United States District Court, E.D. Louisiana
ORDER AND REASONS
L. GLEASON UNITED STATES DISTRICT JUDGE
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
AND PROCEDURAL HISTORY
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.
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.
December 21, 2017, he was discharged at the age of
59.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.
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
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”). 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.
November 27, 2018, Southwest filed a motion to dismiss for
lack of jurisdiction 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.
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).
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