Nance v. NBC Universal Entertainment et al
For the reasons stated in the attached memorandum opinion and order, Counts III, IV, V, VI, VIII, and X are dismissed with prejudice, and Defendants' Motion to Strike is granted in full. Plaintiff may proceed with his disparate treatment claim in Count II and his retaliation claim in Count IX. MOTION by Plaintiff Fred L Nance, Jr for discovery Motion for Discovery Schedule 86 will be heard on 5/3/18 at 9:00 a.m. Status hearing set for 5/3/18 at 9:00 a.m. Signed by the Honorable Harry D. Leinenweber on 4/12/18:Mailed notice(maf)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
FRED L. NANCE, JR.,
Case No. 16-11635
NBCUNIVERSAL MEDIA, LLC;
OPEN 4 BUSINESS PRODUCTIONS;
UNIVERSAL TELEVISION LLC;
JOAN PHILO CASTING; EMPIRE
CASTING, LLC, et al.,
Judge Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
Productions, Universal Television LLC, and Joan Philo Casting
(together, the “Defendants”) move on Rule 12(b)(6) grounds to
dismiss eight claims from the Third Amended Complaint brought by
paragraphs from the introduction section of the Complaint.
granted in part and denied in part and their Motion to Strike is
granted in full [ECF No. 68].
Plaintiff is an actor who used to work as an extra on the
NBC show called Chicago Med.
Sometime after Nance began working
on set, Defendants allegedly reduced his wages by roughly half;
other extras performing the same work did not see any reduction
amounted to various forms of unlawful discrimination.
the pertinent events, as Nance tells them:
While Nance worked
on Chicago Med, several extras (four or five white women and one
white man) began threatening and harassing other extras, though
apparently not Plaintiff himself.
This behavior was reported to
Defendants, but none of the harassing extras were terminated.
In the following weeks, Plaintiff began working on a different
worked on Empire through Defendant Empire Casting, LLC, which
does not join this Motion to Dismiss.
On the Empire set, Nance
thereafter returned to work on Chicago Med.
When those extras
continued to “talk about him in a negative way” around the
Chicago Med set, Nance complained to an assistant director, only
telling her how to do her job,” and another complained Nance had
posted derogatory statements about him on Facebook.
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(Id. ¶ 77.)
After this incident, many of Defendants’ other employees began
harassing Nance on set:
a project assistant cursed at him and
made a rude gesture; a props department employee gruffly told
Nance to turn his prop badge around; and the props department
also lost his prop badge (Nance suggests intentionally).
discriminatory practices,” to HR.
(Id. at 36.)
In April 2016,
Plaintiff filed EEOC charges against NBCUniversal and Joan Philo
On September 24, 2016, he filed an Illinois Department
investigators that he threatened to push or shove one of the
Defendants cited a zero tolerance policy for
threatening behavior and told Nance not to return to the set.
Nance—who is a black male—then filed this action, asserting a
bevy of sex, race, and age-based discrimination claims, many
behavior escaped punishment.
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Plaintiff’s Third Amended Complaint.
This follows successful
efforts by Defendants on two previous Motions to Dismiss, both
prejudice in light of Plaintiff’s pro se status, but cautioned
the Plaintiff that his next amendment would be his last.
Ruling, November 15, 2017.)
The Court now takes each count in
turn and, for simplicity’s sake, orders them by subject rather
than by chronology.
Title VII Claims
Defendants move to dismiss Plaintiff’s six Title VII claims
(Counts II-VI and X).
Until recently, a Title VII claim could
be advanced under a direct or indirect approach.
See, Lewis v.
City of Chi., 496 F.3d 645, 650 (7th Cir. 2007).
But in 2016,
the Seventh Circuit explicitly disapproved of that bifurcation.
Ortiz v. Werner Enters., Inc., 834 F.3d 760, 764 (7th Cir. 2016)
diversions. . . .”).
Rather than splinter the evidence into two different categories—
direct and indirect—courts now consider the evidence as a whole
and focus on the key question:
whether the plaintiff would have
suffered the adverse employment action had he not been a member
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of a protected class.
Id. at 763-64.
In addition, Ortiz made
clear that its holding did not alter the so-called McDonnell
discrimination, Golla v. Office of Chief Judge of Cook Cty.,
Ill., 875 F.3d 404, 407 (7th Cir. 2017) (citing Ortiz, 834 F.3d
at 766), which remains a valid but nonexclusive method of doing
4224616, at *4 (N.D. Ill. Sept. 22, 2017) (citations omitted).
Under that method, a Title VII plaintiff makes out a prima facie
case of retaliation by showing he:
(1) engaged in protected
activity; (2) suffered a materially adverse employment action;
(3) was meeting his employer’s legitimate expectations; and (4)
was treated less favorably than similarly situated employees who
did not engage in protected activity.
Boss v. Castro, 816 F.3d
910, 918 (7th Cir. 2016).
Disparate Impact or Treatment (Count II)
In Count II, Plaintiff alleges that Defendants’ application
of their zero tolerance policy for threatening violence caused a
disparate impact in violation of Title VII.
42 U.S.C. § 2000e
discriminatory motive and involve employment practices that are
facially neutral in their treatment of different groups but that
in fact fall more harshly on one group than another and cannot
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be justified by business necessity.”
Puffer v. Allstate Ins.
Co., 675 F.3d 709, 716 (7th Cir. 2012) (citing Int’l Bhd. of
Such claims must be premised upon a harm that falls not on the
plaintiff alone, but rather on the protected group of which the
plaintiff is a member.
H.P. v. Naperville Cmty. Unit Sch. Dist.
#203, No. 17 C 5377, 2017 WL 5585627, at *5 (N.D. Ill. Nov. 20,
2017) (citations omitted).
Here, Plaintiff does not argue that
Defendants’ alleged “no threats of violence” policy resulted in
Plaintiff contends that Defendants applied that policy against
him—and not the five or six other employees he mentions—because
Plaintiff is black and the others are not.
The Court thus
agrees with Defendants that Plaintiff premises Count III not on
a disparate impact theory (as he has titled it in his Complaint)
but rather on a disparate treatment theory.
The latter requires
that the Plaintiff establish discriminatory motive or intent,
Puffer, 675 F.3d at 716, which he may do by demonstrating that
terminated Plaintiff because he admitted to making a threatening
remark to a coworker.
But Plaintiff maintains that similarly
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situated—but white—employees committed similar transgressions by
This suffices to allege disparate treatment.
Mirocha v. Palos Cmty. Hosp., 240 F. Supp. 3d 822, 837 n.3 (N.D.
Ill. 2017) (quoting E.E.O.C. v. Francis W. Parker Sch., 41 F.3d
1073, 1076 (7th Cir. 1994)) (stating that disparate treatment
occurs when an employee is treated less favorably simply because
of race, color, sex, national origin, or age); see also, Green
v. Teddie Kossof’s Salon & Day Spa, No. 13 C 6709, 2015 WL
5675463, at *6 n.4 (N.D. Ill. Sept. 24, 2015) (citation omitted)
(noting that to prove a disparate treatment claim, terminated
In sum, Plaintiff has not stated a claim for disparate impact,
but he has stated a claim for disparate treatment.
Motion to Dismiss is denied as to Count II to the extent that
Plaintiff may pursue his disparate treatment theory.
Hostile Work Environment (Count III)
In Count III, Plaintiff alleges he was subject to a hostile
hostile work environment claim, Plaintiff must allege:
based on his race or sex; (3) the harassment was sufficiently
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employment and create a hostile or abusive atmosphere; and (4)
there is a basis for employer liability.
Nance v. Rothwell,
No. 09 C 7733, 2011 WL 1770306, at *7 (N.D. Ill. May 9, 2011)
(citing Luckie v. Ameritech Corp., 389 F.3d 708, 713 (7th Cir.
In his Complaint, Nance describes workplace personality
But Plaintiff 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 race-related behavior.”
Luckie, 389 F.3d at
employees “did not harass any other African American extra on
(3d. Am. Compl. ¶ 160.)
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 does not transform them [into an
Count III is dismissed with prejudice.
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Sex Discrimination (Count IV)
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.
Defendants discriminated against him “because of his sex and
(2d Am. Compl. ¶ 197, ECF No. 43.)
Now, Plaintiff recites only the sex basis for this claim.
because of the individual’s sex.
42 U.S.C. § 2000e-2(a)(1).
But as a male Plaintiff pursuing a sex discrimination claim,
Nance faces an additional hurdle in stating a claim:
demonstrate background circumstances that suggest he is a member
of a protected class in this situation.
See, Mills v. Health
Care Servs. Corp., 171 F.3d 450, 455-457 (7th Cir. 1999).
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.”
Miller v. Chi. Transit Auth., No. 17-CV-00806, 2018 WL 905517,
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at *3 (N.D. Ill. Feb. 15, 2018) (quoting Mills, 171 F.3d at 455457)
whole, Nance has failed to make any such showing here.
one of the six similarly situated offenders he describes is also
male. (3d Am. Compl. ¶ 130 n.20.) Plaintiff’s sex discrimination
claim thus fails.
Cf. Jacobeit v. Rich Twp. High Sch. Dist.
227, 673 F. Supp. 2d 653, 660 (N.D. Ill. 2009) (finding white
plaintiff stated a Title VII race discrimination claim where
terminated from one of them, and Defendants extended offers to
African American replacements); Paxson v. Cty. of Cook, Ill.,
No. 02 C 2028, 2002 WL 1968561, at *3 (N.D. Ill. Aug. 23, 2002)
(denying motion to dismiss a white plaintiff’s Title VII racial
treatment); see also, Mellinger v. Combined Ins. Co. of Am.,
No. 99 C 4530, 2000 WL 12439, at *2 (N.D. Ill. Jan. 3, 2000)
asserting Title VII sex discrimination claim).
Age Discrimination (Count V)
In Count V, Plaintiff alleges Defendants violated Title VII
by terminating him, a man over 40, but not terminating other,
sub-40 employees for comparable conduct.
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As an initial matter,
Plaintiff’s claim fails because Title VII protects individuals
from discrimination on the basis of race, color, religion, sex,
and national origin, but not age.
42 U.S.C. § 2000e-2(a)(1);
Khan v. Univ. of Chi. Hosps., No. 96 C 7949, 1997 WL 711421, at
defendant on plaintiff’s age discrimination claim premised on
Even if Plaintiff had properly brought this claim
under the Age Discrimination in Employment Act (the “ADEA”), 29
U.S.C. § 623(a)(1), however, the claim still could not survive.
Courts apply the McDonnell Douglas framework to Title VII claims
and ADEA claims alike.
Krchnavy v. Limagrain Genetics Corp.,
294 F.3d 871, 875 (7th Cir. 2002) (citations omitted); but, see,
Harris, 2017 WL 4224616, at *4 (remarking that after Ortiz, the
McDonnell Douglas framework is a valid but nonexclusive means of
establishing a Title VII claim).
To state a claim under this
framework, Plaintiff must allege that (1) he is a member of a
protected class; (2) he was performing at a level that met his
employer’s legitimate expectations; (3) he was subject to an
adverse employment action; and (4) he was treated differently
than a similarly situated person outside the protected class.
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Nance would have kept his job had he been younger.
v. Werner Enters., Inc., 834 F.3d 760, 764 (7th Cir. 2016).
Nance alleges that six or seven people “who are not African
American and 40 years old” were accused of behavior similar to
Plaintiff’s fireable offense and yet escaped termination.
treated more favorably.
But Nance has also told the Court—
situated people are actually older than 40.
(3d Am. Compl.
¶ 130 n.20 (describing these five individuals as “white males
and females over 40 years old”); 2d Am. Compl. ¶ 24 (describing
At least on this count, Plaintiff has pled himself out
Taking his allegations as true, Defendants frequently
preclude him from claiming plausibly that his age is the reason
Sheriff, 580 F.3d 495, 500 (7th Cir. 2009) (citing Gross v. FBL
Fin. Servs., Inc., 557 U.S. 167 (2009)) (“[A]n ADEA plaintiff
must demonstrate that his age was the ‘but-for’ cause of the
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Retaliation Claims (Counts VI and X)
The Seventh Circuit generally applies the same prima facie
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).
(1) 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
A causal link requires more than the mere
Boss v. Castro, 816 F.3d 910, 918 (7th Cir.
2016) (citation omitted).
Plaintiff filed an EEOC complaint in April 2016 alleging race,
age, and sex-based discrimination, and Defendants terminated him
in September 2016.
However, Plaintiff never alleges—or even
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Once more, he claims Defendants terminated him for conduct that
white extras engaged in without reprimand.
are sufficient to state a Title VII disparate treatment claim,
violating Title VII and Section 1981) and Count X (asserting
retaliation violating Title VII and the ADEA) are both dismissed
Equal Pay Act Claims
Unequal Pay (Count VIII)
In Count VIII, Plaintiff asserts Defendants paid him less
than similarly situated females in violation of the Equal Pay
discrimination under the EPA, a plaintiff must show:
responsibilities, and (3) the work was performed under similar
Jaburek v. Foxx, 813 F.3d 626, 632 (7th
Cir. 2016) (citations and quotation marks omitted).
claims require that plaintiffs allege “a causal relation between
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sex and pay.”
Lindale v. Tokheim Corp., 145 F.3d 953, 957 (7th
Plaintiff cannot plausibly allege that relation
In his Second Amended Complaint, Plaintiff told the Court
that both male and female extras earned more than he did for
substantially similar work.
(2d Am. Compl. ¶ 222.)
Plaintiff amends the allegations to state that only females made
more than he.
This will not do.
Plaintiff is correct that
generally, an amended complaint supersedes the prior pleading,
Duda v. Bd. of Educ. of Franklin Park Pub. Sch. Dist. No. 84,
133 F.3d 1054, 1057 (7th Cir. 1998), and will not be dismissed
based on inconsistencies between it and the original, Whitehouse
v. Piazza, 397 F. Supp. 2d 935, 941 (N.D. Ill. 2005) (citation
But where the amended allegations flatly contradict
the originals and there is no suggestion that the originals were
made in error, courts have considered the different complaints
together in the interests of justice.
See, e.g., Aasen v. DRM,
Inc., No. 09C50228, 2010 WL 2698296, at *2 (N.D. Ill. July 8,
2010) (dismissing revised allegations reflecting “an intentional
appropriate motion to dismiss); cf. Whitehouse v. Piazza, 397 F.
Supp. 2d 935, 942 (N.D. Ill. 2005) (observing that dismissal can
be appropriate when pleadings are contradictory, but refusing to
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dismiss amended complaint that simply provided facts that the
original complaint left out).
Here, Plaintiff nowhere suggests
Defendants’ Motions, Plaintiff simply changes his story.
purpose of the pleadings phase is to separate the wheat from the
Plausible claims proceed, but implausible ones perish.
Allowing Plaintiff to remold his allegations around Defendants’
Motions will only waste the Court’s and the parties’ time:
earnest gamesmanship is not in the interests of justice and will
not be allowed.
Count VIII is dismissed with prejudice.
Retaliation Claim (Count IX)
Defendants contend that Plaintiff’s contradictory pleadings
also doom his EPA retaliation claim in Count IX.
To establish a
prima facie case for unlawful retaliation under the Equal Pay
Act, a plaintiff must plausibly allege three elements:
engaged in statutorily protected expression; (2) he suffered an
between the protected expression and the adverse action.
v. Gorman & Co., 416 F.3d 540, 545 (7th Cir. 2005).
there he alleged that he filed an IDOL complaint against Empire
Casting regarding an “irregular pay schedule.”
(2d. Am. Compl.
Clearly, that description makes no mention of sex-based
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expression under the EPA.
See, Cole v. Bd. of Trustees of N.
Ill. Univ., 838 F.3d 888, 901 (7th Cir. 2016) (in retaliation
claims, the complaint must indicate discrimination on the basis
Amended Complaint, he clarifies that he complained to the IDOL
regarding an irregular pay schedule as a “result of his sex[,
given that] females received their checks regularly.”
Compl. ¶ 189.)
From this, the Court infers Nance means to say
that his IDOL complaint asserted that Empire Casting paid him
irregularly because he is male.
Unlike his earlier allegations,
these sufficiently allege engagement in a statutorily protected
Further, and contrary to Defendants’ contentions,
contradict Nance’s earlier allegations.
As such, the Court will
not deviate from the general rule—at least with respect to its
supersedes the prior pleading.
See, Duda, 133 F.3d at 1057.
As to parts two and three of the prima facie case for
complaint, the Defendants terminated him a mere four days later.
When “an adverse employment action follows on the close heels of
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protected expression and the plaintiff can show the person who
Culver, 416 F.3d at 546 (quoting Lalvani
v. Cook County, Ill., 269 F.3d 785, 790 (7th Cir. 2001)).
named only Empire Casting, but not the other Defendants, in his
And as stated above, Empire Casting does not
join the other Defendants in their instant Motion to Dismiss.
terminate Nance knew that Nance had filed the IDOL Complaint.
If so, Nance’s claim may proceed, if not, it cannot.
Nance alleges that the day after Defendants terminated him,
¶¶ 146, 153) emailed him and explained that Defendants decided
investigation that Nance had threatened to push another extra.
Universal Television notified Empire Casting that Empire must
not cast Nance to work on any Universal or Open 4 Business
Defendants and the abstaining Defendant Empire Casting, it is
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entities have an open channel of communications concerning their
Calderon-Ramirez v. McCament, 877 F.3d 272, 275 (7th
If Empire shared the results of its HR-employee
investigations with the other Defendants, it is reasonable to
infer that Empire also shared the news of Nance having filed the
This ends the analysis—the merits of the IDOL
complaint play no role at this early stage.
See, Legutko v.
retaliation actions are judged “irrespective of the merits” of
the underlying claims), aff’d, 853 F.2d 1046 (2d Cir. 1988).
Plaintiff has stated a retaliation claim under the EPA, so the
Motion to Dismiss is denied as to Count IX.
Motion to Strike
Defendants also seek to strike the opening paragraphs to
Plaintiff’s Third Amended Complaint under Federal Rules of Civil
Procedure 12(f) and 10(b).
These paragraphs span five pages and
harassment allegations wholly unrelated to this case (mentions
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Senate candidate Roy Moore).
First, Defendants are correct that
these statements fail to adhere to Rule 10(b), which requires
that parties state their claims in numbered paragraphs.
v. Morgan, No. 12 C 1815, 2013 WL 2422737, at *6 (N.D. Ill.
Exportacao Ltda. v. Case Corp., No. 01–C–8591, 2005 WL 843297,
at *13 (N.D. Ill. Jan 20, 2005) (indicating that allegations are
relationship to the claim), aff’d, 541 F.3d 719 (7th Cir. 2008).
these harassment allegations “come under the umbrella of sex
discrimination,” which is one basis for Nance’s action against
(Pl.’s Resp. at 2, ECF No. 73.)
But a complaint is
matter at hand, and the Court will not permit such detritus to
relationships to Plaintiff’s claims.
The Motion to Strike is
granted, and the unnumbered introductory paragraphs are stricken
from the Third Amended Complaint.
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responses to Defendants’ Motion to Dismiss which together total
permitted by Local Rule 7.1.
Plaintiff is proceeding pro se and
as such the Court excuses his noncompliance with the Local Rule
on this occasion.
But Plaintiff is now directed to adhere to
noncompliant filings will be subject to being stricken in full.
For the reasons stated herein, Counts III, IV, V, VI, VIII,
and X are dismissed with prejudice, and Defendants’ Motion to
disparate treatment claim in Count II and his retaliation claim
in Count IX.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
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