                    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.
