Salvation Army permissibly invoked the ROE at summary

judgment, and it applies to foreclose Garcia’s Title VII

claims.

ADA Claim

The district court properly granted the Salvation Army

summary judgment on Garcia’s ADA claim. We begin by

briefly recounting the underlying circumstances. Following

a period of leave under the Family and Medical Leave Act

of 1993 (“FMLA”) from October to December 2013, Garcia

sought additional personal leave, explaining that she “ha[d]

been advised not to return to a stressful working

environment for health reasons.” The Salvation Army

responded by asking her to provide medical documentation

“outlining working restrictions and estimated date of return

to full duty.” Garcia complied, and her request was granted.

The Salvation Army repeatedly extended Garcia’s leave

through May 5, 2014.

On May 5, 2014, Garcia informed the Salvation Army

that her doctor had cleared her to return to work on May 26,

“without restrictions.” But Garcia said she would not return

to work because she was “not ready to go back into the exact

same working environment which [her] doctors ha[d]

advised against” and “[t]here seem[ed] to be a mental

block/barrier” regarding the customer complaint filed

against her in July 2013. She therefore requested the

GARCIA V. SALVATION ARMY 21

“accommodation” that “a copy or summary of [the client]

complaint . . . be made available to [her] before [she]

return[ed] to work.” The Salvation Army declined and

demanded medical evidence supporting her disability and

proposed accommodation.

This time, Garcia did not submit the requested medical

information. As a result, the Salvation Army made clear that

Garcia’s continued absence was not excused, “jeopardizing

[her] continued employment.” Even so, on June 17, 2014,

the Salvation Army provided a summary of the client

complaint but explained that Garcia would “need a doctor’s

note to allow us to assess your accommodation request and

your continued absence.” Garcia disputed the summary of

the complaint and reiterated her request for a copy. She did

not report to work. On July 10, 2014, the Salvation Army

terminated Garcia’s employment due to unexcused absence.

“The ADA prohibits discrimination ‘against a qualified

individual on the basis of disability in regard to . . . job

training[] and other terms, conditions, and privileges of

employment.’” EEOC v. UPS Supply Chain Sols., 620 F.3d

1103, 1110 (9th Cir. 2010) (quoting 42 U.S.C. § 12112(a)).

“[D]iscrimination includes an employer’s not making

reasonable accommodations to the known physical or mental

limitations of an otherwise qualified . . . employee, unless

[the employer] can demonstrate that the accommodation

would impose an undue hardship on the operation of [its]

business.” U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 396

(2002) (emphasis and quotation marks omitted). An

“interactive process” is required upon a request for an

accommodation. UPS Supply Chain, 620 F.3d at 1110

22 GARCIA V. SALVATION ARMY

(quoting Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089

(9th Cir. 2002)).

“To be entitled to the interactive process that leads to a

reasonable accommodation, an employee must have a

‘disability’ within the meaning of the ADA.” Becerril v.

Pima Cty. Assessor’s Office, 587 F.3d 1162, 1164 (9th Cir.

2009) (per curiam). A doctor’s release to work without

restrictions supports a finding that a person no longer suffers

from a “disability.” See, e.g., Rivera v. FedEx Corp., 2013

WL 6672401, at *4 (N.D. Cal. Dec. 18, 2013) (plaintiff

failed to demonstrate disability where cleared by doctor

without restrictions); cf. Stevenson v. Abbott Labs., 639 F.

App’x 473, 474 (9th Cir. 2016) (“[A]fter Plaintiff was

released to work, she was not disabled.”). Moreover, an

employer “do[es] not have a duty under the ADA . . . to

engage in further interactive processes . . . in the absence of”

requested medical evidence. See Allen v. Pac. Bell, 348 F.3d

1113, 1115 (9th Cir. 2003) (per curiam).

First, Garcia claims that the Salvation Army failed to

interact with her in good faith to arrive at a reasonable

accommodation in the months leading up to May 26, 2014,

the day Garcia was slated to return to work. The record does

not support this assertion. To the contrary, each step of the

way, the Salvation Army extended Garcia’s leave. This was

the only accommodation requested by Garcia and

documented by her physician. At no time before her doctor’s

unconditional release did Garcia indicate that she desired to

return to work on a modified basis. Accordingly, no

reasonable jury could find that the Salvation Army failed to

engage in an interactive process with Garcia from the time

of her leave up and until the time she was cleared for work.

GARCIA V. SALVATION ARMY 23

Garcia next alleges that the Salvation Army refused to

negotiate in good faith after Garcia insisted on receiving a

copy of the secret customer complaint rather than a

summary. This request, however, only came after Garcia

was cleared for work “without restrictions.” Garcia cannot

show that she suffered from a disability at that time, and she

failed to provide supporting medical documentation despite

multiple requests. The Salvation Army was not required to

continue an interactive process in the absence of medical

evidence. See Allen, 348 F.3d at 1115.

Moreover, even after the Salvation Army provided a

summary of the client complaint as requested, Garcia

protested and demanded to see the original complaint. This

only underscores that Garcia’s requested “accommodation”

is not cognizable under the ADA. A “reasonable

accommodation” includes “[m]odifications or adjustments

to the work environment, or to the manner or circumstances

under which the position held or desired is customarily

performed, that enable an individual with a disability who is

qualified to perform the essential functions of that position.”

29 C.F.R. § 1630.2(o)(1)(ii). Obtaining a copy of a year-old

client complaint is unrelated to the “essential functions” of

Garcia’s former position. See Gonzagowski v. Widnall, 115

F.3d 744, 747–48 (10th Cir. 1997) (“While specific stressors

in a work environment may in some cases be legitimate

targets of accommodation, it is unreasonable to require an

employer to create a work environment free of stress and

criticism.”).

Finally, Garcia argues that the Salvation Army failed to

interact in good faith because it had decided to eliminate her

position rather than negotiate with her. This allegation,

24 GARCIA V. SALVATION ARMY

however, is derived from a draft letter to Garcia dated May

27, 2014, which was never used or sent. To the contrary, the

Salvation Army continued Garcia’s leave until July 10,

2014, when she was finally terminated. Regardless, as

discussed, the Salvation Army was under no obligation to

engage in an interactive process in the absence of a

disability. For these reasons, Garcia fails to make out a claim

under the ADA.

CONCLUSION

We hold that the ROE is nonjurisdictional and subject to

procedural forfeiture. Absent prejudice resulting from the

Salvation Army’s failure to timely raise the defense,

however, the ROE forecloses Garcia’s Title VII claims for

retaliation and hostile work environment. Garcia’s ADA

claim fails on the merits. The judgment of the district court

is therefore AFFIRMED.