NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 27 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
AARON SMITH, No. 25-1984 D.C. No. Plaintiff - Appellant, 2:21-cv-01012-DJH v. MEMORANDUM* CITY OF MESA, a political subdivision of the State of Arizona,
Defendant - Appellee.
Appeal from the United States District Court for the District of Arizona Diane J. Humetewa, District Judge, Presiding
Submitted February 2, 2026** Phoenix, Arizona
Before: CALLAHAN, OWENS, and FRIEDLAND, Circuit Judges.
Plaintiff Aaron Smith (“Smith”), a Jehovah’s Witness, filed this Title VII
lawsuit against Defendant City of Mesa (“City”) after his supervisor denied his
request for 1.5 days of leave to attend a religious event he believed was mandatory.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Smith brought claims for disparate treatment, failure to accommodate, constructive
discharge, and retaliation. The district court denied summary judgment for Smith
on his failure to accommodate claim and granted summary judgment for the City
on Smith’s claims of disparate treatment, constructive discharge, and retaliation. A
jury rendered judgment for the City on Smith’s remaining failure to accommodate
claim. Smith now appeals the district court’s (1) summary judgment order, (2) jury
instructions, and (3) exclusion of Smith’s proffered “comparator” evidence from
trial. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
We review de novo a district court’s decision to grant or deny summary
judgment. Branch Banking & Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751, 759 (9th
Cir. 2017). “We review de novo whether a district court’s jury instructions
accurately state the law, and we review for abuse of discretion a district court’s
formulation of jury instructions.” Coston v. Nangalama, 13 F.4th 729, 732
(9th Cir. 2021) (citations omitted). “We review a district court’s decision to admit
or exclude evidence for abuse of discretion.” Unicolors, Inc. v. H&M Hennes &
Mauritz, L.P., 52 F.4th 1054, 1063 (9th Cir. 2022).
1. As a threshold matter, the City argues that this appeal fails because the
jury verdict was supported by substantial evidence that the City offered Smith a
reasonable accommodation, which he failed to utilize. We apply the substantial
evidence standard when a party challenges a district court’s denial of a motion for
2 25-1984 judgment as a matter of law. See Castro v. County of Los Angeles, 833 F.3d 1060,
1066 (9th Cir. 2016) (en banc).
The City’s invocation of the substantial evidence standard misunderstands
Smith’s appeal. Smith’s appeal rests on three general contentions: that the district
court precluded crucial evidence at trial, that the jury instructions misstated the
law, and that this case should never have proceeded to a jury. Smith does not
appeal the denial of a motion for judgment as a matter of law under Federal Rule
of Civil Procedure 50 or otherwise argue that the evidence presented to the jury
was insufficient. The substantial evidence standard therefore cannot resolve this
appeal.
2. Smith argues that the district court erred by granting summary judgment
for the City on his constructive discharge claim. “A constructive discharge occurs
when a person quits his job under circumstances in which a reasonable person
would feel that the conditions of employment have become intolerable.” Lawson
v. Washington, 296 F.3d 799, 805 (9th Cir. 2002) (italics omitted) (quoting Draper
v. Coeur Rochester, Inc., 147 F.3d 1104, 1110 (9th Cir. 1998)). But a plaintiff
cannot prevail on a constructive discharge claim when he voluntarily resigns in
anticipation of hypothetical discipline for a planned future violation of an
employer’s established rules or policies for religious reasons. See id. at 802–03,
3 25-1984 805 (“The mere fact that the [Employer’s] Manual declares that rule violations
may result in discipline or termination is not enough.”).
The district court did not err in granting summary judgment for the City on
Smith’s constructive discharge claim. Smith voluntarily resigned from his
position. He claims that he did so because, had he missed work to attend his
religious event, he would have been in violation of the City’s unexcused absence
policy, which stated that, on an employee’s third unexcused absence, the employee
“shall receive, at a minimum, a suspension of one (1) day, or discipline up to and
including termination with the approval of the Human Resources Director.” Under
our precedent, the City was entitled to judgment as a matter of law. See id.
3. Smith asserts that “[s]ummary judgment should have been granted for
[him]” and that the district court “erred by finding an issue of fact . . . as to adverse
action.” He contends that adverse action is not required as a separate element of a
reasonable accommodation claim. However, in moving for summary judgment,
Smith did not introduce that argument until his reply brief. Therefore, the district
court did not err by declining to address it. See Zamani v. Carnes, 491 F.3d 990,
997 (9th Cir. 2007) (noting that a district court does not err in disregarding an
argument raised for the first time on reply).
Even were we to consider Smith’s argument, it fails under our precedent,
which has stated that adverse action is a separate element of a reasonable
4 25-1984 accommodation case. See, e.g., Lawson, 296 F.3d at 803–06 (deciding employee
did not satisfy the third element when he voluntarily resigned, even though the
employer denied accommodation).
4. Smith additionally argues that the district court erred on summary
judgment as to his failure to accommodate claim by improperly holding that a
“jury should be allowed to consider whether the mere existence of a generous paid
time off policy was an adequate accommodation already given to an employee like
Mr. Smith who had no more paid leave available and sought unpaid time.” But
that is not what the district court held. The district court determined that the mere
existence of a neutral scheduling system does not alone relieve the City of the duty
to attempt to reasonably accommodate a religious practice. For this reason,
Smith’s argument fails before it begins. Smith’s argument also fails because the
district court’s denial of summary judgment (based on insufficiency of the
evidence) is not reviewable post-trial. See Dupree v. Younger, 598 U.S. 729, 731
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 27 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
AARON SMITH, No. 25-1984 D.C. No. Plaintiff - Appellant, 2:21-cv-01012-DJH v. MEMORANDUM* CITY OF MESA, a political subdivision of the State of Arizona,
Defendant - Appellee.
Appeal from the United States District Court for the District of Arizona Diane J. Humetewa, District Judge, Presiding
Submitted February 2, 2026** Phoenix, Arizona
Before: CALLAHAN, OWENS, and FRIEDLAND, Circuit Judges.
Plaintiff Aaron Smith (“Smith”), a Jehovah’s Witness, filed this Title VII
lawsuit against Defendant City of Mesa (“City”) after his supervisor denied his
request for 1.5 days of leave to attend a religious event he believed was mandatory.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Smith brought claims for disparate treatment, failure to accommodate, constructive
discharge, and retaliation. The district court denied summary judgment for Smith
on his failure to accommodate claim and granted summary judgment for the City
on Smith’s claims of disparate treatment, constructive discharge, and retaliation. A
jury rendered judgment for the City on Smith’s remaining failure to accommodate
claim. Smith now appeals the district court’s (1) summary judgment order, (2) jury
instructions, and (3) exclusion of Smith’s proffered “comparator” evidence from
trial. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
We review de novo a district court’s decision to grant or deny summary
judgment. Branch Banking & Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751, 759 (9th
Cir. 2017). “We review de novo whether a district court’s jury instructions
accurately state the law, and we review for abuse of discretion a district court’s
formulation of jury instructions.” Coston v. Nangalama, 13 F.4th 729, 732
(9th Cir. 2021) (citations omitted). “We review a district court’s decision to admit
or exclude evidence for abuse of discretion.” Unicolors, Inc. v. H&M Hennes &
Mauritz, L.P., 52 F.4th 1054, 1063 (9th Cir. 2022).
1. As a threshold matter, the City argues that this appeal fails because the
jury verdict was supported by substantial evidence that the City offered Smith a
reasonable accommodation, which he failed to utilize. We apply the substantial
evidence standard when a party challenges a district court’s denial of a motion for
2 25-1984 judgment as a matter of law. See Castro v. County of Los Angeles, 833 F.3d 1060,
1066 (9th Cir. 2016) (en banc).
The City’s invocation of the substantial evidence standard misunderstands
Smith’s appeal. Smith’s appeal rests on three general contentions: that the district
court precluded crucial evidence at trial, that the jury instructions misstated the
law, and that this case should never have proceeded to a jury. Smith does not
appeal the denial of a motion for judgment as a matter of law under Federal Rule
of Civil Procedure 50 or otherwise argue that the evidence presented to the jury
was insufficient. The substantial evidence standard therefore cannot resolve this
appeal.
2. Smith argues that the district court erred by granting summary judgment
for the City on his constructive discharge claim. “A constructive discharge occurs
when a person quits his job under circumstances in which a reasonable person
would feel that the conditions of employment have become intolerable.” Lawson
v. Washington, 296 F.3d 799, 805 (9th Cir. 2002) (italics omitted) (quoting Draper
v. Coeur Rochester, Inc., 147 F.3d 1104, 1110 (9th Cir. 1998)). But a plaintiff
cannot prevail on a constructive discharge claim when he voluntarily resigns in
anticipation of hypothetical discipline for a planned future violation of an
employer’s established rules or policies for religious reasons. See id. at 802–03,
3 25-1984 805 (“The mere fact that the [Employer’s] Manual declares that rule violations
may result in discipline or termination is not enough.”).
The district court did not err in granting summary judgment for the City on
Smith’s constructive discharge claim. Smith voluntarily resigned from his
position. He claims that he did so because, had he missed work to attend his
religious event, he would have been in violation of the City’s unexcused absence
policy, which stated that, on an employee’s third unexcused absence, the employee
“shall receive, at a minimum, a suspension of one (1) day, or discipline up to and
including termination with the approval of the Human Resources Director.” Under
our precedent, the City was entitled to judgment as a matter of law. See id.
3. Smith asserts that “[s]ummary judgment should have been granted for
[him]” and that the district court “erred by finding an issue of fact . . . as to adverse
action.” He contends that adverse action is not required as a separate element of a
reasonable accommodation claim. However, in moving for summary judgment,
Smith did not introduce that argument until his reply brief. Therefore, the district
court did not err by declining to address it. See Zamani v. Carnes, 491 F.3d 990,
997 (9th Cir. 2007) (noting that a district court does not err in disregarding an
argument raised for the first time on reply).
Even were we to consider Smith’s argument, it fails under our precedent,
which has stated that adverse action is a separate element of a reasonable
4 25-1984 accommodation case. See, e.g., Lawson, 296 F.3d at 803–06 (deciding employee
did not satisfy the third element when he voluntarily resigned, even though the
employer denied accommodation).
4. Smith additionally argues that the district court erred on summary
judgment as to his failure to accommodate claim by improperly holding that a
“jury should be allowed to consider whether the mere existence of a generous paid
time off policy was an adequate accommodation already given to an employee like
Mr. Smith who had no more paid leave available and sought unpaid time.” But
that is not what the district court held. The district court determined that the mere
existence of a neutral scheduling system does not alone relieve the City of the duty
to attempt to reasonably accommodate a religious practice. For this reason,
Smith’s argument fails before it begins. Smith’s argument also fails because the
district court’s denial of summary judgment (based on insufficiency of the
evidence) is not reviewable post-trial. See Dupree v. Younger, 598 U.S. 729, 731
(2023) (“[A]n order denying summary judgment on sufficiency-of-the-evidence
grounds is not reviewable on appeal after a trial.”) (citing Ortiz v. Jordan, 562 U.S.
180 (2011)).
5. Smith contends that the City’s generous leave policy cannot act as a
reasonable accommodation and therefore that “[t]he jury should have never
received a ‘reasonableness instruction’ when no accommodation was offered.”
5 25-1984 However, depending on a case’s specific facts, a neutral preexisting policy can
satisfy an employer’s obligation to reasonably accommodate. See Hudson v. W.
Airlines, Inc., 851 F.2d 261, 265–66 (9th Cir. 1988) (deciding that “rather than
focusing on” the neutral and preexisting collective bargaining agreement “in the
abstract,” the district court had properly applied the law to the specific facts and
determined that the preexisting agreement “provided the means through which [the
employee] could have eliminated her religious conflict” (citation omitted)).
Furthermore, the district court’s jury instructions properly reflected that an
employee’s failure to accommodate claim may be “undercut” by the employee’s
“own failures to avail [himself] of reasonable means to eliminate [a religious]
conflict.” See id. at 266–67 (“Title VII does not allow [an employee] to ignore [an
employer’s] reasonable accommodations and then demand further
accommodations when [he] subsequently develop[s] a conflict.” (emphasis
added)).
In this case, the City has consistently defended against Smith’s failure to
accommodate claim on the ground that it offered a generous leave policy, and that
Smith—who knew about his religious event months in advance—should have
saved some of his time off to use for the event. Under the City’s leave policy,
Smith, who worked for the City for less than a year, took over 300 hours of time
off (7.5 weeks), which included approximately 81 hours of paid vacation time, 24
6 25-1984 hours of paid discretionary time, 20 hours of unpaid leave, 100 hours of paid
holiday time, and 86 hours of sick time. The district court did not err by allowing
the jury to consider whether the City’s neutral and preexisting leave policy was a
reasonable accommodation, and whether Smith’s failure to use it “undercut” his
religious accommodation claim. See id.
6. Smith argues that the district court erred at trial by excluding proffered
evidence of other employees’ timecards, which he argued was relevant comparator
evidence showing that the City provided other employees with the accommodation
(unpaid leave) that it denied him. But to the extent that the excluded timecards
were relevant, they were of low probative value because Smith offered no insight
into the circumstances surrounding the City’s grant of unpaid leave to the other
employees. In excluding the timecards, the district court appropriately weighed
their low probative value against the risk that they would confuse the jury and lead
to mini trials about non-party employees. See Fed. R. Ev. 403. For these reasons,
the district court did not abuse its discretion in excluding the other employees’
timecards.
AFFIRMED.
7 25-1984