NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 18 2023
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
PRESTON LEE, No. 22-15288 Plaintiff-Appellant, D.C. No. 1:20-cv-00489-LEK-KJM v. L3HARRIS TECHNOLOGIES, INC.; MEMORANDUM* JOHN DOES, 1-10; JANE DOES, 1-10; DOE CORPORATIONS, 1-10; DOE PARTNERSHIPS, 1-10; DOE UNINCORPORATED ORGANIZATIONS 1-10, Defendants-Appellees.
Appeal from the United States District Court for the District of Hawaii Leslie E. Kobayashi, District Judge, Presiding Argued and Submitted February 14, 2023 Honolulu, Hawaii
Before: BEA, COLLINS, and LEE, Circuit Judges.
Preston Lee sued his employer, L3Harris Technologies, Inc. (“L3”), alleging
violations of Title I of the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12111, et seq.; a comparably worded Hawaii statute, see HAW. REV. STAT. § 378-
2; and the Hawaii Whistleblowers’ Protection Act (“HWPA”), see HAW. REV.
STAT. § 378-62. As relevant here, Lee alleged that his June 22, 2020 firing, which
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. was ostensibly over a November 6, 2019 confrontation with a coworker (Igne),
actually was due to discrimination against him on account of his Post-Traumatic
Stress Disorder (“PTSD”) and constituted retaliation against him for reporting
Igne’s alleged misconduct. The district court granted summary judgment to L3,
and Lee appealed. We have jurisdiction over Lee’s appeal under 28 U.S.C. § 1291.
Reviewing the district court’s order de novo, LaVine v. Blaine Sch. Dist., 257 F.3d
981, 987 (9th Cir. 2001), we affirm in part and reverse in part.
1. To determine whether Lee presented sufficient evidence to create a
triable issue of disability discrimination in employment under federal or Hawaii
law, we use the three-step burden-shifting framework of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Curley v. City of N. Las Vegas, 772 F.3d
629, 632 (9th Cir. 2014); Nozawa v. Operating Eng’rs Loc. Union No. 3, 418 P.3d
1187, 1198–99 (Haw. 2018). To carry the initial burden to establish a prima facie
case at step one of that framework, a plaintiff must present evidence that (1) he is
disabled; (2) he is qualified to hold his job if provided reasonable
accommodations; and (3) he suffered an adverse employment action because of his
disability. Braunling v. Countrywide Home Loans Inc., 220 F.3d 1154, 1156 (9th
Cir. 2000). L3 argues that Lee failed to satisfy his burden on the second and third
elements, but we disagree.
a. Based on the summary judgment record, a reasonable trier of fact could
2 conclude that Lee was qualified for his job. Lee supplied competent evidence that,
for nearly 26 years, he had been employed in various positions, without
performance issues, by U.S. Navy contractors (most recently, L3) at the Pacific
Missile Range Facility in Barking Sands on Kauai.
L3 argues that, under Mayo v. PCC Structurals, Inc., 795 F.3d 941 (9th Cir.
2015), “[a]n essential function of almost every job is the ability to appropriately
handle stress and interact with others,” and that a reasonable trier of fact would
have to conclude that Lee “could not perform” this essential function and was
therefore unqualified. Id. at 944. While Mayo upheld summary judgment for an
employer on this issue, it involved much more extreme facts. Id. at 945 (upholding
summary judgment based on uncontested evidence of Mayo’s “credible, detailed,
and unwavering plan to kill his supervisors”). We agree with the district court that
a reasonable trier of fact could find that the threatening language that Lee used
with reference to Igne in a conversation with a coworker did not constitute a
“serious and credible threat[] of violence.” Id. at 945 n.4. L3 has not pointed to
any other undisputed evidence that would require a rational trier of fact to find in
its favor on this issue.
We also reject L3’s argument that Lee was estopped from contesting this
issue based on his prior application for disability benefits from the Department of
Veterans Affairs (“VA”). See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795
3 (1999). There is no inherent inconsistency between a claim for VA benefits and
being “qualified” in the sense that a disability discrimination claim requires. See
Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950, 957 (9th Cir. 2013). Moreover,
nothing Lee stated in connection with his VA benefits application, such as his
statements about anger-related work conflicts and discipline, is irreconcilable with
his contention that he is qualified for his job within the meaning of the ADA.
b. Lee also presented sufficient evidence to create a triable issue as to
whether he was fired because of his disability. A trier of fact could reasonably
conclude that, after the November 2019 confrontation, the concerns leading L3 to
terminate Lee’s employment were based on his PTSD. As we recognized in Mayo,
“conduct resulting from a disability is considered to be part of the disability, rather
than a separate basis for termination.” 795 F.3d at 946 (citation omitted). A
rational trier of fact could conclude that Lee’s conduct during the November
incident resulted from his PTSD, and that this principle is therefore applicable
here. Although we held in Mayo that the scope of this principle is limited by the
rule that the individual must still be “qualified,” see id., we have already explained
why a reasonable trier of fact could find that limitation inapplicable here.
Moreover, on this record, a reasonable trier of fact could find that L3’s evaluation
of the November 2019 incident was dispositively affected by stereotypical thinking
about persons with PTSD. And because the decision to fire Lee was made in
4 January 2020, the temporal sequence of events is consistent with a rational
inference of causation. See Manatt v. Bank of Am., NA, 339 F.3d 792, 802 (9th
Cir. 2003).
c. Assuming that L3 has met its burden at step two of the burden-shifting
framework, we conclude that the evidence raised a genuine issue of material fact as
to whether L3’s asserted reasons for firing Lee were pretextual. L3 was aware of
Lee’s PTSD, and his PTSD was mentioned prominently in an internal
communication regarding whether to take disciplinary action against Lee after the
November 2019 incident. Given the conflicting inferences that could be drawn
from the evidence, we conclude that a reasonable trier of fact could find that L3’s
decision to terminate Lee based on the November incident was a pretext for
terminating him because of his PTSD.
2. The district court correctly granted summary judgment with respect to
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 18 2023
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
PRESTON LEE, No. 22-15288 Plaintiff-Appellant, D.C. No. 1:20-cv-00489-LEK-KJM v. L3HARRIS TECHNOLOGIES, INC.; MEMORANDUM* JOHN DOES, 1-10; JANE DOES, 1-10; DOE CORPORATIONS, 1-10; DOE PARTNERSHIPS, 1-10; DOE UNINCORPORATED ORGANIZATIONS 1-10, Defendants-Appellees.
Appeal from the United States District Court for the District of Hawaii Leslie E. Kobayashi, District Judge, Presiding Argued and Submitted February 14, 2023 Honolulu, Hawaii
Before: BEA, COLLINS, and LEE, Circuit Judges.
Preston Lee sued his employer, L3Harris Technologies, Inc. (“L3”), alleging
violations of Title I of the Americans with Disabilities Act (“ADA”), 42 U.S.C.
§ 12111, et seq.; a comparably worded Hawaii statute, see HAW. REV. STAT. § 378-
2; and the Hawaii Whistleblowers’ Protection Act (“HWPA”), see HAW. REV.
STAT. § 378-62. As relevant here, Lee alleged that his June 22, 2020 firing, which
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. was ostensibly over a November 6, 2019 confrontation with a coworker (Igne),
actually was due to discrimination against him on account of his Post-Traumatic
Stress Disorder (“PTSD”) and constituted retaliation against him for reporting
Igne’s alleged misconduct. The district court granted summary judgment to L3,
and Lee appealed. We have jurisdiction over Lee’s appeal under 28 U.S.C. § 1291.
Reviewing the district court’s order de novo, LaVine v. Blaine Sch. Dist., 257 F.3d
981, 987 (9th Cir. 2001), we affirm in part and reverse in part.
1. To determine whether Lee presented sufficient evidence to create a
triable issue of disability discrimination in employment under federal or Hawaii
law, we use the three-step burden-shifting framework of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Curley v. City of N. Las Vegas, 772 F.3d
629, 632 (9th Cir. 2014); Nozawa v. Operating Eng’rs Loc. Union No. 3, 418 P.3d
1187, 1198–99 (Haw. 2018). To carry the initial burden to establish a prima facie
case at step one of that framework, a plaintiff must present evidence that (1) he is
disabled; (2) he is qualified to hold his job if provided reasonable
accommodations; and (3) he suffered an adverse employment action because of his
disability. Braunling v. Countrywide Home Loans Inc., 220 F.3d 1154, 1156 (9th
Cir. 2000). L3 argues that Lee failed to satisfy his burden on the second and third
elements, but we disagree.
a. Based on the summary judgment record, a reasonable trier of fact could
2 conclude that Lee was qualified for his job. Lee supplied competent evidence that,
for nearly 26 years, he had been employed in various positions, without
performance issues, by U.S. Navy contractors (most recently, L3) at the Pacific
Missile Range Facility in Barking Sands on Kauai.
L3 argues that, under Mayo v. PCC Structurals, Inc., 795 F.3d 941 (9th Cir.
2015), “[a]n essential function of almost every job is the ability to appropriately
handle stress and interact with others,” and that a reasonable trier of fact would
have to conclude that Lee “could not perform” this essential function and was
therefore unqualified. Id. at 944. While Mayo upheld summary judgment for an
employer on this issue, it involved much more extreme facts. Id. at 945 (upholding
summary judgment based on uncontested evidence of Mayo’s “credible, detailed,
and unwavering plan to kill his supervisors”). We agree with the district court that
a reasonable trier of fact could find that the threatening language that Lee used
with reference to Igne in a conversation with a coworker did not constitute a
“serious and credible threat[] of violence.” Id. at 945 n.4. L3 has not pointed to
any other undisputed evidence that would require a rational trier of fact to find in
its favor on this issue.
We also reject L3’s argument that Lee was estopped from contesting this
issue based on his prior application for disability benefits from the Department of
Veterans Affairs (“VA”). See Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795
3 (1999). There is no inherent inconsistency between a claim for VA benefits and
being “qualified” in the sense that a disability discrimination claim requires. See
Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950, 957 (9th Cir. 2013). Moreover,
nothing Lee stated in connection with his VA benefits application, such as his
statements about anger-related work conflicts and discipline, is irreconcilable with
his contention that he is qualified for his job within the meaning of the ADA.
b. Lee also presented sufficient evidence to create a triable issue as to
whether he was fired because of his disability. A trier of fact could reasonably
conclude that, after the November 2019 confrontation, the concerns leading L3 to
terminate Lee’s employment were based on his PTSD. As we recognized in Mayo,
“conduct resulting from a disability is considered to be part of the disability, rather
than a separate basis for termination.” 795 F.3d at 946 (citation omitted). A
rational trier of fact could conclude that Lee’s conduct during the November
incident resulted from his PTSD, and that this principle is therefore applicable
here. Although we held in Mayo that the scope of this principle is limited by the
rule that the individual must still be “qualified,” see id., we have already explained
why a reasonable trier of fact could find that limitation inapplicable here.
Moreover, on this record, a reasonable trier of fact could find that L3’s evaluation
of the November 2019 incident was dispositively affected by stereotypical thinking
about persons with PTSD. And because the decision to fire Lee was made in
4 January 2020, the temporal sequence of events is consistent with a rational
inference of causation. See Manatt v. Bank of Am., NA, 339 F.3d 792, 802 (9th
Cir. 2003).
c. Assuming that L3 has met its burden at step two of the burden-shifting
framework, we conclude that the evidence raised a genuine issue of material fact as
to whether L3’s asserted reasons for firing Lee were pretextual. L3 was aware of
Lee’s PTSD, and his PTSD was mentioned prominently in an internal
communication regarding whether to take disciplinary action against Lee after the
November 2019 incident. Given the conflicting inferences that could be drawn
from the evidence, we conclude that a reasonable trier of fact could find that L3’s
decision to terminate Lee based on the November incident was a pretext for
terminating him because of his PTSD.
2. The district court correctly granted summary judgment with respect to
Lee’s retaliation claim under the HWPA.1 This claim rests on the contention that
L3 retaliated against Lee for his protected conduct in reporting to management his
belief that Igne was stealing gasoline. However, Lee stated at his June 25, 2021
deposition that he had not “made any allegations about [Igne] stealing gas prior to
1 As L3 correctly noted in its answering brief, Lee’s opening brief addressed only his retaliation claim under the HWPA, and not his retaliation claims under the ADA or under Hawaii Revised Statutes § 378-2. We deem any challenge to the dismissal of those claims to be forfeited. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
5 [a] November 18, 2019 meeting.” Because L3 had already begun its investigation
into the November 9, 2019 incident by the time that Lee made that report, no
reasonable trier of fact could conclude that the investigation was undertaken in
retaliation for the report. On appeal, Lee points to his October 20, 2021
declaration in opposition to summary judgment, in which he stated that he had also
made an earlier report in April 2019 about Igne allegedly stealing gas. But as the
district court noted elsewhere in its order, Lee could not create a genuine issue of
material fact simply by submitting a declaration that unambiguously contradicted
his deposition testimony. Van Asdale v. Int’l Game Tech., 577 F.3d 989, 998 (9th
Cir. 2009). Moreover, apart from his arguments about the timing of his report
about Igne, Lee did not point to any evidence that would support a reasonable
inference that his report of the alleged gas theft was what caused him to be fired.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.