Petition for Writ of Certiorari — Chanel E. M. Nicholson, Petitioner v. W.L. York, Inc., dba Cover Girls, et al.

Supreme Court briefMay 10, 2024

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■A-

IN THE

Av;7,"

SUPREME COURT OF THE UNITED STATES

Supremo Court, U.S.

Fit ED

MAY 1 o 2024

Chanel E.M. Nicholson

— PETITIONER

OFFICE OF ThC CLERK

(Your Name)

vs.

W.L. York, Inc., dba Cover Girls; D WG FM, Inc., dba Splendor,

____________________________ — RESPONDENT(S)

ON PETITION FOR A WRIT OF CERTIORARI TO

United States Court of Appeals for the Fifth Circuit

(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)

PETITION FOR WRIT OF CERTIORARI

Chanel E.M. Nicholson

(Your Name)

12331 North Gessner Road

(Address)

Houston Texas

77064

(City, State, Zip Code)

(713) 885 1736

(Phone Number)

email: chanelellese@gmail.com

QUESTION(S) PRESENTED

Where the discriminatory act was refusing admission of Petitioner (a Black

entertainer) to the business’ premises for work because her admission would

exceed the business’ racial quota limiting the number of Black entertainers on

the premises simultaneously, and notwithstanding the business’ requirement

that the entertainers pay for each such admission for work, were such acts of

exclusion taking place within the limitations period “discrete acts” of

discrimination starting a new limitations clock, as announced in National

Railroad Passenger Corporation v. Morgan, 536 U.S. 101,113 (2002), or did the

fact that there were similar exclusions of Petitioner before the limitations

period start the limitations period accrual, thereby barring actions based on the

exclusions of Petitioner within the limitations period?

LIST OF PARTIES

[ % All parties appear in the caption of the case on the cover page.

[ ] All parties do not appear in the caption of the case on the cover page. A list of

all parties to the proceeding in the court whose judgment is the subject of this

petition is as follows:

RELATED CASES

Chanel E.M. Nicholson vs. W.L. York, Inc., dba Cover Girls; D WG FM, Inc., dba Splendor, No. 23-20440,

United States Court of Appeals for the Fifth Circuit, Judgment entered March 4, 2024, affirming Decisions

of the district court below. Appendix A.

Chanel E.M. Nicholson vs. W.L. York, Inc., dba Cover Girls; D WG FM, Inc., dba Splendor; No. 4:

21-CV-2624; United States District Court for the Southern District of Texas, Order Denying Motion to Alter

or Amend Summary Judgment on August 21, 2023. Appendix B.

Chanel E.M. Nicholson vs. W.L. York, Inc., dba Cover Girls; D WG FM, Inc., dba Splendor; No. 4:

21-CV-2624; United States District Court for the Southern District of Texas, Summary Judgment entered

May 24, 2023. Appendix C.

Chanel E.M. Nicholson vs. A.H.D. Houston, Inc. dba Centerfolds, W.L. York, Inc., dba Cover Girls; D WG

FM, Inc., dba Splendor; No. 4:21-CV-2624; United States District Court for the Southern District of Texas,

Order Granting Defendants' Motion to Dismiss, Sept. 28, 2022. Appendix D.

-ii-

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari issue to review the judgment below.

OPINIONS BELOW

[ *] For cases from federal courts:

The opinion of the United States court of appeals appears at Appendix

the petition and is

[ ] reported at

5 or,

[ ] has been designated for publication but is not yet reported; or,

[ ^ is unpublished.

----to

The opinionsof the United States district court appears at Appendix B^C&Dto

the petition and is

[ ] reported at

; or,

[ ] has been designated for publication but is not yet reported; or,

[ x] is unpublished.

[ ] For cases from state courts:

The opinion of the highest state court to review the merits appears at

Appendix_____ to the petition and is

[ ] reported at

I or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

court

The opinion of the_

to the petition and is

appears at Appendix

[ ] reported at

J or,

[ ] has been designated for publication but is not yet reported; or,

[ ] is unpublished.

^Str

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JURISDICTION

[ >} For cases from federal courts:

The date on which the United States Court of Appeals decided my case

was March 4. 2024

[ >§ No petition for rehearing was timely filed in my ease.

[ ] A timely petition for rehearing was denied by the United States Court of

, and a copy of the

Appeals on the following date: ----------------order denying rehearing appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

(date)

(date) on

to and including______

in Application No. __ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1).

[ ] For cases from state courts:

The date on which the highest state court decided my case was

A copy of that decision appears at Appendix---------[ ] A timely petition for rehearing was thereafter denied on the following date:

_____________________ , and a copy of the order denying rehearing

appears at Appendix

[ ] An extension of time to file the petition for a writ of certiorari was granted

(date)in

(date) on

to and including____

Application No. __ A

The jurisdiction of this Court is invoked under 28 U. S. C. § 1257(a).

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CONST1TUUONAL-AN9 STATUTORY PROVISIONS INVOLVED

42 U.S. Code § 1981

42 U.S. Code § 1981 - Equal rights under the law

(a) Statement of equal rights

All persons within the jurisdiction of the United States shall have the same right in every State and Territory

to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws

and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be

subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

(b) “Make and enforce contracts” defined

For purposes of this section, the term “make and enforce contracts” includes the making, performance,

modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and

conditions of the contractual relationship.

The rights protected by this section are protected against impairment by nongovernmental discrimination

and impairment under color of State law.

-3 ~

TABLE OF CONTENTS

Contents

Page(s)

QUESTIONS PRESENTED................................

LIST OF PARTIES........................................................

RELATED CASES..................................................

...11

OPNIONS BELOW.............................................

JURISDICTION....................................................

STATUTORY PROVISIONS INVOLVED..........

TABLE OF CONTENTS............................................

TABLE OF AUTHORITIES............................................

STATEMENT OF THE CASE...............................

1. Every Time Petitioner Came to Work Was a Discrete Event Requiring

Payment and Often Resulting in Discriminatory Denial of Access, in Violation

the

Terms

Plaintiffs

Agreements

with

Respondents..

...8

A- Prior Work Experience and Work Experience at Centerfolds and Snlendnr...... 9

B. Work Experience at Cover Girls

C- Another Application and Reiection at Splendor

2. Petitioner s License and Access Agreements with Cover Girls and Splendor

Are Not Employment Agreements and Have No Obligations for Cover Girls

and Splendor and Provide No Rights for Petitioner Other than Access to

Work.........................

........... 13

3. Essentially the Only Obligations Imposed on Respondents Cover Girls and

Splendor in Petitioner’s License and Access Agreements Were Never

Terminated by Either Party

4. The Fifth Circuit’s and District Court Decisions Appealed

REASONS FOR GRANTING THE PETITION

A. The Decision by the Fifth Circuit that the Statute Accrued from the PreLimitations Period Exclusions of Petitioner, Is in Conflict with the Supreme

Court’s Morgan and Lewis v. City of Chicago Decisions, and with All Related

Decisions from Other Circuits.......................................

B. Summary of the Argument........................................

C. ARGUMENT......................................................

1. The Statute of Limitations for the Section 1981 Claim Against Splendor

Commenced in 2021

2. The Four Year Statute of Limitations for the Section 1981 Claim

Against Cover Girls Commenced in Late November 2017

CONCLUSION....................................................................

INDEX TO APPENDICES..............................................

Appendix A (Fifth Circuit Decision; entered March 4, 2024)

Appendix B (District Court Order Denying Motion to Alter or Amend Summary

Judgment, August 21, 2023)

Appendix C (District Court grant of Summary Judgment, May 24, 2023)

Appendix D (District Court Order granting Defendants' Motion to Dismiss, Sept.

28,2022 )

Appendix E (Agreement, Petitioner & W.L. York, Inc., dba Cover Girls)

Appendix F (Agreement, Petitioner & D WG FM, Inc., dba Splendor)

Appendix G (Highlighted excerpts from deposition of manager A. Skwera)

TABLE OF AUTHORITIES

CASES

PAGES

Chin v. PortAuth. ofN.Y. & N.J., 685 F.3d 135 (2d Cir. 2012)

Davidson v. America Online, 337 F.3d 1179 (10th Cir.2003)

Dressier v. Daniel, 315 F.3d 75 (1st Cir. 2003).........................

Forsyth v. Federation Employment and Guidance Ser., 409 F.3d 565 (2nd Cir

2005)

............................................................................................... 24 n. 13

Groesch v. City of Springfield, 635 F.3d 1020, 1027 (7th Cir. 2011) 20, 24

Herrera v. City ofEspanola, 32 F.4th 980, 1001 (10th Cir. 2022)

n. 13

.. 18, 22, 24

Hulteen v.At&T Corp., 498 F.3d 1001, 1009 (9th Cir. 2007)

In re Monumental Life Ins. Co., 365 F.3d 408 (5th Cir. 2004).

15,24

Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004).............

19 n.ll, 25

Lewis v. City of Chicago, 550 U.S. 205, 211 (2010)................

18, 18 n.9, 20, 26

Mems v. City of St. Paul, Dept, of Fire, 327 F.3d 771 (8th Cir. 2003)

Mitchell v. Crescent River Port Pilots Ass'n, 265 Fed.Appx. 363 (5th Cir.

2008).................................

... 25

Nat l R.R. Passenger Corp. v. Morgan,

536 U.S. 101 (2002)

17, 18, 19, 19 n.10, 20, 20, 20 n. 12, 23, 23 n. 12,

24, 26

Williams v. Giant Food Inc., 370 F.3d 423, 429 (4th Cir. 2004)

STATUTES

20, 24 n.

42U.S.C. § 1981

15, 18,20,21,22, 25, 26

42 U.S.C. § 1983 ...........................................................

21,22, 24 n. 13

RULES

RULES OF THE Supreme Court of the United States v 10(c)

STATEMENT OF THE CASE

1. Every Time Petitioner Came to Work Was a Discrete Event Requiring

ayment and Often Resulting in Discriminatory Denial of Access, in Violation

of the Terms of Plaintiff’s Agreements with Respondents.

Petitioner was never an employee of either of the Respondents. Each time she

was granted a dancer/entertainer position she was required to enter a License &

Access (“L&A”) Agreement, the provisions of which are discussed in more detail in

Section 2 below. The L&A Agreements with W.L. York, Inc., dba Cover Girls

( Cover Girls”) and with D WG FM, Inc., dba Splendor (“Splendor”) granted

Petitioner unlimited access to Respondents’ premises, did not mention that any fee

was required for access, and granted her the right to choose her own hours and to

leave without penalty.

The L&A Agreements provide that she receives no

compensation with Splendor or Cover Girls, and that all her compensation is solely

from customers.2

The L&A Agreements had no automatic termination or time-triggered

termination,3 and were never terminated by either party. Thus, the L&A Agreements

with Splendor and Cover Girls remained in effect in 2021 when this case was filed

in the district court.

Sp“’taA^rr1 with Cover Girls is in Appendix E; her ***

2 Appendices E&F, para. 4.

3 Appendices E&F, para. 8.

A. Prior Work Experience and Work Experience at Centerfolds and Splendor

Petitioner began working as a dancer/entertainer at age 18 (in 2013) at A.H.D.

Houston, Inc. d/b/a Centerfolds (hereinafter “Centerfolds”).4 She worked there for

about one year. She was required to pay the hostess at the door a fee every time she

came to work. The fee varied depending on her shift starting time. Her sole

compensation was from customers, none came from Centerfolds. Sometimes she

would be refused entry for work unless she paid certain managers additional

requested monies, and other times she was refused entry because there were already

“too many” Black entertainers there. Eventually, she was denied access by one of

the managers for not paying a large enough “tip” to a particular manager and to one

of the bartenders.

After she was denied access at Centerfolds, Petitioner started working at

Splendor, near the end of September, 2014.5 She worked there until about November

2016, when she was refused access at Splendor because she refused to pay a

particular manager a substantial “fine.” As at Centerfolds, Petitioner was required to

pay the hostess at the door at Splendor a fee every time she came to work. The fee

A.H.D. Houston, Inc. d/b/a Centerfolds was a defendant in this case until dismissed on Sept. 28,

2022. Appendix D. Centerfolds, Cover Girls and Splendor all have the same two sole directors,

who are also the sole named officers, and who were also initially named as defendants. These

two individuals were dismissed as defendants on September 28, 2022. Appendix D.

See Appendix F, Petitioner’s L&A Agreement with Splendor, entered on 9.27.2014.

varied depending on her shift starting time. Her sole compensation was from

customers, none came from Splendor.

On multiple occasions Petitioner was refused entry to work at Splendor,

unless she paid certain managers additional requested monies. There were times

when Petitioner would arrive for a shift at Splendor, only to be refused entry at the

door. If she investigated, she was told it was because there were too many Black

dancers already on the premises, or sometimes, because Bob Furey (who was a

regional manager covering both Splendor and Cover Girls) was there.

The requirement that Petitioner pay each time for work at Splendor, the forced

tipping of managers for access, and the exclusions of Petitioner because the Black

dancer quota had been reached, were all breaches of her agreement with Splendor.

See Appendix F, her L&A Agreement with Splendor, para. 3 (Granting Petitioner

the right to “determine her schedule in performing the services, including but not

limited to, her ability to arrive and leave the premises at any time without penalty

...”)•

B. Work Experience at Cover Girls

After being denied access at Splendor in about November 2016, Petitioner

entered an L&A agreement with Cover Girls on November 6, 2016 and began

working there.6 She was required to pay a fee to the hostess at the door at Cover

Girls varying from $20 to $80 (depending on the shift starting time) every time she

came to work. Her sole compensation was from customers, none came from Cover

Girls.

She was also often forced to tip managers and other employees at the end of

her shift, or she would not be allowed future access to Cover Girls. Petitioner was

often denied access (up to several times per week) because there were already “too

many” Black dancers on the Cover Girls premises, or because Bob Furey was on the

premises. In late November 2017, Petitioner was denied access when she was told

by a manager that there were already “too many Black dancers” on the premises.

Bob Furey was a regional manager who once removed a day manager’s hiring

authority for retaining a black dancer.7 Cover Girls’ general manager Hal Naumann,

almost never hired non -Caucasian dancers.8 Bob Furey is also reported to have

instructed managers to support a policy of limiting the number of black dancers on

the premises because he believed they would attract police attention to drug dealing

and sex slavery on the premises.

6 See Appendix E, Petitioner’s L&A Agreement with Cover Girls, entered on Nov 16 2016

Giris pp 4445X G’CXCerPtS fr°m dep°Siti0n of Andrew Skwera; a long-time manager’at Cover

8 Appendix G p.8.

Petitioner did not return to try to work at Cover Girls after she

was denied

access in November 2017. She was working as a dancer/entertainer at other venues,

and continued to do so until she became pregnant with a second child a few months

later.

Again, as at Splendor, all the payments for access to work at Cover Girls, the

forced tipping of managers, and the exclusions of Petitioner because Bob F

there or because the Black dancer quota had been reached,

urey was

were breaches of her

agreement with Cover Girls. See Appendix E, her L&A Agreement with Cover

Girls, para. 3 (Granting Petitioner the right to “determine her schedule

in performing

the services, including but not limited to, her ability to arrive and leave the premises

at any time without penalty ...”).

C. Another Application and Rejection at Splendor

On June 24, 2021, after the pregnancy and after working at some other

positions, Petitioner sought to resume dancing and went to apply for a

dancer/entertainer position at Centerfolds. She was told they were not hiring, though

several Caucasian dancers were observed starting their shifts.

After her rejection at Centerfolds, on Aug. 11, 2021 Petitioner arrived at

Splendor to audition for a dancer position. She

was told by a manager who is

believed to be a relative of the owners that they were not hiring and she should try

at Centerfolds. She was told by a different manager she knew from having worked

there that he would like to hire her but they were not hiring Black Dancers at

Splendor.

She did not assert her rights to access the Splendor premises from her

Splendor L&A Agreement, or mention that she had such an agreement, as she did

not recall entering the L&A Agreement. Whether Splendor had honored Petitioner’s

existing L&A agreement, or had granted Petitioner a position and then entered a new

L&A agreement with Petitioner on Aug. 11, 2021, she would have been required to

pay the entry fee that time and each time she came there to work, in breach of the

agreement she had. Appendix F, Petitioner’s L&A Agreement with Splendor, para.

2. Petitioner’s License and Access Agreements with Cover Girls and Splendor

Are Not Employment Agreements and Have No Obligations for Cover Girls

and Splendor and Provide No Rights for Petitioner Other than Access to Work

Petitioner’s License and Access Agreements (“L&A Agreements”) with

Respondents Cover Girls (Appendix E) and with Splendor (Appendix F) are

substantially identical, but for the first party name. Each agreement emphasizes

throughout that Petitioner is not an employee, and that Respondents will provide no

compensation or other benefit of any kind to Petitioner. Substantially all provisions

of the agreements provide rights to Respondents, with nearly all obligations assumed

13 •

by Petitioner, and providing Petitioner only a right of access, as shown in the

following agreement excerpts.

The L&A Agreements (Appendices E&F) state in para. 3:

The Dancer shall also determine her schedule in performing the services,

including but not limited to, her ability to arrive and leave the premises at

any time without penalty. It is specifically understood that the Dancer sets her

own schedule of when and what hours she works, [emphasis added]

The L&A Agreements state in para. 4 (Appendices E&F):

The Dancer understands that [Respondent] will not pay her any hourly wage

or overtime pay, advance or reimburse her for any business-related expenses,

or provide to her any other employee related benefits. The Dancer

acknowledges that she will receive no compensation from [Defendant], that

her compensation shall be comprised solely of monies received from

customers and not [Respondent] ...

The L&A Agreements state in para. 5 (Appendices E&F):

The Dancer acknowledges and agrees that she is not an employee of

[Respondent]. It is the express intention of the parties that the Dancer is, and

shall remain during the term of this agreement, a licensee granted access to

[Respondent] and not be deemed an agent, servant, independent contractor or

employee of [Respondent] for any purpose. Nothing in this Agreement shall

be interpreted or construed as creating or establishing the relationship of

employer and employee between the Dancer and [Respondent]. The parties

acknowledge that the Dancer is not an agent, servant, independent contractor,

or employee of [Respondent] for purposes of taxation ....

The L&A Agreements state in para. 6 (Appendices E&F):

The Dancer shall maintain accurate records of all income generated using

[Respondent’s] facilities and the Dancer is solely responsible for all taxes,

fees and assessments for any and all income generated using [Respondent’s]

facilities in the operation of her business. The Dancer is responsible for

reporting her income and paying her own income taxes and other taxes of

every description incidental to her self-employment. The Dancer agrees to

indemnify and/or reimburse [Respondent] if [Respondent] is required to pay

any taxes on the Dancer's behalf.

The L&A Agreements state in para. 12 (Appendices E&F, capitalization in

original):

THE DANCER SHALL INDEMNIFY, HOLD HARMLESS AND PAY

FOR [Respondent’s] DEFENSE FROM AND AGAINST ANY AND ALL

CLAIMS, LOSSES OR LIABILITY, INCLUDING ATTORNEYS' FEES,

ARISING FROM OR RELATING TO THIS AGREEMENT OR THE

DANCER'S RELATIONSHIP WITH [Respondent], INCLUDING

LIABILITY ARISING FROM [Respondent’s] OWN NEGLIGENCE.

The L&A Agreements state in para. 15 (Appendices E&F, capitalization in

original):

[Respondent] AND THE DANCER AGREE THAT IF, UPON ANY

RULING OR DECISION OF AN ARBITRATOR, COURT OR OTHER

TRIBUNAL WITH JURISDICTION OVER THE MATTER THAT THE

RELATIONSHIP BETWEEN [Respondent] AND THE DANCER IS ONE

OF EMPLOYER AND EMPLOYEE, THE DANCER SHALL

SURRENDER, REIMBURSE AND PAY TO [Respondent] ALL MONEY

RECEIVED BY THE DANCER AT ANY TIME SHE PERFORMED ON

THE PREMISES OF [Respondent] - ALL OF WHICH WOULD

OTHERWISE HAVE BEEN COLLECTED AND KEPT BY [Defendant]

HAD THE PARTIES NOT ENTERED INTO THIS LICENSE

AGREEMENT, AND THE DANCER SHALL IMMEDIATELY PROVIDE

A FULL ACCOUNTING TO SPLENDOR OF ALL INCOME WHICH SHE

RECEIVED DURING THE RELEVANT TIME PERIOD. IN THE EVENT

THAT THE DANCER FAILS TO REPAY [Respondent] AS PROVIDED IN

THIS PARAGRAPH, [Respondent] SHALL BE ENTITLED TO OFFSET

ANY WAGE OBLIGATION BY ANY AMOUNT NOT RETURNED BY

THE DANCER.

3. Essentially the Only Obligations Imposed on Respondents Cover Girls and

Splendor in Petitioner’s License and Access Agreements Were Never

Terminated by Either Party

In paragraph 3, the L&A Agreements with Respondents Cover Girls and

Splendor (Appendices E&F) both provide: “The Dancer shall also determine her

schedule in performing the services, including but not limited to, her ability to arrive

and leave the premises at any time without penalty. It is specifically understood

that the Dancer sets her own schedule of when and what hours she works.” (emphasis

added)

In paragraph 8, the L&A Agreements with Respondents Cover Girls and

Splendor (Appendices E&F) both provide: “[Defendant] and the Dancer shall have

the right to terminate this Agreement at any time and for any reason, or for no reason

at all.” Defendants have never presented any evidence that they exercised their

termination right or otherwise that either of these L&A Agreements were ever

terminated. Petitioner therefore retained her right to access their premises for work

when she was excluded by Cover Girls in late November 2017 and by Splendor in

2021.

4. The Fifth Circuit’s and District Court Decisions Appealed

The Fifth Circuit summarized Petitioner’s position as alleging that her claims

which were not filed until August of 2021, were timely, because: “[E]ven though

she first experienced discrimination from Cover Girls in 2016 and from Splendor in

2014, she was subjected to subsequent discrete acts of discrimination from both

entities that reset the four-year statute of limitations.” The Fifth Circuit then held

that National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002) was

inapplicable to her claims, because: “[T]he act of discrimination that she alleges took

place in 2021 that forms the basis of her § 1981 claim against Splendor was merely

a continuation of Splendor's original act of discrimination that she alleges took place

in 2014, upon which the limitations period has already elapsed. ... Thus, her claims

of unlawful discrimination began to accrue in 2014.”

Similarly, regarding Petitioner’s claims against Cover Girls, the Fifth Circuit

held: “ Thus, Cover Girls' first act of discrimination that Nicholson alleges took

place in 2016 merely remained ongoing when she returned in 2017. Consequently,

her § 1981 claim against Cover Girls began to accrue when she signed the LAA

with the club in November 2016... we agree with the district court that her claims

were barred by the applicable four-year statute of limitations.” Id.

The District Court had denied Petitioner’s Motion to Alter or Amend

Summary Judgment on August 21, 2023, and had granted summary judgment for

Defendants on May 24, 2023.

REASONS FOR GRANTING THE PETITION

A. The Decision by the Fifth Circuit that the Statute Accrued from the PreLimitations Period Exclusions of Petitioner, Is in Conflict with the Supreme

Court’s Morgan and Lewis v. City of Chicago Decisions,

and with All Related

Decisions from Other Circuits

This petition should be granted because the Fifth Circuit’s decision below was

in clear conflict with every United States court of appeals that has

reviewed the

question of whether discrete discriminatory acts taking place within the limitations

period are barred because the statute accrued from the

time of prior similar

discriminatory acts. All have decided there is no such bar, and that discrete

discriminatory acts within the limitations period are actionable. Moreover,

the Fifth

Circuit’s decision on the important question of federal law on when the statute of

limitations for discrete discriminatory acts commences is in direct conflict with this

Court’s decisions in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101

(2002) and Lewis v. City of Chicago, 550 U.S. 205,211 (2010). See RULES OF THE

Supreme Court of the United States 10(a); 10(c).

B. Summary of the Argument

The Supreme Court’s holding in Morgan, 536 U.S. at 113 that each discrete

act of discrimination “starts a new clock for filing charges alleging that act,”

establishes a rule which the facts of the case at bar conform to with near exactitude.9

The fact that Petitioner first experienced discrimination from Co

ver Girls in 2016

9 Accord Lewis v. City of Chicago, 550 U.S. 205, 211 (2010), (Every “use” of an

Thle ^IMth^sn1^ * «at CaUS6S 3 djSparate impact is a seParate actionable violation of

firct 711

8.°~ 0r 300-day statute-of-limitations clock. “Setting aside the

rst round of selection in May 1996, which all agree is beyond the cut-off no one

isputes that the conduct petitioners challenge occurred within the charging period ”)

and from Splendor in 2014 does not bar her claims in the case, which took place

within the limitations period and are for discrete discriminatory acts of excluding

her from the workplace.10

Petitioner had no employment agreement and no ongoing employee

relationship with Defendants, and received no compensation from Defendants.

Petitioner had a “License and Access Agreement” which provided that she could

freely access Defendants’ premises. In fact, however, every time Plaintiff came to

work (at both Splendor and Cover Girls) she had to pay a fee - effectively new

consideration for each entry to the premises for work, in beach of the agreements.

She was periodically denied entry, because there were already “too many” Black

dancers on the premises (or sometimes, for not paying additional fees to managers

or employees); which were also agreement breaches. Her claims in this case were

limited to one racially-motivated discrete act of exclusion at Splendor in 2021 and

one racially-motivated discrete act of exclusion at Cover Girls in late 2017 - both of

which were undisputedly within the limitations period.11

10 Morgan ibid.: “The existence of past acts and the employee's prior knowledge of their

occurrence, however, does not bar employees from filing charges about related discrete

acts so long as the acts are independently discriminatory and charges addressing those

acts are themselves timely filed.”

11 Note that in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004), the Supreme

Court held that claims arising under the 1991 amendments to section 1981 are governed

by the four-year federal statute of limitations set forth in 28 U.S.C. § 1658.

The Court in Morgan, 536 U.S. at 114, noted that: “Discrete acts such as

termination, failure to promote, denial of transfer, or refusal to hire are easy to

identify.” Excluding Petitioner, therefore, because the quota of Black dancers had

been reached, were discrete acts of discrimination; most similar to “failure to hire.”

Her rejections at Splendor in 2021 and at Cover Girls in late November 2017,

therefore, both started new statute of limitations clocks. The statute of limitations

did not accrue from any of her prior exclusions from Splendor or Cover Girls which

took place before the limitations period, under the holding of Nat'l R.R. Passenger

Corp. v. Morgan, 536 U.S. at 113. Accord Lewis v. City ofChicago, 550 U.S. at 211.

Other circuits that have considered whether for allegations of discrete

discriminatory acts the limitations period accrues from prior similar acts, or whether

each new act starts a new limitations clock, have universally decided the latter rule

applies. See Williams v. Giant Food Inc., 370 F.3d 423, 429 (4th Cir. 2004) (“[T]he

district court properly determined that the § 1981 claim could only be based upon

alleged failures to promote between May 1998 and Williams's resignation.”);

Dressier v. Daniel, 315 F.3d 75 (1st Cir. 2003) (Note: summary judgment against

plaintiff was affirmed on other grounds: “The first two discreet acts of alleged

retaliation fall outside the filing period; ... these acts are time barred. See Morgan,

122 S.Ct. at 2077. As to the third act, however, Dressier claims that she was not

aware that the police complaints had been filed until August 3, 1999. The district

court assumed arguendo that Dressler's complaint was filed timely with regard to the

police department complaints since she did not find out about the complaints until

August 1999.”); Forsyth v. Federation Employment and Guidance Ser., 409 F.3d

565, 573 (2nd Cir. 2005) (“Any paycheck given within the statute of limitations

period therefore would be actionable, even if based on a discriminatory pay scale set

up outside of the statutory period. Similarly, plaintiffs claims under 42 U.S.C. §

1981 and § 296 of the New York State Human Rights Law would not be time-barred

...”); Chin v. PortAuth. ofN.Y. & N.J., 685 F.3d 135 (2d Cir. 2012) (“Accordingly,

under Lewis and Morgan, each time the Port Authority failed to promote one of the

plaintiffs, that plaintiff had 180 days to challenge the decision.”); Groesch v. City of

Springfield, 635 F.3d 1020,1027 (7th Cir. 2011) (Holding that the Morgan rule also

applied to Section 1983 claims, and that: “Following Morgan, Hildebrandt and

Reese firmly established in our circuit that under Title VII, a new cause of action for

pay discrimination arose every time a plaintiff received a paycheck resulting from

an earlier discriminatory compensation practice occurring outside the statute of

limitations period.”); Mems v. City ofSt. Paul, Dept, ofFire, 327 F.3d 771, 785 (8th

Cir. 2003) (“Those [discrete events ] occurring after November 5, 1995, and so

within the damages period, include the reprimand of Webb for intimidating

McCardle, the rejection of Webb's race harassment charge against McCardle, and

the order to report for a fitness-for-duty exam. These discrete acts were properly

before the jury ...”); Hulteen v. At & T Corp., 498 F.3d 1001, 1009 (9th Cir. 2007)

(en banc) (“Because Pallas timely filed a charge, the existence of past acts would

not bar her (or here, Hulteen's) suit under Morgan or Ledbetter.”); Davidson v.

America Online, 337 F.3d 1179, 1185-86 (10th Cir.2003) (“Each discrete refusal to

hire is a separate actionable unlawful employment practice that 1 starts a new clock

for filing a charge alleging that act.’ ... Thus, Davidson is limited to filing a claim

for the refusals to hire that ‘occurred’ within the appropriate time period. ...This

remains true even if the discrete act was part of a company-wide or systemic

policy.”); Herrera v. City of Espanola, 32 F.4th 980, 1001 (10th Cir. 2022) (“And

each day the City failed to provide water service to Appellants constituted a separate

violation that triggered a new limitations period [for Herrera’s Section 1983

claims].”).

C. ARGUMENT

1. The Statute of Limitations for the Section 1981 Claim Against Splendor

Commenced in 2021

As noted above, the Fifth Circuit held that Morgan was inapplicable to

Petitioner’s claims, because: “[T]he act of discrimination that she alleges took place

in 2021 that forms the basis of her § 1981 claim against Splendor was merely a

continuation of Splendor's original act of discrimination that she alleges took place

in 2014 .... Thus, her claims of unlawful discrimination began to accrue in 2014.”

But the Court in Morgan., 536 U.S. at 113 concluded: “Each discrete

discriminatory act starts a new clock for filing charges alleging that act.” The

Supreme Court also held, consistently with the foregoing statement, that only

older

acts outside the statutory period were barred by the statute of limitations (see Nat'l

R.R. Passenger Corp. v. Morgan, 536 U.S. at 114-115):

Morgan can only file a charge to cover discrete acts that "occurred" within the

appropriate time period. While Morgan alleged that he suffered from

numerous discriminatory and retaliatory acts from the date that he

was hired

t rough March 3, 1995, the date that he was fired, only incidents that took

place within the timely filing period are actionable. Because Morgan first filed

his charge with an appropriate state agency, only those acts that occurred 300

days before February 27, 1995, the day that Morgan filed his charge, are

actionable. During that time period, Morgan contends that he was wrongfully

suspended and charged with a violation of Amtrak's "Rule L" for

insubordination while failing to complete work assigned to him, denied

training, and falsely accused of threatening a manager, [footnote discussion

omitted]

The Court in Morgan, 536 U.S. at 113 noted that “refiisal to hire” is but one example

of a discrete discriminatory act which starts the running of a new statute of

limitations:12

Discrete acts such as termination, failure to promote, denial of transfer, or

refusal to hire are easy to identify. Each incident of discrimination and each

retaliatory adverse employment decision constitutes a separate actionable

"unlawful employment practice." Morgan can only file a charge to

cover

discrete acts that "occurred" within the appropriate time period.

Petitioner is only claiming for one discrete event: denial of her access to Splendor to

work, in 2021. It is most similar to a “refusal to hire” but in any event, it is clearly a

discrete act under Morgan, ibidP

The cases cited in Section B above show that the First, Second, Fourth,

Seventh, Eighth, Ninth and Tenth circuits have all followed the rule from Morg

and held that each discrete discriminatory act starts a new limitations clock. Also,

the decision the Fifth Circuit relied on to support its decision in this case, In re

Monumental Life Ins. Co., 365 F.3d 408 (5th Cir. 2004), does not do so. The

plaintiffs there sought to certify a class comprised of "’[a]ll African-Americans who

own, or owned at the time of policy termination, an industrial life insurance policy

that was issued as a substandard plan or at a substandard rate, Id. at 413. The Court

9 M

noted that.

The district court denied certification also on the basis that

individualized hearings are necessary to determine expiration of the statute of

limitations for particular sets of policies.” Id. at 420. The Monumental Life Court

noted that the statute for each potential class member’s policy ownership accrued

[WJhen the plaintiff either has actual knowledge of the violation or has knowledge

not

., 370 F.3d 423, 429 (4th Cir. 2004) (Morgan rule applied to Section 1981 claims)- Forsyth v

pringfie , 635 F.3d 1020, 1027 (7th Cir. 2011) {Morgan rule applied to Section 1983 claims).

of facts that, in the exercise of due diligence, would have led to actual knowledge.”

Ibid. But the “violation” referenced here was the purchase of the policy, where some

of the potential class members bought their policies as early as the 1970s. And, the

Court noted that it was not making any determination of when the

statute

commenced, because “Though individual class members whose claims are shown to

fall outside the relevant statute of limitations are barred from recovery, this does not

establish that individual issues predominate, particularly in the face of defendants'

common scheme of fraudulent concealment.”

2. The Four Year Statute of Limitations for the Section 1981 Claim Against

Cover Girls Commenced in Late November 2017

The Fifth Circuit noted that the § 1981 claim against Cover Girls, was subject

to a four-year statute of limitations period under 28 U.S.C. § 1658. (citing Jones v.

R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2004); Mitchell v. Crescent River

Port Pilots Ass'n, 265 Fed.Appx. 363, 367 (5th Cir. 2008). The Cover Girls

agreement (Appendix E) is essentially identical to the Splendor agreement

(FAppendix) but for the Defendants’ names. It was not an employment agreement.

As at Splendor, she was paid no compensation by Cover Girls, and had to pay $20

to $80 for entry each time she came to work, effectively making each entry a discrete

contract with Defendant, with new consideration (in violation of the terms of her

agreement, Appendix E, para. 3). She was also often forced to pay additional monies

to managers or employees for access. And sometimes she was denied access because

Bob Furey was there; or, she was sometimes denied access for the blatantly

discriminatory reason that there were “already too many” Black dancers on the

premises; also in violation of the terms of her agreement, Appendix E, para. 3.

Plaintiffs denial of access to Cover Girls in late November 2017 was simply one

more discrete, discriminatory act. As such, under Morgan, the limitations clock

started in late November 2017 (within four years from when the district court case

was filed) for Plaintiffs Section 1981 claim against Cover Girls, for all the same

reasons noted above that the limitations clock for her claim against Splendor started

in 2021, when she was refused access there.

CONCLUSION

In view of the Supreme Court precedent {National Railroad Passenger Corp.

v. Morgan, 536 U.S. 101 (2002) and Lewis v. City of Chicago, 550 U.S. 205, 211

(2010)), and the fact that every Circuit that has reviewed that precedent has

determined that for discrete discriminatory events (which Petitioner’s exclusions

unquestionably were) the limitations clock starts anew, Petitioner requests grant of

a writ of certiorari.

Respectfully Submitted,

Chanel E.M. Nicholson,pro se Date:

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.