Schemkes v. Jacob Transportation Services, LLC et al

Filing 37

ORDER Granting 23 Plaintiff's Motion to Dismiss Defendants' Counterclaim; Denying 33 Plaintiff's Motion for a Stay; and Granting 26 Defendants' Motion for Summary Judgment. The Clerk is instructed to close the case and enter judgment accordingly. Signed by Judge James C. Mahan on 03/03/2014. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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THOMAS THATCHER SCHEMKES,

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2:12-CV-1158 JCM (CWH)

Plaintiff(s),

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v.

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JACOB TRANSPORTATION
SERVICES, LLC, et al.,

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Defendant(s).

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ORDER

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Presently before the court is plaintiff Thomas Thatcher Schemkes’ motion to dismiss

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defendants’ counterclaim. (Doc. # 23). Defendants Jacob Transportation Services, LLC, James

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Jimmerson, and Carol Jimmerson filed a response in opposition (doc. # 30), and plaintiff filed a

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reply (doc. # 34).

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Also before the court is plaintiff’s motion for a stay. (Doc. # 33). Defendants filed a response
in opposition. (Doc. # 36).

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Also before the court is defendants’ motion for summary judgment. (Doc. # 26). Plaintiff

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filed a response in opposition. (Doc. # 31).

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I.

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Background
The instant case centers upon claims of retaliation in violation of the Fair Labor Standards

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Act (“FLSA”).

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James C. Mahan
U.S. District Judge

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Plaintiff was employed by defendant Jacob Transportation Services (“Jacob Transportation”)

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as a limousine driver from November 2008 until July 2, 2009. Plaintiff claims that several months

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after beginning his employment, he regularly complained to his manager that he was not being paid

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for all of the hours he worked. On June 19, 2009, plaintiff filed a lawsuit against Jacob

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Transportation alleging various pay violations under the FLSA.

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On July 2, 2009, Jacob Transportation terminated plaintiff’s employment. Defendants claim

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that this decision came as a result of their discovery that plaintiff had made numerous

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misrepresentations in his employment application, including a failure to disclose that he had been

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cited for stealing from a prior limousine company as an employee.

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Without denying the allegations against him, plaintiff argues that defendants’ explanation

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for his termination is merely pretext, and that he was actually fired for bringing his FLSA claims

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against Jacob Transportation.

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Plaintiff specifically alleges that defendants violated Section 215(a)(3) of the FLSA by

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terminating him because he filed an FLSA complaint against Jacob Transportation. Plaintiff also

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asserts that defendants’ conduct violated Nev. Rev. Stat. §§ 613.480(4) and 50.070. Finally, plaintiff

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claims that defendants committed tortious discharge in violation of public policy under Nevada law.

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Defendants allege a counterclaim that the instant suit constitutes an abuse of process by

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plaintiff.

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For the purposes of clarity, the court will first address plaintiff’s motion to dismiss, then

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plaintiff’s motion for a stay, followed by defendants’ motion for summary judgment.

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II.

Motion to Dismiss

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A.

Legal Standard

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A court may dismiss a complaint for “failure to state a claim upon which relief can be

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granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “[a] short and plain

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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual

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allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the elements

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James C. Mahan
U.S. District Judge

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of a cause of action.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citation omitted).

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“Factual allegations must be enough to rise above the speculative level.” Twombly, 550 U.S.

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at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to

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“state a claim to relief that is plausible on its face.” Iqbal, 129 S.Ct. at 1949 (citation omitted).

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In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when

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considering motions to dismiss. First, the court must accept as true all well-pled factual allegations

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in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 1950.

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Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not

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suffice. Id. at 1949.

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Second, the court must consider whether the factual allegations in the complaint allege a

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plausible claim for relief. Id. at 1950. A claim is facially plausible when the plaintiff’s complaint

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alleges facts that allows the court to draw a reasonable inference that the defendant is liable for the

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alleged misconduct. Id. at 1949.

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Where the complaint does not permit the court to infer more than the mere possibility of

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misconduct, the complaint has “alleged–but not shown–that the pleader is entitled to relief.” Id.

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(internal quotations omitted). When the allegations in a complaint have not crossed the line from

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conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550 U.S. at 570.

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The Ninth Circuit addressed post-Iqbal pleading standards in Starr v. Baca, 652 F.3d 1202,

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1216 (9th Cir. 2011). The Starr court stated, “First, to be entitled to the presumption of truth,

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allegations in a complaint or counterclaim may not simply recite the elements of a cause of action,

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but must contain sufficient allegations of underlying facts to give fair notice and to enable the

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opposing party to defend itself effectively. Second, the factual allegations that are taken as true must

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plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to

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be subjected to the expense of discovery and continued litigation.” Id.

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James C. Mahan
U.S. District Judge

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B.

Analysis

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A claim for abuse of process under Nevada law requires: “(1) an ulterior purpose . . . other

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than resolving a legal dispute, and (2) a willful act in the use of the legal process not proper in the

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regular conduct of the proceeding.” LaMantia v. Redisi, 38 P.3d 877, 879 (Nev. 2002).

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Defendants claim that plaintiff has abused process by filing the instant suit because he did

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so with the intention of subjecting defendants “to a multiplicity of suits in order to force concessions

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in the original suit.” (Doc. # 30 p. 25). However, Nevada law clearly holds that “the mere filing of

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a complaint is insufficient to establish the tort of abuse of process.” Laxalt v. McClatchy, 622 F.

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Supp. 737, 752 (D. Nev. 1985).

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Though defendants correctly assert that plaintiff has filed two separate complaints alleging

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violations of the FLSA, these complaints address entirely independent facts and separate causes of

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action. The prior suit was a collective action in which plaintiff alleged that Jacob Transportation

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failed to pay all similarly situated employees as required under the FLSA. The present suit involves

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allegations regarding plaintiff’s termination.

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The fact that plaintiff filed the instant claims in a separate suit is understandable, considering

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the discrete factual issues involved and that the claims in this case would have posed an unnecessary

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distraction to the resolution of the prior FLSA suit. Accordingly, the court finds that plaintiff’s act

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of filing the complaint in this case, as a matter of law, cannot constitute an abuse of process.

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Accordingly, the court will grant plaintiff’s motion to dismiss.
III.

Motion for a Stay

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Plaintiff requests that this action be stayed due to the fact that defendants rely on an

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“employment application and related employment package” document and some reports from the

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Nevada Transportation Authority that plaintiff claims have never been produced by defendants in

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this case. However, defendants clarify that they produced this evidence in plaintiff’s earlier action,

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and defendants have consistently stated that they intended to rely upon these documents in this

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matter.

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James C. Mahan
U.S. District Judge

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Therefore, because plaintiff was given these very documents along with more than 10,145

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pages of additional discovery in the prior action, and was put on notice that these documents were

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to be used in this case, the court finds that plaintiff has suffered no prejudice. Accordingly, plaintiff’s

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motion for a stay will be denied.

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IV.

Motion for Summary Judgment

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A.

Legal Standard

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The Federal Rules of Civil Procedure provide for summary adjudication when the pleadings,

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depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,

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show that “there is no genuine issue as to any material fact and that the movant is entitled to a

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judgment as a matter of law.” Fed. R. Civ. P. 56(a). A principal purpose of summary judgment is “to

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isolate and dispose of factually unsupported claims.” Celotex Corp. v. Catrett, 477 U.S. 317, 323–24

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(1986).

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In determining summary judgment, a court applies a burden-shifting analysis. “When the

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party moving for summary judgment would bear the burden of proof at trial, it must come forward

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with evidence which would entitle it to a directed verdict if the evidence went uncontroverted at trial.

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In such a case, the moving party has the initial burden of establishing the absence of a genuine issue

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of fact on each issue material to its case.” C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213

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F.3d 474, 480 (9th Cir. 2000) (citations omitted).

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In contrast, when the nonmoving party bears the burden of proving the claim or defense, the

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moving party can meet its burden in two ways: (1) by presenting evidence to negate an essential

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element of the nonmoving party’s case; or (2) by demonstrating that the nonmoving party failed to

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make a showing sufficient to establish an element essential to that party's case on which that party

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will bear the burden of proof at trial. See Celotex Corp., 477 U.S. at 323–24. If the moving party fails

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to meet its initial burden, summary judgment must be denied and the court need not consider the

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nonmoving party's evidence. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–60 (1970).

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James C. Mahan
U.S. District Judge

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If the moving party satisfies its initial burden, the burden then shifts to the opposing party

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to establish that a genuine issue of material fact exists. See Matsushita Elec. Indus. Co. v. Zenith

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Radio Corp., 475 U.S. 574, 586 (1986). To establish the existence of a factual dispute, the opposing

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party need not establish a material issue of fact conclusively in its favor. It is sufficient that “the

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claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions

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of the truth at trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th

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Cir. 1987).

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In other words, the nonmoving party cannot avoid summary judgment by relying solely on

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conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045

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(9th Cir. 1989). Instead, the opposition must go beyond the assertions and allegations of the

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pleadings and set forth specific facts by producing competent evidence that shows a genuine issue

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for trial. See Celotex Corp., 477 U.S. at 324.

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At summary judgment, a court’s function is not to weigh the evidence and determine the

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truth, but to determine whether there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc.,

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477 U.S. 242, 249 (1986). The evidence of the nonmovant is “to be believed, and all justifiable

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inferences are to be drawn in his favor.” Id. at 255. But if the evidence of the nonmoving party is

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merely colorable or is not significantly probative, summary judgment may be granted. See id. at

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249–50.

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B.

Analysis
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FLSA Retaliation

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29 U.S.C. § 215(a) provides that it is unlawful for any person “to discharge or in any other

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manner discriminate against any employee because such employee has filed any complaint or

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instituted or caused to be instituted any proceeding under [the FLSA].”

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Claims pursuant to this section require that “a plaintiff [] make a prima facie showing of (1)

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participation in protected activity under the FLSA; (2) an adverse employment action; and (3) a

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causal link between the activity and the adverse action. If a plaintiff meets this burden, the defendant

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must then articulate a legitimate reason for its decision [unrelated to the FLSA action]. The burden

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James C. Mahan
U.S. District Judge

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then shifts to the plaintiff to demonstrate that the proffered reason is [pretextual].” Hagan v.

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Echostar Satellite, L.L.C., 529 F.3d 617, 624 (5th Cir. 2008) (citing McDonnell Douglas Corp. v.

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Green, 411 U.S. 792 (1973)).

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I.

Prima Facie Case

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It is undisputed that plaintiff initiated an action against Jacob Transportation seeking unpaid

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wages, which is an activity protected by the FLSA. It is also undisputed that defendants terminated

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plaintiff’s employment, which certainly qualifies as an adverse employment action. The fact that

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plaintiff’s termination occurred less than two weeks after he initiated his FLSA action creates an

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inference of a causal relationship between plaintiff’s initial FLSA claim and his termination.

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Therefore, plaintiff has established a prima facie claim for impermissible FLSA retaliation
in violation of 29 U.S.C. § 215(a)(3).

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ii.

Legitimate Reasons Unrelated to the FLSA Action

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Defendants provide evidence showing that plaintiff made material misrepresentations in his

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initial application for employment. Plaintiff misrepresented the dates he had worked for the Clark

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County School District in order to conceal the fact that he had previously been employed by

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Presidential Limousine.

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Additionally, defendants present extensive documentation demonstrating that plaintiff

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misrepresented the reason for his termination from a prior employer, CLS Transportation. Plaintiff

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had been a limousine driver for CLS until an investigation by the Nevada Department of Business

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and Industry revealed that, unbeknownst to CLS, plaintiff had been using CLS’ vehicles to give

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limousine rides to clients in exchange for cash in violation of company policies and Nevada law.

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(Doc. # 28 pp. 48-51). After investigators contacted CLS, plaintiff was terminated from his

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employment.

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However, plaintiff failed to disclose the true circumstances surrounding his departure from

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CLS when he applied to Jacob Transportation. Defendants claim that they were made aware of

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plaintiff’s misrepresentations due to inconsistencies between his employment application and facts

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that were alleged in his initial FLSA action. Defendants claim that their decision to terminate

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James C. Mahan
U.S. District Judge

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plaintiff was motivated by the misrepresentations in plaintiff’s employment application as well as

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the fact that plaintiff was accused of violating Nevada law during his employment with CLS.

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An employer cannot be expected to ignore an employee’s material misrepresentations and

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prior acts of deception merely because it became aware of these events due to an FLSA action.

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Indeed, if it had not been for plaintiff filing the initial FLSA action, defendants may never have

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learned of his transgressions, but to hold defendants’ reasons for termination not to be legitimate

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would functionally grant an employee immunity for any fireable offense any time the employee

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alleged that the employer had violated the FLSA. The court finds that defendants have fulfilled their

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burden to demonstrate that they terminated plaintiff’s employment for a legitimate reason unrelated

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to his FLSA complaint.

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iii.

Pretext

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“A plaintiff can prove pretext in two ways: (1) indirectly, by showing that the employer’s

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proffered explanation is unworthy of credence because it is internally inconsistent or otherwise not

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believable, or (2) directly, by showing that unlawful discrimination more likely motivated the

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employer.” Noyes v. Kelly Servs., 488 F.3d 1163, 1171 (9th Cir. 2007) (internal citations, quotations,

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and alterations omitted). “All the evidence as to pretext–whether direct or indirect–is to be

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considered cumulatively.” Id.

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Plaintiff fails to provide any evidence demonstrating that defendants’ proffered explanation

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is merely pretextual. Plaintiff does not deny the allegations that he misrepresented his prior

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experience on his application for employment or that he failed to disclose any information regarding

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the investigation that lead to his departure from CLS.

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Plaintiff does claim that a manager told him at the time of his termination that “it was too bad

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[plaintiff] filed his lawsuit” and that a different manager hung up a picture of plaintiff “as an

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example of what happens to drivers who sue the company.” (Doc. # 31 p. 3). However, plaintiff is

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unable to provide any evidence to support these allegations.

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James C. Mahan
U.S. District Judge

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Accordingly, the court finds that plaintiff has not provided evidence from which a reasonable

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person could conclude that defendants’ explanation for his termination was pretextual. As such, the

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court will grant defendants’ motion for summary judgment as it relates to this claim.

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2.

Nevada Statutory Claims

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Plaintiff claims that defendants violated Nev. Rev. Stat. § 613.480 by terminating him. This

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section prohibits employers from taking adverse actions against employees who take legal action

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against their employers for requiring, encouraging, suggesting, or requesting that they take a

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polygraph test. See Nev. Rev. Stat. § 613.480. In his response to the motion for summary judgment,

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plaintiff points out that defendants had a policy of requiring employees to submit to a polygraph tests

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upon suspicion that an employee was “involved in a criminal act or missing company monies.” (Doc.

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# 31 p. 7). However, the complaint fails to allege that defendants made even the slightest insinuation

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that plaintiff should take a polygraph test.

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Nev. Rev. Stat. § 50.070 prohibits employers from taking adverse action against employees

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based on their service as a witness. See Shoen v. Amerco, Inc., 896 P.2d 469, 475 (Nev. 1995).

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Plaintiff fails to provide any evidence demonstrating that his termination occurred due to his service

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as a witness in the prior FLSA action or any other case.

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Accordingly, the court will grant defendants’ motion for summary judgment as to these
claims.
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Tortious Discharge in Violation of Public Policy

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Under Nevada law, a claim for tortious discharge in violation of public policy requires that

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(1) an employer, in its discharge of an employee, violated the public policy of Nevada and (2) that

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there is no adequate statutory remedy available under Nevada law to allow victims to bring suit and

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recover tort damages for their injuries. See D'Angelo v. Gardner, 819 P.2d 206, 216-17 (Nev. 1991).

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Plaintiff alleges that defendants committed a tortious discharge by terminating him for filing

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an FLSA claim against Jacob Transportation. However, as stated earlier, plaintiff fails to provide

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evidence demonstrating that defendants’ proffered reason for his discharge was pretextual.

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Therefore, without ruling on the question as to whether an employer’s termination of an employee

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James C. Mahan
U.S. District Judge

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for filing a claim under the FLSA could constitute a tortious discharge under Nevada law, the court

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finds that plaintiff has failed to meet his evidentiary burden. Accordingly, the court will grant

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defendants’ motion for summary judgment as to this claim.

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Accordingly,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff’s motion to

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dismiss defendants’ counterclaim (doc. # 23) be, and at the same time hereby is, GRANTED.

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IT IS FURTHER ORDERED that plaintiff’s motion for a stay (doc. # 33) is DENIED.

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IT IS FURTHER ORDERED that defendants’ motion for summary judgment (doc. # 26) is

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GRANTED. The clerk is instructed to close the case and enter judgment accordingly.
DATED March 3, 2014.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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