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Nance v. NBCUniversal Media, LLC

United States District Court, N.D. Illinois, Eastern Division

April 12, 2018

FRED L. NANCE, JR., Plaintiff,
v.
NBCUNIVERSAL MEDIA, LLC; OPEN 4 BUSINESS PRODUCTIONS; UNIVERSAL TELEVISION LLC; JOAN PHILO CASTING; EMPIRE CASTING, LLC, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Harry D. Leinenweber, Judge.

         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 L. Nance, Jr. (the “Plaintiff” or “Nance”). Defendants also move to strike several pages of unnumbered paragraphs from the introduction section of the Complaint. For the reasons stated herein, Defendants' Motion to Dismiss 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 paychecks. In his pro se Complaint, Nance also describes a history of workplace bullying 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. On the Empire set, Nance had quarrels with some other extras who, with Plaintiff, 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 to be told that both of the allegedly harassing extras had already submitted complaints about Nance himself. (3d Am. Compl. ¶ 73, ECF No. 67.) One extra complained Nance “was telling her how to do her job, ” and another complained Nance had posted derogatory statements about him on Facebook. (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). Nance reported these events, which he describes as “racism and discriminatory practices, ” to HR. (Id. at 36.) In April 2016, Plaintiff filed EEOC charges against NBCUniversal and Joan Philo Casting. On September 24, 2016, he filed an Illinois Department of Labor (“IDOL”) wage claim against Defendants (although against exactly which defendants is not clear from the Complaint). Finally, on September 28, 2016, Defendants terminated him, after he allegedly 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 the allegation that while he was fired for threatening behavior, other extras who exhibited similar behavior escaped punishment.

         II. DISCUSSION

         Defendants move to dismiss Counts II-VI and VIII-X of Plaintiff's Third Amended Complaint. This follows successful efforts by Defendants on two previous Motions to Dismiss, both of which resulted in Plaintiff amending his Complaint. The Court dismissed all complained-of counts last time without prejudice in light of Plaintiff's pro se status, but cautioned the Plaintiff that his next amendment would be his last. (Oral 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.

         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 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. 42 U.S.C. § 2000e et seq. “Disparate impact claims 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 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' given reason for his termination is pretextual, Coleman v. Donahoe, 667 F.3d 835, 841 (7th Cir. 2012). Plaintiff has done as much here. Defendants apparently terminated Plaintiff because he admitted to making a threatening remark to a coworker. But Plaintiff maintains that similarly situated-but white-employees committed similar transgressions by threatening him, and yet the Defendants tolerated their offenses. 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 to show that her employer tolerated a similarly situated employee's comparable number of 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 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. 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, general bullying, and insults exchanged on social media. 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. Further, Plaintiff adds that the allegedly 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 for racial harassment].” Herron v. DaimlerChrysler Corp., 388 F.3d 293, 303 (7th Cir. 2004). Count III is dismissed with prejudice.

         3. Sex Discrimination (Count IV)

         In Count 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. In the previous iteration of his Complaint, 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. (3d Am. Compl. ¶¶ 161-64.) 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). 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, at *3 (N.D. Ill. Feb. 15, 2018) (quoting Mills, 171 F.3d at 455-457) (citation omitted). Considering the allegations as a whole, Nance has failed to make any such showing here. 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 ...


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