Eric Onyango v. Nick & Howard, LLC

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 02, 2014*
Decided April 9, 2015
Before
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 14-2979
ERIC C. ONYANGO, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of
Illinois, Eastern Division.
v.
No. 13 C 6256
NICK & HOWARD, LLC, et al.,
Defendants-Appellees. Sharon Johnson Coleman,
Judge.
ORDER
Eric Onyango, who is black, sued a night club owner and two others, alleging
violations of 42 U.S.C § 1981 and state law. The district court dismissed with prejudice
the § 1981 claims and two of the claims for intentional infliction of emotional distress.
The court then declined to exercise supplemental jurisdiction over the remaining
*This appeal is successive to case no. 13-3825 and is being decided under
Operating Procedure 6(b) by the same panel. After examining the briefs and record, we
have concluded that oral argument is unnecessary. Thus the appeal is submitted on the
briefs and record. See FED. R. APP. P. 34(a)(2)(C).
No. 14-2979 Page 2
state-law claims. Onyango appeals, and because Onyango states no plausible § 1981 or
emotional-distress claims, we affirm the judgment.
Onyango complains about two sets of events at The Underground night club in
Chicago. He names as defendants Nick & Howard (the company that owns the club), the
club’s lawyer (Douglas Wexler), and Wexler’s own lawyer, Samuel Manella. According
to his complaint, the first set of events began when Onyango and a friend were at the
club in December 2012. Carlos Rosales, a frequent club patron, made racist remarks to
Onyango and told him to “get out.” Onyango left the club, and a few weeks later he
complained to the club about Rosales and threatened litigation. When he returned to the
club sometime later, bouncers enforced policies that discouraged him from entering: He
saw that black customers waited in line longer than white customers, bouncers lied
about wait times, and they “selectively enforce[ed] nonarticulable dress codes while
making exceptions for rappers and drug dealers.” Onyango labels this race
discrimination.
The second set of events involves accusations of sexual misconduct. Onyango
alleges that while he and a friend were waiting to enter The Underground in August
2013, the club patron Rosales approached him and, for racially hostile reasons, loudly
and falsely called him a “sexual assailant.” Rosales then spoke to the bouncer, who
denied Onyango entry into the club. Onyango complained to Nick & Howard about this
new incident and reprised his threat to sue. He later spoke about the incident with
Wexler, the club’s lawyer, who began to investigate. Wexler first contacted Rosales, who
asserted that Onyango had once been asked to leave the club for groping a woman, and
said a woman named Marcella Acosta would be able to confirm that Onyango was
aggressive. Wexler contacted Acosta, told her that Onyango had sexually assaulted
women, and asked her to lie and confirm that Onyango had inappropriately touched her
and other women. Upon learning about this conversation, Onyango reported Wexler to
the FBI and Illinois Attorney Registration and Disciplinary Commission to complain
about Wexler’s lies. Wexler hired Manella, who represented him in the ARDC
proceedings.
In this suit, Onyango raises claims of race discrimination and retaliation under 42
U.S.C. § 1981. He contends that the club committed race discrimination (1) when Rosales
told him to “get out” in December 2013, (2) when it denied him entry in August 2013
based on Rosales’s racially motivated accusation of sexual misconduct and, more
generally (3) by enforcing its club-admission policies. Onyago next asserts that, seven
months after he complained in January 2013 about Rosales’s racist remarks, the club and
No. 14-2979 Page 3
Wexler retaliated against him by responding to the allegations of sexual misconduct.
Finally, he accuses the defendants of intentional inflicting emotional distress,
defamation, and other state-law violations.
The district court dismissed the case. First, it denied Onyango’s motion to enjoin
the defendants from defaming him, a ruling that this court upheld on interlocutory
appeal. Onyango v. Nick & Howard, et al., 559 F. App'x 571 (7th Cir. 2014). A few months
later the district court granted the defendants’ motions to dismiss. It first addressed the
§ 1981 discrimination claim. The court explained that Nick & Howard could not be liable
for Rosales’s racially motivated conduct and Onyango’s allegations about the
club-admission policies were too vague to state a race claim. Second, the judge dismissed
his § 1981 retaliation claims because Onyango did not specifically allege that his
complaint to the club about Rosales in January 2013 was the reason that, seven months
later, Rosales called him a “sexual assailant” and the club investigated him for sexual
misconduct; in addition, the investigation was not sufficiently adverse to deter
complaints about discrimination. Next, the judge granted both Wexler and Manella’s
motions to dismiss the claims for intentional infliction of emotional distress based on
litigation privilege. The judge declined to exercise supplemental jurisdiction over the
remaining state-law claims. Onyango moved for reconsideration under Federal Rule of
Civil Procedure 59(e), and the district court denied his motion.
On appeal Onyango first asserts that the district court erred by dismissing his
§ 1981 claims against Nick & Howard. We begin with his argument that, because Rosales
wanted him removed from the club for racially hostile reasons, Nick & Howard is liable
for race discrimination. To state a race-discrimination claim under § 1981 Onyango
needs to allege that the club refused to contract with him because of his race. See Black
Agents & Brokers Agency, Inc. v. Near N. Ins. Brokerage, Inc., 409 F.3d 833, 837 (7th Cir.
2005); Bagley v. Ameritech Corp., 220 F.3d 518, 521–22 (7th Cir. 2000). And because
Onyango wants to base Nick & Howard’s liability on Rosales’s animus, he needs to
allege a basis for holding the club liable for Rosales’s conduct. To do that he must allege
that Rosales was an agent of the club and that Nick & Howard knew about and endorsed
his conduct by forcing him to leave or refusing him entry. See Daniels v. Dillard's, Inc., 373
F.3d 885, 888 n.4 (8th Cir. 2004); Berger v. Iron Workers Reinforced Rodmen Local 201, 843
F.2d 1395, 1430 (D.C. Cir. 1988). But Onyango never specifically alleged that the club
removed him because it knew that Rosales opposed Onyango’s entry for racial reasons
and adopted his animus.
No. 14-2979 Page 4
Onyango replies that agency and knowledge are not needed to hold Nick &
Howard liable for Rosales’s conduct. He argues that in Dunn v. Washington County
Hospital, 429 F.3d 689, 691 (7th Cir. 2005), we supposedly held a business is “directly”
liable for a contractor’s discriminatory conduct. But in that case a nurse at a hospital
stated a claim for a hostile work environment because she alleged that the hospital knew
of but did not stop ongoing sexual harassment by a doctor who worked at the hospital.
Id. Here Onyango does not allege that Nick & Howard knew about the racial motivation
for Rosales’s accusation of sexual misconduct. See Daniels, 373 F.3d at 888 n.4; Berger, 843
F.2d at 1430. Accordingly this theory of race discrimination under § 1981 fails. (Onyango
argues for the first time in his reply brief that Nick & Howard is liable on a negligence
theory, but he has waived that argument because it comes too late. See Feldman v. C.I.R.,
No. 12-3144, 2015 WL 759250, at *11 n.10 (7th Cir. Feb. 24, 2015).)
We also agree with the district court that Nick & Howard is not liable for race
discrimination based on its own admission “policies” because Onyango’s allegations
about those policies are too conclusory to support an inference of discrimination. He
asserts that he was discouraged from entering the club because black customers have
waited longer in line than whites, bouncers have lied to some black customers about
wait times, and the bouncers have unevenly enforced dress codes. He concludes that any
difference in treatment must be the result of a club policy of racial exclusion. But a
conclusion like Onyango’s that is based on “facts that are ‘merely consistent with’ a
defendant’s liability” is legally insufficient. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic v. Twombly, 550 U.S. 544, 557 (2006)).
We turn next to Onyango’s § 1981 retaliation claims against Nick & Howard and
Wexler. To state a claim for retaliation under § 1981 Onyango must allege that he
engaged in protected activity, suffered a materially adverse action, and that there is a
causal connection between the two. See Smith v. Bray, 681 F.3d 888, 896 (7th Cir. 2012). We
have so far applied § 1981’s retaliation provision only in the employment context.
See Carter v. Chi. State Univ., No. 13-3367, 2015 WL 544881, at *4 (7th Cir. Feb. 11, 2015).
But even if we assume that the provision applies outside of that context, the claim fails
because causation is missing. Onyango alleges that seven months after he complained to
Nick & Howard about Rosales’s conduct in December 2012, the club denied him entry
and its lawyer investigated Rosales’s charge of sexual assault. But Onyango does not
plausibly allege that the complaint and the investigation were causally connected.
Indeed it is implausible to infer that Rosales, who was not a club employee, even knew
about the Onyango’s complaint from seven months earlier. And the seven-month
interval is, without more, too long to support an inference of retaliation. Porter v. City of
No. 14-2979 Page 5
Chicago, 700 F.3d 944, 958 (7th Cir. 2012); Wallscetti v. Fox, 258 F.3d 662, 669 (7th Cir.
2001); Tyler v. Univ. of Ark. Bd. of Trs., 628 F.3d 980, 986 (8th Cir. 2011).
We are left with the state-law claims. Onyango argues that the district court erred
by exercising supplemental jurisdiction over his claims against the two lawyers for
intentional infliction of emotional distress. He contends that the dismissal of the claims
against the lawyers will preclude his emotional-distress claim against Nick & Howard
(which was dismissed without prejudice), and therefore the court should not have
decided those claims. Retention of jurisdiction to decide a supplemental state-law claim
is appropriate when resolution of a state-law claim is clear. See In re Repository Techs., Inc.,
601 F.3d 710, 725 (7th Cir. 2010); Wright v. Associated Ins. Cos., Inc., 29 F.3d 1244, 1251–52
(7th Cir. 1994). The prospect that the ruling in favor of the lawyers will preclude the
claim against Nick & Howard might have required that the district court retain the
emotional-distress claim against Nick & Howard, rather than dismiss it without
prejudice. See In re Repository Techs., 601 F.3d at 725; Miller Aviation v. Milwaukee County
Bd. of Supervisors, 273 F.3d 722, 731 (7th Cir. 2001). So if anything Onyango got a break.
But Nick & Howard has not cross-appealed the decision to relinquish that claim, so we
leave alone the decision to dismiss that claim without prejudice. See Greenlaw v. United
States, 554 U.S. 237 (2008).
On the merits, the district court correctly dismissed Onyango’s claims for
intentional infliction of emotional distress against the lawyers Wexler and Manella.
Onyango disputes the district court’s conclusion that their statements were privileged,
but they were privileged because they arose in anticipation of judicial or quasijudical
proceedings. See Atkinson v. Affronti, 861 N.E.2d 251, 255 (Ill. App. Ct. 2006). In particular,
Wexler’s private conversation with Acosta, a potential witness, as part of a preliminary
investigation is privileged. See id. at 255. And Manella wrote a private letter to the ARDC
in response to its pending investigation, so his communication likewise was privileged.
See Lykowski v. Bergman, 700 N.E.2d 1064, 1070–71 (Ill. App. Ct. 1998); Parrillo, Weiss, &
Moss v. Cashion, 537 N.E.2d 851, 856 (Ill. App. Ct. 1989). In any case, the actions of Wexler
and Manella did not go “beyond all possible bounds of decency.” Duffy v. Orlan Brook
Condo. Owners' Ass'n, 981 N.E.2d 1069, 1079 (Ill. App. Ct. 2012). Thus these claims easily fail.
Finally, Onyango argues that the district court abused its discretion by denying
his motion under Rule 59(e). He asserts that the judge erred by relying on our original
order affirming the denial of his injunction rather than the amended version we issued
shortly thereafter. But the differences in the amended version are negligible and did not
change any legal analyses or conclusions. Onyango also says he discovered new cases,
No. 14-2979 Page 6
but these were available to him at the time he filed his motion to dismiss. See In re Res.
Tech. Corp., 624 F.3d 376, 388 (7th Cir. 2010) (Rule 59 requires showing that moving party
discovered new information that could not have been discovered by exercising due
diligence before judgment.) In any case, we have considered all of his arguments.
Accordingly, we AFFIRM the judgment of the district court.