FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALICE MENDOZA, an individual,

Plaintiff-Appellant,

v.

THE ROMAN CATHOLIC ARCHBISHOP

OF LOS ANGELES, a corporation sole,

on behalf of and for the benefit of

Nativity Church, without prejudice

as to Canon Law Erroneously Sued

as Archdiocese of Los Angeles,

Defendant-Appellee.

No. 14-55651

D.C. No.

2:13-cv-02543-

GW-MAN

ORDER AND

OPINION

Appeal from the United States District Court

for the Central District of California

George H. Wu, District Judge, Presiding

Submitted April 6, 2016*

Pasadena, California

Filed June 7, 2016

Before: A. Wallace Tashima, Barry G. Silverman,

and Susan P. Graber, Circuit Judges.

* The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).
2 MENDOZA V. RCALA

Order;

Per Curiam Opinion

SUMMARY**

Employment Discrimination

The panel withdrew its opinion filed April 14, 2016, and

filed a new opinion affirming the district court’s summary

judgment in favor of defendant in plaintiff’s action alleging

that defendant violated the Americans with Disabilities Act

when it failed to return her to a full time position following

her medical leave.

The panel affirmed the district court’s summary judgment

on claims of disability discrimination and disparate treatment. 

The panel stated that the Ninth Circuit’s ADA cases,

requiring a plaintiff who alleges disparate treatment to show

either that a discriminatory animus is the sole reason for the

challenged action or that discrimination is one of two or more

reasons for the challenged decision, at least one of which may

be legitimate, remain good law following EEOC v.

Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015), a

Title VII case. The panel also affirmed the district court’s

summary judgment on plaintiff’s reasonable accommodation

claim.

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

been prepared by court staff for the convenience of the reader.
MENDOZA V. RCALA 3

COUNSEL

William W. Bloch, LA Superlawyers, Los Angeles,

California, for Plaintiff-Appellant.

Daniel R. Sullivan, Carrie A. Stringham, Sullivan, Ballog &

Williams, LLP, Santa Ana, California, for DefendantAppellee.

ORDER

The per curiam opinion filed April 14, 2016, 2016 WL

1459214, is WITHDRAWN, and a new opinion is to be filed

contemporaneously with this order.

OPINION

PER CURIAM:

Plaintiff Alice Mendoza appeals the district court’s entry

of summary judgment in favor of defendant in Mendoza’s

action alleging that the defendant violated the Americans with

Disabilities Act of 1990 (“ADA”) when it failed to return her

to a full time position following Mendoza’s medical leave. 

We have jurisdiction under 28 U.S.C. § 1291. We review de

novo, Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080,

1087 (9th Cir. 2001), and we affirm.

Mendoza worked full-time as a bookkeeper for a small

parish church. She took sick leave for ten months, during

which the pastor of the church took over the bookkeeping
4 MENDOZA V. RCALA

duties himself and determined that the job could be done by

a part-time bookkeeper. When Mendoza returned from sick

leave, there no longer was a full-time bookkeeping position,

so the pastor offered her a part-time job, which Mendoza

declined. Because the parties do not contest the issue on

appeal, we assume without deciding that Mendoza is a

qualified individual with a “disability” to bring her claims

within the coverage of the ADA, see 42 U.S.C. § 12112(a), in

spite of the fact that her doctor cleared her to return to work

with “no limitations.”

The district court properly granted summary judgment to

the Archbishop on Mendoza’s disability discrimination and

disparate treatment claims because Mendoza failed to raise a

triable dispute as to whether the Archbishop’s legitimate,

nondiscriminatory reason for not returning Mendoza to fulltime work was pretextual. See id. at 1093–94 (holding that,

under the ADA, if an employee establishes a prima facie case

and the employer provides a nondiscriminatory reason for its

adverse action, the employee must raise a triable issue as to

pretext); see also Pac. Shores Props., LLC v. City of Newport

Beach, 730 F.3d 1142, 1158 (9th Cir. 2013) (holding that a

plaintiff who alleges disparate treatment may demonstrate

that discriminatory reason more likely than not motivated

defendant).

The Supreme Court’s recent decision in EEOC v.

Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028 (2015),

does not affect our analysis. In Abercrombie & Fitch, the

Supreme Court held that, in a Title VII action alleging

disparate treatment, the plaintiff need only show that the need

for a religious accommodation was a factor motivating the

employer’s adverse decision. Id. at 2032. Knowledge is not

a requirement of a Title VII claim. Id. at 2032–33. “An
MENDOZA V. RCALA 5

employer may not make an applicant’s religious practice,

confirmed or otherwise, a factor in employment decisions

. . . . If the [job] applicant actually requires an

accommodation of that religious practice, and the employer’s

desire to avoid the prospective accommodation is a

motivating factor in his decision, the employer violates Title

VII.” Id. at 2033.

Mendoza’s claims are distinguishable, because she

alleged, not Title VII violations, but violations of the ADA,

which defines discrimination “to include an employer’s

failure to make ‘reasonable accommodation[] to the known

physical or mental limitations.’” Id. (quoting 42 U.S.C.

§ 12112(b)(5)(A)). We take the opportunity to reiterate that

our ADA cases, which allow a plaintiff who alleges disparate

treatment to prove her case by demonstrating either that “a

discriminatory animus is the sole reason for the challenged

action” or that “discrimination is one of two or more reasons

for the challenged decision, at least one of which may be

legitimate,” remain good law. See Head v. Glacier Nw, Inc.,

413 F.3d 1053, 1066 (9th Cir. 2005).1

The district court properly granted summary judgment to

the Archbishop on Mendoza’s reasonable accommodation

claim because Mendoza failed to establish that a full-time

position was available. See Dark v. Curry Cty., 451 F.3d

1078, 1088 (9th Cir. 2006) (holding that the plaintiff has the

burden to show existence of reasonable accommodation that

1 We need not decide in this case whether Supreme Court cases decided

subsequent to Head have eroded Head’s vitality. See Bukiri v. Lynch,

No. 15-56524, 2016 WL 1567030, at *1 n.1 (9th Cir. Apr. 19, 2016)

(unpublished decision) (collecting cases from other circuits and declining

to address the issue as “not outcome determinative”).
6 MENDOZA V. RCALA

would have enabled her to perform the essential functions of

an available job).

We need not and do not decide in the first instance

whether the Archbishop or the parish church was Mendoza’s

employer, because it is not necessary for the purpose of

deciding this appeal.

AFFIRMED.