                                                                           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                            NOT FOR PUBLICATION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




                                          2
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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