and Submitted November 13, 2018 San Francisco, California
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
Goedman (argued), Boies Schiller Flexner LLP, Washington,
D.C.; Kathleen Hartnett, Boies Schiller Flexner LLP, Palo
Alto, California; for Plaintiff-Appellant.
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.
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
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
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.
Salvation Army is an evangelical ministry founded in 1865 by
William Booth, a former Methodist minister.The Salvation
Army's religious tenets differed from traditional
Methodism in rejecting the importance of sacraments and
emphasizing strong central governance. To that end,
Booth-"General" of the Salvation Army- adopted the
military-style hierarchy of the British Armyunder which ranked
officers were the equivalent of ministers. In keeping with
Protestantism's nineteenth century "camp
revival," Booth took his ministry to the
streets and began establishing mission centers
catering to London's poor.
started as a single ministry in the East End of London spread
to the shores of the United States in 1880and now operates
in more than 80 countries through 16, 000 evangelical centers
and 3, 000 social welfare institutions
worldwide. 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. 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.
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.
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.
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.
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
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.
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.
The ROE Applies to the Salvation Army
provides that Title VII's protections against
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, ...