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Schellhaas v. Southwest Airlines Co.

United States District Court, E.D. Louisiana

July 17, 2019

KURT SCHELLHAAS
v.
SOUTHWEST AIRLINES CO.

         SECTION: “B” (4)

          ORDER AND REASONS

          SHARON L. GLEASON UNITED STATES DISTRICT JUDGE

         Before the Court are defendant Southwest Airlines Co.'s (“Southwest”) motion to dismiss (Rec. Doc. 8), plaintiff Kurt Schellhaas's response (Rec. Doc. 15), and Southwest's reply (Rec. Doc. 20). For the reasons discussed below, IT IS ORDERED that the motion to dismiss is GRANTED IN PART AND DENIED IN PART.

         FACTS AND PROCEDURAL HISTORY

         Plaintiff is a resident of Jefferson Parish, Louisiana. See Rec. Doc. 1 at 1. Southwest is a Texas corporation with a registered agent in Baton Rouge, Louisiana. See id. Plaintiff seeks monetary damages from Southwest for employment practices in violation of both federal and state statutes. See id. at 1-3.

         In February 1979, plaintiff began working with Southwest. See id. at 4. He worked with Southwest for approximately 38 years. See id. at 3. His most recent position was cargo customer service supervisor. See Rec. Doc. 8-2 at 2.

         On December 21, 2017, he was discharged at the age of 59.[1]See Rec. Doc. 1 at 3. Southwest told plaintiff that he was discharged because he shipped a generator in violation of the company's safety policy; however, plaintiff states he sought and received approval to ship said generator. See id. at 4, 6. Plaintiff alleges he was denied employment opportunities, promotions, and ultimately terminated because of his age and refusal to ship unknown, potentially hazardous cargo in contradiction to longstanding policies. See id. at 4, 6-7. Plaintiff alleges Southwest wanted to replace him with a younger and less-expensive employee. See Rec. Doc. 8-2 at 3.

         On February 18, 2018, plaintiff filed a charge with the Equal Employment Opportunity Commission (“EEOC”) alleging age discrimination and retaliation. See Rec. Doc. 1 at 8. On May 23, 2018, plaintiff received a right to sue letter from the EEOC. See id. Neither of the parties have submitted a copy of the charge or right to sue letter.

         On August 21, 2018, plaintiff filed the instant lawsuit alleging age discrimination under federal and state law as well as unlawful retaliation under the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (“AIR 21 Act”).[2] See id. at 8- 9. Plaintiff alleges that he has suffered, inter alia, mental anguish, emotional distress, and loss of wages and benefits. See id. at 9.Plaintiff prays for a judgment in his favor on all claims and for all available damages including, actual, compensatory, punitive, and any other under law. See id. at 10.

         On November 27, 2018, Southwest filed a motion to dismiss for lack of jurisdiction[3] and failure to state a claim. See Rec. Doc. 8. On January 8, 2019, plaintiff filed a response in opposition. See Rec. Doc. 15. On January 23, 2019, Southwest filed a reply. See Rec. Doc. Nos. 18, 19, 20.

         LAW AND FINDINGS

         A. 12(b)(1) STANDARD

          Rule 12(b)(1) of the Federal Rules of Civil Procedure allows a party to move for dismissal of a complaint for lack of subject matter jurisdiction. “A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” See Lipscomb v. Zurich Am. Ins. Co., 2012 U.S. Dist. LEXIS 72955, at * 2 (E.D. La. 2012) citing to Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998).

         When deciding whether subject matter jurisdiction is lacking, ”a court may evaluate (1) the complaint alone, (2) the complaint supplemented by undisputed facts evidenced in the record, or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” See Buck Kreihs Co. v. Ace Fire Underwriters Ins. Co., 2004 U.S. Dist. LEXIS 12442, at *6 (E.D. La. 2004). All uncontroverted allegations of the complaint must be accepted as true. See Buck Kreihs Co., 2004 U.S. Dist. LEXIS 12442 at *7. “The party asserting jurisdiction ...


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