Yesterday was 9/11 and certainly thinking of everyone.  Also, I appreciate everyone bearing with me on my two week hiatus while my wife and I were abroad. We came back Friday and back to the grind now.


Today’s case is an unpublished decision. Lee v. L3Harris Technologies, Inc., from the Ninth Circuit decided August 18, 2023, which can be found here. It asks the question of what happens when you terminate someone for conduct related to the disability and do not factor that into the analysis. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning summary judgment not warranted on disability discrimination claim; court’s reasoning summary judgment was warranted on retaliation claim; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.



Facts (Taken from the Lower Court Opinion and Also Summarized as Well)


On March 13, 2019, Lee, the plaintiff, participated in a meeting with the human resources representative where they discussed that he was diagnosed with PTSD and that he did not need accommodation to perform his job.


On November 6, 2019, Igne witnessed Lee pressure-washing while wearing shorts and asked Lee to change into rain pants. [L3Harris’s CSOF ¶ 16; Lee’s CSOF ¶ 16.] Because Lee could not hear Igne’s requests due to the pressure washer’s noise, Igne attempted to get Lee’s attention by yelling and honking a vehicle’s horn. [Lee Depo. Trans. at 30-31; L3Harris’s CSOF, Decl. of Lindsay Haen (“Haen Decl.”),[3] Exh. O (Lee’s written statement to Martin regarding the 11/6/19 events, dated 11/7/19).] A coworker then walked over to Lee and gave him a pair of rubber rain pants. [Lee Depo. Trans. at 24.]

Later during the day of the pressure-washing incident, Lee went to the office where Igne was. According to Lee, he did not yell at Igne, but he admits he swore at Igne because Igne swore at him first. Lee states he told Igne that, if he had to wear his personal protective equipment (“PPE”), then Igne needed to wear his. Lee then told Igne that, if he did not bring his PPE the following Monday, then he would turn Igne in. According to Lee, it was at this point when Igne swore at Lee and Lee swore back at Igne. [Id. at 39-40.] They exchanged swear words “twice, maybe three times,” then Lee walked away. [Id. at 40.] Lee contends in his deposition testimony that he did not yell at Igne. [Id. at 39.] But, in his written statement to Martin the day after the incident, Lee wrote that he yelled at Igne. [Haen Decl., Exh. O (“that’s when I started yelling and swearing at him”).]

The next day, Igne submitted a written complaint to Martin. [L3Harris’s CSOF, Decl. of Rodney Martin (“Martin Decl.”) ¶ 4.] Martin states Igne expressed to him that he “felt threatened by” Lee and “did not feel comfortable working with [Lee] after” their interaction. [Id.] Martin investigated the incident by speaking with Lee and the other workers present and took statements from those involved. [Id.] Although Lee and Igne “had somewhat differing versions of the interaction,” Martin states “the statements by [Lee’s] co-workers generally supported Mr. Igne’s version of events and that Mr. Lee was swearing, angry and aggressive towards Mr. Igne.” [Id.]

One of Lee’s coworkers, David Hesapene (“Hesapene”), submitted a written statement to Martin the day after the incident.[4] [Haen Decl., Exh. P (Hesapene’s written statement to Martin regarding the 11/6/19 events, signed 11/7/19).] There, Hesapene states that, around 5:45 p.m., he heard Lee “going off, yelling at [Igne].” [Id.] Hesapene heard Lee “swearing the F word at [Igne] and [Igne] yelled back in defense.” [Id.] Although Hesapene “couldn’t hear everything that was being said clearly,” he states Lee “was extremely loud and angry and not acting in a civil manner.” [Id.] The day after the incident, Lee said to Hesapene, “`I don’t care if I going to lose my job, I just going to punch [Igne] through his face.'”[5] [Id.] After Hesapene told Lee, “I thought you guys settled this years ago,” Lee said “`F—- [Martin], F—- [Igne], nobody can touch me, not [Martin], not [Igne] or HR.'” [Id.] However, Hesapene testified in his deposition that he did not believe Lee was going to punch Igne. [Lee’s CSOF, Decl. of Joseph T. Rosenbaum (“Rosenbaum Decl.”), Exh. B (excerpts of trans. of 9/22/21 Hesapene depo.) (“Hesapene Depo. Trans.”) at 44.[6]]

Another coworker, Mark Vegas (“Vegas”), also submitted a written statement to Martin the day after the incident. [L3Harris’s CSOF, Haen Decl., Exh. Q (Vegas’s written statement to Martin regarding the 11/6/19 events, dated 11/7/2019).] Vegas states that, around 5:45 p.m., he could hear Lee “explode in anger with [Igne] about something to do with having to wear pants. [Lee’s] voice was very loud as he yelled and swore at [Igne] and seemed to get louder. . . .” [Id.] Vegas also states “[t]here was such a flurry of words coming out of [Lee’s] mouth that it was difficult to remember everything [Lee] was saying plus [he] was in another office with the door closed but [he] could still hear [Lee] yelling.” [Id.] The next day, Vegas heard Lee “bragging in the shop out loud that [Igne] tried and he cannot touch me, [Martin] cannot touch me and HR cannot touch me.” [Id.]

The last coworker present during the incident, Gilbert Castro (“Castro”), also wrote a statement to Martin. [Haen Decl., Exh. R (Castro’s written statement, dated 11/7/19).] Castro “heard [Lee] yelling at [Igne] in an angry tone” and “swearing.” [Id. at PageID #: 530.] Although Castro “could not hear all the details that were being said because [he] was in another room and the office door was closed[,]” he “could tell that [Lee] was very angry and was very loud.” [Id. at PageID#: 530-31.]

Martin states that, during his investigation, Lee’s coworkers expressed their concerns about Lee’s “volatile conduct,” and that they were concerned Lee “was a loose cannon and they did not know when [Lee] was going to snap because of how angry he would become about little things.” [Martin Decl. ¶ 5] However, Hesapene testified in his deposition that he did not believe Lee’s aggressive behavior created a hostile work environment for him, Igne, Martin, or in general. [Hesapene Depo. Trans. at 39-41.] Castro testified similarly. [Rosenbaum Decl., Exh. A (excerpts of trans. of 9/22/21 depo. of Castro) (“Castro Depo. Trans.”) at 63.[7]]

A subsequent meeting with HR led to Lee saying that his supervisor had been stealing gas. That investigation did not lead to a confirmation of those charges but did reveal how the relationship between Lee and his supervisor was beyond repair.

When Lee was terminated, he eventually brought suit alleging that he was terminated on the basis of his PTSD and was retaliated against for reporting his supervisor’s alleged misconduct.



Court’s Reasoning Summary Judgment on the Disability Discrimination Claim Was Not Warranted

  1. Establishing a prima facie case means showing: 1) plaintiff is disabled; 2) plaintiff is qualified to hold his job if provided reasonable accommodation; and 3) plaintiff suffered an adverse employment action because of his disability.
  2. Lee supplied competent evidence that he had been employed for 26 years in various positions without performance issues by U.S. Navy contractors at the Pacific Missile Range facility.
  3. A reasonable trier of fact could find that the threatening language used by Lee with reference to his supervisor in a conversation with a coworker did not constitute a serious and credible threat of violence. Further, the defendant did not point to any other undisputed evidence requiring a rational trier of fact to find in its favor.
  4. Lee’s receipt of disability benefits from the Department of Veterans Affairs is not inconsistent with him being qualified vis-à-vis the ADA. Further, nothing he stated in connection with his benefits application to the Veterans Administration is irreconcilable with his contention that he is qualified to do his job per the ADA.
  5. A trier of fact could reasonably conclude that the concerns leading to Lee’s employment termination was based upon his PTSD.
  6. Conduct resulting from a disability is considered to be part of the disability rather than a separate basis for termination. A rational trier of fact could conclude that Lee’s conduct during the November incident resulted from his PTSD.
  7. A reasonable trier of fact could find that the defendant’s evaluation of the November 2019 incident was controlled by stereotypical thinking about persons with PTSD.
  8. Since the decision to fire Lee was made in January of 2020, the temporal sequence of events is consistent with a rational inference of causation.
  9. The defendant was aware of Lee’s PTSD, and his PTSD was mentioned prominently in an internal communication regarding whether to take disciplinary action against him after the November 2019 incident. Given conflicting inferences, a reasonable trier of fact could find that the defendant’s decision to terminate Lee based upon the November incident was pretextual.


Court’s Reasoning Summary Judgment Was Properly Granted on the Retaliation Claim

  1. Since the defendant had already begun its investigation into the November 9, 2019 incident by the time Lee had already made his report, no reasonable trier of fact could conclude that the investigation was undertaken in retaliation for the report. Further, plaintiff did not point to any evidence supporting a reasonable inference that his report of the alleged gas stealing was what caused him to be fired, outside of arguments he made about the timing of the report involving his supervisor.



  1. Big mistake to stereotype disability diagnosis at any stage of the employment process.
  2. The interactive process can go a long way towards dispelling any unconscious or conscious bias with respect to disability diagnosis.
  3. Early disclosure of disability by the employee is always better.
  4. Employees with disabilities are in a bit of a box. If they don’t disclose, they do not get the protections of the ADA if they need accommodations. On the other hand, evidence exists that if they do disclose, the worksite becomes much more uncomfortable to work in.
  5. As to what goes on in the mind of a person with a disability in deciding to disclose, see this Federal Bar Association blog entry.
  6. As we discussed here, a disability does not excuse bad conduct. However, this decision says that conduct relating from a disability is part of the disability rather than a separate basis for termination. So, if disability related conduct is involved, get with legal counsel to thoroughly review the record to see how the separation between the disability related conduct and workplace conduct rules pan out in a particular circumstance. Also, different jurisdictions may view differently just how much mileage a plaintiff can get from saying that conduct resulting from the disability is considered part of the disability rather than a separate basis for termination.
  7. We discussed here for example, how filing for disability benefit does not necessarily lead to a not qualified per the ADA finding. As the court notes in our case of the day, what is said in those applications can be very important. Further, failure of an attorney to understand just how important what is said in the application is and to advise the client on the possible consequences of filing for disability benefits, may be legal malpractice, as we discussed here.
  8. The decision is unpublished, so mileage on this case may vary.