NOT FOR PUBLICATION FILED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.

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