United States District Court, N.D. Illinois, Eastern Division
FRED L. NANCE, JR., Plaintiff,
NBCUNIVERSAL MEDIA, LLC; OPEN 4 BUSINESS PRODUCTIONS; UNIVERSAL TELEVISION LLC; JOAN PHILO CASTING; EMPIRE CASTING, LLC, et al., Defendants.
MEMORANDUM OPINION AND ORDER
D. Leinenweber, Judge.
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].
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
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.
Title VII Claims
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).
Disparate Impact or Treatment (Count II)
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.
Hostile Work Environment (Count III)
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.
Sex Discrimination (Count IV)
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 ...