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Garcia v. Salvation Army

United States Court of Appeals, Ninth Circuit

March 18, 2019

Ann Garcia, Plaintiff-Appellant,
Salvation Army, Defendant-Appellee.

          Argued and Submitted November 13, 2018 San Francisco, California

          Appeal from the United States District Court for the District of Arizona D.C. No. 2:14-cv-02225-DGC David G. Campbell, District Judge, Presiding

          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.

          Before: Mary M. Schroeder and Paul J. Watford, Circuit Judges, and Edward R. Korman, [*] District Judge.


         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.


          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- adopted the military-style hierarchy of the British Army[3]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 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" 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 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.


         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, ...

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