United States District Court, D. Nevada
KIETH C. SHELSTAD, Plaintiff,
TGS AVIATION SERVICES, INC., a domestic corporation, UNITED AIRLINES, INC., a foreign Corporation; DOES 1-20; ROE ENTITIES 1-20, Defendants.
J. DAWSON UNITED STATE DISTRICT JUDGE.
before the Court is Defendant United Airlines' Motion to
Dismiss Complaint (#17). Plaintiff filed a response in
opposition (#25) to which Defendant replied (#29). Defendant
has also filed a Request for Judicial Notice with the Court
about 1996, Kieth C. Shelstad (“Plaintiff”) began
his employment with Defendant, TGS Aviation Services, Inc.
(“TGS”) as a Sky Cap. TGS contracts with major
airlines to provide Sky Cap services. TGS contracted with
Defendant, United Airlines, Inc. (“United”) to
provide Sky Cap services. Plaintiff worked at Terminal 3 of
McCarran International Airport (“McCarran
Airport”). Plaintiff was sixty-one years of age when
this dispute arose. Plaintiff claims his work environment was
satisfactory until he was assigned to a supervisor named
Jeremy Strong (“Strong”).
to Plaintiff, Strong was a friend of TGS's owner and
operator Mr. Steve C. Burdick (“Burdick”) and
Burdick had a policy of hiring family members and friends for
positions with TGS regardless of experience. Plaintiff
believed Strong was biased against older Sky Cap employees.
January of 2013, Plaintiff suffered a stroke while working at
Terminal 3. Strong did not contact medical personnel, accused
Plaintiff of being intoxicated, and told him to go home.
Plaintiff partially recovered and returned to his position as
a Sky Cap at Terminal 3 in February 2013. As a result of the
stroke, Plaintiff became limited in major life activities-
walking, lifting, standing, and bending, which were required
activities during the course of his employment.
current issue arose when Plaintiff was suspended for two
weeks for allegedly placing priority bag tags on the baggage
of one of United's passengers. Placement of the priority
bag tags was a routine practice that allowed United
passengers with “Elite Status” to not be charged
for the tag.
returning to work, Plaintiff alleges that he was scrutinized
more harshly than other employees by both Burdick and Strong.
For instance, on November 10, 2014, Plaintiff provided a
priority bag tag to a United passenger who showed his
“Elite Status.” He received a $10.00 tip, which
was a common practice. On November 13, 2014, Mr. Burdick
attempted to force Plaintiff to sign an account of facts with
which he did not agree. This statement was titled,
“EMPLOYEE WARNING NOTICE, ” and stated in
ON NOVEMBER 10, 2014 YOU KNOWINGLY PLACED A PRIORITY TAG ON A
PAX ROBERT TODD ROSENBLATT (SIC) BAG AFTER ACCEPTING A $10.00
TIP FOR THAT SERVICE. PAX ROSENBLATT WAS NOT ENTITLED TO A
PRIORITY TAG- YOU ACCEPTED PAYMENT FOR PROVING [sic] A
SERVICE YOU WERE NOT AUTHORIZED TO PERFORM. U[NITED] A[IR]
L[INES] HAS REQUESTED YOU BE REMOVED FROM PROVIDING SERVICE
TO ANY OF THEIR CUSTOMERS.
According to Plaintiff, younger employees would go unpunished
for the same conduct. Plaintiff refused to sign the notice
and was thereafter discharged. Plaintiff then filed suit
pursuant to the Americans With Disabilities Act and the ADA
Amendments Act (collectively referred to as
“ADA”), seeking damages for unlawful
discrimination and wrongful termination. Plaintiff also filed
suit pursuant to the Age Discrimination in Employment Act
(“ADEA”), and alleged other state tort claims,
seeking damages for unlawful employment discrimination and
Subject Matter Jurisdiction
under Rule 12(b)(1) is appropriate if the complaint,
considered in its entirety, fails to allege facts that are
sufficient to establish subject matter jurisdiction. In
re Dynamic Random Access Memory (DRAM) Antitrust
Litigation, 546 F.3d 981, 984-85 (9th Cir. 2008).
Although the defendant is the moving party in a motion to
dismiss brought under Rule 12(b)(1), the plaintiff is the
party invoking the court's jurisdiction. As a result, the
plaintiff bears the burden of proving that the case is
properly in federal court. McCauley v. Ford Motor
Co., 264 F.3d 952, 957 (9th Cir. 2001) (citing
McNutt v. General Motors Acceptance Corp., 298 U.S.
178, 189 (1936)); Righthaven LLC v. Democratic
Underground, LLC, 791 F.Supp.2d 968, 977 (D. Nev. 2011).
on jurisdiction pursuant to Rule 12(b)(1) can be either
facial, confining the inquiry to the allegations in the
complaint, or factual, permitting the court to look beyond
the complaint. See Savage v. Glendale Union High
Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003). “In
a facial attack, the challenger asserts that the allegations
contained in a complaint are insufficient on their face to
invoke federal jurisdiction. By contrast, in a factual
attack, the challenger disputes the truth of the allegations