Nance v. NBC Universal Entertainment et al

Filing 138

MEMORANDUM Opinion and Order. For the reasons stated herein, Empire Casting's Motion for Summary Judgment (Dkt. No. 119) and the Universal Defendants' Motion for Summary Judgment (Dkt. No. 114) are both granted. Civil case terminated. Signed by the Honorable Harry D. Leinenweber on 7/29/2019: Mailed notice(maf)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
FRED L. NANCE, JR.,
Plaintiff,

Case No. 16-11635

v.

Judge Harry D. Leinenweber

NBCUNIVERSAL MEDIA, LLC,
et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Plaintiff

Fred

Nance

Jr.

(“Nance”)

alleges

that

his

employers unlawfully discriminated against him on the basis of
his age, sex, and race, during his time working as an extra on
the television show Chicago Med.

For the reasons stated herein,

Defendant Empire Casting’s Motion for Summary Judgment (Dkt.
No. 119)

is

granted.

Defendants

NBCUniversal

Media,

LLC,

Universal Television LLC, Open 4 Business Productions LLC, and
Joan Philo Casting’s (collectively, the “Universal Defendants”)
Motion for Summary Judgment (Dkt. No. 114) is also granted.
I.

BACKGROUND

The Court will first address several procedural issues
related to these summary judgment motions before turning to the
undisputed facts.

A.

Procedural History

Nance filed this suit in December 2016. After amending his
pleadings

several

times,

the

Universal

Defendants

moved

to

dismiss various counts in Nance’s Third Amended Complaint. The
Court granted in part and denied in part that motion. See Nance
v. NBCUniversal Media, LLC, No. 16-11635, 2018 WL 1762440 (N.D.
Ill. Apr. 12, 2018). Thus, the entirety of Nance’s Third Amended
Complaint remains pending against Empire Casting, while only
certain claims from the Third Amended Complaint remain pending
against the Universal Defendants. The Universal Defendants and
Empire Casting have moved separately for summary judgment on the
remainder of Nance’s claims.
1.

Nance’s Request to Defer Ruling on
Motion for Summary Judgment

In his response brief in opposition to summary judgment,
Nance invokes Federal Rule of Civil Procedure 56(d) and asks the
Court to defer ruling on the motions for summary judgment so
that Nance may conduct additional discovery. (See Pl.’s Resp. to
Summ. J. at 17-18, Dkt. No. 129.) Rule 56(d) states that if the
non-movant in a summary judgment proceeding shows by affidavit
or declaration that, for specified reasons, he cannot present
facts essential to justify his opposition, the Court may defer
considering

the

motion

or

deny

it

and

allow

time

to

take

additional discovery. FED. R. CIV. P. 56(d). Nance filed a lengthy
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declaration to support his Rule 56(d) and his Statement of
Additional Facts. (See Nance Decl., Dkt. No. 132.)
However,

Nance’s

substantively.

request

Procedurally,

fails

Nance’s

both
Rule

procedurally
56(d)

and

argument

is

unavailing because he has not made any motion under that rule.
The Seventh Circuit has made clear that Rule 56(d) requires a
motion. See Deere & Co. v. Ohio Gear, 462 F.3d 701, 706 (7th
Cir. 2006) (“When a party thinks it needs additional discovery
in order to oppose a motion for summary judgment . . . Rule 56(f)
[now Rule 56(d)] provides a simple procedure for requesting
relief: move for a continuance and submit an affidavit explaining
why the additional discovery is necessary.”); Farmer v. Brennan,
81 F.3d 1444, 1449 (7th Cir. 1996) (“When a party is unable to
gather the materials required by Rule 56(e), the proper course
is

to

move

for

a

continuance

under

Rule

56(f)

[now

Rule

56(d)].”). A Rule 56(d) motion “must state the reasons why the
party cannot adequately respond to the summary judgment motion
without further discovery and must support those reasons by
affidavit.” Deere & Co., 462 F.3d at 706. Nance has yet to make
a Rule 56(d) motion, which constitutes procedural error. See
Spierer v. Rossman, No. 1:13-CV-00991, 2014 WL 4908023, at *7
(S.D. Ind. Sept. 30, 2014) (finding that plaintiffs committed
procedural

error

by

filing

- 3 -

a

Rule

56(d)

affidavit

contemporaneously

with

their

response

to

summary

judgment,

rather than moving for 56(d) relief), aff’d, 798 F.3d 502 (7th
Cir. 2015).
Furthermore, Nance’s request is substantively deficient.
Nance’s

declaration

addresses

his

Rule

56(d)

argument

only

briefly. (See Nance Decl. ¶¶ 4-5, 17 (“Plaintiff is requesting
more discovery . . . to find out if [Defendants] have any signed,
written statements from the primary accusers, Ashland Thomas and
Jennyfer Mumfer; and to get a written response from Attorneys
Michael Tracy and Mark Trapp[.]”) Nance does not explain what
facts he seeks to gain from these statements, why they are
essential to justify his opposition, or why he was not able to
obtain such facts in the allotted discovery period, as Rule 56(d)
requires. See FED. R. CIV. P. 56(d); Deere & Co, 462 F.3d at 706.
Fact discovery in this case was originally open for seven months,
a period of time to which Nance stated he had no objection. (See
5/3/18 Status Hr’g Tr.) When Nance requested an extension to
pursue additional discovery after discovery closed, the Court
granted it. (See 1/9/19 Minute Order, Dkt. No. 105.) Nance’s
declaration now alludes to new documents he claims to need. But
Rule 56(d) “does not allow a party to block summary judgment
simply by offering generalities about the need for further
discovery.” Staten v. Nissan N. Am., Inc., 134 F. App’x 963,

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964–65 (7th Cir. 2005) (citation omitted). Thus, Nance’s Rule
56(d) argument fails, and the Court will judge Defendants’
summary judgment motions on the record as it stands.
2.

Nance’s Compliance with Local Rules

Both Empire Casting and the Universal Defendants argue in
their reply briefs that Nance failed to comply with Local Rule
6.1(b)(3), which states the requirements for responding to a
summary
facts.

judgment
Empire

separately

movant’s

statement

Casting

for

and

the

summary

judgment,

of

undisputed

Universal
each

material

Defendants

submitting

moved

their

own

statement of undisputed material facts. (See Universal Defs.
Stmt. of Facts, Dkt. No. 116; Empire Casting Stmt. of Facts,
Dkt. No. 121.) The Universal Defendants’ statement of facts
contains

52

paragraphs;

Empire

Casting

adopted

these

52

paragraphs in its statement of facts and added 16 paragraphs of
its own. Nance responded to all 68 paragraphs in his Response to
Defendants’ Statements of Facts. (See Pl.’s Resp. to Defs.’
Stmts. of Fact (“DSOF”), Dkt. No. 128.)
Local

Rule

56.1

requires

the

party

opposing

summary

judgment to file a “concise response” to each numbered paragraph
in the movant’s statement of facts, including, in the case of
any disagreement, “specific references to the affidavits, parts
of the record, and other materials relied upon.” N.D. Ill. L.

- 5 -

R. 56.1(b)(3). Any facts not specifically controverted by the
opposing

party

will

R. 56.1(b)(3)(C).
that

he

does

be

deemed

admitted.

N.D.

Ill.

L.

Nance responded by agreeing with or admitting

not

have

evidence

to

controvert

36

of

the

Defendants’ statements. (See DSOF ¶¶ 1, 3-4, 6, 8, 10-12, 2021, 26-27, 31, 34-41, 45, 51, 53-58, 60-61, 63, 65-68.) Nance’s
responses

to

the

remaining

32

statements

are

either

unresponsive, not supported by citations to admissible record
evidence, or otherwise improper. (See DSOF ¶¶ 2, 5, 7, 9, 1319, 22-25, 28-30, 32-33, 42-44, 46-50, 52, 59, 62, 64.) For
example, Nance’s response to paragraphs 48-50 consists largely
of a series of sarcastic questions. (Id. ¶¶ 48-50.) At times,
Nance supports his denials of Defendants’ statements with a
citation to his own declaration, but when the Court follows that
trail,

the

cited

portion

of

the

declaration

consists

of

a

citation to another individual’s declaration. (Id. ¶¶ 13-14.)
Nance often used his responses as an opportunity to argue the
facts rather than admit or deny them. (See, e.g., DSOF ¶¶ 9,
30.) Other denials were simply unresponsive to the facts at
issue. (See, e.g., id. ¶ 5.)
Overall, Nance’s references make it difficult for the Court
to determine which facts are disputed in this case. Judges are
not like pigs, hunting for truffles buried in briefs. United

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States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). While courts
liberally construe pleadings of individuals who proceed pro se,
district courts are not obliged to “scour the record looking for
factual disputes.” Zoretic v. Darge, 832 F.3d 639, 641 (7th Cir.
2016) (citation omitted). Thus, a court may require strict
compliance with Rule 56.1 even for a pro se plaintiff. Id.
Accordingly, the Court will disregard Plaintiff’s response to
Defendants’ statements of fact and deem the material facts in
Defendants’ statements admitted. See id.; Cady v. Sheahan, 467
F.3d 1057, 1060 (7th Cir. 2006); Stoltey v. Brown, 283 F. App’x
402, 405 (7th Cir. 2008). The Court will rely on Defendants’
statements of fact, but as Nance is opposing summary judgment,
the Court will view these facts in the light most favorable to
Nance. Stoltey, 283 F. App’x at 405.
Additionally, Empire Casting notes that Nance’s response
brief is 33 pages long, in excess of Local Rule 7.1’s 15-page
limitation for such a brief. See N.D. Ill. L. R. 7.1. Empire
Casting asks the Court to strike Nance’s response brief because
he failed to seek prior approval from the Court to file his
excessive brief pages. Moreover, Empire Casting stresses that
Nance’s brief often veers off-topic from the dispute at hand,
does not clearly identify which undisputed facts he relies on,
and thus is difficult to parse for plausible legal arguments.

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However, given Nance’s pro se status, the Court declines to
strike his brief. The Court turns to the facts of the case as
set forth in the Defendants’ Statements of Fact.
B.
This

case

concerns

Facts

Nance’s

allegations

of

employment

discrimination during his time as a background actor, or “extra,”
on a television series named Chicago Med. Nance contends that
Defendants treated him differently than white and female extras
when the Universal Defendants instructed Empire Casting to stop
casting Nance as an extra on Chicago Med after an internal
investigation

concluded

that

Nance

threatened

another

extra

while vying for screen time.
Nance

is

a

Illinois.

(Pl.’s

(“DSOF”),

Dkt.

69-year-old
Resp.

No.

to

128.)

African-American

Defs.’

Stmt.

NBCUniversal

of
is

resident

Facts
a

media

¶¶ 3,

of
53

company

headquartered in New York, New York. (DSOF ¶ 1.) Open 4 Business
Productions

and

Universal

Television

are

wholly-owned

subsidiaries of NBC Universal. (Id.) Empire Casting is a company
that casts extras on various film and television productions.
(Id. ¶ 54.) Joan Philo is an Illinois resident who worked first
for Universal Television, and then for Empire Casting, as a
Casting Director. (Id. ¶ 2.)

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Universal Studios produces the television show Chicago Med,
a drama set in a fictional hospital in Chicago. (DSOF ¶¶ 5-6.)
In September of 2015, Joan Philo offered Nance a role as an extra
playing an Emergency Room (“ER”) doctor in Season One of Chicago
Med. (Id. ¶ 8.) Nance was considered a “core” extra, meaning he
would appear in multiple episodes of Chicago Med, rather than
being hired to appear in a single scene. (Id. ¶ 10.) Universal
Television employed Nance throughout Season One of Chicago Med.
(DSOF ¶ 11.)
Nance began to experience conflict on the Chicago Med set.
Other extras made comments to Nance suggesting that they resented
the amount of screen time Nance received. (DSOF ¶ 16.) At times,
Nance confronted other extras when he felt they were acting
inappropriately or unprofessionally on set. (Id. ¶ 15.) On or
about

February

22,

2016,

Nance

approached

Chicago

Med’s

Assistant Director Patrick Priest and told him that he wished to
“file charges” of harassment against Chicago Med extras Christie
Tate and Donny Williams. (DSOF ¶ 20.) Priest informed Nance that
Tate and Williams had already accused Nance of harassment. (Id.
¶ 20.) Nance then prepared a packet of materials that he gave to
Priest

and

Philo,

containing

various

pieces

of

evidence

concerning the nature of his relationship with Tate. (Id. ¶¶ 2122.)

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Martha

Schniepp,

a

human

resources

administrator

from

NBCUniversal, ultimately investigated the issues among Nance,
Tate, and Williams. (DSOF ¶ 25.) Apparently, Williams told Nance
to stay away from Tate on set, and Williams and another extra,
Marcus Funches, made false statements about Nance. (Id. ¶ 26.)
Tate, Williams, and Funches are African American. (Id. ¶ 27.)
Nance believed he was being cast less because he complained about
Tate and Williams. (Id. ¶ 26.) Schniepp concluded that the
conduct Nance complained of occurred on the set of a different
television

show,

or

in

private

communications,

and

that

therefore Nance did not violate any Universal Television policy.
(DSOF

¶ 28.)

Schniepp

further

concluded

that

there

was

no

evidence to suggest Nance was cast less frequently after he
complained—indeed, he worked more hours on Chicago Med season
one than any other extra portraying an ER doctor. (Id. ¶¶ 2830.)

Around

March

18,

2016,

NBCUniversal

closed

the

investigation and Schniepp assured Nance that his status with
the show remained unchanged. (Id. ¶ 31.)
On

or

about

Discrimination

April

with

the

26,

2016,

U.S.

Nance

Equal

filed

Employment

a

Charge

of

Opportunity

Commission (“EEOC”). (DSOF ¶ 33; EEOC Charge, Ex. 15 to Nance
Dep.,

Dkt.

No.

117-1.)

In

the

Charge,

Nance

claimed

that

NBCUniversal discriminated and retaliated against him on the

- 10 -

basis of his race, color, and sex. He further alleged that
NBCUniversal retaliated against him on the basis of his age.
(See EEOC Charge.)
Around July to August 2016, production of Chicago Med season
two began, and Nance continued to work as an extra portraying an
ER doctor. (DSOF ¶ 35.) At this point, Empire Casting, not
Universal Television, employed Nance and his fellow Chicago Med
extras. (Id. ¶¶ 37-38.) On September 24, 2016, Nance filed a
complaint

with

the

Illinois

Department

of

Labor

(“IDOL”)

accusing Empire Casting of failing to pay timely all wages owed
to him. (DSOF ¶ 39; see IDOL Notice of Wage Claim, Ex. 4 to Nance
Dep., Dkt. No. 117-1.)
In late September 2016, Ashland Thomas, a white Chicago Med
extra, complained to a Chicago Med production manager that Nance
threatened him for obstructing Nance’s position in a scene. (DSOF
¶ 42.) Philo began an investigation of Thomas’s allegation.
(Id.) Thomas alleged that Nance threatened him not to block Nance
during filming, that if he did, Nance would push Thomas out of
the way. (Id. ¶ 44.) Another Chicago Med extra, Jennifer Mumper
(“Mumper”), complained that Nance had pushed her out of the way
when she attempted to enter a scene, telling her that she was in
“his spot.” (DSOF ¶ 47.) Nance denies both Thomas’s and Mumper’s
allegations. (Id. ¶¶ 45, 47.)

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After

hearing

the

results

of

Philo’s

investigation,

NBCUniversal executives decided that Nance should no longer be
cast as a Chicago Med extra. (DSOF ¶ 50.) The executives believed
Nance had violated a Universal Television policy prohibiting
threats of physical force and intimidating words. (Id.) The
NBCUniversal
should

not

executives
be

cast

on

informed
Chicago

Empire
Med

or

Casting
any

that

other

Nance

Universal

Television production, and on September 28, 2016, Empire Casting
terminated

Nance.

(DSOF

¶¶ 50-51.)

After

Empire

Casting

terminated Nance from Chicago Med, it hired Nance as an extra on
four filming projects from September 30, 2016, to March 28, 2018.
(Id. ¶ 61.)
Nance filed the instant suit on December 27, 2016, alleging
a variety of employment discrimination claims. He has amended
his Complaint several times. The Universal Defendants moved to
dismiss Nance’s Third Amended Complaint. On April 12, 2018, the
Court issued a Memorandum Opinion and Order dismissing many of
Nance’s remaining claims against the Universal Defendants with
prejudice. See Nance, 2018 WL 1762440. The following claims
remain against both the Universal Defendants and Empire Casting:
Counts I and VII, alleging race discrimination in violation of
Title

VII,

42

U.S.C.

§ 2000e

et

seq.;

Count

II,

alleging

disparate treatment in violation of Title VII; and Count IX,

- 12 -

alleging retaliation in violation of the Equal Pay Act, 29 U.S.C.
§ 206(d). The following claims remain solely against Empire
Casting: Count III, alleging a hostile work environment in
violation of Title VII; Count IV, alleging sex discrimination in
violation of Title VII; Count V, alleging age discrimination in
violation of Title VII; and Counts VI and X, alleging retaliation
in violation of Title VII. Defendants now move for summary
judgment on all remaining claims.
II.

STANDARD

Summary judgment is appropriate when there are no genuine
issues of material fact and the moving party is entitled to
judgment as a matter of law. FED. R. CIV. P. 56(a); see also Liu
v. T&H Mach., Inc., 191 F.3d 790, 794 (7th Cir. 1999) (citation
omitted). A genuine issue of material fact exists only if “the
evidence is such that a reasonable jury could return a verdict
for the nonmoving party.”

Pugh v. City of Attica, 259 F.3d 619,

625 (7th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). If the moving party satisfies its
burden, the non-movant must present facts to show a genuine
dispute exists to avoid summary judgment, which requires that he
“do more than simply show that there is some metaphysical doubt
as to the material facts.” Sarver v. Experian Info. Sols., 390
F.3d 969, 970 (7th Cir. 2004). When considering the Universal

- 13 -

Defendants’ and Empire Casting’s Motions for Summary Judgment,
the Court construes the facts in the light most favorable to
Nance. See First State Bank of Monticello v. Ohio Cas. Ins. Co.,
555 F.3d 564, 567 (7th Cir. 2009). But the nonmovant “is only
entitled to the benefit of inferences supported by admissible
evidence,

not

those

‘supported

by

only

speculation

or

conjecture.’” Grant v. Trustees of Ind. Univ., 870 F.3d 562, 568
(7th Cir. 2017).
III.

DISCUSSION

The Court will first address the counts pending against
both Empire Casting and the Universal Defendants, and then turn
to the counts that are pending solely against Empire Casting.
A.
1.

Counts Against All Defendants

Counts I and VII: racial discrimination

Count I alleges race discrimination in violation of Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
Title VII makes it unlawful for an employer to “discriminate
against any individual… because of such individual’s race.” 42
U.S.C.

§

2000e–2(a)(1).

Nance

additionally

brings

a

race

discrimination claim under 42 U.S.C. § 1981, in Count VII.
However, courts analyze both Title VII and § 1981 claims under
Title VII “because the analysis for these two claims is generally
the same under either statute.” Alexander v. Casino Queen, Inc.,

- 14 -

739 F.3d 972, 979 n.2 (7th Cir. 2014) (citation omitted). Thus,
the Court will consider them together.
In Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th
Cir.

2016),

the

Seventh

Circuit

refined

the

approach

that

district courts must take in evaluating Title VII claims. The
court refocused the inquiry on “simply whether the evidence would
permit a reasonable factfinder to conclude that the plaintiff’s
race,

ethnicity,

sex,

religion,

or

other

proscribed

factor

caused the discharge or other adverse employment action.” Id. at
765. Under this inquiry, “[e]vidence must be considered as a
whole” regardless of whether it is “direct” or “indirect” in
nature. Id. Ultimately, a plaintiff facing summary judgment must
produce sufficient evidence that a rational jury could conclude
that the employer took the adverse action against the plaintiff
because he belongs to a protected class. Alexander, 739 F.3d at
979.
It appears that the adverse action at issue is Nance’s
termination during production of Chicago Med season two. (See
Pl.’s Resp. 8, Dkt. No. 129.) As best the Court can tell, the
basis of Nance’s legal argument against summary judgment on his
race discrimination claim is that the Universal Defendants and
Empire

treated

him

differently

than

similarly

situated

employees. Nance uses his fellow Chicago Med extra Ashland

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Thomas, who complained about Nance physically threatening him,
as his primary comparator. Nance argues that Thomas “bullied
[Nance], [Nance] reported it to Joan Philo, and Joan Philo did
not report it. Bullying violates the same policy NBC and Empire
Casting report plaintiff violated.” (Pl.’s Resp. at 21.) Nance
argues that the Defendants “allowed Ashland Thomas to keep his
job because he was white and terminated plaintiff who is black
for the same NBC et al. and Empire Casting LLC policy.” (Pl.’s
Resp. at 8.) Nance further claims that “similarly situated
extras . . . who are white and females [Ashland Thomas, Stacey
Krenning,

Jennifer

Hemminger,

Connie

Kincer,

and

Virginia

McEligott] . . . were alleged, on or around September of 2015
through the time of Nance’s termination, to have threatened other
persons on the Chicago med show with physical force and/or
intimidating words but were not disciplined or terminated as
plaintiff.” (Pl.’s Resp. at 19.)
Thus Nance invokes the McDonnell Douglas burden-shifting
framework, under which a plaintiff states a prima facie case of
discrimination by demonstrating four elements: (1) they are
members

of

a

protected

class;

(2)

they

were

meeting

their

employer’s legitimate expectations; (3) they suffered an adverse
employment action; and (4) at least one similarly situated
employee,

not

in

their

protected

- 16 -

class,

was

treated

more

favorably. See McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973). If a plaintiff establishes a prima facie case, then
“the burden shifts” to the defendant to articulate a legitimate,
nondiscriminatory reason for the adverse employment action which
if believed by the trier of fact, would support a finding that
unlawful discrimination was not the cause of the employment
action. Alexander, 739 F.3d at 979. If the defendant meets this
burden, the burden then returns to the plaintiff to prove, by a
preponderance of the evidence, that the proffered reason is a
pretext for race discrimination. Id.
However, Nance fails to state a prima facie claim under
McDonnell Douglas, because he cannot establish that any of his
comparators were indeed similarly situated to him. Nance does
not

present

any

evidence

that

Thomas

was

ever

accused

of

threatening or “bullying” him. Nor can he point to any evidence
in

the

record

that

shows

the

other

white

extras

he

names

(Krenning, Hemminger, Kincer, and McEligott) threatened people
on the Chicago Med set but were not disciplined or terminated as
Nance was. Furthermore, even assuming that Nance did state a
prima facie case, the Defendants have set forth a legitimate,
nondiscriminatory reason for firing him: that the Universal
Defendants’

investigation

NBCUniversal’s

policy

found

against

- 17 -

Nance
threats

to
of

have

violated

violence

and

intimidating words. And Nance does not offer any evidence to
suggest that the proffered reason is mere pretext for race
discrimination. Thus, Nance cannot make out a case of Title VII
race discrimination under the McDonnell Douglas framework.
Viewing the record as a whole, the Court concludes that no
reasonable jury could find that Nance was terminated based on
his race. The Defendants have set forth substantial evidence
that they reasonably relied on the results of NBCUniversal’s
investigation, which found that Nance threatened another extra
while vying for screen time. See Cracco v. Vitran Exp., Inc.,
559 F.3d 625, 636 (7th Cir. 2009). Accordingly, Defendants are
entitled to judgment as a matter of law on Nance’s Title VII and
§ 1981 race discrimination claims.
2.

Count II: Disparate Treatment

Count II purports to state a claim of disparate impact in
violation

of

Title

VII.

In

its

ruling

on

the

Universal

Defendants’ Motion to Dismiss Nance’s Third Amended Complaint,
the Court held that Count II fails to state a claim for disparate
impact, but does state a claim for disparate treatment, and thus
could

proceed

under

the

latter

theory.

Nance’s

disparate

treatment theory is that NBCUniversal applied its “no threats of
violence” policy in a disparate manner by terminating Nance, but
not white extras who allegedly violated the same policy.

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Under Title VII, differential treatment claims, also known
as

disparate

treatment

claims,

require

plaintiffs

to

prove

discriminatory motive or intent. Puffer v. Allstate Ins. Co.,
675 F.3d 709, 716 (7th Cir. 2012). When a plaintiff produces
evidence sufficient to raise an inference that an employer
applied its legitimate expectations in a disparate manner (i.e.,
applied expectations to similarly situated white employees in a
more favorable manner), the second and fourth McDonnell Douglas
prongs merge, allowing the plaintiff to establish a prima facie
case and proceed to the pretext inquiry. Montgomery v. Am.
Airlines,

Inc.,

626

F.3d

382,

394

(7th

Cir.

2010)

(citing

Elkhatib v. Dunkin Donuts, Inc., 493 F.3d 827, 831 (7th Cir.
2007)).
It appears that Nance has abandoned his defense of his
disparate

treatment

theory,

as

his

brief

is

devoid

of

any

reference to that claim. Regardless, Nance’s disparate treatment
claim must fail for the same reasons that his Title VII race
discrimination claim did. He relies exclusively on presenting
similarly situated extras who were not disciplined as he was.
However, there is no record evidence that suggests any of the
extras

he

named

violated

NBCUniversal’s

legitimate

policy.

Thus, Defendants are entitled to judgment as a matter of law on
Nance’s disparate treatment claim is granted.

- 19 -

3.

Count IX: Retaliation in Violation
of the Equal Pay Act

Count IX alleges that Defendants retaliated against Nance
in violation of the Equal Pay Act of 1963, 29 U.S.C. § 206(d).
To

survive

summary

judgment

on

an

Equal

Pay

Act

retaliation claim, a plaintiff must produce sufficient evidence
for a reasonable factfinder to conclude that (1) he engaged in
a protected activity; (2) he suffered an adverse employment
action; and (3) there is a but-for causal connection between the
protected activity and the materially adverse action. Heise v.
Canon Sols. Am., Inc., No. 16C8284, 2018 WL 3533255, at *11 (N.D.
Ill. July 23, 2018) (citing Univ. of Texas Sw. Med. Ctr. v.
Nassar, 570 U.S. 338, 362 (2013)).
Defendants are entitled to summary judgment on Nance’s
retaliation claim for two reasons: First, Nance failed to advance
any arguments against summary judgment on this claim in his
response brief, or even mention the Equal Pay Act. Thus, it
appears

Nance

abandons

this

claim,

as

“unsupported

and

undeveloped arguments are waived.” Culver, 416 F.3d at 550.
Second, even if the Court looks to the arguments Nance made in
his Third Amended Complaint in favor of his retaliation claim,
there is insufficient evidence to survive a motion for summary
judgment. Nance argues in his Complaint that filing his claim
with the IDOL constitutes a statutorily protected expression for
- 20 -

purposes of his EPA claim. However, the IDOL claim that Nance
filed solely concerns late or unpaid wages; it makes no mention
of gender-based pay discrimination. The claim provides:
I have not been paid for the following days [in
September of 2016] . . . I have inquired and discussed
with supervisors and other employees of Empire’s
Chicago office the lack of a good payment schedule for
background/extra actors. Empire’s Chicago office
employees
cannot
give
a
response
to
why
background/extras have not been paid in a timely
fashion. . .. Other background/actors working for NBC
and being paid by their payroll contractor, Empire,
have been complaining to each other.
(See IDOL Claim Application, Ex. Q to Pl.’s Resp. to Defs.’
Statement of Facts, Dkt. No. 131-17.)
Although

filing

a

claim

with

the

IDOL

may

constitute

statutorily protected activity, the Seventh Circuit has held
that such complaint in the Title VII context must indicate that
the

discrimination

occurred

because

of

sex,

race,

national

origin, or some other protected class. Tomanovich v. City of
Indianapolis, 457 F.3d 656, 663 (7th Cir. 2006); see also Krause
v. City of La Crosse, 246 F.3d 995, 1000 (7th Cir. 2001)
(applying

same

standard

to

Title

VII

and

Equal

Pay

Act

retaliation claims). Thus, merely complaining in general terms,
“without
providing

indicating
facts

a

connection

sufficient

to

to

create

a

protected
that

class

or

inference,”

is

insufficient. Tomanovich, 457 F.3d at 663. Nance urges that by
referring to other extras not being paid, he was implying that
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“females received their checks regularly.” (Third Am. Compl. at
¶ 189, Dkt. No. 67.) This simply does not follow from the plain
language of Nance’s claim. There is no language in Nance’s IDOL
claim

that

indicates

he

was

complaining

about

being

paid

irregularly because he is male; therefore, he has not satisfied
his requirement to show that he was participating in protected
activity. Thus, Defendants are also entitled to summary judgment
on Nance’s Equal Pay Act claim. The Court turns to the counts in
the Third Amended Complaint that remain pending solely against
Empire Casting.
B.
1.

Counts Against Empire Casting

Count III: Hostile Work Environment in
Violation of Title VII

Count III alleges that Empire Casting subjected Nance to a
hostile work environment based on his race. To state a Title VII
hostile work environment claim, Plaintiff must allege: (1) he
was subject to unwelcome harassment; (2) the harassment was based
on his race or sex; (3) the harassment was sufficiently severe
or pervasive so as to alter the conditions of his employment and
create a hostile or abusive atmosphere; and (4) there is a basis
for employer liability. Luckie v. Ameritech Corp., 389 F.3d 708,
713 (7th Cir. 2004).
Again, Defendants are entitled to judgment on this claim
solely for the fact that Nance failed to address it at all in
- 22 -

his

response

to

Defendants’

summary

judgment

motions.

See

Culver, 416 F.3d at 550 (“unsupported and undeveloped arguments
are waived”). Even if the Court looks to the arguments Nance
made in his Complaint, the claim still fails, for the same reason
it failed as against the Universal Defendants on their motion to
dismiss. See Nance, 2018 WL 1762440, at *3. In his Complaint,
Nance

describes

workplace

personality

conflicts,

general

bullying, and insults exchanged on social media. But he fails to
allege a connection between this harassment and his race. These
allegations “do not conform to the traditional hostile work
environment claim in that he does not allege that he was the
target of any racial slurs, epithets, or other overtly racerelated behavior.” Luckie, 389 F.3d at 713. Further, Nance adds
that the allegedly harassing employees “did not harass any other
African

American

Additionally,

extra

Nance

on

set.”

conceded

in

(Third
his

Am.

Compl.

deposition

¶ 160.)

that

the

harassment principally flowed from Production Assistant Tanner
Masseth, and that Masseth was rude to extras of all races
equally. (See Nance Dep. at 254:23-24 (“It didn’t matter what
color, because he didn’t—he did it to everybody, you know.”).)
As presented, then, Plaintiff’s allegations suggest that
his problems at work “were not related to his race—they were
related to him. The fact that he is a member of a protected class

- 23 -

does not transform them [into an actionable claim for racial
harassment].” Herron v. DaimlerChrysler Corp., 388 F.3d 293, 303
(7th Cir. 2004). Thus, Empire Casting is entitled to judgment in
its favor on Nance’s hostile work environment claim.
2.
In

Count

Count IV: Sex Discrimination in
Violation of Title VII
IV,

Nance

alleges

that

Empire

Casting

discriminated against him on the basis of his sex in violation
of Title VII when they terminated him for threatening behavior
but

did

not

terminate

female

extras

who

allegedly

behaved

similarly. Under Title VII, it is unlawful to discriminate
against any individual with respect to compensation, terms,
conditions,

or

privileges

of

employment

because

of

the

individual’s sex. 42 U.S.C. § 2000e-2(a)(1). This claim fails
for the same reason it failed against the Universal Defendants
on their motion to dismiss. See Nance, 2018 WL 1762440, at *3.
As the Court has already advised Nance, male plaintiffs
pursuing a sex discrimination claim face an additional hurdle in
stating a claim. See Nance, 2018 WL 1762440, at *3. Nance must
demonstrate background circumstances that suggest he is a member
of a protected class in this situation, as there is a general
presumption that employers do not discriminate against “majority
employees.” See Mills v. Health Care Servs. Corp., 171 F.3d 450,
455-57

(7th

Cir.

1999)

(listing
- 24 -

examples

of

“background

circumstances”). These circumstances can include any allegations
that the particular employer at issue has some inclination or
reason to discriminate against the majority (here, men) or
allegations that indicate that there is something “fishy” about
the facts of the case. See Miller v. Chicago Transit Auth.,
No. 17-CV-00806, 2018 WL 905517, at *3 (N.D. Ill. Feb. 15, 2018)
(citing Mills, 171 F.3d at 455-57).
Nance

failed

to

address

this

problem

with

his

sex

discrimination claim in his brief. Nance does not cite to any
evidence

that

suggests

Empire

Casting

was

inclined

to

discriminate against men or treat male employees differently
because of their sex. See Miller, 2018 WL 905517, at *3. Nor
does he assert any direct evidence of sex discrimination. See
Mills v. Health Care Serv. Corp., 171 F.3d at 457. Considering
the record as a whole, Nance has not made the showing required
to

state

a

“reverse

discrimination”

claim.

His

sex

discrimination claim fails as a matter of law, and Empire Casting
is entitled to judgment on this count.
3.

Count V: Age Discrimination
in Violation of Title VII

Count V alleges that Empire Casting discriminated against
Nance on the basis of his age in violation of Title VII. As the
Court explained to Nance in its 2018 Opinion, Nance cannot bring
an age discrimination claim under Title VII. See Nance, 2018 WL
- 25 -

1762440, at *4; 42 U.S.C. § 2000e-2(a)(1); Khan v. Univ. of Chi.
Hosps., No. 96C7949, 1997 WL 711421, at *3 (N.D. Ill. Nov. 7,
1997) (granting summary judgment for defendant on plaintiff’s
age

discrimination

claim

premised

on

Title

VII).

However,

assuming Nance had properly brought his claim under the Age
Discrimination

in

Employment

Act

(the

“ADEA”),

29

U.S.C.

§ 623(a)(1), the claim still cannot survive summary judgment.
In ADEA discrimination cases, as in Title VII cases, the
test is “simply whether the evidence would permit a reasonable
factfinder to conclude that the plaintiff’s race, ethnicity,
sex, religion, or other proscribed factor caused the discharge
or other adverse employment action.” See David v. Bd. of Trustees
of Cmty. Coll. Dist. No. 508, 846 F.3d 216, 224 (7th Cir. 2017)
(citing Ortiz v. Werner Enterprises, Inc., 834 F.3d 760 (7th
Cir. 2016)). For both ADEA and Title VII cases, the McDonnell
Douglas burden-shifting framework is still a viable means of
organizing circumstantial evidence. See id. However, Nance’s
allegations of age discrimination fail under both Ortiz and
McDonnell Douglas. The Court already held that Nance plead
himself out of court on his age discrimination claim against the
Universal Defendants by stating that at least five of seven
allegedly similarly situated people are actually older than 40.
See Nance, 2018 WL 1762440, at *4; Third Am. Compl. at ¶ 130 n.

- 26 -

20 (describing these individuals as “white males and females
over 40 years old”). This problem equally dooms Nance’s sex
discrimination claim against Empire Casting, yet Nance does not
mention it in his summary judgment briefing. There simply are
not facts in the record that would permit a reasonable jury to
conclude that Nance would have kept his job had he been younger.
Thus, Empire Casting is entitled to summary judgment on this
count.
4.

Counts VI and X: Retaliation in Violation
of Title VII and ADEA

In Counts VI and X, Nance alleges sex, age, and race-based
retaliation in violation of Title VII, the ADEA, and § 1981.
The Seventh Circuit generally applies the same prima facie
requirements to retaliation claims brought under Title VII,
Section 1981, and the ADEA. Humphries v. CBOCS W., Inc., 474
F.3d 387, 403 (7th Cir. 2007) (describing same requirements for
Title VII and Section 1981 retaliation claims), aff’d, 553 U.S.
442 (2008); Horwitz v. Bd. of Educ. of Avoca Sch. Dist. No. 37,
260 F.3d 602, 610 (7th Cir. 2001) (applying same requirements to
ADEA retaliation claim). To establish his retaliation claim,
Nance must show: (1) that he engaged in a statutorily protected
activity; (2) a materially adverse action taken by the employer;
and (3) a causal connection between the two. Volling v. Kurtz

- 27 -

Paramedic

Servs.,

Inc.,

840

F.3d

378,

383

(7th

Cir.

2016)

(citation omitted).
This Court has already held that Nance met the first two
prongs, but not the third, when asserting this claim against the
Universal Defendants. See Nance, 2018 WL 1762440, at *5. The
first two prongs are satisfied because Nance filed an EEOC Charge
in April 2016 alleging race, age, and sex-based discrimination,
and Defendants terminated him in September 2016. However, Nance
still does not suggest a causal link between his EEOC Charge and
termination beyond mere timing. And causation requires more than
the

mere

fact

that

an

employer’s

action

happens

after

an

employee’s protected activity. Boss v. Castro, 816 F.3d 910, 918
(7th Cir. 2016) (citation omitted). Indeed, the undisputed facts
show that three months after Nance filed his EEOC Charge, Empire
Casting hired him to work on the second season of Chicago Med.
(DSOF ¶¶ 35, 38.) Nance does not explain why Empire Casting would
hire him for season two and then, soon after, retaliate against
him for filing an EEOC Charge. Nor does he explain why, if Empire
Casting retaliated against him for filing an EEOC Charge, it
then went on to hire him as an extra on four filming projects
from September 30, 2016, to March 28, 2018. (Id. ¶ 61.)
Even viewing the facts in the light most favorable to Nance,
there is insufficient evidence to suggest causation in this case.

- 28 -

Accordingly, Empire Casting is entitled to judgment in its favor
on Nance’s retaliation count.
III.

CONCLUSION

For the reasons stated herein, Empire Casting’s Motion for
Summary Judgment (Dkt. No. 119) and the Universal Defendants’
Motion for Summary Judgment (Dkt. No. 114) are both granted.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated: 7/29/2019

- 29 -