Petition for Writ of Certiorari — Peter Cooks, Petitioner v. Contra Costa County, California

No. _______

In The

Supreme Court of the United States

PETER COOKS,

v.

Petitioner,

CONTRA COSTA COUNTY,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

APPENDIX

Roderick T. Cooks

WINSTON COOKS, LLC

420 North 20th Street

Suite 2200

Birmingham, AL 35203

(205) 502-0970

(205) 278-5876 (Fax)

rcooks@winstoncooks.com

Counsel for Petitioner

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

APPENDIX:

Opinion of the United States Court of Appeals

for the Ninth Circuit, filed November 23, 2021 ...... A1

Order of the United States District Court for

the Northern District of California, filed

November 30, 2020 ................................................. A5

Amended Complaint, filed in the United

States District Court for the Northern District

of California on October 15, 2020 ......................... A17

28 U.S.C § 1658 ..................................................... A26

A1

FILED NOV. 23, 2021

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 20-17516

D.C. No. 4:20-cv-02695-PJH

______________________________

PETER COOKS,

Plaintiff-Appellant,

v.

CONTRA COSTA COUNTY,

Defendant-Appellee.

______________________________

MEMORANDUM*

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.

_______________

* 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.

A2

Following his termination, Peter Cooks sued his

former employer, Contra Costa County (the

“County”), for violations of the Rehabilitation Act of

1973 and 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. 102569, 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.

A3

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” 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,

A4

§ 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.

A5

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

Case No. 20-cv-02695-PJH

______________________

PETER JAMES COOKS,

Plaintiff,

v.

CONTRA COSTA COUNTY,

Defendant.

______________________

ORDER GRANTING SECOND MOTION

TO DISMISS

Re: Dkt. No. 42

Before the court is defendant Contra Costa

County’s (“defendant”) second motion to dismiss. The

matter is fully briefed and suitable for decision

without oral argument. Having read the parties’

papers and carefully considered their arguments and

the relevant legal authority, and good cause

appearing, the court hereby GRANTS the motion for

the following reasons.

BACKGROUND

On April 18, 2020, plaintiff Peter Cooks

(“plaintiff”) filed a complaint (“Compl.”) alleging a

violation of the Uniformed Services Employment and

Reemployment Rights Act of 1994 (“USERRA”), 38

A6

U.S.C. §§ 4301–33, and breach of contract. Dkt. 1.

Defendant then filed a motion to dismiss, which the

court granted with leave to amend on August 6,

2020. Dkt. 24. On October 15, 2020, plaintiff filed a

First Amended Complaint (“FAC”) in which he

continues to allege a violation of USERRA, adds a

claim for violation of the Rehabilitation Act of 1973,

29 U.S.C. § 794 et seq., and abandons his breach of

contract claim. Dkt. 41.

Plaintiff is a retired U.S. Navy veteran who was

hired by defendant in 2010 to work as an IT

professional. Id. ¶¶ 6–7. In July and November 2015,

plaintiff was hospitalized for mental health issues

for which he was diagnosed as having psychosis with

paranoia. Id. ¶ 9. Plaintiff alleges that his diagnosis

means that he has a physical or mental impairment

that substantially limits one or more major life

activities, a record of such impairment, or was

regarded as having such an impairment. Id. ¶ 10.

Plaintiff shared his hospitalization with his

supervisor when he returned to work. Id. His

supervisor treated plaintiff less favorably because he

had a history of disability or was perceived as having

a physical or mental impairment. Id. ¶ 11. His

supervisor began to question him about the reason

for his hospitalization and his prognosis, but

plaintiff declined to provide this information. Id. ¶

12.

Plaintiff states that, prior to his hospitalization,

he was able to perform all the duties and

responsibilities of his job without a reasonable

accommodation but after hospitalization he needed

an accommodation with respect to his start time and

schedule. Id. ¶ 13. In or around April 2016, plaintiff’s

supervisor began writing him up for trivial matters

A7

and subjecting his work performance to increased

scrutiny. Id. ¶ 14. In September 2016, an incident

occurred between plaintiff and his supervisor which

led to his suspension and, later, termination on

October 31, 2016. Id. ¶ 15.

Defendant now moves to dismiss the FAC in its

entirety pursuant to Federal Rule of Civil Procedure

12(b)(6) for failure to state a claim. Dkt. 42.

DISCUSSION

A. Legal Standard

A motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6) tests for the legal sufficiency of

the claims alleged in the complaint. Ileto v. Glock

Inc., 349 F.3d 1191, 1199–1200 (9th Cir. 2003).

Under Federal Rule of Civil Procedure 8, which

requires that a complaint include a “short and plain

statement of the claim showing that the pleader is

entitled to relief,” Fed. R. Civ. P. 8(a)(2), a complaint

may be dismissed under Rule 12(b)(6) if the plaintiff

fails to state a cognizable legal theory, or has not

alleged sufficient facts to support a cognizable legal

theory. Somers v. Apple, Inc., 729 F.3d 953, 959 (9th

Cir. 2013).

While the court is to accept as true all the

factual allegations in the complaint, legally

conclusory statements, not supported by actual

factual allegations, need not be accepted. Ashcroft v.

Iqbal, 556 U.S. 662, 678–79 (2009). The complaint

must proffer sufficient facts to state a claim for relief

that is plausible on its face. Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555, 558–59 (2007).

A8

“A claim has facial plausibility when the plaintiff

pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable

for the misconduct alleged.” Iqbal, 556 U.S. at 678.

“[W]here the well-pleaded facts do not permit the

court to infer more than the mere possibility of

misconduct, the complaint has alleged—but it has

not ‘show[n]’—‘that the pleader is entitled to relief.’”

Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). Where

dismissal is warranted, it is generally without

prejudice, unless it is clear the complaint cannot be

saved by any amendment. In re Daou Sys., Inc., 411

F.3d 1006, 1013 (9th Cir. 2005).

Review is generally limited to the contents of the

complaint, although the court can also consider

documents “whose contents are alleged in a

complaint and whose authenticity no party

questions, but which are not physically attached to

the plaintiff’s pleading.” Knievel v. ESPN, 393 F.3d

1068, 1076 (9th Cir. 2005) (quoting In re Silicon

Graphics Inc. Sec. Litig., 183 F.3d 970, 986 (9th Cir.

1999), superseded by statute on other grounds as

stated in In re Quality Sys., Inc. Sec. Litig., 865 F.3d

1130 (9th Cir. 2017)); see also Sanders v. Brown, 504

F.3d 903, 910 (9th Cir. 2007) (“[A] court can consider

a document on which the complaint relies if the

document is central to the plaintiff’s claim, and no

party questions the authenticity of the document.”

(citation omitted)). The court may also consider

matters that are properly the subject of judicial

notice (Lee v. City of Los Angeles, 250 F.3d 668,

688–89 (9th Cir. 2001)), and exhibits attached to the

complaint (Hal Roach Studios, Inc. v. Richard Feiner

& Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir.

1989)).

A9

B. Analysis

1. First Claim—Rehabilitation Act

i. Whether 28 U.S.C. § 1658 Applies to

Plaintiff’s Rehabilitation Act Claim

Plaintiff’s first claim alleges a violation of section

504 of the Rehabilitation Act. FAC ¶ 23. Defendant

argues that plaintiff’s Rehabilitation Act claim is

barred by the statute of limitations. Mtn. at 3.

Defendant contends that a two-year limitation

period applies and further argues that plaintiff

incorrectly alleges that a four-year limitations period

applies. Id. Because plaintiff’s termination occurred

in October 2016 and plaintiff did not file this lawsuit

until April 2020, he is outside the two-year

limitations period. Id.

Both parties agree that this claim turns on

whether title 28 U.S.C. § 1658 applies to plaintiff’s

Rehabilitation Act claim. That statute provides:

“Except as otherwise provided by law, a civil action

arising under an Act of Congress enacted after the

date of the enactment of this section may not be

commenced later than 4 years after the cause of

action accrues.” 28 U.S.C. § 1658(a). Section 1658

was originally enacted December 2, 1990, Pub. L.

No. 101-659, § 313, 104 Stat. 5114 (1990); therefore,

the question presented is whether plaintiff’s cause of

action arises under legislation enacted after 1990.

See Jones v. R.R. Donnelley & Sons Co., 541 U.S.

369, 382 (2004) (“We conclude that a cause of action

‘aris[es] under an Act of Congress’ enacted after

December 2, 1990 . . . if the plaintiff’s claim against

the defendant was made possible by a post-1990

A10

enactment.” (first alteration in original)). If so, then

plaintiff’s claim is timely.

Plaintiff pleads a violation of section 504 of the

Rehabilitation Act of 1973, codified at 29 U.S.C. §

794. FAC ¶ 23. Originally enacted in 1973, Pub. L.

No. 93-112, § 504, 87 Stat. 355 (1973), section 504(a)

states that: “No otherwise qualified individual with a

disability in the United States . . . shall, solely by

reason of her or his disability, be excluded from the

participation in, be denied the benefits of, or be

subjected to discrimination under any program or

activity receiving Federal financial assistance,” 29

U.S.C. § 794(a). To state a section 504 claim,

plaintiff must show that “(1) he is an individual with

a disability; (2) he is otherwise qualified to receive

the benefit; (3) he was denied the benefits of the

program solely by reason of his disability; and (4) the

program receives federal financial assistance.”

Updike v. Multnomah Cty., 870 F.3d 939, 949 (9th

Cir. 2017) (citation omitted).

Defendant argues that the Rehabilitation Act

has always prohibited disability discrimination and

required employers to accommodate disabled

employees. Mtn. at 3. Defendant asserts that neither

the 1992 nor the 2008 amendments to the

Rehabilitation Act have any application to the facts

alleged in the FAC. Id. Plaintiff responds by arguing

that the 2008 amendments to the Americans with

Disabilities Act (“ADA”) created new rights of action

and corresponding liabilities and these new rights

are subject to section 1658’s four-year statute of

limitations. Opp. at 4. Plaintiff makes no other

argument or effort to explain his theory other than

baldly stating that the 2008 amendments created a

new right of action.

A11

As an initial matter, the court notes that

plaintiff’s opposition does not assert that the 1992

amendment to the Rehabilitation Act created a new

right of action or corresponding liability. Even if he

had, the district court in Pimentel v. Orloff, 2008 WL

4963049, at *1 (N.D. Cal. Nov. 19, 2008),

persuasively discusses why the 1992 amendment to

the Rehabilitation Act did not alter section 504(a)’s

application to an individual who has been

discriminated against ‘solely by reason of his or her

disability.’” Id. at *1. The Pimentel court concluded

that “if plaintiff has a claim, it was not ‘made

possible by a post-1990 enactment’” and declined to

apply section 1658. Id. (citation omitted). The same

reasoning and outcome apply here.

With respect to the 2008 amendments to the

ADA, plaintiff fails to articulate how those

amendments make his claim possible where it was

previously impossible under the Rehabilitation Act.

The ADA Amendments Act of 2008 (“ADAAA”), Pub.

L. No. 110-325, 122 Stat. 3553, clarified the

definition of “disability” with the express purpose of

superseding two Supreme Court opinions that

interpreted the term narrowly. See Sutton v. United

Air Lines, Inc., 527 U.S. 471 (1999); Toyota Motor

Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002). The

ADAAA also extended this definition of disability to

the Rehabilitation Act. Pub. L. No. 110-325, § 7, 122

Stat. at 3558. Thus, in order to prevail, plaintiff

must allege that he plausibly was a person with

disabilities under the ADAAA but was not under the

prior definition of the Rehabilitation Act.

Plaintiff alleges that his 2015 diagnosis of

psychosis with paranoia means that he has a

physical or mental impairment that substantially

A12

limits one or more major life activities, a record of

such an impairment, or was regarded as having such

an impairment. FAC ¶¶ 9–10. Yet, as defendant

points out, plaintiff could have pursued a

Rehabilitation Act claim for paranoia prior to 2008.

See, e.g., Chapa v. Adams, 168 F.3d 1036, 1039 (7th

Cir. 1999) (considering Rehabilitation Act claim by

plaintiff alleging disability relating to paranoia);

Fredenburg v. Contra Costa Cty. Dep’t of Health

Servs., 172 F.3d 1176, 1178 (9th Cir. 1999)

(considering ADA claim by plaintiff alleging

disability relating to paranoia). Because plaintiff’s

cause of action was possible prior to the ADAAA and

also possible prior to 1990, the four-year statute of

limitations in 28 U.S.C. § 1658 does not apply. See

also Salazar v. Regents of Univ. of Cal., 2017 WL

4594455, at *4 (N.D. Cal. Aug. 7, 2017), aff’d, 812

Fed. App’x 410 (9th Cir. 2020) (finding depression

and anxiety disabilities actionable under the ADA

prior to the 2008 amendments and therefore

declining to apply § 1658).

ii. Analogous State Law Statute of

Limitations

“The statute of limitations for the Rehabilitation

Act Section 504 claim is provided by the analogous

state law.” Douglas v. Cal. Dep’t of Youth Auth., 271

F.3d 812, 823 n.11 (9th Cir.), amended, 271 F.3d 910

(9th Cir. 2001). Defendant argues the analogous

state law to be the two-year limitation period found

in California’s personal injury statute. Mtn. at 3

(citing Kitchen v. Lodi Unified Sch. Dist., 2015 WL

925732, at *5 (E.D. Cal. Feb. 27, 2015). Applying

California’s personal injury statute to an

A13

employment discrimination claim under the

Rehabilitation Act is contrary to the approach

described in Sharkey v. O’Neal, 778 F.3d 767, 771–

72 (9th Cir. 2015). There, the court determined that

California Government Code § 11135 was the most

analogous state-law claim to a Title II ADA claim

and rejected the contention that the personal injury

limitation should provide the limitations period

where “state law provides an almost identical

counterpart to Title II.” Id. at 772. The court then

held that California Civil Procedure Code 338, which

applies to California causes of action “upon a

liability created by statute,” applied to section 11135

and, thus, a Title II claim. Id. at 773.

The Ninth Circuit has not expressly determined

which statute of limitations period applies to the

Rehabilitation Act; however, at least one opinion has

indicated that either California’s personal injury

statute of limitation or the three-year limitation

period “upon a liability created by statute” applied to

section 504. Alexopulos By & Through Alexopulos v.

S.F. Unified Sch. Dist., 817 F.2d 551, 554 (9th Cir.

1987) (quoting Cal. Code Civ. Proc. § 338). Following

Sharkey, however, district courts have compared a

Rehabilitation Act claim to California’s Unruh Act,

e.g., Peters v. Bd. of Trs. of Vista Unified Sch. Dist.,

2009 WL 4626644, at *2 (S.D. Cal. Dec. 7, 2009),

aff’d, 457 Fed. App’x 612 (9th Cir. 2011), and several

courts have concluded that the three-year limitation

period found in California Civil Procedure Code §

338(a) applies to such claims, see Ahmed v. Regents

of Univ. of Cal., 2018 WL 3969699, at *6 (S.D. Cal.

Aug. 20, 2018) (collecting cases). Though not

binding, two memorandum dispositions from the

Ninth Circuit have assumed without deciding that

A14

the three-year limitation period applies. See Estate

of Stern v. Tuscan Retreat, Inc., 725 Fed. App’x 518,

521 (9th Cir. 2018) (“We need not conclusively

determine the statute of limitations period

applicable to the Rehabilitation Act, but the longest

option is California’s three-year provision for ‘[a]n

action upon a liability created by statute.’”

(alteration

in

original)

(citations

omitted));

Krushwitz v. Univ. of Cal., 599 Fed. App’x 714, 715

(9th Cir. 2015).

Assuming the more liberal three-year limitations

period—rather than the two-year personal injury

statute—applies to plaintiff’s Rehabilitation Act

claim, his claim is still time barred. Plaintiff alleges

that he was terminated October 31, 2016, (FAC ¶

15), but he did not file this action until April 18,

2020. The limitation period on plaintiff’s claim ran

on October 31, 2019 and his claim is barred.

For the foregoing reasons, defendant’s motion to

dismiss plaintiff’s first claim for violation of the

Rehabilitation Act is GRANTED. Plaintiff has

previously had the opportunity to amend his

complaint and failed to allege any new factual

allegations in the FAC. Therefore, further

amendment would be futile, and the dismissal will

be with prejudice.

2. Second Claim—USERRA

Plaintiff’s second cause of action is for violation

of sections 4311 and 4312 of USERRA for denying

plaintiff

reasonable

accommodation

and

discriminating against him because of his disability.

FAC ¶ 24. “USERRA § 4311 prohibits employers

from discriminating against an employee because of

A15

that employee’s military service.” Marino v. Akal

Sec. Inc., 377 Fed. App’x 683, 685 (9th Cir. 2010)

(citing 38 U.S.C. § 4311). An employer violates

USERRA if an employee’s membership or obligation

for service in the military is a motivating factor in an

employer’s adverse employment action taken against

the employee, unless the employer can prove that

the action would have been taken in the absence of

such membership or obligation. 38 U.S.C. §

4311(c)(1); Leisek v. Brightwood Corp., 278 F.3d 895,

898 (9th Cir. 2002).

Here, defendant argues that plaintiff’s USERRA

claim fails for the same reasons as in the court’s

prior order and the conclusory allegations in the

FAC are virtually identical to the allegations in the

complaint. Mtn. at 12. In response, plaintiff argues

that USERRA is to be liberally construed and that

courts have recognized actionable USERRA claims

for hostile work environment and constructive

discharge. Opp. at 3–4.

The court agrees with defendant. The court’s

prior order found that plaintiff alleged he was

discharged because of his disability and not because

of his membership in the uniformed services. Dkt. 24

at 4. The FAC alleges no new factual matter

concerning how defendant took any action towards

plaintiff stemming from or relating to his status as a

former member of the uniformed services and

plaintiff’s opposition is entirely unresponsive on this

point.

For the foregoing reasons, defendant’s motion to

dismiss plaintiff’s second cause of action for violation

of USERRA is GRANTED. Because plaintiff has

failed to allege any new factual matter relating to

A16

this claim, it is clear that further amendment would

be futile. Thus, the dismissal is with prejudice.

CONCLUSION

For the foregoing reasons, defendant’s motion to

dismiss plaintiff’s FAC is GRANTED and the claims

are DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.

Dated: November 30, 2020

/s/ Phyllis J. Hamilton

PHYLLIS J. HAMILTON

United States District Judge

A17

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

Case No.: 20-2695-PJH

PETER J. COOKS

Plaintiff,

vs.

CONTRA COSTA COUNTY

Defendant.

AMENDED COMPLAINT

Plaintiff, Peter J. Cooks, would state the following

causes of action:

I. NATURE OF THIS ACTION

1. This is an action alleging disability

discrimination in violation of Section 504 of the

Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq. (§

504) and the Uniformed Services Employment and

Reemployment Rights Act of 1994, 38 U.S.C. §§

4301-4333 ("USERRA) to redress the deprivation of

Plaintiff's statutory and/or constitutionally protected

rights. Mr. Peter J. Cooks is a qualified individual

with a disability who has been denied

accommodations, equal opportunities, benefits, and

services in his employment. Plaintiff is entitled to

injunctive and equitable relief and damages under §

504 and the USERRA.

A18

2. Defendant discriminated against the Plaintiff

by denying him an accommodation and terminating

his employment in violation § 504 of the

Rehabilitation and the USERRA.

3. This action seeks equitable and declaratory

relief, prospective injunctive and equitable relief,

back pay, as well as nominal and compensatory

damages at law and other monetary and nonmonetary remedies necessary to the make the

Plaintiff whole.

II. JURISDICTION AND VENUE

4. This Court has jurisdiction in accordance with

28 U.S.C. § 1331, 28 U.S.C. § 2201, 2202, and 29

U.S.C. § 794a. Venue is proper in this district under

38 U.S.C. § 4323(c)(2) and 28 U.S.C. § 1391(b)

because Defendant, Contra Costa County maintains

a place of business and/or residence in this judicial

district.

III. CONDITIONS PRECEDENT TO SUIT

5. Section 504 of the Rehabilitation Act and the

USERRA do not require the exhaustion of

administrative remedies and there are no conditions

precedent to the institution of this lawsuit. Plaintiff’s

claims under Section 504 are subject to the four-year

statute of limitations provided by 28 U.S.C. § 1658.

Plaintiff’s claims under the USERRA have no

statute of limitations.

A19

IV. PARTIES

6. The Plaintiff, Peter J. Cooks, is citizen of the

United States and resident of the State of California.

Mr. Cooks served his country on active duty in the

United States Navy for 25 years. He is a disabled

veteran.

7. The Defendant, Contra Costa County, was the

Plaintiff's employer during the time period pertinent

to this lawsuit. The Defendant, Contra Costa

County, operates its daily business in the Northern

District of California.

V. FACTUAL AVERMENTS

8. Plaintiff, Peter J. Cooks, is a retired United

States Navy veteran who rendered twenty-five years

of service to his country, including the wars in

Afghanistan and Iraq. At the time of his retirement

Mr. Cooks was a Chief Petty Officer and his job was

Information Technology. Mr. Cooks is a disabled

veteran.

9. Mr. Cooks became an employee of Contra

Costa County in or around 2010 as an IT

professional. In July and November 2015, Mr. Cooks

suffered service-related health setbacks which

required hospitalization, specifically he was

hospitalized for mental stress and mental health

issues [preliminary diagnosis Psychosis with

Paranoia].

10. Mr. Cooks' diagnosis means that he has (A) a

physical or mental impairment that substantially

A20

limits one or more major life activities; (B) a record

of such an impairment; or (C) was regarded as

having such an impairment. Mr. Cooks shared his

hospitalization with his supervisor, Patrick Wilson.

11. Mr. Wilson and others treated Mr. Cooks less

favorably because he had a history of a disability

and/or because he was perceived as having a

physical or mental impairment that was not

transitory and minor.

12. Upon his return to work, Mr. Cooks'

supervisor began to question him about the reason

for his hospitalization and what his prognosis going

forward. Mr. Cooks declined to provide this

information as it is private and not related to his

ability to perform his job.

13. Mr. Cooks was able to perform all the duties

and responsibilities of his job with or without a

reasonable accommodation; however, Mr. Cooks

work history prior to his hospitalization and after

made it abundantly clear that he needed an

accommodation with regard to his start time and

schedule. Mr. Cooks had discussions with his

supervisor regarding this need, but the Defendant

never engaged in the "interactive process" to

ascertain

what

accommodation

would

be

appropriate.

14. Beginning in or around April 2016, Mr. Cooks'

supervisor began writing him up for trivial matters

and subjecting his work performance to increased

scrutiny. Upon information and belief, Mr. Cooks' coworkers were not subjected to the level of scrutiny

A21

directed towards him. Furthermore, since returning

from being hospitalized Mr. Cooks has had several

negative encounters with his supervisor wherein his

job was threatened.

15. In September 2016, an incident occurred

between Mr. Cooks and his supervisor which led to

his suspension. On October 31, 2016, Mr. Cooks was

terminated from his employment in violation of

Section 504 and the USERRA, 38 U.S.C. § 4301.

VI. CAUSES OF ACTION

A. Violation of Section

Rehabilitation Act of 1973

504

of

the

16. As stated, Plaintiff is a person with a

disability, has a history of disability and is perceived

as disabled pursuant to Section 504 of the

Rehabilitation Act of 1973. Defendant is a public

entity in accordance with Section 504 of the

Rehabilitation Act of 1973 and it receives federal

financial assistance.

17. Despite Plaintiff's disability, with or without

reasonable accommodation, he can perform the

essential functions of his former position. Plaintiff

meets the definition of a "qualified individual with a

disability" pursuant to 29 U.S.C. § 794.

18. From the time it learned of his illness up

until the time he was terminated, Defendant

continuously limited, classified, and segregated

Plaintiff in a way that adversely affects his job

opportunities because of his disability.

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19. Further, Defendant continuously utilized

standards or methods of administration that

discriminate against Plaintiff based on his disability

and have excluded or otherwise denied Plaintiff

equal benefits of his employment because of his

disability.

20. Defendant, too, has also continuously failed

to accommodate Plaintiff, including, but not limited

to, refusing to allow accommodate his need for a

schedule adjustment. Finally,

21. Accommodating the Plaintiff’s need for a

schedule adjustment would not have caused

substantial or grievous economic injury to the

operations of the Defendant.

22. Defendant, by its discriminatory treatment of

Plaintiff has intentionally, willfully, with deliberate

indifference and without justification deprived

Plaintiff of his federal statutory and/or constitutional

rights, as described herein.

23. This deprivation violates Plaintiff's rights

under the Section 504 of the Rehabilitation Act of

1973.

B. Violation of the Uniformed Services

Employment and Reemployment Rights Act

24. The Defendant has violated Sections 4311

and 4312 of USERRA by denying Mr. Cooks a

reasonable accommodation and discriminating

against him because of his service-related disability.

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25. Defendant violated Mr. Cooks' rights under

USERRA by their acts and/or omissions set forth

herein, including but not limited to failing to engage

in the interactive process in good faith with Mr.

Cooks to find a reasonable accommodation for his

service related disability; failing to provide a

reasonable

accommodation

for

Mr.

Cooks;

discriminating against Mr. Cooks based on his

disability and/or military service, disparate

treatment between Mr. Cooks and other (nonmilitary) employees; terminating Mr. Cooks from

employment without just cause. By way of said

conduct and/or authorization or ratification of said

conduct, Defendant acted with willful intent to

violate Mr. Cooks federally protected rights.

26. As a direct and proximate result of the

Defendant's wrongful conduct, the Plaintiff has

suffered damages, including, but not limited to, lost

past and future wage and benefits, retirement

benefits, emotional distress, mental anguish,

humiliation, and mental injuries.

VII. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully prays that

this Court assume jurisdiction of this action and

after trial:

1. Issue a declaratory judgment that the

employment

policies,

practices,

procedures,

conditions and customs of the Defendants, including

the action taken against Plaintiff by Defendants are

violative of Plaintiff's rights as secured by Section

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504 of the Rehabilitation Act of 1973, 29 U.S.C. §

794 and the USERRA.

2. Grant Plaintiff reinstatement and a

permanent injunction enjoining the Defendant, its

agents, successors, employees, attorneys and those

acting in concert with the Defendant, and at the

Defendant’s request, from continuing to violate

Plaintiff's rights as well as those of others who are

similarly-situated pursuant to Section 504 of the

Rehabilitation Act of 1973 and the USERRA.

3. Issue an injunction ordering Defendant to

reinstate the Plaintiff into the position which he was

terminated from or into a similar position.

4. Enter an Order requiring the Defendant to

award Plaintiff damages including back pay, front

pay, nominal, and compensatory damages, pursuant

to Section 504 of the Rehabilitation Act and the

USERRA.

5. Award Plaintiff reasonable costs, attorney's

fees, and expenses.

6. Award such other relief and benefits as the

cause of justice may require.

Respectfully submitted,

/s/ Roderick T. Cooks

Lee Winston

Roderick T. Cooks

Attorney for the Plaintiff

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OF COUNSEL:

Lee D. Winston

lwinston@winstoncooks.com

Roderick T. Cooks

rcooks@winstoncooks.com

Winston Cooks, LLC

505 20th Street North

Suite#815

Birmingham, AL 35203

Telephone: (205) 502-0970

Facsimile: (205) 278-5876

CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the

foregoing document on all persons listed below via

the Court’s ECF filing system:

Sean M. Rodriquez

Deputy County Counsel

Tort and Civil Rights Litigation Division

Contra Costa County Counsel's Office

Tel: (925) 335-1880

Fax: (925) 335-1866

Done this the 15th day of October 2020.

s/Roderick T. Cooks

Of Counsel

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§ 1658. Time limitations on the commencement of

civil actions arising under Acts of Congress

Effective: July 30, 2002

(a) Except as otherwise provided by law, a civil

action arising under an Act of Congress enacted

after the date of the enactment of this section may

not be commenced later than 4 years after the cause

of action accrues.

§ 794. Nondiscrimination under Federal grants and

programs, 29 USCA § 794

(d) Standards used in determining violation of

section

The standards used to determine whether this

section has been violated in a complaint alleging

employment discrimination under this section shall

be the standards applied under title I of the

Americans with Disabilities Act of 1990 (42 U.S.C.

12111 et seq.) and the provisions of sections 501

through 504, and 510, of the Americans with

Disabilities Act of 1990 (42 U.S.C. 12201 to 12204

and 12210), as such sections relate to employment.

SEC. 2. FINDINGS AND PURPOSES.

(a) FINDINGS.—Congress finds that—

(1) in enacting the Americans with Disabilities Act of

1990 (ADA), Congress intended that the Act “provide

a clear and comprehensive national mandate for the

elimination of discrimination against individuals

with disabilities” and provide broad coverage;

(2) in enacting the ADA, Congress recognized that

physical and mental disabilities in no way diminish

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a person's right to fully participate in all aspects of

society, but that people with physical or mental

disabilities are frequently precluded from doing so

because of prejudice, antiquated attitudes, or the

failure to remove societal and institutional barriers;

(3) while Congress expected that the definition of

disability under the ADA would be interpreted

consistently with how courts had applied the

definition of a handicapped individual under the

Rehabilitation Act of 1973, that expectation has not

been fulfilled;

(4) the holdings of the Supreme Court in Sutton v.

United Air Lines, Inc., 527 U.S. 471 (1999) and its

companion cases have narrowed the broad scope of

protection intended to be afforded by the ADA, thus

eliminating protection for many individuals whom

Congress intended to protect;

(5) the holding of the Supreme Court in Toyota

Motor Manufacturing, Kentucky, Inc. v. Williams,

534 U.S. 184 (2002) further narrowed the broad

scope of protection intended to be afforded by the

ADA;

(6) as a result of these Supreme Court cases, lower

courts have incorrectly found in individual cases that

people with a range of substantially limiting

impairments are not people with disabilities;

(7) in particular, the Supreme Court, in the case of

Toyota Motor Manufacturing, Kentucky, Inc. v.

Williams, 534 U.S. 184 (2002), interpreted the term

“substantially limits” to require a greater degree of

limitation than was intended by Congress; and

(8) Congress finds that the current Equal

Employment

Opportunity

Commission

ADA

regulations defining the term “substantially limits”

as “significantly restricted” are inconsistent with

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congressional intent, by expressing too high a

standard.

(b) PURPOSES.—The purposes of this Act are—

(1) to carry out the ADA's objectives of providing “a

clear and comprehensive national mandate for the

elimination of discrimination” and “clear, strong,

consistent,

enforceable

standards

addressing

discrimination” by reinstating a broad scope of

protection to be available under the ADA;

(2) to reject the requirement enunciated by the

Supreme Court in Sutton v. United Air Lines, Inc.,

527 U.S. 471 (1999) and its companion cases that

whether an impairment substantially limits a major

life activity is to be determined with reference to the

ameliorative effects of mitigating measures;

(3) to reject the Supreme Court's reasoning in Sutton

v. United Air Lines, Inc., 527 U.S. 471 (1999) with

regard to coverage under the third prong of the

definition of disability and to reinstate the reasoning

of the Supreme Court in School Board of Nassau

County v. Arline, 480 U.S. 273 (1987) which set forth

a broad view of the third prong of the definition of

handicap under the Rehabilitation Act of 1973;

(4) to reject the standards enunciated by the

Supreme Court in Toyota Motor Manufacturing,

Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that

the terms “substantially” and “major” in the

definition of disability under the ADA “need to be

interpreted strictly to create a demanding standard

for qualifying as disabled,” and that to be

substantially limited in performing a major life

activity under the ADA “an individual must have an

impairment that prevents or severely restricts the

individual from doing activities that are of central

importance to most people's daily lives”;

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(5) to convey congressional intent that the standard

created by the Supreme Court in the case of Toyota

Motor Manufacturing, Kentucky, Inc. v. Williams,

534 U.S. 184 (2002) for “substantially limits”, and

applied by lower courts in numerous decisions, has

created an inappropriately high level of limitation

necessary to obtain coverage under the ADA, to

convey that it is the intent of Congress that the

primary object of attention in cases brought under

the ADA should be whether entities covered under

the ADA have complied with their obligations, and to

convey that the question of whether an individual's

impairment is a disability under the ADA should not

demand extensive analysis; and

(6) to express Congress' expectation that the Equal

Employment Opportunity Commission will revise

that portion of its current regulations that defines

the term “substantially limits” as “significantly

restricted” to be consistent with this Act, including

the amendments made by this Act.

ADA AMENDMENTS ACT OF 2008, PL 110–325,

September 25, 2008, 122 Stat 3553

SEC. 7. CONFORMING AMENDMENTS.

Section 7 of the Rehabilitation Act of 1973 (29 U.S.C.

705) is amended—

<< 29 USCA § 705 >>

(1) in paragraph (9)(B), by striking “a physical” and

all that follows through “major life activities”, and

inserting “the meaning given it in section 3 of the

Americans with Disabilities Act of 1990 (42 U.S.C.

12102)”; and

A30

<< 29 USCA § 705 >>

(2) in paragraph (20)(B), by striking “any person

who” and all that follows through the period at the

end, and inserting “any person who has a disability

as defined in section 3 of the Americans with

Disabilities Act of 1990 (42 U.S.C. 12102).”.

<< 29 USCA § 705 NOTE >>

SEC. 8. EFFECTIVE DATE.

This Act and the amendments made by this Act shall

become effective on January 1, 2009.

ADA AMENDMENTS ACT OF 2008, PL 110–325,

September 25, 2008, 122 Stat 3553