Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Shelstad v. TGS Aviation Services, Inc.

United States District Court, D. Nevada

July 5, 2017

KIETH C. SHELSTAD, Plaintiff,
v.
TGS AVIATION SERVICES, INC., a domestic corporation, UNITED AIRLINES, INC., a foreign Corporation; DOES 1-20; ROE ENTITIES 1-20, Defendants.

          ORDER

          KENT J. DAWSON UNITED STATE DISTRICT JUDGE.

         Presently 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 (#17).

         I. Background

         On or 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”).

         According 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.

         In 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.

         The 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.

         After 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 pertinent part:

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 retaliation.

         II. Legal Standard

         A. Subject Matter Jurisdiction

         Dismissal 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).

         Attacks 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.