NOT FOR PUBLICATION FILED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