Nance v. NBC Universal Entertainment et al
Filing
90
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
EASTERN DIVISION
FRED L. NANCE, JR.,
Plaintiff,
v.
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
Defendants.
MEMORANDUM OPINION AND ORDER
Defendants
NBCUniversal
Media
LLC,
Open
4
Business
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
Plaintiff
Fred
Defendants
also
L.
Nance,
move
to
Jr.
(the
strike
“Plaintiff”
several
pages
or
of
“Nance”).
unnumbered
paragraphs from the introduction section of the Complaint.
the
reasons
stated
herein,
Defendants’
Motion
to
Dismiss
For
is
granted in part and denied in part and their Motion to Strike is
granted in full [ECF No. 68].
I.
BACKGROUND
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
in
their
describes
paychecks.
a
In
history
of
his
pro
workplace
se
Complaint,
bullying
Nance
also
which
allegedly
amounted to various forms of unlawful discrimination.
Here are
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
show, Empire,
run
on
the
Fox
network.
Plaintiff
apparently
worked on Empire through Defendant Empire Casting, LLC, which
does not join this Motion to Dismiss.
had
quarrels
with
some
other
On the Empire set, Nance
extras
who,
thereafter returned to work on Chicago Med.
with
Plaintiff,
When those extras
continued to “talk[] about him in a negative way” around the
Chicago Med set, Nance complained to an assistant director, only
to
be
already
Compl.
told
that
submitted
¶ 73,
ECF
both
of
the
complaints
No.
67.)
allegedly
about
One
harassing
Nance
extra
himself.
complained
extras
had
(3d
Am.
Nance
“was
telling her how to do her job,” and another complained Nance had
posted derogatory statements about him on Facebook.
- 2 -
(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).
reported
these
events,
which
he
discriminatory practices,” to HR.
describes
as
(Id. at 36.)
Nance
“racism
and
In April 2016,
Plaintiff filed EEOC charges against NBCUniversal and Joan Philo
Casting.
of
On September 24, 2016, he filed an Illinois Department
Labor
against
(“IDOL”)
exactly
Complaint).
terminated
wage
which
Finally,
him,
after
claim
against
defendants
on
is
September
he
allegedly
Defendants
not
28,
(although
clear
2016,
from
the
Defendants
acknowledged
to
HR
investigators that he threatened to push or shove one of the
harassing extras.
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
premised
upon
threatening
the
allegation
behavior,
other
that
extras
behavior escaped punishment.
- 3 -
while
who
he
was
fired
exhibited
for
similar
II.
Defendants
move
to
DISCUSSION
dismiss
Counts
Plaintiff’s Third Amended Complaint.
II-VI
and
VIII-X
of
This follows successful
efforts by Defendants on two previous Motions to Dismiss, both
of
which
Court
resulted
dismissed
in
all
Plaintiff
amending
complained-of
counts
his
Complaint.
last
time
The
without
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.)
(Oral
The Court now takes each count in
turn and, for simplicity’s sake, orders them by subject rather
than by chronology.
A.
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)
(“The
time
has
come
to
jettison
these
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
- 4 -
of a protected class.
Id. at 763-64.
In addition, Ortiz made
clear that its holding did not alter the so-called McDonnell
Douglas
method
of
establishing
a
prima
facie
case
of
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
so,
Harris
v.
Chi.
Transit
Auth.,
No.
14
C
9106,
2017
WL
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).
1.
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.
et
seq.
“Disparate
impact
claims
42 U.S.C. § 2000e
require
no
proof
of
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
- 5 -
be justified by business necessity.”
Puffer v. Allstate Ins.
Co., 675 F.3d 709, 716 (7th Cir. 2012) (citing Int’l Bhd. of
Teamsters
v.
United
States,
431
U.S.
324,
335
n.15
(1977)).
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
a
disparate
impact
on
black
employees
generally.
Instead,
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
Defendants’
Coleman
Plaintiff
v.
given
reason
Donahoe,
has
done
667
as
for
his
F.3d
much
termination
835,
here.
841
is
(7th
Defendants
pretextual,
Cir.
2012).
apparently
terminated Plaintiff because he admitted to making a threatening
remark to a coworker.
But Plaintiff maintains that similarly
- 6 -
situated—but white—employees committed similar transgressions by
threatening
offenses.
him,
and
yet
the
Defendants
tolerated
their
This suffices to allege disparate treatment.
See,
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
plaintiff
would
have
similarly
situated
to
show
employee’s
that
her
comparable
employer
number
tolerated
of
a
absences).
In sum, Plaintiff has not stated a claim for disparate impact,
but he has stated a claim for disparate treatment.
Defendants’
Motion to Dismiss is denied as to Count II to the extent that
Plaintiff may pursue his disparate treatment theory.
2.
Hostile Work Environment (Count III)
In Count III, Plaintiff alleges he was subject to a hostile
work
environment
based
on
his
race.
To
state
a
Title
hostile work environment claim, Plaintiff must allege:
was
subject
to
unwelcome
harassment;
(2)
the
VII
(1) he
harassment
was
based on his race or sex; (3) the harassment was sufficiently
- 7 -
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.
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.
2004)).
In his Complaint, Nance describes workplace personality
conflicts,
media.
general
bullying,
and
insults
exchanged
on
social
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
713.
allegedly
Further,
Plaintiff
adds
that
the
harassing
employees “did not harass any other African American extra on
set.”
(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
actionable
claim
DaimlerChrysler
for
Corp.,
racial
388
F.3d
harassment].”
293,
Count III is dismissed with prejudice.
- 8 -
303
(7th
Herron
Cir.
v.
2004).
3.
In
Count
Sex Discrimination (Count IV)
IV,
Plaintiff
claims
Defendants
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.
previous
iteration
of
his
Complaint,
In the
Plaintiff
alleged
Defendants discriminated against him “because of his sex and
heterosexual orientation.”
(2d Am. Compl. ¶ 197, ECF No. 43.)
Now, Plaintiff recites only the sex basis for this claim.
Am.
Compl.
¶¶ 161-64.)
discriminate
compensation,
against
terms,
Under
any
Title
VII,
individual
conditions,
because of the individual’s sex.
or
it
with
privileges
is
(3d
unlawful
respect
of
to
to
employment
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:
He must
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).
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.”
Miller v. Chi. Transit Auth., No. 17-CV-00806, 2018 WL 905517,
- 9 -
at *3 (N.D. Ill. Feb. 15, 2018) (quoting Mills, 171 F.3d at 455457)
(citation
omitted).
Considering
the
allegations
whole, Nance has failed to make any such showing here.
as
a
Indeed,
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
plaintiff
applied
to
two
positions,
was
hired
for
and
then
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
discrimination
similarly
claim
situation
where
that
non-white
plaintiff
employees
alleged
received
that
all
disparate
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)
(applying
background
circumstances
analysis
to
male
plaintiff
asserting Title VII sex discrimination claim).
4.
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.
- 10 -
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
*3
(N.D.
Ill.
Nov.
7,
1997)
(granting
summary
judgment
for
defendant on plaintiff’s age discrimination claim premised on
Title VII).
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.
Krchnavy,
294
allegations
McDonnell
F.3d
Nance
Douglass
at
875
presents
framework
(citations
neither
nor,
- 11 -
omitted).
pass
per
muster
Ortiz,
But
the
under
the
establish
that
Nance would have kept his job had he been younger.
See, Ortiz
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.
(ECF
No
were
67
¶ 167.)
He
adds
that
treated more favorably.
twice,
now—that
at
generally,
younger
extras
But Nance has also told the Court—
least
five
of
these
allegedly
situated people are actually older than 40.
similarly
(3d Am. Compl.
¶ 130 n.20 (describing these five individuals as “white males
and females over 40 years old”); 2d Am. Compl. ¶ 24 (describing
same).)
At least on this count, Plaintiff has pled himself out
of Court.
do
not
Taking his allegations as true, Defendants frequently
terminate
Plaintiff
is
an
employees
outlier
in
accused
that
of
threatening
regard,
but
his
behavior.
allegations
preclude him from claiming plausibly that his age is the reason
for
that
difference
in
treatment.
See,
Mach
v.
Will
Cty.
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
challenged
employment
action.”).
prejudice.
- 12 -
Count
V
is
dismissed
with
5.
Retaliation Claims (Counts VI and X)
The Seventh Circuit generally applies the same prima facie
requirements
to
retaliation
claims
Section 1981, and the ADEA.
brought
under
Title
VII,
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
plausibly allege:
retaliation
claim,
Plaintiff
must
(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
Paramedic
(7th
Servs.,
Inc.,
(citation omitted).
fact
that
an
840
F.3d
378,
383
Cir.
2016)
A causal link requires more than the mere
employer’s
protected activity.
action
happens
after
an
employee’s
Boss v. Castro, 816 F.3d 910, 918 (7th Cir.
2016) (citation omitted).
The
first
two
prongs
of
that
analysis
have
been
met.
Plaintiff filed an EEOC complaint in April 2016 alleging race,
age, and sex-based discrimination, and Defendants terminated him
in September 2016.
suggests—a
causal
However, Plaintiff never alleges—or even
link
between
his
- 13 -
Complaint
and
termination
beyond
the
mere
timing.
Plaintiff’s
retaliation
restatement
of
his
Boss,
claim
disparate
in
816
F.3d
Count
at
VI
treatment
918.
appears
claim
from
Indeed,
to
be
Count
a
II.
Once more, he claims Defendants terminated him for conduct that
white extras engaged in without reprimand.
These allegations
are sufficient to state a Title VII disparate treatment claim,
but
they
do
not,
retaliation.
without
Accordingly,
more,
also
Count
VII
establish
a
(asserting
claim
for
retaliation
violating Title VII and Section 1981) and Count X (asserting
retaliation violating Title VII and the ADEA) are both dismissed
with prejudice.
B.
1.
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
Act,
29
U.S.C.
§ 206(d).
To
state
a
claim
discrimination under the EPA, a plaintiff must show:
wages
were
requiring
paid
to
a
female
substantially
employee
similar
(2)
skill,
for
for
such
(1) higher
equal
effort
work
and
responsibilities, and (3) the work was performed under similar
working conditions.
Jaburek v. Foxx, 813 F.3d 626, 632 (7th
Cir. 2016) (citations and quotation marks omitted).
But such
claims require that plaintiffs allege “a causal relation between
- 14 -
sex and pay.”
Cir. 1998).
here.
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.
Defendants
have
moved
for
(2d Am. Compl. ¶ 222.)
and
won
dismissal
of
Now that
that
claim,
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
omitted).
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
manipulation
to
avoid
the
consequences
of
defendants’
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
- 15 -
dismiss amended complaint that simply provided facts that the
original complaint left out).
that
his
original
Here, Plaintiff nowhere suggests
pleadings
were
mistaken.
Having
seen
Defendants’ Motions, Plaintiff simply changes his story.
The
purpose of the pleadings phase is to separate the wheat from the
chaff.
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:
Such
earnest gamesmanship is not in the interests of justice and will
not be allowed.
Count VIII is dismissed with prejudice.
2.
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:
(1) he
engaged in statutorily protected expression; (2) he suffered an
adverse
employment
action;
and
(3)
there
was
a
causal
between the protected expression and the adverse action.
v. Gorman & Co., 416 F.3d 540, 545 (7th Cir. 2005).
Second
Amended
Complaint
failed
to
meet
these
link
Culver
Nance’s
requirements;
there he alleged that he filed an IDOL complaint against Empire
Casting regarding an “irregular pay schedule.”
¶ 106.)
(2d. Am. Compl.
Clearly, that description makes no mention of sex-based
- 16 -
pay
discrimination,
nothing
more
fails
so
an
to
expression under the EPA.
IDOL
complaint
qualify
as
a
asserting
statutorily
that
and
protected
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
of
membership
in
a
protected
class).
But
in
Nance’s
Third
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.)
(3d Am.
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
expression.
this
Further, and contrary to Defendants’ contentions,
improved
pleading
supplements
contradict Nance’s earlier allegations.
and
does
not
flatly
As such, the Court will
not deviate from the general rule—at least with respect to its
analysis
of
this
retaliation
supersedes the prior pleading.
claim—that
an
amended
complaint
See, Duda, 133 F.3d at 1057.
As to parts two and three of the prima facie case for
retaliation:
Nance
alleges
that
after
he
filed
the
IDOL
complaint, the Defendants terminated him a mere four days later.
When “an adverse employment action follows on the close heels of
- 17 -
protected expression and the plaintiff can show the person who
decided
to
conduct,
impose
the
the
adverse
causation
typically satisfied.”
element
action
of
knew
the
of
prima
the
protected
facie
case
is
Culver, 416 F.3d at 546 (quoting Lalvani
v. Cook County, Ill., 269 F.3d 785, 790 (7th Cir. 2001)).
Nance
named only Empire Casting, but not the other Defendants, in his
IDOL Complaint.
And as stated above, Empire Casting does not
join the other Defendants in their instant Motion to Dismiss.
The
question
somewhere
thus
in
becomes
whether
Defendants’
opaque
the
actor
corporate
who
decided,
structure,
to
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,
an
HR
representative
Television/Universal
of
Cable
“NBC
Entertainment/Universal
Productions”
(Third
Am.
Compl.
¶¶ 146, 153) emailed him and explained that Defendants decided
to
terminate
Nance
after
they
learned
from
Empire
Casting’s
investigation that Nance had threatened to push another extra.
The
HR
rep
further
explained
that
based
on
this
evidence,
Universal Television notified Empire Casting that Empire must
not cast Nance to work on any Universal or Open 4 Business
production.
Whatever
the
connection
between
the
movant-
Defendants and the abstaining Defendant Empire Casting, it is
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clear
from
these
allegations
that,
at
the
very
least,
these
entities have an open channel of communications concerning their
personnel
takes
and
all
party.
operations.
reasonable
At
the
inferences
pleading
in
favor
stage,
of
the
the
Court
non-moving
Calderon-Ramirez v. McCament, 877 F.3d 272, 275 (7th
Cir. 2017).
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
IDOL complaint.
This ends the analysis—the merits of the IDOL
complaint play no role at this early stage.
See, Legutko v.
Local
Supp.
816,
(E.D.N.Y.
Int’l
1985)
Bhd.
of
Teamsters,
(remarking
that
606
at
F.
the
352,
pleadings
359
stage,
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.
C.
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).
range
in
difficulties
subject
to
a
from
These paragraphs span five pages and
Plaintiff’s
recitation
of
recent
purported
and
financial
notorious
sexual
harassment allegations wholly unrelated to this case (mentions
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include
actor
Kevin
Spacey,
Senate candidate Roy Moore).
comedian
Louis
C.K.,
and
former
First, Defendants are correct that
these statements fail to adhere to Rule 10(b), which requires
that parties state their claims in numbered paragraphs.
Muller
v. Morgan, No. 12 C 1815, 2013 WL 2422737, at *6 (N.D. Ill.
June 3,
2013)
provides
But
(remarking
reason
more
enough
that
to
importantly,
immaterial
to
non-compliance
strike
these
Plaintiff’s
with
from
statements
Rule
complaint).
introductory
claims.
10(b)
statements
Extra
Equipamentos
are
E
Exportacao Ltda. v. Case Corp., No. 01–C–8591, 2005 WL 843297,
at *13 (N.D. Ill. Jan 20, 2005) (indicating that allegations are
immaterial
under
Rule
12
when
they
have
no
essential
relationship to the claim), aff’d, 541 F.3d 719 (7th Cir. 2008).
Plaintiff
asserts
that
his
introduction
is
relevant
because
these harassment allegations “come under the umbrella of sex
discrimination,” which is one basis for Nance’s action against
Defendants.
not
a
(Pl.’s Resp. at 2, ECF No. 73.)
dumping
ground
for
all
facts
But a complaint is
relating
to
the
subject
matter at hand, and the Court will not permit such detritus to
accumulate
in
the
record
based
relationships to Plaintiff’s claims.
on
the
most
tenuous
of
The Motion to Strike is
granted, and the unnumbered introductory paragraphs are stricken
from the Third Amended Complaint.
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In
addition,
the
Court
notes
that
Plaintiff
filed
two
responses to Defendants’ Motion to Dismiss which together total
forty-one
pages.
This
surpasses
permitted by Local Rule 7.1.
the
fifteen-page
maximum
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
the
file
Rule
(excluding
and
not
exhibits)
any
brief
longer
without
prior
leave
than
of
fifteen
Court.
pages
Further
noncompliant filings will be subject to being stricken in full.
III.
CONCLUSION
For the reasons stated herein, 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.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
Dated: 4/12/2018
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