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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION Fred L. Nance Jr.

) ) Plaintiff, ) ) vs. ) ) NBC Universal Media, LLC, Open 4 ) Business Productions, Universal Television ) LLC, Joan Philo Casting, Empire Casting ) LLC, et al. ) ) Defendants. )

Case No. 16-CV-11635 Honorable Judge: Harry D. Leinenweber Honorable Magistrate Judge: Susan E. Cox

Courtroom: 1941

PLAINTIFF’S MEMORANDUM OF LAW RESPONSE TO DEFENDANT’S MOTION TO DISMISS THIRD AMENDED COMPLAINT AND MOTION TO STRIKE ARGUMENT Introduction This is a Title VII and ADEA complaint against NBC Universal Media, LLC, Open 4 Business Productions, Universal Television LLC, Joan Philo Casting (hereinafter, “NBC”) and Empire Casting LLC (hereinafter, “Empire”). NBC produced the Chicago Med television show at Chicago’s Cinespace Studios. This court will find, continuously, in defendants’ motion to dismiss and strike the statement that plaintiff was not terminated because of a policy or procedure of NBC. Who is this court going to believe, NBC’s HR Director Darren Chiappetta and Empire Casting LLC (3rd Amended Complaint, pp. 20-22, ¶120-121, 127), or the attorneys for defendants? If this court believes defendants’ attorneys, then plaintiff’s termination was a pretext, and NBC and Empire violated Title VII, ADEA, and §1981 as reported by plaintiff. Plaintiff has reported, from the beginning in his original and amended complaints, he received an email from NBC’s HR Director Darren Chiappetta stating Page 1 of 32

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“…In reviewing the situation, Universal Television, LLC, the producer of Chicago Med, learned that you allegedly had a disagreement with background actor Ashland Thomas on September 27, 2016. You and Mr. Thomas were both employed by Empire Casting at the time. It was alleged that you followed Mr. Thomas, confronted him about allegedly interfering with your scene, and threatened to push, shove, or otherwise forcefully move him if he interfered again. An investigation took place by Empire Casting. You were interviewed in that investigation. According to the investigator’s summary, you acknowledged that you told Ash Thomas that you would forcefully move him if he interfered with your scene. Universal Television, LLC prohibits threats of physical force and/or intimidating words by anyone (including third-party employees and visitors) on its premises. Based on the information that Universal Television received, Universal Television notified Empire Casting that you must not return to the premises and that Empire Casting must not cast you to work as an extra on any Universal Television or Open 4 Business Productions, LLC production….” This is a NBC policy dictated by NBC’s HR Director Chiappetta. In addition, plaintiff has stated, in his original and amended complaints, he received a phone call on September 28, 2016 at approximately 5:21 pm (CST) at his home from a person identifying himself as Mark Olson, VP of Operations for Empire Casting LLC, basically, repeating the same policy of NBC. On September 28, 2016 Mr. Olson informed plaintiff he was terminated by NBC and Joan Philo; and could not work on any NBC shows. This email is part of the record, filed in this court by Page 2 of 32

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plaintiff. Plaintiff states if this court takes as true what defendants’ now claim is not a policy of NBC and Empire, then plaintiff’s termination is a pretext for violations of Title VII and ADEA. If plaintiff was not terminated because of the “policy” and procedure noted in the email from NBC’s HR Director Chiappetta, then plaintiff was not terminated from working with NBC. Yet, plaintiff has not been called back to work since receiving the email on or about September 29, 2016 from HR Director Chiappetta. Plaintiff was scheduled for September 27th, 29th, 30th, October 3rd, and October 16th, 2016 to work on Chicago Med. Plaintiff did not report to work because of the phone call from Mark Olson, VP of Operations for Empire Casting LLC. As stated in plaintiff’s previous original and amended complaints, plaintiff received a phone call from Empire Casting LLC VP Mark Olson stating plaintiff was terminated and was not allowed on any NBC television show. Defendants’ went as far as posting a picture of plaintiff on Cinespace Studios property in their offices, foyers, and other areas with the statement printed on the picture of plaintiff “Fred Nance Not Allowed on Property”. Cinespace Studios’ President & CEO Pissios told plaintiff he did not authorize NBC or Empire to post plaintiff’s picture on their property; and would order his staff to take down plaintiff’s pictures wherever they may be on Cinespace Property in Chicago. The whole point of amending a complaint is to correct the deficiencies of the complaint. Judge Leinenweber acknowledged the deficiencies and ordered plaintiff to correct them. Defendants, throughout their answer to plaintiff’s 3 rd amended complaint, combine the original and all other amended complaints filed by the plaintiff attempting to find fault with the 3 rd amended complaint using terms like ‘contradictions’ and ‘replacing claims’. When one is amending something, they are changing or framing it differently. Defendants’ submit cite legal cases to support their claim of ‘contradictions’ and ‘replacing claims”. If this is what case law Page 3 of 32

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has done to the judicial system, then why do we have amendments and supplements to a complaint? A supplement adds too. A complaint is to be read as whole, for context, not to find fault when fault is realized in amending the complaint. There will be variations and recharactering in a complaint when amended because amending corrects deficiencies. The Supreme Court instructed in Swierkiewicz v. Sorema that Title VII is not subject to a heightened pleading standard. 534 U.S. 506, 513–15 (2002). Rather, all that is required is a short and plain statement showing the pleader is entitled to relief. Id. Swierkiewicz survived the Twombly and Iqbal standard of pleading. Luevano v. Wal‐Mart Stores, 722 F.3d 1014, 1028 (7th Cir. 2013); see also Swanson, 614 F.3d at 404. We have also noted that requiring pleading of unknown details before discovery would improperly deny plaintiffs the opportunity to prove their claims. EEOC v. Cocentra Health Servs., Inc., 496 F.3d 773, 781–82 (7th Cir. 2007). The district court should keep in mind the flexibility that is often appropriate for pro se litigants, who are likely not well versed in complex procedural rules. See, e.g., Kaba v. Stepp, 458 F.3d 678, 681 (7th Cir. 2006); See also Marshall v. Knight, 445 F.3d 965, 969 (7th Cir. 2006). In John H. Davis. et al. vs. Jeanne W. Anderson, No. 17-1732, December 04, 2017 (7th Cir. 2017), the appeals court states “Rule 8(a) requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). The primary purpose of these rules “is to give defendants fair notice of the claims against them and the grounds supporting the claims.” See Stanard v. Nygren, 658 F.3d at 797 (7th Cir. 2011) In Marshall, the Court reports “our notice pleading system requires complaints to contain a short and plain statement of the claim sufficient to notify defendants of the allegations against them and enable them to file an answer. We have repeatedly stated that Rule 8 does not

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require plaintiffs to plead facts or legal theories”; e.g. Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002) (citing Kirksey v. R.J. Reynolds Tobacco Co., 168 F. 3d. 1039, 1041 (7th Cir. 1999)) Defendants’ reason this court should examine plaintiff’s original, 1st and 2nd amended complaint, along with plaintiff’s 3rd amended complaint to rule on their motion to dismiss plaintiff’s 3rd amended complaint. If this is the case, plaintiff should have filed a supplement to his original complaint. This is nonsense. It is well-established that an amended pleading supersedes the original pleading; facts not incorporated into the amended pleading are considered functus officio. Duda v. Board of Educ. of Franklin Park Pub. Sch. Dist. No. 84, 133 F.3d 1054, 1057 (7th Cir.1998); Wellness Community-Nat'l v. Wellness House, 70 F.3d 46, 49 (7th Cir.1995). An amended pleading ordinarily supersedes the prior pleading. The prior pleading is in effect withdrawn as to all matters not restated in the amended pleading. If certain facts or admissions from the original complaint become functus officio, they cannot be considered by the court on a motion to dismiss the amended complaint. A court cannot resuscitate these facts when assessing whether the amended complaint states a viable claim. Defendant’s state “…Rather than pleading new facts that would enable him to assert plausible claims, Plaintiff essentially attempts to put a new spin on the previously pled facts which formed the basis for Defendants’ prior motion to dismiss or, when that would not work, deletes them entirely in an effort to avoid the implications of his admissions….” This is a ridiculous statement. Facts are facts!!! It appears defendants’ were looking for false statement and/or false news. The leader of our country has the same mindset. Defendants need to get over themselves, answer the 3rd amended complaint, and keep the ball moving. Defendants state “…Having already pled, for example, that male and female employees earned more than he did, Plaintiff cannot un-ring that bell and avoid dismissal now simply by Page 5 of 32

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referencing only the female employees who earned more and deleting any mention that male employees also allegedly earned more….” When one amends their complaint, it is to correct deficiencies, which this court has admonished plaintiff to do. This court allowed an amended complaint so deficiencies can be corrected. Defendants state “…Acknowledging that Plaintiff has likely pled a plausible Section 1981 claim in his Third Amended Complaint, Defendants are prepared to litigate the race discrimination claims he seeks to assert pursuant to Title VII and Section 1981….” Plaintiff has a plausible ¶1981 for Count VI – Retaliation Discrimination in Violation of Title VII and Section 1981. We can litigate all plaintiff §1981 claims. In defendant’s motion to dismiss and strike, it is reported “…As more fully explained in the Memorandum in Support filed contemporaneously herewith, the following counts should be dismissed with prejudice….” Plaintiff states the counts defendant’s suggests should not be dismissed with prejudice due to discovery producing evidence to support plaintiff’s claim(s). To survive a motion to dismiss, “a complaint need not plead legal theories, which can be learned during discovery,” Alito v. Town of Lisbon, 651 F.3d 715, 721 (7th Cir.2011). Defendant’s report in their memorandum of law introduction “…his Third Amended Complaint once again includes the age discrimination, sex discrimination, hostile work environment, retaliation and Equal Pay Act claims previously dismissed by this Court.” Plaintiff’s claims were previously dismissed without prejudice by this court. To state a cognizable claim under the federal notice pleading system, the plaintiff is required to provide a “short and plain statement of the claim showing that he is entitled to relief. ” Fed. R. Civ. P. 8(a)(2). It is not necessary for the plaintiff to plead specific facts and his statement need only “give the defendant fair notice of what the . . . claim is and the grounds upon which it Page 6 of 32

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rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see Christopher v. Buss, 384 F.3d 879, 881 (7th Cir. 2004). To state a claim, a complaint must contain sufficient factual matter, accepted as true, “that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). The complaint allegations “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted); Christopher, 384 F.3d at 881. There is no speculation in plaintiff’s statement facts and argument. Plaintiff’s statement of facts meet the criteria and test of Twombly and Iqbal. The Twombly plausibility standard … does not prevent a plaintiff from pleading facts alleged 'upon information and belief' [1] where the facts are peculiarly within the possession and control of the defendant, or [2] where the belief is based on factual information that makes the inference of culpability plausible." Arista Records, LLC v. Doe 3, __ F.3d __, 2010 WL 1729107, *8 (2d Cir.). Thus, the "information and belief" label is a signal to consider whether the plaintiff has met one of these requirements. A paradigm for the first is when a case turns on the content of records of the defendant. Where a fact is truly within the defendant's exclusive possession, a court may be less likely to find a claim implausible for not alleging that fact. When the second requirement is at issue, it is worthwhile to consider whether the plaintiff has pleaded any of the factual information on which it purports to base its "information and belief" allegation. In either case, plaintiffs still must allege enough underlying facts to allow a plausible inference of liability in the context of their particular claim. Twombly itself confirms this, given that the

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complaint alleged an antitrust conspiracy based on information and belief, but failed because it did not support that allegation with sufficient subsidiary factual allegations. A. Standard of Review On July 20, 2017 in Alamo vs. Blisset et al. No. 15-2849 the court states “A complaint will survive a motion to dismiss for failure to state a claim if it “contains sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). That is, “while a plaintiff need not plead detailed factual allegations to survive a motion to dismiss, she still must provide more than mere labels and conclusions or a formulaic recitation of the elements of a cause of action for her complaint to be considered adequate.” Bell v. City of Chicago, 835 F.3d 736, 738 (7th Cir. 2016) (internal quotation marks omitted) (quoting Iqbal, 556 U.S. at 678). Plaintiff has met this criteria. To satisfy the notice pleading standard of Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must merely provide “a short and plain statement of the claim,” which is sufficient to “give the defendant fair notice of what the … claim is and the grounds upon which it rests,” Bell Atl. Corp., 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)), including “some indication … of time and place,” Thomson v. Washington, 362 F.3d 969, 970– 71 (7th Cir. 2004). Although detailed factual allegations are not required, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp., 550 U.S. at 570); Bonte v. U.S. Bank, N.A., 624 F.3d 461, 463 (7th Cir. 2010). In other words, a plaintiff “must plead some facts that suggest a right to relief that is beyond the speculative level.” Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir. 2011) Page 8 of 32

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(internal quotation marks and citation omitted). Because pro se pleadings are to be held to “less stringent standards than formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curium), we accord a liberal reading to pro se complaints, Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011). We have held that facts alleged by a plaintiff in a brief in opposition to a motion to dismiss “may be considered when evaluating the sufficiency of a complaint so long as they are consistent of the allegations in the complaint.” Gutierrez v. Peters, 111 F.3d 1364, 1367 n.2 (7th Cir. 1997); Albiero v. City of Kankakee, 122 F.3d 417, 419 (7th Cir. 1997) (“We have held that a plaintiff may supplement the complaint with factual narration in an affidavit or brief.”). B. Plaintiff Has Not Failed to State a Claim for Relief in Counts II, III, IX and X 1. Count II: Disparate Impact in Violation of Title VII Defendants’ report “…Count II should be dismissed because Plaintiff has neither described a specific employment practice that caused the alleged disparate impact about which he complains nor identified any other employees disadvantaged by the unidentified employment practice….” Plaintiff has described the email he received NBC’s HR Director Darren Chiappetta stating plaintiff was terminated via a NBC policy. If the email from Mr. Chiappetta does not describe a policy or procedure, then plaintiff’s termination is a pretext, and his termination violates Title VII and ADEA. Defendants’ state “…Unable to point to an actual policy, Plaintiff attempts to characterize the results of an investigation communicated to him by human resources as an “employment practice” in an effort to avoid dismissal. He fails, however, to cite any authority holding—let alone suggesting—that a report from human resources regarding a complaint can rise to the level of a policy or practice. Even if it did, Plaintiff has not pled facts which if true, Page 9 of 32

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would enable him to establish that said policy or practice impacted one group differently than other groups. Indeed, Plaintiff admits in Paragraph 156 of his Third Amended Complaint that he “cannot know” how other individuals were disparately impacted. Plaintiff cannot know without discovery….” Plaintiff “cannot know” how other individuals were disparately impacted because the evidence under the control of the defendants. The Twombly plausibility standard … does not prevent a plaintiff from pleading facts alleged 'upon information and belief' [1] where the facts are peculiarly within the possession and control of the defendant, or [2] where the belief is based on factual information that makes the inference of culpability plausible." Arista Records, LLC v. Doe 3, __ F.3d __, 2010 WL 1729107, *8 (2d Cir.). Count II should not be dismissed. Plaintiff does not have to “cite any authorities”, pursuant to Rule 8(a)(2). We have repeatedly stated that Rule 8 does not require plaintiffs to plead facts or legal theories”; e.g. Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002) (citing Kirksey v. R.J. Reynolds Tobacco Co., 168 F. 3d. 1039, 1041 (7th Cir. 1999)) Plaintiff has described a specific employment practice that caused the alleged disparate impact about which he complains and has identified other employees disadvantaged by the identified employment practice, which is the email from NBC HR Director Chiappetta.. As plaintiff has stated, NBC Human Resources identified the employment practice of NBC used to terminate plaintiff’s employment; and this employment practice was not used to terminate Ashland Thomas, Christie Tate, Donnie Williams, Ashland Thomas, Stacey Krenning, Jennifer Hemminger, Connie Kincer, Virginia McElligott, Melanie Doe, et al. who committed the same offense plaintiff is alleged to have committed. Mr. Chiappetta was clear in his email plaintiff was terminated because of a NBC policy.

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When presented with a motion to dismiss, the Court may “take judicial notice of matters of public record.” Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994). The Court may also consider as part of the pleadings documents attached to a motion to dismiss “if they are referred to in the plaintiff’s complaint and are central to h[er] claim.” Adams, 742 F.3d at 729; see also 188 LLC v. Trinity Indus., Inc., 300 F.3d 730, 735 (7th Cir. 2002); Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”). The email from NBC’s HR Director Darren Chiappetta is attached to plaintiff’s complaint and amended pleading(s). Federal and state employment laws such as Title VII of the Civil Rights Act of 1964 prohibit intentional discrimination against people on a number grounds, such as their race or gender. Employment practices that have no discriminatory intent, yet have a disproportionately negative impact on protected classes of individuals are said to have a disparate impact and are still prohibited by law. Disparate impact discrimination is a legal theory first recognized by the courts. In addressing a Title VII discrimination case, the U.S. Supreme Court said that the burden of proof shifted to the employer once the employee (past or present) or job applicant was able to prove that a particular employment practice caused a disparate impact on their protected class. First, discovery would reveal whether defendants’ reasoning for terminating plaintiff, email from HR Darren Chiappetta and phone call from Mr. Olson confirming what Mr. Chiappetta reported is a NBC policy or procedure. As plaintiff has stated, the email NBC’s HR Director Darren Chiappetta states the policy and procedure for which NBC terminated plaintiff’s employment. Second, District court decisions used by defendants’ do not supersede Illinois Statutes, Appellate and Supreme Court decisions. The Civil Rights Act of 1991 later amended Page 11 of 32

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Title VII, clarifying that once an employee establishes the existence of a disparate impact from an employment practice, the employer must then prove that such practice is "job-related for the position in question and consistent with business necessity." An employer’s unusual deviation from standard procedures can serve as circumstantial evidence of discrimination. See, e.g., Coleman v. Donahoe, 667 F.3d 835, 858 (7th Cir. 2012) (explaining that selective enforcement of company policy can establish pretext); Gordon v. United Airlines, Inc., 246 F.3d 878, 891–92 (7th Cir. 2001) (same); see also United States ex rel. Hamrick v. GlaxoSmithKline LLC, 814 F.3d 10, 22 (7th Cir. 2016) (“Deviations from standard procedures can give rise to an inference of pretext.”) (quotations omitted). Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000) (“It is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation.”) (emphasis in original). The Supreme Court has noted that an employer’s false explanation is “one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive.” Id. We have explained: “Because a fact-finder may infer intentional discrimination from an employer’s untruthfulness, evidence that calls truthfulness into question precludes a summary judgment.” O’Neal v. City of New Albany, 293 F.3d 998, 1005 (7th Cir. 2002), quoting Perdomo v. Browner, 67 F.3d 140, 145 (7th Cir. 1995). We will not presume with respondents that any result consistent with their account of the statute’s overarching goal must be the law but will presume more modestly instead ‘that the legislature says . . . what it means and means . . . what it says.’” (quoting Dodd v. United States, 545 U. S. 353, 357 (2005))); Magwood v. Patterson, 561 U. S. 320, 334 (2010) (“We cannot replace the actual text with speculation as to Congress’ intent.”).

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To establish a Title VII disparate treatment claim, a plaintiff must allege that an employer took job-related action against him which was motivated by intentional discrimination. Ernst v. City of Chicago, 837 F.3d 788, 794 (7th Cir. 2016). We have described an adverse employment action as “a materially adverse change in the terms and conditions of employment that is more disruptive than a mere inconvenience or an alteration of job responsibilities.” Stockett v. Muncie Ind. Transit Sys., 221 F.3d 997, 1001 (7th Cir. 2000) (alteration in original) (internal quotation marks omitted). Such actions include: (1) diminishing an “employee’s compensation, fringe benefits, or other financial terms of employment,” including termination; (2) reducing long-term career prospects “by preventing him from using the skills in which he is trained and experienced, so that the skills are likely to atrophy and his career is likely to be stunted”; and (3) changing “the conditions in which an employee works … in a way that subjects him to a humiliating, degrading, unsafe, unhealthful, or otherwise significantly negative alteration in his workplace environment.” Herrnreiter v. Chicago Hous. Auth., 315 F.3d 742, 744 (7th Cir. 2002). Defendants’ humiliated plaintiff and reduced long-term career prospects when they maliciously placed plaintiff’s photo in the Cinespace Studios’ lobby and administrative offices. As we have recognized, an adverse employment action may be “unique to a particular situation.” Lavalais v. Vill. of Melrose Park, 734 F.3d 629, 634 (7th Cir. 2013); see Parrett v. City of Connersville, Ind., 737 F.2d 690, 693 (7th Cir. 1984) (discussing that employee was “given a windowless room to sit in that formerly had been a storage closet” and that the employee “spent his shift sitting at the desk with nothing to do”). 2. Intentional Harassment & Hostile Workplace in Violation of Title VII Defendants state, “…plaintiff’s hostile work environment claim fails because he neither pleads facts sufficient to establish a link between his race and the alleged harassment that he Page 13 of 32

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claims to have experienced, nor plausibly alleges that this harassment was severe or pervasive…In order to survive a motion to dismiss a hostile work environment claim, a plaintiff must plead that he was subject to conduct that is severe or pervasive and based on his membership in a protected class… Here, Plaintiff has not only failed to plead facts establishing that the harassment he claims to have suffered was severe or pervasive, but has included allegations indicating that the conduct about which he complains was not directed at him because of his race….” In addition, defendants’ state “…Critically, none of the alleged conduct implicates Plaintiff’s race. The fact that Plaintiff is a member of a protected class does not transform these minor and limited issues into actionable harassment. See Dr. Fred Nance Jr. v. Rothwell et.al., 09-CV-7733, 2011 WL 1770306 at *7-8 (N.D. Ill. May 9, 2011)(dismissing plaintiff’s race and sex harassment claims where he failed to allege he was subject to any incidents sufficiently connected to race or sex so as to satisfy the second element of the hostile work environment analysis)….” Now, defendants’ attorneys have step across a line…and this is scandalous. First, defendants’ attorneys use a District Court case to support their useless argument. Second, this case was settled. There was no dismissal of plaintiff’s claims against Rothwell et al.; and if it were any dismissals of claims they are mute because the case reached a settlement, which is confidential; and defendants’ attorneys have no knowledge of the settlement agreement reached between plaintiff and Rothwell et al. Third, this is a scandalous move by defendants’ attorneys and they want this court to strike plaintiff’s statements in the 3rd amended complaint about his life. The Rothwell et al. case was about my life.

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Defendants’ attorneys just opened the door wider to my life outside of this present litigation; and allows this court to deny their motion to strike plaintiff’s introduction about his life and how racism came to destroy it and any possibilities for future “meaningful” employment. This court needs to read plaintiff’s original and amended complaints from this Rothwell et al. case to see how everything plaintiff said about plaintiff in the Rothwell complaint is similar to the statements made in this complaint’s introduction. Plaintiff can play this game with defendants. Plaintiff is taking this case to the appellate court. Plaintiff’s hostile work environment claim does not fail. Plaintiff pleads facts sufficient to establish a link between his race and the alleged harassment that he experienced at hands of NBC and Empire. As defendants’ have stated, plaintiff was not terminated by a NBC policy. Therefore, the email from NBC HR Director Chiappetta is a pretext, and plaintiff’s termination is a violation of Title VII and ADEA. A plaintiff demonstrates a causal connection by showing that the defendant “would not have taken the adverse … action but for her protected activity.” Greengrass v. International Monetary Systems Ltd., 776 F.3d 481, 486 (7th Cir. 2015), quoting King v. Preferred Technical Group, 166 F.3d 887, 892 (7th Cir. 1999). To state a hostile work environment claim based on national origin, a plaintiff must allege that: (1) he “was subject to unwelcome harassment”; (2) “the harassment was based on his national origin”; (3) “the harassment was severe or pervasive so as to alter the conditions of employment and create a hostile or abusive working environment”; and (4) “there is basis for employer liability.” Huri v. Office of the Chief Judge of the Circuit Court of Cook Cty., 804 F.3d 826, 833–34 (7th Cir. 2015). Plaintiff has met this criteria, pursuant to Rule 8(a)(2). In determining whether a workplace is objectively hostile, we consider the totality of the circumstances, including: “the frequency of the discriminatory conduct; its severity; whether it is Page 15 of 32

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physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris, 510 U.S. at 23. Plaintiff has provided a detailed time table of threatening and humiliating tones, the offensive utterances such as supervisory staff giving plaintiff the “middle” finger, and that it interfered with plaintiff’s work. “The specific circumstances of the working environment and the relationship between the harassing party and the harassed” also “bear on whether that line is crossed.” Robinson v. Sappington, 351 F.3d 317, 330 (7th Cir. 2003). Although a workplace need not be “hellish” to constitute a hostile work environment, Jackson v. Cty. of Racine, 474 F.3d 493, 500 (7th Cir. 2007), a hostile work environment must be “so pervaded by discrimination that the terms and conditions of employment are altered,” Vance v. Ball State Univ., 133 S. Ct. 2434, 2441 (2013). Plaintiff repeatedly informed NBC, Joan Philo, and Kristin Doe about the discriminatory acts being demonstrated on the Chicago Med set. (3rd Amended Complaint, pp. 16-19, ¶82-108) 3. Count IX: Retaliation Under Equal Pay Act Defendants report, “…Count IX should be dismissed because Plaintiff fails to allege that he was retaliated against for engaging in activities protected by the Equal Pay Act (the “EPA”). To state a retaliation claim under the EPA, plaintiff must assert that he engaged in statutorily protected expression related to the Equal Pay Act, that he suffered an adverse employment action and that there was a causal link between the Equal Pay Act complaint and the adverse action….” Here, again, defendants rely on plaintiff’s previous amended complaints instead of responding to the 3rd amended complaint (p. 33, ¶ 187-190). Not only did plaintiff state he engaged in a protected activity filing an Illinois Department of Labor (IDOL) charge and was retaliated against by NBC when they terminated his employment; plaintiff stated he and female employees’ salaries were the same when they first started to work on Chicago Med’s Season 1, Page 16 of 32

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and then, approximately 6 weeks later, females continued to receive their stated salaries while plaintiff’s salary decreased for doing the same and/or similar work. In addition, defendants now claim plaintiff was not terminated by a NBC policy. Defendants are challenging the email plaintiff received from NBC’s HR Director Chiappetta and the phone call plaintiff received from VP of Operations for Empire, where they are reporting plaintiff was terminated for violating a NBC policy, which does not exist according to defendants’ attorneys. Defendants report the statement in the email by NBC HR Director Chiappetta is not really a policy. Defendants’ report plaintiff was not terminated for violating a NBC policy. If plaintiff was not terminated for violating a NBC policy, why was he terminated? Therefore, discovery will prove the email from Director Chiappetta was a pretext, and plaintiff’s termination violated Title VII and ADEA, why plaintiff was terminated, and will result in proof plaintiff was retaliated against because he filed a complaint with IDOL, which is a protected activity. To establish a prima facie case of wage discrimination under the EPA, plaintiff must show: “(1) higher wages were paid to (in this case) female employees, (2) for equal work requiring substantially similar skill, effort and responsibilities, and (3) the work was performed under similar working conditions.” Stopka v. Alliance of Am. Insurers, 141 F.3d 681, 685 (7th Cir.1998). In determining whether two jobs are equal, the crucial inquiry is “whether the jobs to be compared have a ‘common core’ of tasks, i.e., whether a significant portion of the two jobs is identical.” Fallon v. Illinois, 882 F.2d 1206, 1209 (7th Cir.1989) (citations and quotation marks omitted). Significantly, the EPA does not require proof of discriminatory intent. See Stopka, 141 F.3d at 685. “Even if the plaintiff's Equal Pay Act and Title VII claims [are] identical, Title VII Page 17 of 32

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is an independent remedy, in that it may be pursued in conjunction with other remedies.” Schnellbaecher v. Baskin Clothing Co., 887 F.2d 124, 130 (7th Cir.1989) (citing Alexander v. Gardner-Denver Co., 415 U.S. 36, 48-49, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974));  see County of Washington v. Gunther, 452 U.S. 161, 178-80, 101 S.Ct. 2242, 68 L.Ed.2d 751 (1981) (commenting that Title VII's coverage of equal pay claims is broader than that of the EPA);  Fallon v. Illinois, 882 F.2d 1206, 1218 (7th Cir.1989) (holding that the EPA and Title VII are distinct remedies). Title VII makes it unlawful for an employer to “discriminate against any individual with respect to his compensation … because of such individual’s … sex.” 42 U.S.C. § 2000e-2(a)(1). An individual who is subjected to unconstitutional discrimination can seek relief from his or her employer under 42 U.S.C. § 1983. See e.g. id. at 575 n.3; Burks v. Wis. Dep’t of Transp., 464 F.3d 744 (7th Cir. 2006). To prove a claim of employment discrimination under Title VII and § 1983, a plaintiff must present sufficient evidence that she was a member of a protected class, she performed reasonably on the job in line with the employer’s legitimate expectations, she was subjected to an adverse employment action, and similarly situated employees of the opposite sex were treated more favorably. Burks, 464 F.3d at 750. If that burden is met, the employer must articulate a “legitimate, nondiscriminatory reason” for paying the plaintiff less. Id. at 751. Unlike in an Equal Protection Act claim, however, the plaintiff maintains the burden of proof. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 507 (1993); see Fallon v. Illinois, 882 F.2d 1206, 1213 (7th Cir. 1989) (liability under the Equal Pay Act does not prove a violation of Title VII). But see id. at 1213– 14 (discussing opinions from other courts holding that Equal Pay Act liability automatically establishes Title VII liability).This court should not have ordered plaintiff to drop his § 1983 claim against defendants. Page 18 of 32

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If the employer articulates a nondiscriminatory reason for the pay discrepancy, the plaintiff must prove that the employer’s justification was pretext for a decision made on prohibited criteria (here, sex). St. Mary’s, 509 U.S. at 507–08; Burks, 464 F.3d at 751. If she cannot, her claim fails. St. Mary’s, 509 U.S. at 507–08; Burks, 464 F.3d at 751. An employee can prove a reason was pretextual by showing that the reason was “1) factually baseless; 2) not the employer’s actual motivation; 3) insufficient to motivate the action; 4) or otherwise pretextual.” E.E.O.C. v. Target Corp., 460 F.3d 946, 957 (7th Cir. 2006). On summary judgment, the plaintiff must present evidence that supports an inference that the employer was intentionally dishonest when it gave its nondiscriminatory reason. Id. at 960. 4. Count VI: Retaliation Discrimination in Violation of Title VII & §1981 Count X: Retaliatory Sex, Age, and Race Discrimination in Violation of Title VII & ADEA Defendants report “…To state a claim of retaliation under Section 1981, Plaintiff must allege that he took some action to oppose racially discriminatory practices, that he suffered a materially adverse action and that there is a causal connection between the two. Onyango v. Nick & Howard, 14-2979 (7th Cir. 2015), citing Smith v. Bray, 681 F.3d 888, 896 (7th Cir. 2012). This court applies a “but-for” standard when evaluating Section 1981 claims, meaning that the making of a complaint (or any other protected activity) is not regarded as the cause of an adverse action if the adverse action would have been taken had the complaint not been made. Lance v. Betty Shabazz Int’l Charter Sch., 12-CV-4116, 2014 U.S. Dist. LEXIS, at *31–40 (N.D. Ill. 2016)….” Plaintiff was continuously retaliated against, harassed, intimidated, (3rd Amended Complaint, pp. 16-19, ¶82-108) and kept from obtaining more employment when NBC and Page 19 of 32

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Empire employees placed plaintiff’s picture in Cinespace Studios foyers, offices and reception areas stating “Fred Nance Not Allowed on Premises”. Plaintiff complained to the President and CEO of Cinespace Studios who stated he had nothing to do with it and ordered his people to take down any photographs of plaintiff on Cinespace Studios’ property displaying this message. (3rd Amended Complaint, pp. 23-24, ¶134-142) Plaintiff again points to the email sent to him on or about September 29, 2016 from NBC’s HR Director Chiappetta stating plaintiff was terminated for violating a NBC policy. NBC was not taking an adverse action against plaintiff before plaintiff received notice of his termination by email from NBC’s HR Director Chiappetta. Rather, after the EEOC reconciliation process failed and was over in April of 2016, Joan Philo reported plaintiff was in good standing with NBC and Joan Philo Casting. On April 5, 2016 Joan Philo sent plaintiff an invite to the Chicago Med Wrap Party. This is a party where actors and “specific” or “special” extras of NBC and Joan Philo Casting shows attend at the end of a show and/or production season is over. NBC and Joan Philo Casting called plaintiff back for Season 2 of the Chicago Med television show to be a “core” doctor. Before plaintiff received the termination email, he was scheduled to work on Chicago Med September 27th, 29th, 30th, October 3rd & October 6th, of 2016. Defendants’ “butfor” assertion fails. We generally use the same standard to review discrimination and retaliation claims under §1981 and Title VII. See Humphries v. CBOCS West, Inc., 474 F.3d 387, 403–04 (7th Cir. 2007) (collecting cases), aff’d, 553 U.S. 442 (2008) (recognizing retaliation claims under § 1981). To state a claim for Title VII retaliation, a plaintiff must plead that she engaged in a statutorily protected activity and was subjected to materially adverse actions as a result of that activity. Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53, 57 (2006). Title VII Page 20 of 32

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specifically prohibits retaliation for filing a charge with the EEOC. 42 U.S.C. § 2000e‐3(a). Under Title VII, an employee must identify an unlawful employment practice that is prohibited by that statute. 42 U.S.C. § 2000r‐3(a). We have held that a plaintiff must specifically identify the protected activity that she alleges was the source of retaliation. Carlson v. CSX Transp., Inc. 758 F.3d 819, 828 (7th Cir. 2014). Plaintiff reported workplace discrimination to NBC production staff, Joan Philo, and Kirstin Doe; filed an EEOC charge against NBC and Empire; and filed a charge with IDOL; which ALL are protected activities. To state a claim for retaliation under Title VII, a plaintiff must allege that he “engaged in statutorily protected activity” and suffered an adverse action “as a result of that activity.” Huri, 804 F.3d at 833. In Alamo, his ability to report what he viewed as workplace discrimination clearly is protected activity under Title VII. Worth v. Tyer, 276 F.3d 249, 265 (7th Cir. 2001) (concluding that plaintiff’s decision to file a police report “constitutes protected activity under Title VII”); 42 U.S.C. § 2000e-3(a) (listing protected activities, including “opposing any practice made an unlawful employment practice” by Title VII). See also id. (holding that filing a complaint with a human resources manager constituted protected activity); Greengrass v. Int’l Monetary Sys. Ltd., 776 F.3d 481, 485 (7th Cir. 2015) (describing filing EEOC charges as “the most obvious form of statutorily protected activity”). Indeed, “Title VII depends for its enforcement upon the cooperation of employees who are willing to file complaints and act as witnesses.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). Defendants report “Plaintiff cannot avoid dismissal of his retaliation claims (Counts VI and X) by deleting those allegations from his Second Amended Complaint which, if true, establish that he was terminated for a variety of reasons unrelated to the protected activities in which he allegedly engaged….” Page 21 of 32

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First, the intention in filing an amended complaint is to correct deficiencies. The defendants’ claim of deleting allegations from previous amended complaints fails, because plaintiff is correcting deficiencies in his 3rd amended complaint. Second, the email plaintiff received from NBC’s HR Director Chiappetta reports why plaintiff was terminated. Third, defendants cannot prove plaintiff was terminated for any other means than what was stated in the email from NBC’s HR Director Chiappetta. Plaintiff contends defendants retaliated against him and used their policy (dictated in the email) to terminate him. Plaintiff’s assertion can be proven through his EEOC complaint, the discovery process and trial by jury. In Owens vs. Chicago Board of Education, Ill. App. Ct. 15 C 1089 (7th Cir. August 14, 2017) the court reports “…The Age Discrimination in Employment Act forbids penalizing employees for asserting their rights through administrative complaints or suits. 29 U.S.C. §623(d)… A reasonable juror could conclude that Miller twice threatened to get rid of Owens on account of his lawsuit and used the rating to do that. In the absence of an “unsatisfactory” rating Owens’s seniority would have ensured that he kept his job. That Miller did not (likely could not) carry through on her threat in January does not show conclusively that the threat was unrelated to what happened in June. It may take time for even a determined supervisor to undermine an employee’s standing….” If defendants’ attorneys are right, the email from Director Chiappetta was a pretext and NBC and Empire terminated plaintiff for filing charges with EEOC and IDOL, which are protected activities. 5. Count IV: Sex Discrimination in Violation of Title VII Defendants state “…Rather than plead new facts that would enable him to assert plausible claims for sex discrimination, age discrimination or violations of the Equal Pay Act, Plaintiff has essentially removed and/or revised a number of the paragraphs in his Second Page 22 of 32

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Amended Complaint that were cited by Defendants in their motion to dismiss… Even when read in a light most favorable to Plaintiff, the allegations in his Third Amended Complaint fail to demonstrate that alleged differences in treatment were prompted by his sex….” Plaintiff has not pled himself out via his 2nd Amended Complaint. If we are to use defendants’ claim that plaintiff has pled himself out via his 2 nd amended complaint, then plaintiff’s 2nd amended complaint p. 32, ¶ 197 is in play with his original, First amended and 3rd amended complaints. Joan Philo and Kristin Doe believed Ashland Thomas’ account of the encounter between plaintiff (heterosexual) and Ashland Thomas (homosexual and/or homosexual tendencies) because of Ashland Thomas’ sexual orientation. Discovery is needed to prove out plaintiff’s allegations. Hively vs. Ivy Tech Community College of Indiana 853 F.3d 339 (7th Cir. 2017) sets great on the fact that Congress has frequently considered amending Title VII to add the words "sexual orientation" to the list of prohibited characteristics, yet it has never done so. This court states, many of our sister circuits have also noted this fact. In our view, however, it is simply too difficult to draw a reliable inference from these truncated legislative initiatives to rest our opinion on them. The goalposts have been moving over the years, as the Supreme Court has shed more light on the scope of the language that already is in the statute: no sex discrimination. Our interpretive task is guided instead by the Supreme Court's approach in the closely related case of Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998), where it had this to say as it addressed the question whether Title VII covers sexual harassment inflicted by a man on a male victim: We see no justification in the statutory language or our precedents for a categorical rule excluding same-sex harassment claims from the coverage of Title VII. Page 23 of 32

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As some courts have observed, male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed. Title VII prohibits discrimination... because of ... sex in the terms or conditions of employment. Our holding that this includes sexual harassment must extend to sexual harassment of any kind that meets the statutory requirements. 523 U.S. at 79-80, 118 S.Ct. 998. The Court could not have been clearer: the fact that the enacting Congress may not have anticipated a particular application of the law cannot stand in the way of the provisions of the law that are on the books. It is therefore neither here nor there that the Congress that enacted the Civil Rights Act in 1964 and chose to include sex as a prohibited basis for employment discrimination (no matter why it did so) may not have realized or understood the full scope of the words it chose. Indeed, in the years since 1964, Title VII has been understood to cover far more than the simple decision of an employer not to hire a woman for Job A, or a man for Job B. The Supreme Court has held that the prohibition against sex discrimination reaches sexual harassment in the workplace, see Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986), including same-sex workplace harassment, see Oncale; it reaches discrimination based on actuarial assumptions about a person's longevity, see City of Los Angeles, Dep't of Water and Power v. Manhart, 435 U.S. 702, 98 S.Ct. 1370, 55 L.Ed.2d 657 (1978); and it reaches discrimination based on a person's failure to conform to a certain set of gender stereotypes, see Hopkins. It is quite possible that these interpretations may also have surprised some who Page 24 of 32

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served in the 88th Congress. Nevertheless, experience with the law has led the Supreme Court to recognize that each of these examples is a covered form of sex discrimination. Hively offers two approaches in support of her contention that "sex discrimination" includes discrimination on the basis of sexual orientation. The first relies on the tried-and-true comparative method in which we attempt to isolate the significance of the plaintiff's sex to the employer's decision: has she described a situation in which, holding all other things constant and changing only her sex, she would have been treated the same way? The second relies on the Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), line of cases, which she argues protect her right to associate intimately with a person of the same sex. Although the analysis differs somewhat, both avenues end up in the same place: sex discrimination. It is critical, in applying the comparative method, to be sure that only the variable of the plaintiff's sex is allowed to change. The fundamental question is not whether a lesbian is being treated better or worse than gay men, bisexuals, or transsexuals, because such a comparison shifts too many pieces at once. Framing the question that way swaps the critical characteristic (here, sex) for both the complainant and the comparator and thus obscures the key point — whether the complainant's protected characteristic played a role in the adverse employment decision. Ashland Thomas’ alleged behavior upon plaintiff, lying about the events and making statements to plaintiff (confirmed to violate NBC policy per Director Chiappetta) was male on male sexual harassment. (3rd Amended Complaint, pp. 22-23, ¶118, 128-133) 6. Count V: Age Discrimination in Violation of Title VII Defendants state “…Plaintiff now claims in Count V that a group of employees “Stacey Krenning, Jennifer Hemminger, Connie Kincer, Virginia McElligott, Melanie Doe, Nicole McGovern, Tanner Masseth et. al.” were treated more favorably and are “not 40 years old.” Page 25 of 32

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Plaintiff contradicts himself elsewhere in the Third Amended Complaint, claiming that many of these same individuals are “white males and females over 40 years old.” Plaintiff’s allegation in Paragraph 167 is further contradicted by his claim in the Second Amended Complaint that individual “white males and females over 40 years old” were treated more favorably than he was. (Doc. 43, fn. 21; ¶ 24.) Having admitted that the individuals he claims were treated more favorably are also “over 40 years old,” Plaintiff cannot plausibly claim in the Third Amended Complaint that “substantially younger” extras were treated more favorably than he was treated….” The Court should not dismiss this claim and plaintiff has not pled himself out via his 2nd Amended Complaint. The Age Discrimination in Employment Act ("ADEA") prohibits employers from retaliating against employees for asserting their rights under the ADEA through administrative complaints or lawsuits. Congress enacted the ADEA to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; and to help employers and employees find ways of meeting problems arising from the impact of age on employment. The ADEA protects employees who are age 40 or older and prohibits employers from refusing to hire or discharging any individual, or otherwise discriminating against any individual with respect to his or her compensation, terms, conditions or privileges of employment, because of his or her age. The ADEA prohibits disparate treatment, where an older employee is treated less favorably than a substantially younger employee on the basis of his or her age, and age motivated the employer's adverse employment decision. Disparate impact claims are also cognizable under the ADEA. Disparate impact claims do not require discriminatory intent; instead, disparate impact claims involve facially neutral

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employment policies that disproportionately impact a protected group and cannot be justified by business necessity. To prevail on a disparate treatment claim under the ADEA, a plaintiff must prove that age was the "but-for" or determining cause of the subject adverse employment action. In this respect, the ADEA differs from Title VII of the Civil Rights Act of 1964, which protects against mixedmotive employment discrimination. An ADEA plaintiff may prove her case with direct or circumstantial evidence that her employer took adverse employment action against her because of her age. An age discrimination plaintiff may also proceed under the burden-shifting evidentiary framework with evidence that: (1) she is a member of a protected class; (2) she was meeting the employer's legitimate job expectations; (3) she suffered an adverse job action; and (4) similarly situated substantially younger employees were treated more favorably by the employer. If the plaintiff establishes a prima facie case of age discrimination, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action, and then the burden shifts back to the plaintiff to prove that the employer's proffered reason is pretext for unlawful age discrimination. In a watershed decision on March 30, 2005, the United States Supreme Court held an employer may be held liable for age discrimination based on a facially neutral employment policy that has a disproportionate effect, or "disparate impact," on older workers. In Smith v. City of Jackson, Mississippi, the Supreme Court resolved an issue of longstanding uncertainty among the lower courts, finding that disparate impact claims are cognizable under the Age Discrimination Employment Act ("ADEA"). Thus, an employer may now be liable for unintentional age discrimination where it has an employment policy that adversely impacts workers who are 40 years of age or older. Page 27 of 32

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The Court determined the threshold issue, whether disparate impact claims are available under the ADEA, by focusing on the similarity in language between the ADEA and Title VII of the Civil Rights Act OF 1964 ("Title VII"), which prohibits discrimination based on race, color, religion, sex, and national origin. Using fundamental statutory interpretation, the Court reasoned that since the ADEA and Title VII use identical language to define unlawful discrimination (except for the ADEA's substitution of "age" for Title VII's protected classes), the disparate impact theory available under Title VII must also be recognized for ADEA claims. The Court emphasized that the same language found in both the ADEA and Title VII "focuses on the effects of the action on the employee rather than the motivation for the action of the employer." Thus, like under Title VII, an employer may be liable under the ADEA for an employment policy that disproportionately impacts workers protected by the statute, even absent a showing of intentional discrimination. In Owens vs. Chicago Board of Education, Ill. App. Ct. 15 C 1089 (7th Cir. August 14, 2017) the court reports “…The Age Discrimination in Employment Act forbids penalizing employees for asserting their rights through administrative complaints or suits. 29 U.S.C. §623(d)… A reasonable juror could conclude that Miller twice threatened to get rid of Owens on account of his lawsuit and used the rating to do that. In the absence of an “unsatisfactory” rating Owens’s seniority would have ensured that he kept his job. That Miller did not (likely could not) carry through on her threat in January does not show conclusively that the threat was unrelated to what happened in June. It may take time for even a determined supervisor to undermine an employee’s standing….” If defendants’ attorneys are right, the email from Director Chiappetta was a pretext and NBC and Empire terminated plaintiff for filing charges with EEOC and IDOL; and plaintiff was terminated because of his age, being that NBC and Empire did not terminate Page 28 of 32

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the other younger individuals named in plaintiff’s 3 rd amended complaint who allegedly violated the same NBC policy plaintiff was alleged to have committed and was terminated. 7. Count VIII: Wage Discrimination under Equal Pay Act of 1963, 29 U.S.C. §206(d) Defendant state “…Count VIII of the Third Amended Complaint should be dismissed based on plaintiff’s admission that both male and female extras were more highly compensated than he was. A claim under the EPA requires a “causal relationship between sex and pay,” and “if the difference is due to a factor unrelated to gender, there is no violation.” By admitting that both male and female “real doctor” extras were paid more than he was, Plaintiff fails to establish a sufficient causal relationship between sex and pay. He cannot avoid dismissal by deleting that allegation and replacing it with a contradictory assertion that only “females were getting paid more than he” was paid….” First, defendants are addressing previous amended complaints and not the 3 rd amended complaint to correct deficiencies. Second, defendants are wrong about what EPA requires, and plaintiff has not pled himself out via his 2nd Amended Complaint. Defendants should be addressing plaintiff’s 3rd Amended Complaint. The appellate court held the Equal Pay Act only requires a plaintiff to show unequal pay for "equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions." An employee’s only burden under the Equal Pay Act is to show a difference in pay for “equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions” (§206(d)(1)). The Equal Pay Act prohibits an employer from discriminating between employees on the basis of sex. 29 U.S.C. § Page 29 of 32

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206(d)(1). To establish a prima facie cause of action under the Act, an employee must demonstrate “a difference in pay for ‘equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions.’” King v. Acosta Sales & Mktg., Inc., 678 F.3d 470, 474 (7th Cir. 2012) (quoting 29 U.S.C. § 206(d)(1)). If this requirement is satisfied, the burden of proof shifts to the employer to prove some neutral factor that explains the discrepancy in salary. Corning Glass Works v. Brennan, 417 U.S. 188, 196 (1974). The Act provides four affirmative defenses by which the employer can claim the discrepancy is not discriminatory: “where … payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.” 29 U.S.C. § 206(d)(1). The reason Joan Philo Casting hired plaintiff as a “core” doctor/extra on the Chicago Med television show is because of his skills and experience working at Chicago’s St. Bernard hospital emergency room as a mental health/psychiatric therapist, and as noted by Joan Philo when talking to plaintiff on the phone about whether he would accept the assignment of being a “core” doctor on Chicago Med television show, and when plaintiff asked Joan why she chose him Joan Philo replied because of the professional and positive character and behavior plaintiff had demonstrated on past Joan Philo Casting shows. Plaintiff has stated in his 3rd Amended Complaint he was a “core” doctor/extra on the Chicago Med television show, being paid $180.00 for 8 hours. Female “core” nurses/extras were being paid $180.00 for 8 hours of work. Male and female core doctors and nurses performed the same and/or similar duties on the Chicago Med television show and in some “real” hospital settings; and were paid equally $180.00 for 8 hours of work at the beginning of Season 1. About Page 30 of 32

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6 weeks later, plaintiff was receiving $80.00 for 8 hours of work while females were still receiving $180.00 for 8 hours of work. Of course this is a television show and not in a “real” hospital setting where “real” doctors and nurses’ salaries vary; yet, in certain situations they perform similar duties. In some television shows with hospital settings, doctors and nurses perform similar duties, if not the same except surgery. Some specialty nurses perform surgical procedures. Finally, as plaintiff stated in his EEOC charge(s), most all of the “real” doctors left the Chicago Med show during Season 1 after finding out they were not going to be paid $180.00 for 8 hours, but rather, $80.00 for 8 hours. Plaintiff was the only real doctor (“core”) left on the Chicago Med show after the reduction in pay. Conclusion Wherefore, plaintiff rejects defendants’ motion to dismiss and strike. Plaintiff request this court dismiss defendants’ motion to dismiss plaintiff’s 3 rd amended complaint and motion to strike, in its entirety. This court should schedule a discovery process. If plaintiff was not terminated because of the “policy and procedure” noted in the email from NBC’s HR Director Chiappetta and confirmation of the policy by Mr. Olson, VP of Operations for Empire, then plaintiff was not terminated from working with NBC, but reported statements in the email and from Mr. Olson was a pretext; and NBC and Empire violated Title VII, ADEA and §1981. Plaintiff has not been called back to work since receiving the email on or about September 29, 2016 from HR Director Chiappetta. Plaintiff was scheduled for September 27 th, 29th, 30th, October 3rd, and October 16th, 2016 to work on Chicago Med. Plaintiff did not report to work because of the phone call from Mark Olson, VP of Operations for Empire Casting LLC,

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basically, confirming the email policy dictated in an email from NBC’s HR Director Darren Chiappetta. As stated in plaintiff’s previous original and amended complaints, plaintiff received a phone call from Empire Casting LLC VP Mark Olson stating plaintiff was terminated and was not allowed on any NBC television show. In addition, defendants’ placed a picture of plaintiff in the foyer, offices and other hallways of Cinespace Studios with statement on it “Fred Nance Not Allowed on Premises”. Plaintiff states if this court takes as true what defendants’ now claim is not a policy of NBC and Empire then plaintiff’s termination is a pretext, which leads to violations of Title VII, ADEA, and §1981 as stated in plaintiff 3rd Amended Complaint.

Respectfully submitted,

/s/Fred Nance Jr., Ph.D.”

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION Fred L. Nance Jr.

) ) Plaintiff, ) ) vs. ) ) NBC Universal Media, LLC, Open 4 ) Business Productions, Universal Television ) LLC, Joan Philo Casting, Empire Casting ) LLC, et al. ) ) Defendants. )

Case No. 16-CV-11635 Honorable Judge: Harry D. Leinenweber Honorable Magistrate Judge: Susan E. Cox

Courtroom: 1941

PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION TO DISMISS THIRD AMENDED COMPLAINT AND MOTION TO STRIKE NOW COMES, Pro se Plaintiff Fred L. Nance Jr. (hereinafter, “Plaintiff”) complaining he was wrongly discharged/terminated, unlawfully discriminated and retaliated against pursuant to 42 U.S.C. § 2000e et seq. as amended and the Civil Rights Ac/t of 1991 (hereinafter, “Title VII”); and Age Discrimination in Employment Act (hereinafter, “ADEA”) of 1967; and 42 U.S.C. 19811 (hereinafter, “1981”) by employees/representatives/contractors of his employer(s) of NBCUniversal Media, LLC, Open 4 Business Productions, Universal Television LLC, Joan Philo Casting, Empire Casting LLC, et al. and alleges as follows: Defendant Empire Casting LLC (hereinafter, “Empire”) answers plaintiff’s 2nd and 3rd amended complaints with basic defenses, e.g., “…The paragraph states legal conclusions to which no answer is required. To extent the paragraph contains factual allegations, Empire Casting denies them….” Empire does not submit a motion to dismiss any claims. Plaintiff

1

Section 1981 demands that all persons within the jurisdiction of the United States enjoy equal benefits and endure equal punishments under the law—regardless of race.9 This significant edict of racial equality was born just after Page 1 of 9 the Civil War, nestled into the Civil Rights Act of 1866.

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disagrees with defendant Empire’s response to his 2nd and 3rd amended complaints. Plaintiff and Empire should move toward the discovery processes. NBCUniversal Media, LLC, Open 4 Business Productions, Universal Television LLC, Joan Philo Casting (hereinafter, “NBC”) submits NBC’s “…Partial Motion to Dismiss Plaintiff’s Third Amended Complaint and Motion to Strike….” Defendants’ tread on violating plaintiff’s 1 st Amendment rights with their motion to strike. Defendants’ attempt to negate plaintiff’s 3 rd amended complaint by suggesting this court combine the original, 1st and 2nd amended complaints with the 3rd amended complaint. This approach has no teeth. Plaintiff addresses NBC’s Partial Motion to Dismiss Plaintiff’s Third Amended Complaint and Motion to Strike. Plaintiff addresses NBC’s motion to strike. Plaintiff’s introductory paragraph(s) should not be stricken pursuant to Rule 12(f). NBC cites Muller v. Morgan, et. al., 12-CV-1815, 2013 WL 2422737, at *6 (N.D. Ill. June 3, 2013), which is opined by Judge Leinenweber (this prejudices the case here). Nevertheless, nowhere in Muller v. Morgan, et. al., 12-CV-1815, 2013 WL 2422737 at *6 (N.D. Ill. June 3, 2013) does Judge Leinenweber discuss Rule 12(f) or Rule 10(b). This is typical of NBC lawyers citing cases in this matter that have no relationship or are improper for this matter. What NBC may be referring to is plaintiff talking about having to pay a court reporter for a copy of a court order/decision, which plaintiff believes is an unpopular practice for the judiciary; and leads to an interlocutory appeal. Everything in plaintiff’s introductory statement is a matter of record in this case, except the part about individuals in the film industry and other areas of public life where they have committed sex offenses. Sex offenses come under the umbrella of sex discrimination; and sex discrimination is part of plaintiff’s case, especially those individuals named who work in some capacity with NBC. Using defendants’ cited case of Loughrey v. Landon, 381 F. Supp. 884, 888 Page 2 of 9

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(E.D. Pa. 1974) “…Matter will not be stricken from a pleading unless it is clear that it can have no possible bearing on the subject matter of the litigation…Even if the allegations are redundant, or immaterial, they need not be stricken, if their presence in the pleading cannot prejudice the adverse party….” None of the individuals named in plaintiff’s 3 rd amended complaint’s introduction, as it relates to sex offenders, is barred from future causes of action in a court of law. None of the sex offenders mentioned in plaintiff’s 3rd amended complaint are party to this litigation; and those mentioned have pled guilty or given testimony, in the public forum, to their accusers requesting regret for committing the sex offense; except Donald Trump who basically confessed on tape of touching and treating females inappropriately. Trump is a racist, bigot, and has total disregard for the truth and the rule of law; which was almost a daily discussion/debate on the Chicago Med set. These discussions and debates brought a lot of hostility and frustration among the extras on the Chicago Med set because there were individuals taking sides about racism. As a therapist, it was something plaintiff viewed as a disturbing factor on Chicago Med being successful. Plaintiff talked to Joan Philo and Kristin Doe of Joan Philo Casting, Joan Philo Casting was the casting agency for Chicago Med, about the many disturbances on the Chicago Med set. Plaintiff’s famous line when talking to Joan Philo and Kristin Doe about the negative issues and behaviors of extras on the Chicago Med show was “I want and need Chicago Med to be successful because it effects my future in the business.” Joan Philo and Kristin Doe would often thank plaintiff for his straightforwardness in letting them know what was going on during the filming of Chicago Med. Whenever Joan Philo visited the Chicago Med extras holding area, she would ask plaintiff how were things going on set. A discussion on the racism and other discriminatory acts on the Chicago Med set helps understand the “new” slavery, even though we have the 13th Amendment of the Constitution. Page 3 of 9

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Title VII has not relieved the difficulties for people of color since the inception of the 13th Amendment in America. The standards and legislating from the bench the courts have in place is why the 13th Amendment has not worked since its inception. (See Netflix Documentary (The 13th, 2016). Congressman John Lewis stated to news reporters he will die fighting racism. Plaintiff will die fighting racism also. Plaintiff may have to take this issue to the Appellate Court, either through an interlocutory appeal or through the regular process when this case in over in the District court. If plaintiff has said or wrote something (1st Amendment) scandalous about sex offenders, plaintiff believes it is supported by 70% of the country. If it is scandalous, plaintiff needs to stand in line with news reporters, the various judicial branches across the country, and legislators of the United States. The word plausible is found nowhere in the 13th Amendment or Title VII policy. All law is derived from legislative policy, not from the bench. The question before the court is did the discriminatory acts happen, not prove it is plausible that it happened. This would be legislating from the bench. Plaintiff has been working in the field of social services for over 25 years. Plaintiff has been a sex offense therapist since 2001. Plaintiff has membership with the Illinois Sex Offender Management Board. Plaintiff has a Ph.D. in Human Services with a focus on Social Policy Analysis and Planning. Plaintiff has not only posted this case on social media but has also posted comments on the sex offense issues of most all of the individuals mentioned in plaintiff’s 3 rd amended complaint’s introduction regarding sex discrimination. The sex offenses reported in plaintiff’s 3rd amended complaint’s introduction and the sex discrimination, to which sex offenses come under the umbrella of sex discrimination in this matter, are of public interest.

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Now, plaintiff will respond to defendant NBC’s motion to dismiss plaintiff’s 3 rd amended complaint. Defendants’ state - Count II. Disparate Impact in Violation of Title VII. Defendants’ state “…Plaintiff neither identifies a policy or procedure that created a disparate impact in violation of Title VII, nor asserts that any individuals other than himself were subject to any alleged disadvantage….” Plaintiff’s claim for Disparate Impact should not be dismissed. In plaintiff’s 3rd amended complaint, Count II, pp 26-27, ¶ 153, he reports receiving an email on September 9, 2016 from Darren Chiappetta, Senior Director, HR & Employee Relations, NBC Entertainment, Universal Television, Universal Cable Productions stating plaintiff was terminated because “…Universal Television, LLC prohibits threats of physical force and/or intimidating words by anyone (including third-party employees and visitors) on its premises….” This is a NBC policy! Plaintiff identified a NBC policy. This is the only notice plaintiff received stating he was terminated, except the phone call from Mark Olson, VP of Operations for Empire. Plaintiff does not have to identify, at the pleading stage of litigation, anyone but himself suffering a disparate impact in violation of Title VII. Even if plaintiff needed additional individuals, he named Ashland Thomas (p. 26, ¶ 152) committing the same offense and not suffering from this NBC policy. To establish a Title VII disparate treatment claim, a plaintiff must allege that an employer took job-related action against him which was motivated by intentional discrimination. Ernst v. City of Chicago, 837 F.3d 788, 794 (7th Cir. 2016). Defendant’s state - Count III. Harassment. Defendants’ state “…Plaintiff fails to demonstrate that any alleged harassment was related to his race, and further fails to allege conditions that were “severe” or “pervasive” enough Page 5 of 9

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to alter the terms or conditions of his working environment. Plaintiff’s harassment and a hostile work environment counts should be dismissed accordingly….” Plaintiff’s harassment and hostile work environment should not be dismissed. In plaintiff’s 3rd amended complaint he states and establishes a link between harassment or hostile work environment reporting experiencing harassment for approximately 14 months; that he is in a protected class, which motivated the harassment and intimidation; that the environment was offensive, the harassment was severe and pervasive; and plaintiff is an African American. (pp. 27-28, ¶ 158-160) To state a hostile work environment claim based on national origin, a plaintiff must allege that: (1) he “was subject to unwelcome harassment”; (2) “the harassment was based on his national origin”; (3) “the harassment was severe or pervasive so as to alter the conditions of employment and create a hostile or abusive working environment”; and (4) “there is basis for employer liability.” Huri v. Office of the Chief Judge of the Circuit Court of Cook Cty., 804 F.3d 826, 833–34 (7th Cir. 2015). Count IV and V. Sex and Age Discrimination. Defendants state “…Plaintiff fails to plausibly claim he was subject to any adverse employment action as a result of either of these protected statuses. Furthermore, this Court should treat facts pled in the First or Second Amended Complaints as judicial admissions when evaluating Plaintiff’s Third Amended Complaint. When the Second and Third Amended Complaints are read together, there can be no question that Plaintiff has pled himself out court with respect to his sex and age discrimination and Equal Pay Act retaliation claims….” Plaintiff has not pled himself out of court and his claims should not be dismissed. In plaintiff’s 3rd amended complaint, as it relates to sex discrimination, he reports females who committed the same infraction of NBC policy as plaintiff (male) were not terminated, which Page 6 of 9

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is an adverse employment action. (pp. 28-29, ¶ 162-164) Also, as it relates to age discrimination, plaintiff reports his protected class, which defendants’ concede to, some NBC employees were younger than plaintiff and not in a protected class. (pp. 28-30, ¶ 166-169) To prevail on this sex discrimination claim, plaintiff must show that (1) she endured unwelcome sexual harassment; (2) she was harassed because of her sex; (3) the harassment was so severe or pervasive that it altered the conditions of employment and created a hostile work environment; and (4) there is a basis for employer liability. Turner v. The Saloon, Ltd., 595 F.3d 679, 684 (7th Cir. 2010). The Age Discrimination in Employment Act forbids penalizing employees for asserting their rights through administrative complaints or suits. 29 U.S.C. §623(d). Count VI and X. Retaliation. Defendants state “…Plaintiff’s claims in Count VI and X allege that he was terminated in retaliation for filing complaints to the Illinois Department of Labor and the EEOC, in violation of Section 1981, Title VII, and the ADEA. Despite this, Plaintiff has pled the existence of a variety of activities not protected by Title VII, the ADEA, or Section 1981 in which he engaged that presumably motivated his “employers” to terminate his employment. As such, he is foreclosed from proceeding with a claim that protected activity was the but-for cause of his separation. To make a claim of retaliation, Plaintiff must establish that he engaged in protected activity and this protected activity was the but-for cause of his termination. However, because Plaintiff has pled facts in his Second and Third Amended Complaints which if true establish that he was terminated for a variety of reasons unrelated to the protected activities in which he allegedly engaged. As pled, Plaintiff’s complaint precludes him from proving that any protected activities

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were the but-for cause of his discharge, and these counts should be dismissed….” Plaintiff’s Counts VI and X should not be dismissed. The email from Darren Chiappetta reports what led to plaintiff’s termination; and the phone conversation from Mark Olson confirms the policy used to terminate plaintiff. It does not matter what defendants’ suggests “Plaintiff has pled the existence of a variety of activities not protected by Title VII, the ADEA, or Section 1981….” The truth of the termination is in the email from Darren Chiappetta, which is the only document from NBC describing plaintiff’s termination; and if the email from NBC’s HR Director Chiappetta is not a policy of NBC, then it is a pretext and defendants violated Title VII, ADEA, and §1981. In plaintiff’s 3rd amended complaint, Count VI, he provides a causal link for the protected activity and adverse action (pp. 30-31, ¶ 171-178); and Count X does the same (pp. 33-35, ¶ 192208). To state a claim for retaliation under Title VII, a plaintiff must allege that he “engaged in statutorily protected activity” and suffered an adverse action “as a result of that activity.” Huri, 804 F.3d at 833. The range of conduct prohibited under [Title VII’s] anti-retaliation provision is broader than its anti-discrimination provision.” Henry v. Milwaukee Cty., 539 F.3d 573, 586 (7th Cir. 2008). In the context of a retaliation claim, “‘the discriminatory acts proscribed by Title VII … are not limited to those that affect the terms and conditions of one’s employment.’” Id. (quoting Lewis v. City of Chicago, 496 F.3d 645, 655 (7th Cir. 2007)). Counts VIII and IX. Equal Pay Act. Defendants state “…Plaintiff’s discrimination and retaliation claims based on the Equal Pay Act should be dismissed because Plaintiff failed to plead sufficient facts to establish that similarly situated female coworkers were paid more favorably than he was. To establish claims under the Equal Pay Act, Plaintiff must plead facts which, if true, would demonstrate the Page 8 of 9

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existence of a causal relationship between sex and pay. Because Plaintiff has previously pled that both male and female coworkers were paid more generously than he for a similar role, his claims fall short of alleging a causal connection between his sex and pay….” Plaintiff’s Counts VIII and IX should not be dismissed. In plaintiff’s 3rd amended complaint, he reports the causal relationship between the pay females received and plaintiff and the retaliatory nature of NBC and Empire when he filed a charge with the Illinois Department of Labor and EEOC, which are protected activities. Congress responded to the Ledbetter decision by enacting the Lilly Ledbetter Fair Pay Act of 2009, while this appeal was pending. The Act amends Title VII of the Civil Rights Act of 1964 by providing that the statute of limitations for filing an EEOC charge alleging pay discrimination resets with each paycheck affected by a discriminatory decision. More specifically, the Act provides that an “unlawful employment practice” occurs in the following situations: (1) “when a discriminatory compensation decision or other practice is adopted,” (2) “when an individual becomes subject to a discriminatory compensation decision or other practice,” and (3) “when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice .” 42 U.S.C. § 2000e5(e)(3)(A). Wherefore, defendants’ motion to dismiss plaintiff’s 3 rd amended complaint and motion to strike should be dismissed with prejudice. Plaintiff provides a memorandum of law to further support this court denying defendants’ motion to dismiss and motion to strike. /s/Fred Nance Jr., Ph.D.

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

No. 16-cv-11635

NBCUNIVERSAL MEDIA, LLC, OPEN 4 BUSINESS PRODUCTIONS, UNIVERSAL TELEVISION LLC, JOAN PHILO CASTING, EMPIRE CASTING LLC, et al.,

Judge Leinenweber Magistrate Judge Cox

Defendants. DEFENDANTS NBCUNIVERSAL MEDIA, LLC, OPEN 4 BUSINESS PRODUCTIONS LLC, UNIVERSAL TELEVISION LLC AND JOAN PHILO CASTING’S PARTIAL MOTION TO DISMISS PLAINTIFF’S THIRD AMENDED COMPLAINT AND MOTION TO STRIKE Defendants NBCUniversal Media LLC, Open 4 Business Productions, Universal Television LLC and Joan Philo Casting (“Defendants”), by their attorneys and pursuant to Federal Rule of Civil Procedure 12(b)(6) and 12(f), submit this Partial Motion to Dismiss Plaintiff’s Third Amended Complaint and Motion to Strike. As more fully explained in the Memorandum in Support filed contemporaneously herewith, the following counts should be dismissed with prejudice for the following reasons: Count II.

Disparate Impact in Violation of Title VII. Plaintiff neither identifies a

policy or procedure that created a disparate impact in violation of Title VII, nor asserts that any individuals other than himself were subject to any alleged disadvantage. Because Plaintiff does not identify any specifics as to the allegedly unlawful policy or practice, or otherwise identify which groups he believes were disadvantaged by any alleged policy or practice, this Count must be dismissed.

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Count III.

Harassment. To survive a motion to dismiss, Plaintiff must plead facts

that demonstrate his work environment was offensive, the harassment was severe or pervasive, and the Plaintiff’s status as a member of protected class was the cause of the harassment. Plaintiff fails to demonstrate that any alleged harassment was related to his race, and further fails to allege conditions that were “severe” or “pervasive” enough to alter the terms or conditions of his working environment. Plaintiff’s harassment and a hostile work environment counts should be dismissed accordingly. Count IV and V.

Sex and Age Discrimination.

Plaintiff’s claims in Count IV

regarding sex-based discrimination in violation of Title VII and Count V regarding age-based discrimination must be dismissed.

Plaintiff fails to plausibly claim he was subject to any

adverse employment action as a result of either of these protected statuses. Furthermore, this Court should treat facts pled in the First or Second Amended Complaints as judicial admissions when evaluating Plaintiff’s Third Amended Complaint. When the Second and Third Amended Complaints are read together, there can be no question that Plaintiff has pled himself out court with respect to his sex and age discrimination and Equal Pay Act retaliation claims. Count VI and X.

Retaliation.

Plaintiff’s claims in Count VI and X allege that he

was terminated in retaliation for filing complaints to the Illinois Department of Labor and the EEOC, in violation of Section 1981, Title VII, and the ADEA. Despite this, Plaintiff has pled the existence of a variety of activities not protected by Title VII, the ADEA, or Section 1981 in which he engaged that presumably motivated his “employers” to terminate his employment. As such, he is foreclosed from proceeding with a claim that protected activity was the but-for cause of his separation. To make a claim of retaliation, Plaintiff must establish that he engaged in protected activity and this protected activity was the but-for cause of his termination. However,

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because Plaintiff has pled facts in his Second and Third Amended Complaints which if true establish that he was terminated for a variety of reasons unrelated to the protected activities in which he allegedly engaged. As pled, Plaintiff’s complaint precludes him from proving that any protected activities were the but-for cause of his discharge, and these counts should be dismissed. Counts VIII and IX. Equal Pay Act. Plaintiff’s discrimination and retaliation claims based on the Equal Pay Act should be dismissed because Plaintiff failed to plead sufficient facts to establish that similarly situated female coworkers were paid more favorably than he was. To establish claims under the Equal Pay Act, Plaintiff must plead facts which, if true, would demonstrate the existence of a causal relationship between sex and pay. Because Plaintiff has previously pled that both male and female coworkers were paid more generously than he for a similar role, his claims fall short of alleging a causal connection between his sex and pay. Plaintiff’s Introductory Paragraph and All Remaining Paragraphs.

Plaintiff’s

introductory paragraph and all remaining allegations in his Third Amended Complaint should be stricken pursuant to Rule 12(f). The scandalous and impertinent allegations raised in Plaintiff’s unnumbered introductory paragraphs spanning more than five pages include highly prejudicial allegations as to non-parties and create unnecessary clutter which this court should strike in order to streamline this litigation. Muller v. Morgan, et. al., 12-CV-1815, 2013 WL 2422737, at *6 (N.D. Ill. June 3, 2013)(Leinenweber)(striking improperly pled introductory paragraphs from the plaintiff’s complaint as non-pertinent and in violation of Fed. R. Civ. P 10(b).) Plaintiff’s introductory paragraphs are of such scandalous and impertinent nature that they necessarily color and confuse any paragraphs not otherwise dismissed, and as such they should be stricken in their entirety.

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WHEREFORE, for the foregoing reasons, as set forth more fully in the accompanying memorandum of law, the Court should dismiss Counts II-VI and VIII-X of Plaintiff’s Third Amended Complaint, and move to strike all remaining allegations of the Complaint. Respectfully submitted, NBCUNIVERSAL MEDIA LLC, UNIVERSAL TELEVISION LLC, OPEN 4 BUSINESS PRODUCTIONS LLC and JOAN PHILO CASTING By: /s/ Aaron R. Gelb One of Their Attorneys Aaron R. Gelb Emily C. Fess Caralyn Olie Vedder Price P.C. 222 North LaSalle Street, Suite 2600 Chicago, IL 60601-1003 (312) 609-7844 Dated: December 18, 2017

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CERTIFICATE OF SERVICE I, Aaron R. Gelb, an attorney, certify that I served DEFENDANTS NBCUNIVERSAL MEDIA LLC, OPEN 4 BUSINESS PRODUCTIONS LLC, UNIVERSAL TELEVISION LLC AND JOAN PHILO CASTING PARTIAL MOTION TO DISMISS PLAINTIFF’S THIRD AMENDED COMPLAINT AND MOTION TO STRIKE by causing a true and correct copy of the same to be sent by e-mail and U.S. mail to: Fred L. Nance Jr., PhD

on December 18, 2017. /s/ Aaron R. Gelb Aaron R. Gelb

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

No. 16-cv-11635

NBCUNIVERSAL MEDIA, LLC, OPEN 4 BUSINESS PRODUCTIONS, UNIVERSAL TELEVISION LLC, JOAN PHILO CASTING, EMPIRE CASTING LLC, et al.,

Judge Leinenweber Magistrate Judge Cox

Defendants. DEFENDANTS NBCUNIVERSAL MEDIA, LLC, OPEN 4 BUSINESS PRODUCTIONS LLC, UNIVERSAL TELEVISION LLC AND JOAN PHILO CASTING’S MEMORANDUM IN SUPPORT OF THEIR PARTIAL MOTION TO DISMISS COUNTS PLAINTIFF’S THIRD AMENDED COMPLAINT AND MOTION TO STRIKE Defendants NBCUniversal Media LLC, Open 4 Business Productions, Universal Television LLC and Joan Philo Casting (“Defendants”), by their attorneys and pursuant to Federal Rule of Civil Procedure 12(b)(6) and 12(f), submit this Memorandum in Support of their Partial Motion to Dismiss. I. INTRODUCTION While Plaintiff has apparently recognized that reasserting his Intentional Infliction of Emotional Distress claim would be futile here, his Third Amended Complaint once again includes the age discrimination, sex discrimination, hostile work environment, retaliation and Equal Pay Act claims previously dismissed by this Court. Rather than pleading new facts that would enable him to assert plausible claims, Plaintiff essentially attempts to put a new spin on the previously pled facts which formed the basis for Defendants’ prior motion to dismiss or, when that would not work, deletes them entirely in an effort to avoid the implications of his admissions. Having already pled, for example, that male and female employees earned more

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than he did, Plaintiff cannot un-ring that bell and avoid dismissal now simply by referencing only the female employees who earned more and deleting any mention that male employees also allegedly earned more. Acknowledging that Plaintiff has likely pled a plausible Section 1981 claim in his Third Amended Complaint, Defendants are prepared to litigate the race discrimination claims he seeks to assert pursuant to Title VII and Section 1981. Defendants, however, once again move to dismiss Plaintiff’s claims for disparate impact (Count II), harassment (Count III), sex discrimination (Count IV), age discrimination (Count V), retaliation (Count VI), Equal Pay Act violations (Counts VIII and IX) and retaliatory discrimination (Count X) because Plaintiff remains unable to plead the facts necessary to establish plausible claims in these Counts for the reasons stated below. Defendants further move this court to the remaining paragraphs of the complaint not otherwise dismissed, based on the fact that the impertinent allegations relating to non-parties (including current and former U.S. presidents, Jeremy Piven, and unnamed gunnery Sergeants from Plaintiff’s military service in 1968) Plaintiff raises in his introduction underlie the entire complaint, are highly scandalous, and impertinent in nature. II. ARGUMENT A.

Standard for a Motion to Dismiss To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Although the court must accept all well-pleaded facts as true and draw all reasonable inferences in the plaintiff’s favor, Reger Development, LLC v. National City Bank, 592 F.3d 759, 763 (7th Cir. 2 CHICAGO/#3072582.3

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2010), “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. B.

Plaintiff Has Failed to State a Claim in Counts II, III, IX and X 1.

Plaintiff Fails to State a Disparate Impact Claim in Count II

Count II should be dismissed because Plaintiff has neither described a specific employment practice that caused the alleged disparate impact about which he complains nor identified any other employees disadvantaged by the unidentified employment practice. Cesario v. Jewel Food Stores, Inc., No. 17 CV 319, 2017 WL 5152348 at *4 (N.D. Ill. Nov. 7, 2017)(dismissing the plaintiff’s disparate impact claims where plaintiff fails to identify the impact on anyone other than himself); H.P. v. Naperville Cmty. Sch. Dist., 17-cv-53777, 2017 WL 5585627 at *5 (N.D. Ill. Nov. 20, 2017)(dismissing plaintiff’s disparate impact claims because conclusory allegations that a policy has a disparate impact without identifying any negative effect the policy has on individuals other than oneself is insufficient to plausibly plead a disparate impact claim). Unable to point to an actual policy, Plaintiff attempts to characterize the results of an investigation communicated to him by human resources as an “employment practice” in an effort to avoid dismissal. He fails, however, to cite any authority holding—let alone suggesting—that a report from human resources regarding a complaint can rise to the level of a policy or practice. Even if it did, Plaintiff has not pled facts which if true, would enable him to establish that said policy or practice impacted one group differently than other groups. Indeed, Plaintiff admits in Paragraph 156 of his Third Amended Complaint that he “cannot know” how other individuals were disparately impacted. Devoid of the necessary specifics needed to assert a disparate impact claim, Count II of Plaintiff’s Third Amended Complaint should be dismissed with prejudice.

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2.

Plaintiff Fails to State a Racial Harassment Claim in Count III

Plaintiff’s hostile work environment claim fails because he neither pleads facts sufficient to establish a link between his race and the alleged harassment that he claims to have experienced, nor plausibly alleges that this harassment was severe or pervasive. Nolan v. City of Chi., 15-CV-11645, 2017 U.S. Dist. LEXIS, at 19582 *7–10 (N.D. Ill. Feb. 13, 2017). In order to survive a motion to dismiss a hostile work environment claim, a plaintiff must plead that he was subject to conduct that is severe or pervasive and based on his membership in a protected class. Id. at *7; Budzban v. DuPage Cty. Reg’l Office of Educ., 12-cv-900, 2013 U.S. Dist. LEXIS, at *17–18 (N.D. Ill. Jan. 14, 2013) (Leinenweber) (requiring that the plaintiff allege that his work environment was offensive, that the harassment was severe or pervasive, and that the plaintiff’s protected class was the cause of the harassment). Here, Plaintiff has not only failed to plead facts establishing that the harassment he claims to have suffered was severe or pervasive, but has included allegations indicating that the conduct about which he complains was not directed at him because of his race. Despite being given a third bite at the apple, Plaintiff continues to describe a series of personality conflicts which even if true fall short of the sort of severe or pervasive conduct needed to establish a hostile environment claim. See also Triplett v. Coffee, 10-CV-5214, 2011 WL 3165576 at *5 (N.D. Ill. July 26, 2011) (dismissing plaintiff’s harassment claims where plaintiff failed to allege anything more than “unenlightened” conduct not rising to the level of severe or pervasive harassment). Here, Plaintiff contends that an extra allegedly warned him that “[he had] been talking to my girl a little too much,” while another individual commented on the fact that Plaintiff was wearing a substitute ID, while yet another individual rudely told him to

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turn his badge around. (Doc. 67, ¶¶ 91, 97, 107 and 108.) 1 At worst, Plaintiff’s Third Amended Complaint highlights extras bullying and intimidating one another while vying for screen time, rude remarks about props, and insults traded on social-media platforms regarding one’s acting credentials. Critically, none of the alleged conduct implicates Plaintiff’s race. The fact that Plaintiff is a member of a protected class does not transform these minor and limited issues into actionable harassment. See Dr. Fred Nance Jr. v. Rothwell et.al., 09-CV-7733, 2011 WL 1770306 at *7-8 (N.D. Ill. May 9, 2011)(dismissing plaintiff’s race and sex harassment claims where he failed to allege he was subject to any incidents sufficiently connected to race or sex so as to satisfy the second element of the hostile work environment analysis). Indeed, Plaintiff himself acknowledges that he alone was the issue – the individuals he named as engaging in the alleged harassment “did not harass any other African American extra on set.” See Herron v. DaimlerChrysler Corp., 388 F.3d 293, 94 (7th Cir. 2004)(where plaintiff’s problems were “not related to his race – they were related to him … doom[ed] his racial harassment claim”). The Court should dismiss Count III because the conduct described in the Third Amended Complaint falls short of what is needed to establish a plausible hostile work environment claim. 3.

Plaintiff Fails to State an Equal Pay Act Retaliation Claim in Count IX

Count IX should be dismissed because Plaintiff fails to allege that he was retaliated against for engaging in activities protected by the Equal Pay Act (the “EPA”). To state a retaliation claim under the EPA, Plaintiff must assert that he engaged in statutorily protected expression related to the Equal Pay Act, that he suffered an adverse employment action and that there was a causal link between the Equal Pay Act complaint and the adverse action. Leong v. 1

Indeed, the majority of events Plaintiff alleges took place occurred while Plaintiff claims to have worked on FOX’s Empire show, outside of Defendants’ control. (Doc. 67, ¶¶ 69, 70 and 77.) 5 CHICAGO/#3072582.3

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SAP America, 67 F. Supp. 3d 972, 986 (N.D. Ill. 2014) (complaint about dissatisfaction with one’s compensation in general does not trigger the protection of the Equal Pay Act). Here, however, he cannot establish that he engaged in any activities protected by the Equal Pay Act. Plaintiff alleged in his Second Amended Complaint that he filed an IDOL charge against Empire Casting regarding an allegedly “irregular pay schedule.” (Doc. 43, ¶ 106.) Now, in an effort to avoid dismissal, he attempts to transform a gender-neutral complaint against another employer into one that somehow implicates the EPA and motivated the Universal Defendants to retaliate against him, alleging that his complaint “was a result of his sex when he reported females received their checks regularly.” (Doc. 57, ¶ 189.) An IDOL complaint regarding the frequency of pay, however, does not implicate Equal Pay Act protections regarding wage rates. See generally Eskridge v. Chi. Bd. of Educ., 47 F. Supp. 3d 781, 795 (N.D. Ill. 2014)(although the plaintiff alleged there were pay irregularities, she did not establish that she was paid at a lower rate than male employees implicating the Equal Pay Act). Having made clear in both his First and Second Amended Complaints that his IDOL complaint did not implicate the Equal Pay Act because it pertained only to the timing of his wage payments, Plaintiff cannot avoid dismissal now by adding an allegation (that women received regular pay checks) which was not asserted in the original IDOL complaint. 2 The Court should thus dismiss Count IX because the facts pled in support of Plaintiff’s claim are insufficient to establish retaliation in violation of the Equal Pay Act.

2

Furthermore, Plaintiff has not alleged, nor can he, that Defendants had any knowledge regarding any complaint he allegedly made to the IDOL which, based on his own admission, was made against Empire Casting LLC and not against the Defendants filing this motion. (Doc. 43, ¶ 106.) 6 CHICAGO/#3072582.3

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4.

Plaintiff Fails to State a Claim for Retaliation under Title VII or Section 1981

Plaintiff cannot avoid dismissal of his retaliation claims (Counts VI and X) by deleting those allegations from his Second Amended Complaint which, if true, establish that he was terminated for a variety of reasons unrelated to the protected activities in which he allegedly engaged.

As explained in Defendants’ previous motion to dismiss, those myriad reasons

precluded Plaintiff from establishing that the protected activities in which he allegedly engaged were the but-for cause of his discharge. To state a claim of retaliation under Section 1981, Plaintiff must allege that he took some action to oppose racially discriminatory practices, that he suffered a materially adverse action and that there is a causal connection between the two. Onyango v. Nick & Howard, 14-2979 (7th Cir. 2015), citing Smith v. Bray, 681 F.3d 888, 896 (7th Cir. 2012). This court applies a “butfor” standard when evaluating Section 1981 claims, meaning that the making of a complaint (or any other protected activity) is not regarded as the cause of an adverse action if the adverse action would have been taken had the complaint not been made. Lance v. Betty Shabazz Int’l Charter Sch., 12-CV-4116, 2014 U.S. Dist. LEXIS, at *31–40 (N.D. Ill. 2016). The Lance court dismissed the plaintiff’s Title VI retaliation claims after concluding that he failed to plead facts suggesting that his filing of a complaint was the but-for cause of his termination in light of the “quantity and severity of the alternative reasons” given by the plaintiff for his termination. Here, Plaintiff claims that he was terminated not only because he filed charges with the EEOC but because he filed a wage claim with the Illinois Department of Labor. This alone precludes Plaintiff from proving that he would not have been fired but for the fact that he filed charges with the EEOC. Reading Plaintiff’s Third Amended Complaint as a whole—as the court did in Lance— along with his Second Amended Complaint, leads to the same conclusion; namely, that Plaintiff 7 CHICAGO/#3072582.3

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is unable to plead a plausible retaliation claim under the but-for causation standard. Considering each and every one of the incidents described by Plaintiff himself—the various arguments, disputes and confrontations with male and female extras on the Chicago Med set, on social media and on the sets of wholly unrelated companies—there can be no question that the Universal Defendants could conceivably have been motivated to break ties with Plaintiff for a host of reasons unrelated to his alleged complaints of discrimination and/or harassment. Plaintiff has pled the existence of so many activities (not protected by Title VII or Section 1981) in which he engaged that presumably motivated his “employers” to terminate his employment that he is foreclosed from proceeding with a claim that his activities protected by Title VII, Section 1981 and/or the ADEA were the but-for cause of his separation. Counts VI and XII of Plaintiff’s Third Amended Complaint should be dismissed with prejudice. C.

Plaintiff Has Pled Himself Out of Counts IV, V and VIII by Way of His Second Amended Complaint Rather than plead new facts that would enable him to assert plausible claims for sex

discrimination, age discrimination or violations of the Equal Pay Act, Plaintiff has essentially removed and/or revised a number of the paragraphs in his Second Amended Complaint that were cited by Defendants in their motion to dismiss. This runs afoul of the Court’s admonition to avoid reasserting those claims where amendment would be futile and should not be permitted here.

See Aasen v. DRM, Inc., 09-CV-50228, 2010 WL 2698296 at *2 (N.D. Ill.

2010)(considering prior complaints where plaintiff engaged in a disingenuous attempt to avoid the ramifications of the allegations in his original complaint and the revised allegations in the amended complaint reflect “intentional manipulation” to avoid the consequences of an appropriate motion to dismiss); Wallace v. New York City Dep’t. of Corr., 1996 WL 586797, at

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*2 (E.D.N.Y. 1996)(accepting the facts as described in the original complaint as true where plaintiff “blatantly change[d] his statement of facts in order to respond to the defendants’ motion to dismiss”). Plaintiff’s effort to avoid dismissal by subtracting allegations rather than adding them should be rejected here. As described more fully below, there are now several allegations in Plaintiff’s Third Amended Complaint that conflict with allegations elsewhere in the document, while other revisions contradict allegations in his First or Second Amended Complaints. Accordingly, this court should treat facts pled in the First or Second Amended Complaints as judicial admissions when evaluating Plaintiff’s Third Amended Complaint. Aasen, at *3-4. Indeed, when the Second and Third Amended Complaints are read together, there can be no question that Plaintiff has pled himself out court with respect to his sex discrimination, age discrimination and Equal Pay Act retaliation claims. 1.

Plaintiff Fails to State a Claim for Sex Discrimination in Count IV

Even when read in a light most favorable to Plaintiff, the allegations in his Third Amended Complaint fail to demonstrate that alleged differences in treatment were prompted by his sex. See Gilhooly v. UBS Securities,

772 F. Supp. 2d 914, 916 (N.D. Ill. Feb. 14,

2011)(dismissing the Plaintiff’s sex discrimination claims in part because plaintiff did not adequately plead facts suggesting similarly situated employees outside her protected status received better treatment and thus did not plausibly allege a discrimination claim). Plaintiff now claims in Count IV that “white female extras” engaged in similar misconduct but were treated more favorably than him. (Doc. 67, ¶¶ 162–164.) Elsewhere in the Third Amended Complaint, however, he describes many of the same individuals are “white males and females over 40 years old.” (Doc. 67, ¶ 130, fn. 20)(emphasis added). Further, Plaintiff claimed in the Second Amended Complaint that Tanner Masseth and Ashland Thomas—both males—were not subject 9 CHICAGO/#3072582.3

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to discipline like he received. (Doc. 43, ¶¶ 118, 151, 155, 162, 207 and 263.) Accordingly, when the allegations set forth in Count IV of the Third Amended Complaint are considered along with allegations elsewhere in the Complaint along with allegations deleted from the Second Amended Complaint, no reasonable fact finder could conclude that Plaintiff was the victim of sex discrimination. The Court should thus dismiss Count IV with prejudice. 2.

Plaintiff Fails to State a Claim for Age Discrimination

Similarly, Plaintiff’s age discrimination claims should be dismissed because he cannot demonstrate that alleged differences in treatment were prompted by his age. See, Gilhooly, at 917.

Plaintiff now claims in Count V that a group of employees “Stacey Krenning, Jennifer

Hemminger, Connie Kincer, Virginia McElligott, Melanie Doe, Nicole McGovern, Tanner Masseth et. al.” were treated more favorably and are “not 40 years old.” (Doc. 67, ¶ 167.) Plaintiff contradicts himself elsewhere in the Third Amended Complaint, claiming that many of these same individuals are “white males and females over 40 years old.” (Doc. 67, ¶ 130, fn. 20.) Plaintiff’s allegation in Paragraph 167 is further contradicted by his claim in the Second Amended Complaint that individual “white males and females over 40 years old” were treated more favorably than he was. (Doc. 43, fn. 21; ¶ 24.) Having admitted that the individuals he claims were treated more favorably are also “over 40 years old,” Plaintiff cannot plausibly claim in the Third Amended Complaint that “substantially younger” extras were treated more favorably than he was treated. The Court should thus dismiss Count V with prejudice. 3.

Plaintiff Fails to State a Claim Pursuant to the Equal Pay Act

Count VIII of the Third Amended Complaint should be dismissed based on Plaintiff’s admission that both male and female extras were more highly compensated than he was. (Doc. 10 CHICAGO/#3072582.3

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43, ¶ 222.) A claim under the EPA requires a “causal relationship between sex and pay,” and “if the difference is due to a factor unrelated to gender, there is no violation.” Lindale v. Tokheim Corp., 145 F.3d 953, 957 (7th Cir. 1998); Lynch v. City of Chicago, 12-cv-9032, 2013 U.S. Dist. LEXIS 120553, at *8–11 (N.D. Ill. Aug. 23, 2013) (dismissing Equal Pay Act claim where plaintiff alleged she was treated differently than older employees of a different rank); Nance v. Rothwell, at *11 (dismissing Dr. Nance’s Equal Pay Act claim where he failed to allege that the defendant had paid unequal wages to members of the opposite sex). By admitting that both male and female “real doctor” extras were paid more than he was, Plaintiff fails to establish a sufficient causal relationship between sex and pay. (Doc. 43, ¶ 222.) He cannot avoid dismissal by deleting that allegation and replacing it with a contradictory assertion that only “females were getting paid more than he” was paid. (Doc. 67, ¶ 184.) The Court should thus dismiss Count VIII with prejudice. D.

The Remaining Paragraphs in Plaintiff’s Third Amended Complaint Should be Stricken Pursuant to Fed R. Civ. P. 12(f) and 10(b) This court has the discretion to strike pleadings containing any redundant, immaterial,

impertinent, or scandalous matter. Fed. R. Civ. P. 12(f) Redwood v. Dobson, 476 F.3d 462, 471 (7th Cir. 2007)(the discretion to grant 12(f) motions rests within the sound discretion of the district court.)

This court has exercised this discretion to strike any and all portions of a

pleading that contain scandalous allegations that “bear no possible relation to the controversy or may cause the objecting party prejudice.” Simons v. Ditto Trade, No. 14 C 309, 2015 WL 1918617, at *5 (N.D. Ill. Apr. 28, 2015)(dismissing scandalous allegations from the complaint) citing Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 664 (7th Cir. 1992); Muller v. Morgan,

et.

al.,

12-CV-1815,

2013

WL

2422737,

at

*6

(N.D.

Ill.

June

3,

2013)(Leinenweber)(striking improperly pled, scandalous, and inappropriate introductory 11 CHICAGO/#3072582.3

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paragraphs from the plaintiff’s complaint as non-pertinent and in violation of Fed. R. Civ. P 10(b).) Furthermore, motions to strike are authorized by Federal Rule of Civil Procedure 12(f) and are appropriate where a complaint contains references to the acts and/or omissions of nonparties, and the presence of such allegations could lead to prejudicial inferences against the moving party. See Loughrey v. Landon, 381 F. Supp. 884, 888 (E.D. Pa. 1974). Here, Plaintiff’s introductory paragraph spans approximately five pages, includes allegations relating to more than thirty non-parties including two current or former presidents of the United States, various representatives of the Democratic and Republican political parties, actors, and statements allegedly made in 1968 by a gunnery Sergeant to whom Plaintiff reported while in the military. As a preliminary matter, these paragraphs do not comply with Fed. R. Civ. P. 10(b) and should be stricken on this independent basis. Muller, at *6. Plaintiff’s introductory allegations amount to more than mere clutter, and indeed underlie the entirety of the complaint. For example, Plaintiff alleges that the Defendants have employed the “same ‘power’” in their treatment of Plaintiff as President Donald Trump (to whom he later refers to as a “bigot” and “racist”). (Doc. 67, at 4.) All remaining paragraphs should be stricken in their entirety, because as pled, Plaintiff’s Third Amended Complaint contains the acts and omissions of so many non-parties, that are so scandalous in nature, that Defendants are subject to unavoidable prejudice as to any paragraphs not dismissed. III. CONCLUSION For the above reasons, Counts II through VI and VIII through X of Plaintiff’s Third Amended Complaint should be dismissed with prejudice, and all remaining paragraphs should be stricken.

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Respectfully submitted, NBCUNIVERSAL MEDIA, LLC, UNIVERSAL TELEVISION LLC, OPEN 4 BUSINESS PRODUCTIONS LLC and JOAN PHILO CASTING

By: /s/ Aaron R. Gelb One of Their Attorneys Aaron R. Gelb Emily C. Fess Caralyn Olie Vedder Price P.C. 222 North LaSalle Street Suite 2600 Chicago, IL 60601-1003 (312) 609-7844 Dated: December 18, 2017

13 CHICAGO/#3072582.3

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CERTIFICATE OF SERVICE I, Aaron R. Gelb, an attorney, certify that I served the DEFENDANTS NBCUNIVERSAL MEDIA, LLC, OPEN 4 BUSINESS PRODUCTIONS LLC, UNIVERSAL TELEVISION LLC AND JOAN PHILO CASTING’S MEMORANDUM IN SUPPORT OF THEIR PARTIAL MOTION TO DISMISS PLAINTIFF’S THIRD AMENDED COMPLAINT by causing a true and correct copy of the same to be sent via e-mail and U.S. mail to: Fred L. Nance Jr., Ph.D.

on December 18, 2017. /s/ Aaron R. Gelb