Thomas Schemkes v. Jacob Transportation Services , 670 F. App'x 630 ( 2016 )

FILED
NOT FOR PUBLICATION
NOV 14 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS THATCHER SCHEMKES, No. 14-15639
Plaintiff-counter-defendant - D.C. No. 2:12-cv-01158-JCM-
Appellant, CWH
v.
MEMORANDUM*
JACOB TRANSPORTATION
SERVICES, LLC, a Nevada limited
liability company, DBA Executive Las
Vegas; JAMES JIMMERSON, an
individual; CAROL JIMMERSON, an
individual,
Defendants-counter-claimants
- Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted March 14, 2016
San Francisco, California
Before: KLEINFELD, RAWLINSON, and HURWITZ, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1
Thomas Schemkes appeals the district court’s decision granting summary
judgment in favor of his employer, Jacob Transportation Services (JTS), on his
claims for unlawful retaliation under the Fair Labor Standards Act (FLSA) and
Nevada state law. Schemkes contends that summary judgment was improper
because he produced evidence demonstrating that JTS’s reasons for firing him
were pretextual; the FLSA remedy does not preclude an action for retaliation under
Nevada state law; and the district court abused its discretion when it granted JTS’s
untimely motion to dismiss the collective action allegation.
1. Schemkes has failed to raise a material issue of fact that JTS’s proffered
reasons for firing him were pretextual. See Vasquez v. Cty. of Los Angeles, 349
F.3d 634, 642 (9th Cir. 2004), as amended. Schemkes admitted that the proffered
reasons for firing him are factually correct–he lied on his employment application
and kept money paid by customers that should have been turned over to JTS.
Construed in the light most favorable to Schemkes, the statement attributed to
JTS’s CEO was an ambiguous stray remark that did not link Schemkes’ firing to
the lawsuit against JTS for unpaid wages. See Mondero v. Salt River Project, 400
F.3d 1207, 1213 (9th Cir. 2005). The temporal proximity between the filing of the
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wages suit and the firing does not preclude summary judgment. See Brown v. City
of Tucson, 336 F.3d 1181, 1187-88 (9th Cir. 2003).
2. Summary judgment in favor of JTS on the tortious discharge claim was
appropriate. The Nevada Supreme Court has held that it “will not recognize an
action for tortious discharge when a plaintiff has an adequate, comprehensive
statutory remedy.” Ozawa v. Vision Airlines, Inc., 216 P.3d 788, 791 (Nev. 2009)
(citation omitted).
3. The district court properly dismissed the collective action allegations for
failure to state a claim. Schemkes contended that his retaliation claim was asserted
on behalf of himself and other JTS employees who were not paid minimum wages
and overtime and who were subjected to retaliation. The complaint, however, does
not allege any specific acts of retaliation against other JTS employees. Thus, for
the collective action claim, Schemkes failed to allege “enough facts to state a claim
to relief that is plausible on its face.” Taylor v. Yee, 780 F.3d 928, 935, 939 (9th
Cir. 2015) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
AFFIRMED.
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