Peter Cooks v. Contra Costa County ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 23 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETER COOKS, No. 20-17516
Plaintiff-Appellant, D.C. No. 4:20-cv-02695-PJH
v.
CONTRA COSTA COUNTY, MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, Senior District Judge, Presiding
Submitted November 18, 2021**
San Francisco, California
Before: THOMAS, Chief Judge, MCKEOWN, Circuit Judge, and MOLLOY,***
District Judge.
Following his termination, Peter Cooks sued his former employer, Contra
Costa County (the “County”), for violations of the Rehabilitation Act of 1973 and
*
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).
***
The Honorable Donald W. Molloy, United States District Judge for the
District of Montana, sitting by designation.
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the Uniformed Services Employment and Reemployment Rights Act of 1994
(“Uniformed Services Act”). The district court granted the County’s second motion
to dismiss, concluding that Cooks’s Rehabilitation Act was time barred and that he
failed to state a claim under the Uniformed Services Act. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
1. Cooks’s Rehabilitation Act claim is time barred. The federal four-year
statute of limitations under 28 U.S.C. § 1658 applies only to federal claims that were
“made possible by a post-1990 amendment.” Jones v. R.R. Donnelley & Sons Co.,
541 U.S. 369, 382 (2004). While amendments to the Rehabilitation Act in 1992 and
2008 did create new causes of action, Cooks’s alleged facts are insufficient to give
rise to a claim based on either amendment.
The 1992 amendment incorporated the Americans with Disabilities Act
(“ADA”) “reasonable accommodations” standard, see 42 U.S.C. § 12112(b)(5)(A),
which includes “reassignment to a vacant position,” id. § 12111(9)(B); Pub. L. No.
102-569, 106 Stat. 4344 (1992). However, Cooks’s second amended complaint does
not allege that Cooks sought reassignment. While Cooks suggested his request “may
have meant being considered for transfer/reassignment” in his motion for leave to
amend, courts consider only factual allegations in the complaint that “plausibly give
rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Absent
facts pled in support, his claim was not made possible by the 1992 amendment.
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In 2008, Congress amended the Rehabilitation Act’s definition of “disability”
to align it with the ADA’s definition, meaning plaintiffs are no longer required to
prove an impairment was perceived to limit a major life activity. See 42 U.S.C.
§ 12102(3); Pub. L. No. 110-325, 122 Stat. 3553 (2008). However, Cooks’s claims
are based on an alleged disability arising out of his psychosis and paranoia, and
federal courts adjudicated Rehabilitation Act claims that stemmed from paranoia-
related disabilities prior to the enactment of the 2008 amendment, see, e.g.,
Fredenberg v. Contra Costa Cnty. Dep’t of Health Servs., 172 F.3d 1176 (9th Cir.
1999); Johnston v. Horne, 875 F.2d 1415 (9th Cir. 1989). The facts alleged by
Cooks do not distinguish his case from pre-2008 complaints.
Because Cooks’s Rehabilitation Act claim was not made possible by either
the 1992 or 2008 amendments, the analogous state statute of limitations applies.
Sharkey v. O’Neal, 778 F.3d 767, 770 (9th Cir. 2015). Even assuming that
California’s longer, three-year statute applies, see id. at 770–73, Cooks’s claims are
untimely.
2. Under the Uniformed Services Act, current, former, and prospective
members of uniformed services “shall not be denied initial employment,
reemployment, retention in employment, promotion, or any benefit of employment
by an employer on the basis of that membership.” 38 U.S.C. § 4311(a). Employers
are in violation of the Act if an employee’s military service is a “motivating factor”
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for any of the aforementioned actions. Id. § 4311(c)(1). Cooks fails to state a claim
under the Act because he does not allege his military background was a motivating
factor behind the alleged discrimination. Simply put, § 4311 does not prohibit
discrimination based on a disability, which is what is alleged here. The district court
properly dismissed Cooks’s claim.
3. The final inquiry is whether Cooks should have been given another
opportunity to amend his complaint. Denial of leave to amend is “proper only when
amendment would be clearly frivolous, unduly prejudicial, cause undue delay or a
finding of bad faith is made.” United Union of Roofers v. Ins. Corp. of Am., 919
F.2d 1398, 1402 (9th Cir. 1990). Despite a previous opportunity to amend Cooks
failed to include additional facts in support of either his Rehabilitation Act or
Uniformed Services Act claims. Moreover, Cooks did not seek further amendment
in response to the County’s second motion to dismiss. Accordingly, the district court
properly dismissed the Amended Complaint with prejudice.
AFFIRMED.
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