Opposition Brief — Chanel E. M. Nicholson, Petitioner v. W.L. York, Inc., dba Cover Girls, et al.

Supreme Court briefJan 15, 2025

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No. 23-7490

In the

Supreme Court of the United States

CHANEL E.M. NICHOLSON

PETITIONER,

W.L. YORK, INC., D/B/A COVER GIRLS; D WG FM, INC., D/B/A

SPLENDOR

RESPONDENTS.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH

CIRCUIT

BRIEF IN OPPOSITION

__________

Benjamin W. Allen,

Counsel of Record

Casey T. Wallace

WALLACE & ALLEN, LLP

440 Louisiana Street, Suite 590

Houston, Texas 77002

Tel: (713) 227-1744

ballen@wallaceallen.com

cwallace@wallaceallen.com

ATTORNEYS FOR RESPONDENTS

QUESTION PRESENTED

This Court should not grant certiorari, but if it does, it should answer the

following question:

Although Petitioner bases her 42 U.S.C § 1981 claim on discriminatory conduct

occurring more than four years before she filed her complaint, can allegations of

subsequent discrete acts of discrimination preclude the statute of limitations from

barring her action even though she never alleged a hostile work environment claim

and the continuing violations doctrine does not apply?

TABLE OF CONTENTS

Question Presented ....................................................................................................... i

Table of Contents .......................................................................................................... ii

Table of Authorities ..................................................................................................... iv

Statement of the Case .................................................................................................. 1

I. The Trial Court Dismisses Plaintiff’s Claims against Centerfolds and the

individual defendants. .......................................................................................... 1

II. The Trial Court grants summary judgment in favor of Splendor and Cover

Girls based on the undisputed factual record. ..................................................... 2

Petitioner testifies she was denied access at Cover Girls beginning

in November of 2016.......................................................................... . ..... 3

Petitioner testifies she was denied access at Splendor beginning in

November of 2014 .............................................................................. . ..... 4

Petitioner never plead a hostile work environment claim against

Cover Girls or Splendor in this case for the continuing violations

doctrine to apply. ................................................................................ ..... 6

A unanimous Fifth Circuit panel issues a Per Curium opinion

applying settled Supreme Court precedent that the continuing

violations doctrine does not apply outside of the hostile work

environment context.......................................................................... . ..... 7

Petitioner and other plaintiffs file this case under a hostile work

environment theory in parallel litigation, which is currently

pending .............................................................................................. . ..... 7

Reasons for Denying the Petition ................................................................................ 8

I. The Unanimous Fifth Circuit Panel correctly decided that the continuing

course of conduct exception does not apply outside of the hostile work

environment context and dismissed her claims as time barred. ......................... 8

II. This Court should not review this decision because Petitioner and other

plaintiffs re-filed this case under a hostile work environment theory in

Nicholson II. ......................................................................................................... 10

III. There is no circuit split applying the continuing course of conduct exception

outside of the hostile work environment context. .............................................. 12

Conclusion................................................................................................................... 15

Appendix

Appendix A - Record on Appeal Excerpts, Nicholson v. W.L. York,

No. 23-20440 (5th Cir. March 4, 2024) ........................................................... (1a)

Plaintiff's Original Complaint, Nicholson et al. v, AHD Houston,

Inc., No. 4:21-cv-02624 (S.D. Tex. Aug. 12, 2021)

(ROA.10-16) .......................................................................................... (1a)

Plaintiff's Third Amended Complaint, Nicholson et al. v, AHD

Houston, Inc., No. 4:21-cv-02624 (S.D. Tex. May 18, 2022)

(ROA.584-603) ...................................................................................... (8a)

Order Granting in Part and Denying in Part Defendants' Fourth

Motion to Dismiss, Nicholson et al. v, AHD Houston, Inc., No.

4:21-cv-02624 (S.D. Tex. Sept. 28, 2022) (ROA.1075-1095) .............. (28a)

Excerpts from Chanel Nicholson Dep. Transcript (November 18,

2022), Nicholson et al. v, AHD Houston, Inc., No. 4:21-cv-02624

(S.D. Tex.) (ROA.1307-08, 1313, 1320-21, 1326-28, 1338-39,

1342-43) .............................................................................................. (49a)

D WG FM, Inc. d/b/a Splendor License and Access Agreement

signed by Chanel E.M. Nicholson (ROA.1370-1375)......................... (61a)

WL York, Inc. d/b/a Cover Girls License and Access Agreement

signed by Chanel E.M. Nicholson (ROA.1401-1406)......................... (67a)

Order Granting Defendants' Motion for Summary Judgment,

Nicholson et al. v, AHD Houston, Inc., No. 4:21-cv-02624 (S.D.

Tex. May 24, 2023) (ROA.1541-1554) ................................................ (73a)

Appendix B - Brief of Appellant Chanel Nicholson, Nicholson v. W.L.

York, No. 23-20440 (5th Cir. Oct. 30, 2023) ................................................. (87a)

Appendix C - Order Granting Plaintiff's Motion for Continuance,

Nicholson et al. v, AHD Houston, Inc., No. 4:23-cv-01025 (S.D. Tex. Nov.

12, 2024) ...................................................................................................... (117a)

Appendix D - Dkt. No. 33, Defendants' Motion for Summary Judgment,

Nicholson et al. v, AHD Houston, Inc., No. 4:23-cv-01025 (S.D. Tex.) ...... (118a)

Appendix E - Dkt. No. 34, Plaintiffs' Opposition to Defendants' Motion

for Summary Judgment , Nicholson et al. v, AHD Houston, Inc., No. 4:23cv-01025 (S.D. Tex.) .................................................................................... (135a)

iii

TABLE OF AUTHORITIES

CASES

Forsyth v. Federation Employment and Guidance Ser.,

409 F.3d. 565 (2d Cir. 2005) ..................................................................................... 12

Hamic v. Harris Cty. W.C. & I.D. No. 36,

184 Fed.Appx. 442 (5th Cir. 2006) ............................................................................. 9

Heath v. Bd. of Supervisors for S. Univ. & Agric. & Mech. Coll.,

850 F.3d 731 (5th Cir. 2017) ............................................................................ 8, 9, 10

Herrera v. City of Espanola,

32 F.4th 980 (10th Cir. 2022) ................................................................................... 15

Hulteen v. AT & T Corp.,

498 F.3d 1001 (9th Cir. 2007, rev’d, 556 U.S. 701 (2009) ....................................... 14

Ledbetter v. Goodyear Tire & Rubber Co.,

550 U.S. 618 (2007).................................................................................................. 13

Mems v. City of St. Paul, Dep’t of Fire & Safety Servs.,

327 F.3d 771 (8th Cir. 2003) .................................................................................... 14

Nat’l R.R. Passenger Corp. v. Morgan,

536 U.S. 101 (2002)......................................................................................... 9, 10, 13

Nicholson v. A.H.D. Houston, Inc.,

No. 4:21-CV-02624, 2022 WL 4543201 (S.D. Tex. Sept. 28, 2022) ................. 1, 6, 11

Nicholson v. W.L. York, Inc.,

No. 23-20440, 2024 WL 913378 (5th Cir. Mar. 4, 2024) ........................... 7, 8, 10, 13

Nicholson v. W.L. York, Inc.,

No. 4:21-CV-2624, 2023 WL 3632760 (S.D. Tex. May 24, 2023) .................... passim

Pouncil v. Tilton,

704 F.3d 568 (9th Cir. 2012) .................................................................................... 14

Semsroth v. City of Wichita,

304 F. App’x 707 (10th Cir. 2008) ............................................................................ 15

United Air Lines, Inc. v. Evans,

431 U.S. 553 (1977)................................................................................................... 13

West v. City of Houston, Texas

960 F.3d 736 (5th Cir. 2020) ...................................................................................... 7

Williams v. Giant Food Inc.,

370 F.3d 423 (4th Cir. 2004) .................................................................................... 12

STATUTES

28 U.S.C. § 1658 ............................................................................................................. 8

29 U.S.C. § 626 ............................................................................................................. 13

29 U.S.C. § 794a ........................................................................................................... 13

42 U.S.C. § 1981 ..................................................................................................... 1, 2, 3

OTHER AUTHORITIES

Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No 111-2, 123 Stat. 5 (2009).............. 13

STATEMENT OF THE CASE

Petitioner filed her Original Complaint on August 12, 2021, alleging various

claims for unlawful and intentional race discrimination under 42 U.S.C. § 1981

against A.H.D. Houston, Inc. d/b/a Centerfolds (“Centerfolds”), D WG FM, Inc. d/b/a

Splendor (“Splendor”), W.L. York, Inc. d/b/a Cover Girls (“Cover Girls”), and

individuals Ali Davari and Hassan Davari, who allegedly owned the clubs. Resp. App.

2a-7a. “After amending her complaint several times, Plaintiff’s Third Amended

Complaint asserted causes of action for breach of contract and discrimination under

§ 1981.” Nicholson v. W.L. York, Inc., No. 4:21-CV-2624, 2023 WL 3632760 at *5 (S.D.

Tex. May 24, 2023); Resp. App. 73a-86a.

The Trial Court Dismisses Plaintiff’s Claims against Centerfolds

and the individual defendants.

At the pleadings stage, the Trial Court dismissed all of Petitioner’s claims

against Centerfolds and the individual Davari Defendants for failure to state a claim.

See Nicholson v. A.H.D. Houston, Inc., No. 4:21-CV-02624, 2022 WL 4543201, *6-9

(S.D. Tex. Sept. 28, 2022); Resp. App. 28a-48a. Although the Trial Court’s order on

the motion to dismiss is not the subject of this appeal, at the motion to dismiss stage,

the Trial Court relied on the same rationale as the summary judgment order

Petitioner now challenges in dismissing all of Petitioner’s claims against Centerfolds

and some of the claims against Splendor.

Specifically, the Trial Court ruled that “the statute of limitations barred all of

Plaintiff’s § 1981 claims against Centerfolds and Splendor prior to August 2017,”

applying a four-year statute of limitations from the accrual date of when Plaintiff

began working at the respective clubs. Nicholson, 2022 WL 4543201, at *5. The Trial

Court held that the continuing violations doctrine did not apply because this is not a

hostile work environment case:

Finally, Plaintiff argues that the expiration of the statute of limitations

can be averted by applying the continuing violations doctrine. Under the

continuing violations doctrine, a plaintiff is relieved from establishing

that the discriminatory conduct she experienced occurred within a

specified time period if she can show a series of related acts, one or more

of which falls within the limitations period. Nat’l R.R. Passenger Corp.

v. Morgan, 536 U.S. 101, 113, 122 (2004). This doctrine, however, has

since been limited by the United States Supreme Court to apply only to

§ 1981 claims alleging a hostile work environment. Id.; see also Heath v.

Board of Supervisors for the Southern University and Agricultural and

Mechanical College, 850 F.3d 731, 737 (5th Cir. 2017) (holding that

claims alleging discrete acts of discrimination are not subject to the

continuing violation doctrine, but hostile workplace claims are). Since

Plaintiff has failed to meet the threshold requirement of the continuing

violations doctrine—to simply plead a cause of action alleging a hostile

work environment—this Court cannot consider whether the doctrine

applies to Plaintiff’s claims.

Nicholson, 2022 WL 4543201, at *7. Accordingly, the Trial Court “dismissed all of

Plaintiff’s claims as they pertained to Centerfolds, Ali Davari, and Hassan Davari for

failure to state a claim and because her § 1981 claims were barred by the applicable

statute of limitations.” Nicholson, 2023 WL 3632760, at *2. Following the Trial

Court’s September 28, 2022 order, only Petitioner’s claims against Cover Girls for

alleged events in November 2017, for breach of contract and pursuant to 42 U.S.C. §

1981, and against Splendor for an alleged failure to (re)hire in August 2021 pursuant

to 42 U.S.C. § 1981 remained pending. Id. at *11.

II.

The Trial Court grants summary judgment in favor of Splendor

and Cover Girls based on the undisputed factual record.

Respondents later moved for summary judgment on the claims that survived

the Trial Court’s motion to dismiss—Petitioner’s claims of ongoing denial of access on

the basis of race directed at Cover Girls and Splendor for alleged failure to ‘hire’ in

2021. Based on the undisputed evidence, Petitioner’s claims accrued against Cover

Girls in November of 2016 and against Splendor in 2014, when the same alleged

practice Petitioner complained of occurred at those respective clubs. Nicholson, 2023

WL 3632760 at *5; Resp. App. 73a-86a. Therefore, the Trial Court granted judgement

on Petitioner’s remaining claims against both Respondents on summary judgment.

Id. at *7.

Petitioner testifies she was denied access at Cover Girls

beginning in November of 2016.

As it relates to Petitioner’s live claims against Cover Girls, Petitioner contends

that the ongoing ‘denial of access’ breached her contractual agreement and violated §

1981. Resp. App. 8a-9a. In relevant part, the “License and Access Agreements”

(“LAAs”), at both Splendor and Cover Girls provide at paragraph 1 that each club

“grants access to the Dancer…to perform entertainment services” at the club, subject

to various policies. The parties also agreed in paragraph 3 of the LAAs “[t]he Dancer

shall also determine her schedule in performing the services” and that “the Dancer

sets her own schedule of when and what hours she works.” Resp. App. 61a-66a; Resp.

App. 67a-72a.

In her deposition which is included in the summary judgment record,

Petitioner confirmed that her signature appears on the LAA that she executed with

Cover Girls on November 6, 2016. Resp. App. 53a, 54:10-55:4. Petitioner recalls that

she more than likely began performing at Cover Girls that same night, if not shortly

afterwards. Id., Resp. App. 53a, 55:5-20.

Petitioner recounted that the first time someone at Cover Girls told her that

she could not perform at the club due to a discriminatory reason occurred

“immediately” after signing the LAA, if not “within the first week” of her time there.

Resp. App. 53a, 55:21-56:6; Resp. App. 57a, 123:8-124:1. She would appear at Cover

Girls an average of six times per week in order to work a shift but was only allowed

to actually work a shift about fifty percent of the time. Resp. App. 52a, 50:6-51:23.

The Trial Court held that “[b]ased upon her own deposition testimony, Plaintiff

admits that as early as a week after signing her LAA with Cover Girls in November

of 2016, she was denied access to the club when she showed up for shifts on the basis

of race.” Nicholson, 2023 WL 3632760, at *6. “Since the limitations period for a § 1981

claim commences when the plaintiff knows or reasonably should know that the

discriminatory act occurred—and this act occurred in approximately November

2016—Plaintiff’s claim expired in November 2020.” Id. at *6.

Petitioner testifies she was denied access at Splendor

beginning in November of 2014.

Petitioner’s sole claim against Splendor from which she appeals dismissal

relate to “a § 1981 failure to hire claim…from 2021.” Nicholson, 2023 WL 3632760 at

*2. Petitioner alleges that upon attempting to sign up as a dancer at Splendor in 2021,

she was directed to other clubs on the basis of race. Resp. App. 16a. (“They spoke

outside and he told her he would like to hire her but that they were not hiring Black

Dancers at SPLENDOR, and that she should try at CENTERFOLDS or at Joy of

Houston Men’s Club”).

During her November 18, 2022 deposition, Petitioner confirmed that her

signature appears on the Splendor LAA dated September 29, 2014, and that she likely

began performing at the club that same night. Resp. App. 54a, 75:16-76:6 (“Q. Okay.

And it appears that this was signed on September—it looks like 29th of 2014. Does

that—does that seem right? A. Yes. Q. After you signed this, do you recall working

the same day or— A. Yes. Q. You did? A. It was always the same day”). Petitioner

further confirmed that her allegations stemmed from conduct arising immediately

after she started dancing at Splendor back in 2014. Resp. App. 57a, 124:23-125:10

(“Q. The same questions. Did you experience racial discrimination at Splendor that

eliminated your right or impaired your right to access the club like right after signing

this? A. Yes. Q. And that continued throughout your time at Splendor, true? A. Yes,

my whole—my whole dance career, yes”). Petitioner “admits in her deposition

testimony that she was denied access to Splendor as early as a week after signing her

LAA in September of 2014—when Plaintiff would be charged with knowledge of the

allegedly discriminatory act for accrual of her claim.” Nicholson, 2023 WL 3632760,

at *4.

Petitioner also confirmed that that no one at Splendor ever fired, barred, or

terminated her in November 2016. Resp. App. 51a, 22:3:13. Thereafter, Petitioner

simply stopped appearing at the club of her own accord. Resp. App. 55a, 78:21-79:6.

Petitioner says that the next time she appeared at Splendor was on August 11, 2021.

Still under the impression that the LAA she executed in 2014 remained in force,

Petitioner did not believe that she needed to re-apply or be ‘re-hired’ because “she

“had already been working there.” Resp. App. 57a-58a, 125:23-126:10. She testified:

“I knew that I never got like fired, so I didn’t think I would have to go through the

whole rehiring process again, yeah.” Resp. App. 56a, 84:10-85:15.

“Thus, according to Plaintiff’s sworn testimony, her remaining § 1981 claim

accrued in September 2014 and being turned away from Splendor in 2021 was simply

an effect of the alleged initial discriminatory act, which took place in 2014.”

Nicholson, 2023 WL 3632760, at *4. The Trial Court then held “[g]iven that this claim

began accruing in September 2014 and has a four year statute of limitations and

Plaintiff filed this lawsuit in August 2021, it is time barred.” Id. at *5.

Petitioner never plead a hostile work environment claim

against Cover Girls or Splendor in this case for the

continuing violations doctrine to apply.

Petitioner argued to the Trial Court that the continuing violations doctrine is

an exception to Respondents’ limitations defense because she plead “a series of

related acts, one or more of which falls within the limitations period.” Nicholson, 2022

WL 4543201, at *7. However, as repeatedly observed by the Trial Court, this is not a

hostile work environment claim, and has never been plead as such. The Trial Court

therefore held that “[s]ince Plaintiff has failed to meet the threshold requirement of

the continuing violations doctrine—to simple plead of cause of action alleging a

hostile work environment—[the Trial Court] cannot consider whether the doctrine

applies to Plaintiff’s claims. Id.1F

A unanimous Fifth Circuit panel issues a Per Curium

opinion applying settled Supreme Court precedent that

the continuing violations doctrine does not apply outside

of the hostile work environment context.

Based on the undisputed factual record, the Fifth Circuit affirmed. “[A]s the

Supreme Court and this court have clarified, the continuing violations doctrine

applies only in the context of hostile work environment claims.” Nicholson v. W.L.

York, Inc., No. 23-20440, 2024 WL 913378, at *4 (5th Cir. Mar. 4, 2024). Nor could

Petitioner maintain a claim for the alleged continued failure to hire within the

limitations period because it was “merely a continuation of [Respondents’] original

act of discrimination…upon which the limitations period has already lapsed.” Id.

The Fifth Circuit took “no position on whether Nicholson’s claims would

succeed under Morgan if she had alleged a hostile work environment claim against

Splendor or Cover Girls.” Id. n. 8.

Petitioner and other plaintiffs file this case under a hostile

work environment theory in parallel litigation, which is

currently pending.

In tacit acknowledgment of this pleading deficiency, Petitioner, along with

other litigants, have now filed a hostile work environment claim based on the same

facts and circumstances as this case. See Civil Action No. 4:23-cv-01025, Nicholson et

al. v, AHD Houston, Inc. et al., in the Southern District of Texas, Houston Division

(“Nicholson II”). That case is now pending before the Honorable Al Bennett. Although

Petitioner’s claim in Nicholson II was dismissed as res judicata, the stipulated fact

that she was never employed by Defendants would still be fatal to the doctrine’s

application even in the context of a hostile work environment claim, because she can

never satisfy the employee requirement. Resp. App. 95a. (“Plaintiff was never an

employee of any of the defendants.”); West v. City of Houston, Texas 960 F.3d 736, 741

(5th Cir. 2020) (hostile work environment claims protect employees from

discriminatory hostile or abusive environments) (emphasis added). Docket call in that

case is set for February 7, 2025, and trial is set for February 10, 2025. Resp. App.

117a.

REASONS FOR DENYING THE PETITION

For the continuing violations doctrine to apply, the alleged discriminatory act

must be part of a continuing course of conduct creating a hostile work environment.

Otherwise, it is simply a discrete act of discrimination which cannot form the basis

of a continuing violations theory. Heath v. Bd. of Supervisors for S. Univ. & Agric. &

Mech. Coll., 850 F.3d 731, 741 (5th Cir. 2017). Petitioner’s claims are based on

conduct from 2014 to 2016, making her August 2021 complaint outside of the

applicable limitations period for a § 1981 claim arising post-contract formation. 28

U.S.C. § 1658.

The Unanimous Fifth Circuit Panel correctly decided that the

continuing course of conduct exception does not apply outside

of the hostile work environment context and dismissed her

claims as time barred.

Petitioner argues that her claims accrued in August of 2021 against Splendor

and in November of 2021 against Cover Girls, because on those dates she was

allegedly denied access to the clubs on the basis of her race. “In support of this

reasoning, she argues that under National Railroad Passenger Corp. v. Morgan,

[]refusal to grant her access to the club []was ‘a clear example of a discrete

discriminatory act’ that restarted the four-year statute of limitations period

applicable to her § 1981 claims.” Nicholson v. W.L. York, Inc., No. 23-20440, 2024 WL

913378, at *3 (5th Cir. Mar. 4, 2024) (citing 536 U.S. 101, 113 (2002)).

Her own characterization of her claims being timely based on a discrete act of

discrimination defeats her claim. See Heath v. Bd. of Supervisors for S. Univ. & Agric.

& Mech. Coll., 850 F.3d 731, 741 (5th Cir. 2017) (“the magistrate judge’s summary

judgment ruling treated the retaliation claim as one based on discrete acts. Heath

does not challenge that characterization on appeal, so we must treat it the same

way.”). A hostile work environment claim to which the continuing violations doctrine

apples “occurs over a series of days or perhaps years and, in direct contrast to

discrete acts, a single act of harassment may not be actionable on its own.” Nat’l

R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115, 122 (2002) (emphasis added).

“It is precisely because the entire hostile work environment encompasses a

single unlawful employment practice that we do not hold, as have some of the

Circuits, that the plaintiff may not base a suit on individual acts that occurred outside

the statute of limitations unless it would have been unreasonable to expect the

plaintiff to sue before the statute ran on such conduct.” Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 117-18 (2002). It does not apply to discrete acts, such as

“hiring, granting leave, discharging, and compensating.” Hamic v. Harris Cty. W.C.

& I.D. No. 36, 184 Fed.Appx. 442, 447 (5th Cir. 2006). It categorically does not apply

to claims for retaliation, because they inherently discrete actions. Id. And, as the

Fifth Circuit correctly observed in this case:

But as the Supreme Court and this court have clarified, the continuing

violations doctrine applies only in the context of hostile work

environment claims, which Nicholson does not allege in this case.Id.; see

also Heath v. Bd. of Supervisors for S. Univ. & Agric. & Mech. Coll., 850

F.3d 731, 737 (5th Cir. 2017) (“Claims alleging discrete acts are not

subject to the continuing violation doctrine; hostile workplace claims

are. Hostile environment claims are ‘continuing’ because they involve

repeated conduct, so the ‘unlawful employment practice’ cannot be said

to occur on any particular day.”).

Nicholson, 2024 WL 913378, at *4 (footnote omitted). The Fifth Circuit correctly

analyzed this Court’s precedent in Morgan, and more specifically, its limitation to

continuing courses of conduct rather than alleged discrete acts of discrimination.

II.

This Court should not review this decision because Petitioner

and other plaintiffs re-filed this case under a hostile work

environment theory in Nicholson II.

“[A]s the Supreme Court and [the Fifth Circuit] have clarified, the continuing

violations doctrine applies only in the context of hostile work environment claims,

which Nicholson does not allege in this case.” Nicholson v. W.L. York, Inc., No. 2320440, 2024 WL 913378, at *4 (5th Cir. Mar. 4, 2024) (citing National Railroad

Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002)). The Fifth Circuit further

explained that “[w]e take no position on whether Nicholson’s claims would succeed

under Morgan if she had alleged a hostile work environment claim against Splendor

or Cover Girls.” Id., n. 8.

In Nicholson II, Petitioner in this case together with other plaintiffs have

alleged hostile work environment claims based on the same facts and circumstances

as this case to test application of the continuing violations doctrine when it is brought

in the proper context. See Heath v. Bd. of Supervisors for S. Univ. & Agric. & Mech.

Coll., 850 F.3d 731, 740-41 (5th Cir. 2017) (disallowing application of the continuing

violations doctrine for claims based on discrete acts but allowing them on plaintiff’s

hostile work environment claims).

Although the trial court in that case dismissed the claims asserted by

Petitioner herself under res judicata, summary judgment is now pending before the

trial court on the continuing violations as to the other plaintiffs asserting a hostile

work environment claim. (See Nicholson II; Resp. App. 118a, Resp. App. 135a).

Petitioner’s stipulated fact that she was never employed by Defendants would be fatal

to the doctrine’s application even in the context of a hostile work environment claim

in Nicholson II, because she could never satisfy the employee requirement for such a

claim. Resp. App. 95a (“Plaintiff was never an employee of any of the defendants.”);

West v. City of Houston, Texas 960 F.3d 736, 741 (5th Cir. 2020) (hostile work

environment claims protect employees from discriminatory hostile or abusive

environments) (emphasis added). The remaining plaintiffs in Nicholson II are

similarly situated exotic dancers represented by the same counsel who represented

Petitioner in the Trial Court and before the Fifth Circuit. They are likewise not

employees who can assert hostile work environment claims.

The trial court may well rule on those plaintiffs’ inability to maintain their

hostile work environment claims at docket call set for February 7, 2025. Resp. App.

117a. Alternatively, the case is set for trial on February 10, 2025. (Id.). Because the

same facts and circumstances at issue in this case are currently being litigated under

the proper theory to assert the continuing violations doctrine in parallel litigation,

this case presents a poor vehicle to review the question presented.

III.

There is no circuit split applying the continuing course of

conduct exception outside of the hostile work environment

context.

Nor can Petitioner point to a circuit split that this Court need resolve. Federal

Courts of Appeals have uniformly applied Morgan and the continuing course of

conduct doctrine to hostile work environment claims, and never based on discrete acts

of discrimination to revive claims based on conduct outside the limitations period.

The cases cited by Petitioner to purportedly evidence a circuit split in fact prove

the opposite. The first case relied upon by Petitioner, Williams, clearly articulates the

rule that the Fifth Circuit applied:

Williams argues that the continuing violation doctrine extends the

ordinary limitations periods. This argument is foreclosed by National

Passenger Railroad Corporation v. Morgan, 536 U.S. 101, 122 S.Ct.

2061, 153 L.Ed.2d 106 (2002), which holds that an employee must file a

charge of discrimination within the appropriate limitations period as to

each discrete act of discrimination that occurred. Such discrete acts of

discrimination “are not actionable if time-barred, even when they are

related to acts alleged in timely filed charges.”

Williams v. Giant Food Inc., 370 F.3d 423, 429 (4th Cir. 2004); (See Petitioner’s Brief,

p. 20).

The second case at first blush seems to support Petitioner’s theory that the

alleged failures to hire during the limitations period restarted the limitations clock

for these new violations. See Forsyth v. Federation Employment and Guidance Ser.,

409 F.3d 565, 573 (2d Cir. 2005); Resp. App. 112a.

However, this Court expressly abrogated Forsyth and clarified that, in an

unlawful pay practice case, the limitations clock starts when the unlawful pay

practice begins and does not reset each pay period. Ledbetter v. Goodyear Tire &

Rubber Co., 550 U.S. 618, 624-25 (2007). Rather, the plaintiff’s cause of action accrued

when she was allegedly unlawfully passed over for a raise, not when “the effects of

prior, uncharged discrimination decisions” were felt with each successive pay check.

Id. That decision of this Court was subsequently overturned due to legislative

amendment, but only as it relates to pay practices, and only pursuant to claims

brought under Title VII, which has a 300-day limitations period, rather than the

generous four year limitations period applicable to Petitioner’s § 1981 claim. Lilly

Ledbetter Fair Pay Act of 2009, Pub. L. No 111-2, 123 Stat. 5 (2009) (codified as

amended at 42 U.S.C. §§ 2000e-5, 2000e-16, 29 U.S.C. §§ 626, 794a).

As it relates to other types of discrimination claims, including Petitioner’s, “[a]

new violation does not occur, and a new charging period does not commence, upon the

occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting

from the past discrimination.” Ledbetter, 550 U.S. at 619 (citing United Air Lines, Inc.

v. Evans, 431 U.S. 553 (1977), National Railroad Passenger Corporation v. Morgan,

536 U.S. 101 (2002)) (cases superseded by statute omitted). This is entirely consistent

with the Fifth Circuit’s holding that the alleged discriminatory acts within

limitations failures to hire were “merely a continuation of [Respondents’] original act

of discrimination…upon which the limitations period has already lapsed.” 2024 WL

913378, at *4.

The Eight Circuit, like the Fourth and Second, are in accord with the Fifth

Circuit’s reading of Morgan:

On the other hand, the Supreme Court opined that a hostile work

environment claim typically involves a series of separate acts, which

together constitute the unlawful employment practice. Id. at 2074.

Because these acts are part of the same claim, the Court held that an

employer may be liable for all of the acts, and in order for the claim to

be timely, only one act in the series must have occurred within the

limitations period. Id.

Mems v. City of St. Paul, Dep’t of Fire & Safety Servs., 327 F.3d 771, 785 (8th Cir.

2003); Resp. App. 112a.

This Court reversed the Ninth Circuit opinion Petitioner cites. Hulteen v. AT

& T Corp., 498 F.3d 1001, 1002 (9th Cir. 2007, rev’d, 556 U.S. 701 (2009); (Petitioner’s

Brief, p. 22). Furthermore, the law of the Ninth Circuit, like that of the Second,

validates the Fifth Circuit’s position that the alleged in-limitation period failures to

hire were simply consequences of the original allegedly discriminatory act, not new

discretely actionable events. Pouncil v. Tilton, 704 F.3d 568, 577 (9th Cir. 2012) (“The

continuing violation doctrine is inapplicable because Knox has failed to establish that

a new violation occurs each time she is denied her visitation or mail privileges.

Rather, the CDC’s subsequent and repeated denials of Knox’s privileges with her

clients is merely the continuing effect of the original suspension.”).

Petitioner would fare no better under the cases she cites out of the Tenth

Circuit. Davidson simply confirms that the continuing violation doctrine can only

validate claims which are not discrete discriminatory acts. Davidson v. Am. Online,

Inc., 337 F.3d 1179, 1185 (10th Cir. 2003) (“By eliminating the continuing violation

doctrine for discrete discriminatory acts, Morgan attempts to resolve the inconsistent

and confusing application of the doctrine by the appellate courts.”); Resp. App. 113a.

Lastly, Petitioners cite the Tenth Circuit opinion in Herrera, which is a § 1983

action brought against a municipality for failure to provide water services, not a

discrimination claim. Herrera v. City of Espanola, 32 F.4th 980, 1001 (10th Cir. 2022);

Resp. App. 113a . And even in that case, the court holds that when “a plaintiff has an

immediate and discrete injury capable of giving rise to a cause of action” that the

plaintiffs cause of action accrues on that date and the continuing violation doctrine

does not apply. Id. at 1000; see also Semsroth v. City of Wichita, 304 F. App’x 707, 715

(10th Cir. 2008) (“the continuing violations doctrine is viable only for hostile work

environment claims”) (emphasis in original).

There is no circuit split, and any federal court of appeals would have applied

Morgan the same way and dismissed Petitioner’s claims as time barred.

CONCLUSION

The Court should deny the petition for writ of certiorari.

Respectfully submitted,

/s/

Benjamin W. Allen,

Counsel of Record

Casey T. Wallace

WALLACE & ALLEN, LLP

440 Louisiana Street, Suite 590

Houston, Texas 77002

Tel: (713) 227-1744

ballen@wallaceallen.com

cwallace@wallaceallen.com

January 15, 2025

APPENDIX

Case 4:21-cv-02624 Document 1 Filed on 08/12/21 in TXSD Page 1 of 7

APPENDIX A

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CHANEL E.M. NICHOLSON, On Behalf of

Herself and Other Similarly Situated Plaintiffs, §

vs.

A.H.D. HOUSTON, INC. d/b/a

CENTERFOLDS HOUSTON,

W.L. YORK, INC. d/b/a THE COVER

GIRLS, SPLENDOR GENTLEMENS CLUB, §

SOLID PLATINUM CABARET, ALI

DAVARI, HASSAN DAVARI

Case No. ____________________

JURY TRIAL DEMAND

PLAINIFFS’ ORIGINAL COMPLAINT

Plaintiff CHANEL E.M. NICHOLSON, individually and on behalf of all other African-American

dancers/entertainers with the same or similar claims, alleges the following upon information and

belief, based upon published documents, reports and personal knowledge.

I. NATURE OF THE ACTION

1. Plaintiff alleges causes of action through violations of 42 U.S.C. § 1981 against Defendants

A.H.D. HOUSTON, INC. d/b/a CENTERFOLDS HOUSTON, W.L. YORK, INC. d/b/a THE

COVER GIRLS, SPLENDOR GENTLEMENS CLUB, SOLID PLATINUM CABARET

(collectively, “Defendant Clubs”), and individuals ALI DAVARI and HASSAN DAVARI

(referred to as “Individual Defendants”, and with Defendant Clubs, collectively as “Defendants”)

for damages resulting from Defendants’ refusal to hire, unwarranted termination, unwarranted

reduction in working hours, and other acts of intentional employment discrimination against

Plaintiff and other African-American entertainers at the Defendant Clubs.

2. Individual Defendants own and operate a number of Gentlemen’s Clubs featuring female

entertainers, including all the Defendant Clubs. The causes of action arise from Defendants’ willful

and intentional actions: (A) in reducing her working hours while Plaintiff Nicholson was employed

by: (i) Defendant W.L. YORK, INC. d/b/a THE COVER GIRLS between about August 2017 and

October 2017, and (ii) Defendant SOLID PLATINUM CABARET between about October 2017

and March 2018; and (B) (i) when Plaintiff was refused employment by Defendant A.H.D.

23-20440.10

(1a)

Case 4:21-cv-02624 Document 1 Filed on 08/12/21 in TXSD Page 2 of 7

HOUSTON, INC. d/b/a CENTERFOLDS HOUSTON, when she applied on June 24, 2021, and

(ii) by SPLENDOR GENTLEMENS CLUB when she applied on August 11, 2021. All acts of

reducing Plaintiff’s hours and refusing her employment resulted directly from Defendants’ policy

of limiting the total number of African-American entertainers working the same shift at the same

venue; while no corresponding limitations were applied to Caucasian entertainers (hereinafter

referred to as “Defendants’ Racist Policy”).

3. Defendants’ Racist Policy violates 42 U.S.C. § 1981 because it violates Plaintiff’s right as an

African- American to have employment to the same extent “as is enjoyed by white citizens.”

4. Plaintiff brings a class action to recover: (i) the monies she and other African-American

entertainers would have received but instead who, under Defendants’ Racist Policy, were

terminated, denied employment by Defendants or had their working hours at Defendant Clubs

reduced; (ii) pre- and post-judgment interest on such monies; (iii) punitive damages, and (iv)

attorneys’ fees. Members of the class are hereinafter referred to as “African-American Class

Members.”

II. PARTIES

5. Plaintiff was at all relevant times and is a resident of Harris County, Texas. Plaintiff was an

employee (not an independent contractor) of Defendant W.L. YORK, INC. d/b/a THE COVER

GIRLS and of Defendant SOLID PLATINUM CABARET. Plaintiff applied for employment and

was a prospective employee (not a prospective independent contractor) of A.H.D. HOUSTON,

INC. d/b/a CENTERFOLDS HOUSTON and of SPLENDOR GENTLEMENS CLUB.

6. The African-American Class Members are all current and former female African-American

entertainers who worked at Defendant Clubs and were terminated, had their working hours

reduced, or who were denied employment at Defendant Clubs, under Defendants’ Racist Policy;

starting four (4) years before this Complaint was filed, up to the present.

7. Defendant A.H.D. HOUSTON, INC. is a Texas for-profit corporation doing business as

Centerfolds Houston in Houston, Texas at 6166 Richmond Avenue, Houston, Texas 77057, and

may be served via its registered agent, Albert T. Van Huff, 1225 North Loop West, Suite 640,

Houston, Texas 77008.

23-20440.11

(2a)

Case 4:21-cv-02624 Document 1 Filed on 08/12/21 in TXSD Page 3 of 7

8. Defendant W.L. YORK, INC. is a Texas for-profit corporation doing business as THE COVER

GIRLS at 10310 W. Little York, P.O. Box 570413, Houston, Texas 77257, and may be served via

its registered agent, Albert T. Van Huff, 1225 North Loop West, Suite 640, Houston, Texas 77008.

9. Defendant SPLENDOR GENTLEMENS CLUB has its principal place of business at 7440 W

Greens Rd, Houston, Texas 77064, and may be served through either of its owners, who are the

Individual Defendants.

10. Defendant SOLID PLATINUM CABARET had its principal place of business at 2732 W T C

Jester Blvd., Houston Texas 77018. It is now closed. It may be served through either of its owners,

who are the Individual Defendants.

11. Defendant ALI DAVARI is the president and a director of Defendants W.L. YORK, INC. and

A.H.D. HOUSTON, INC., and is an owner of Defendant SPLENDOR GENTLEMENS CLUB

and Defendant SOLID PLATINUM CABARET, and may be served at his residence at 12

Rivercrest Drive, Houston, Texas 77042.

12. Defendant HASSAN DAVARI is the vice president and a director of Defendants W.L. YORK,

INC. and A.H.D. HOUSTON, INC., and is an owner of Defendant SPLENDOR GENTLEMENS

CLUB and Defendant SOLID PLATINUM CABARET, and may be served at his residence at 21

E. Rivercrest Drive, Houston, Texas 77042.

13. Individual Defendants and exerted operational and management control over Defendant Clubs,

and were frequently present at, directed, controlled and managed all operations and day-to-day

affairs at Defendant Clubs, including hiring, firing or reducing working hours of employees, and

otherwise executing Defendants’ Racist Policy.

14. Individual Defendants were acting as employers at Defendant Clubs and were the alter egos of

the corporate entities purporting to own and operate the Defendant Clubs, and are therefore

personally liable for actions of the Defendant Clubs, including for executing Defendants’ Racist

Policy.

III. VENUE AND JURSIDICTION

15. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 because this action arises

under 42 U.S.C. § 1981.

23-20440.12

(3a)

Case 4:21-cv-02624 Document 1 Filed on 08/12/21 in TXSD Page 4 of 7

16. Venue is proper in this District because all Defendants are located in Harris County, as is

Plaintiff.

IV. FACTS

17. As above, Plaintiff was employed by Defendant W.L. YORK, INC. d/b/a THE COVER GIRLS

between about August 2017 and October 2017, and by Defendant SOLID PLATINUM CABARET

between about October 2017 and March 2018.

18. Plaintiff was also employed by Defendant A.H.D. HOUSTON, INC. d/b/a CENTERFOLDS

HOUSTON for several years but before the statutory period. Recently, Plaintiff sought to revive

her career as an entertainer and entered CENTERFOLDS HOUSTON on June 24, 2021 during

business hours and requested employment, but was told they were not hiring.

19. Plaintiff was also employed by Defendant SPLENDOR GENTLEMENS CLUB for a total of

about four (4) years but before the statutory period. In attempting to revive her career as an

entertainer, she entered SPLENDOR GENTLEMENS CLUB on August 11, 2021 during business

hours and requested employment, but was told they were not hiring.

20. Plaintiff typically was scheduled by the respective Defendant Club to work and did work about

up to seven shifts per week and six hours per shift during her employment at A.H.D. HOUSTON,

INC. d/b/a CENTERFOLDS HOUSTON and at SPLENDOR GENTLEMENS CLUB. At W.L.

YORK, INC. d/b/a THE COVER GIRLS Plaintiff typically was scheduled to and worked four (4)

shifts per week and seven (7) hours per shift during her employment there. At SOLID PLATINUM

CABARET Plaintiff typically was scheduled to and worked up to six (6) shifts per week and seven

(7) hours per shift during her employment there.

21. Notwithstanding any particular Defendant Club’s schedule, at each Defendant Club, on at least

several occasions, the following took place. Plaintiff would arrive for her scheduled shift at a

Defendant Club, after having fully made-up, coiffed, painted her nails and/or applied extensions,

shaved and perfumed her entire skin surface, and prepared her clothing so as to be able to remove

it attractively and appropriately while entertaining, only to be told by one or more of Defendant

Club’s acting managers that there were already “too many black girls” working; and that she could

not work her shift.

23-20440.13

(4a)

Case 4:21-cv-02624 Document 1 Filed on 08/12/21 in TXSD Page 5 of 7

22. At W.L. YORK, INC. d/b/a THE COVER GIRLS Plaintiff was told after having worked there

for about three months that she could not perform because of Defendants’ Racist Policy. Her

employment there was terminated.

23. Plaintiff’s income was solely based on charging customers for an individual performance (or

table dance) and tips. So in all instances where Plaintiff could not perform (was denied a shift),

she received no income.

24. Defendants set prices Plaintiff and other entertainers charged for each performance for a

customer, would charge Plaintiff and other entertainers a late fee if they do not arrive for a shift

on time, and had the authority to suspend, fine, fire, or otherwise discipline entertainers for noncompliance with their rules regarding dress, performance and sharing of income with other

employees in the Defendant Club. Plaintiff had been fired by A.H.D. HOUSTON, INC. d/b/a

CENTERFOLDS HOUSTON for not sharing enough of her income with particular employees at

that venue.

25. Plaintiff and other entertainers clearly were employees and not independent contractors (as

Defendants designated them) for the reasons in paragraphs 13 and 14 and further because:

Defendants provided and maintained the venue needed for the entertainers to perform; required

entertainers to clock in and out of the venue; apply fines/fees to the entertainers if they failed to

follow Defendants’ guidelines or directions; and, hired all employees at each venue, including

bartenders, waitresses, DJ’s, security personnel, managers, and all entertainers.

26. The position of entertainer requires no formal education, degree, certification or license. The

amount of skill required is akin to that of an employee rather than an independent contractor.

27. Upon information and belief, more than one hundred (100) female African-American

entertainers who have been employed have been denied scheduled shifts, have been terminated,

and others have been refused employment at the Defendant Clubs under Defendants’ Racist Policy

during the four (4) years prior to the filing of this action.

28. Plaintiffs’ experience under Defendants’ Racist Policy is similar to that of other AfricanAmerican entertainers at Defendant Clubs, who have the same claims as Plaintiff, and Plaintiff can

therefore adequately represent the interests of the class.

23-20440.14

(5a)

Case 4:21-cv-02624 Document 1 Filed on 08/12/21 in TXSD Page 6 of 7

29. As such, Plaintiff brings her claims as a class action on behalf of the African-American Class

Members.

V. CAUSES OF ACTION

30. The effect of Defendants’ Racist Policy has been to deprive Plaintiff and other prospective,

current and former African-American female entertainers at Defendant Clubs, as a class, of the

same employment treatment as Caucasian female entertainers: who were not subject to any

numerical limitation at any Defendant Club based on their race. As such, Defendants’ execution

of Defendants’ Racist Policy is in violation of 42 U.S.C. § 1981.

31. The unlawful employment practices enacted under Defendants’ Racist Policy were intentional

and when they are established at trial, make punitive damages appropriate as they provide an

exemplary penalty for Defendants’ intentional and outrageous conduct.

VI. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that the Court:

32. Immediately grant a preliminary injunction (upon motion by Plaintiff) enjoining the

Defendants, their officers, successors, assigns, and all persons in active concert or participation

with them, from continuing Defendants’ Racist Policy or otherwise executing employment

practices which discriminate on the basis of race;

33. Order Defendants to make whole Plaintiff and the class members by providing appropriate

back pay, with prejudgment interest in amounts to be determined at trial, and other affirmative

relief necessary to eradicate the effects of their unlawful employment practices;

34. Order the reinstatement of Plaintiff and the class members as entertainers, or award them front

pay in the amounts to be determined at trial if reinstatement is impractical;

35. Order Defendants to make Plaintiff and the class members whole by providing compensation

for past and future pecuniary losses resulting from the unlawful practices described in paragraphs

17-23, including, but not limited to, out-of-pocket expenses such as job search expenses in amounts

to be determined at trial;

23-20440.15

(6a)

Case 4:21-cv-02624 Document 1 Filed on 08/12/21 in TXSD Page 7 of 7

36. Order Defendants to make Plaintiff and the class members whole by paying compensatory

damages for past and future non-pecuniary losses including emotional pain, suffering,

inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses they

suffered as a result of Defendants’ Racist Policy and the unlawful employment practices described

in paragraphs 17-23 above, in amounts to be determined at trial;

37. Award punitive damages to Plaintiff and the class members for Defendants’ intentional and

malicious conduct described in paragraphs 17-23 above, in amounts to be determined at trial;

38. Award Attorneys’ fees and costs associated with this action;

39. Award pre-judgment and post-judgment interest on all amounts recovered as permitted by

law; and

40. Grant such further relief as the Court deems necessary and proper in the public interest.

VII. JURY TRIAL DEMAND

Plaintiff requests a jury trial.

Respectfully Submitted,

By: /s/Eric P. Mirabel 8/12/2021

Eric P. Mirabel

Texas State Bar No. 14199560

Southern District ID No. 9708

eric@emirabel.com

3783 Darcus St.

Houston, Texas 77005

Tel: 281 772-3794

Fax: 713 667 4234

23-20440.16

(7a)

Case 4:21-cv-02624 Document 45-2 Filed on 05/18/22 in TXSD Page 1 of 20

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CHANEL E.M. NICHOLSON, On Behalf of

Herself and Other Similarly Situated

Plaintiffs,

A.H.D. HOUSTON, INC. d/b/a

CENTERFOLDS; W.L. YORK, INC. d/b/a

COVER GIRLS; D WG FM, INC. d/b/a

SPLENDOR; ALI DAVARI; HASSAN

DAVARI

§ Civil Action 4:21−cv−02624

§ JURY TRIAL DEMAND

PLAINIFF’S THIRD AMENDED COMPLAINT

Plaintiff CHANEL E.M. NICHOLSON, individually and on behalf of all other AfricanAmerican and Hispanic dancers/entertainers with the same or similar claims, alleges the

following based upon personal knowledge, information and belief, a declaration by a long

term manager at Defendant Clubs (see Exhibit D hereto), interviews with another local

industry manager, interviews with current and former dancers at the Defendants’ places

of business; and, published documents.

I. NATURE OF THE ACTION

1. Plaintiff alleges causes of action through violations of 42 U.S.C. § 1981 and breach of

contract against Defendants A.H.D. HOUSTON, INC. d/b/a CENTERFOLDS, W.L. YORK,

INC. d/b/a COVER GIRLS, D WG FM, Inc. d/b/a SPLENDOR (collectively, “Defendant

Clubs”), and individuals ALI DAVARI and HASSAN DAVARI (referred to as “Individual

Defendants,” and with Defendant Clubs, collectively as “Defendants”) for damages,

resulting from Defendants’ refusal to give access to: (i) Plaintiff and other AfricanAmerican women (“Black Dancers”), and Hispanic women (collectively referred to as,

“Black or Brown Dancers”) applying to be entertainers/dancers at the Defendant Clubs

during the statutory period, and/or (ii) from termination of access rights to Plaintiff and

Black or Brown Dancers at the Defendant Clubs during the statutory period; provided,

however, that the class of such Black or Brown Dancers does not include any members

23-20440.584

(8a)

Case 4:21-cv-02624 Document 45-2 Filed on 05/18/22 in TXSD Page 2 of 20

who entered a valid and enforceable agreement with the Defendant Club, and wherein

the Court dismisses such Black or Brown Dancers claims under 42 U.S.C. § 1981 and/or

for contract breach, or the Court rules that such Black or Brown Dancers cannot be class

members because such a valid and enforceable agreement is found by the court to: (a)

prohibit collective actions or class actions for asserting the Black or Brown Dancers rights

under 42 U.S.C. § 1981 and/or for contract breach; or (b) provide for arbitration as the

exclusive forum for resolving the Black or Brown Dancers claims under 42 U.S.C. § 1981

and/or for contract breach.

2. The Individual Defendants own and operate a number of adult entertainment

establishments featuring female entertainers (also referred to as “dancers” herein),

including all the Defendant Clubs. Individual Defendants are named as the sole officers

(President and Vice President) and/or the sole directors of the Defendant Clubs in the

state-filed corporate documents for said Defendant Clubs. The causes of action arise from

Defendants’ willful and intentional actions: (A) in terminating Plaintiff Nicholson’s access

rights because the Black Dancer limit had been reached, after she had worked at

Defendant W.L. YORK, INC. d/b/a COVER GIRLS between about November 2016 and

late November 2017; and (B) refusing to honor her existing agreements and rejecting

Plaintiff’s application for a dancer position at: (i) Defendant A.H.D. HOUSTON, INC. d/b/a

CENTERFOLDS, when she applied on June 24, 2021, and (ii) D WG FM, Inc. d/b/a

SPLENDOR when she applied on August 11, 2021. The terminating of Plaintiff’s access

and refusing her access or a dancer position resulted directly from Defendants’ policy of

limiting the total number of Black or Brown Dancers working the same shift at the same

venue; and not providing Black or Brown Dancers dancer positions or access rights in

order to enforce such limit, while no corresponding limitations were applied to Caucasian

entertainers (hereinafter referred to as “Defendants’ Racist Policy”).

3. Enforcement by Defendants of Defendants’ Racist Policy violates 42 U.S.C. § 1981

because it violates Plaintiff’s right as an African-American to make and enforce contracts

to the same extent “as is enjoyed by white citizens.” It violates the rights of other Black or

Brown Dancers, including those who are class members, for the same reason. It is also

23-20440.585

(9a)

Case 4:21-cv-02624 Document 45-2 Filed on 05/18/22 in TXSD Page 3 of 20

a breach of the access rights in the agreements Plaintiff entered and other dancers are

required to enter with the Defendants Clubs.

4. Plaintiff brings a class action to recover: (i) the monies she and other Black or Brown

Dancers who are class members would have received but instead who, under Defendants’

Racist Policy, were terminated or denied access to Defendant Clubs’ premises; (ii) preand post-judgment interest on such monies; (iii) punitive damages, (iv) attorneys’ fees

and (v) other related relief including (a) remedying past discrimination by additional hiring

of Black or Brown Dancers and (b) declaring unconscionable agreement provisions

unenforceable and prohibiting enforcement of unconscionable agreement provisions and

prohibiting Defendants from requiring entering of unconscionable agreements by dancers.

Members of the class are those Black or Brown Dancers meeting the requirements of

paragraph 1(i) or 1(ii) above, and are hereinafter referred to as “Black or Brown Class

Members.”

II. PARTIES

5. Plaintiff is African-American and was at all relevant times and is a resident of Harris

County, Texas. Plaintiff was working at Defendant W.L. YORK, INC. d/b/a COVER GIRLS

until her termination of access there. More recently, Plaintiff sought access to perform as

a dancer at A.H.D. HOUSTON, INC. d/b/a CENTERFOLDS and at D WG FM, Inc. d/b/a

SPLENDOR but was rejected – though she had previously entered agreements granting

her access to both establishments.

6. The Black or Brown Class Members are all current and former female Black or Brown

Dancers who, under Defendants’ Racist Policy (i) applied and were refused positions as

dancers at the Defendant Clubs, starting two (2) years before the Original Complaint was

filed (Aug. 12, 2021) up to the present, and/or (ii) were terminated or refused access as

dancers by one or more of the Defendant Clubs and who did not enter valid and

enforceable agreements with the Defendant Club(s) prohibiting or waiving collective

actions or class actions for asserting their rights under 42 U.S.C. § 1981 or for contract

breach, and/or allowing Defendants to have claims for such rights exclusively decided in

arbitration rather than in court, and whose claims in court were dismissed as a result of

23-20440.586

(10a)

Case 4:21-cv-02624 Document 45-2 Filed on 05/18/22 in TXSD Page 4 of 20

such agreement(s) or who were ordered excluded from the class by the court; starting

four (4) years before the Original Complaint was filed (Aug. 12, 2021), up to the present.

7. Defendant A.H.D. HOUSTON, INC. is a Texas for-profit corporation doing business as

CENTERFOLDS, at 6166 Richmond Avenue, Houston, Texas 77057, and was served via

its registered agent, Albert T. Van Huff, 1225 North Loop West, Suite 640, Houston, Texas

77008.

8. Defendant W.L. YORK, INC. is a Texas for-profit corporation doing business as

COVER GIRLS at 10310 W. Little York, P.O. Box 570413, Houston, Texas 77257, and

was served via its registered agent, Albert T. Van Huff, 1225 North Loop West, Suite 640,

Houston, Texas 77008.

9. Defendant D WG FM, Inc. d/b/a SPLENDOR has its principal place of business at 7440

W Greens Rd, Houston, Texas 77064, and may be served through its registered agent,

Albert T. Van Huff, 1225 North Loop West, Suite 640, Houston, Texas 77008; though it

was served by consent on Defendants’ current counsel, Casey Wallace et al.

10. Defendant ALI DAVARI is the president and a director of Defendants W.L. YORK,

INC., A.H.D. HOUSTON, INC., and D WG FM, Inc. and was served at his residence at

12 Rivercrest Drive, Houston, Texas 77042.

11. Defendant HASSAN DAVARI is the vice president and a director of Defendants W.L.

YORK, INC., A.H.D. HOUSTON, INC., and D WG FM, Inc., and was served at his

residence at 21 E. Rivercrest Drive, Houston, Texas 77042.

12. One or more of the Individual Defendants, in their positions as sole named officers

and directors of the Defendant Clubs, would sometimes visit the Defendant Clubs. During

these site visits, they thereby directly observed a paucity of Black or Brown dancers at

the Defendant Clubs, and/or exclusion or access denial of Black or Brown dancers. As

the sole officers and directors they are charged with exerting operational and

management control over Defendant Clubs and managing operations and day-to-day

affairs at Defendant Clubs, including the refusal to hire or termination of access to Black

or Brown Dancers, and otherwise establishing and enforcing Defendants’ Racist Policy.

23-20440.587

(11a)

Case 4:21-cv-02624 Document 45-2 Filed on 05/18/22 in TXSD Page 5 of 20

13. Individual Defendants were thereby the alter egos of the corporate entities that own

and operate the Defendant Clubs, or at least are the guiding spirits behind Defendants’

Racist Policy, and are therefore personally liable for actions of the Defendant Clubs,

including all damaged from establishing and enforcing Defendants’ Racist Policy.

III. VENUE AND JURSIDICTION

14. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 because this action

arises under 42 U.S.C. § 1981. The Court has pendent jurisdiction over Plaintiff’s and

other class members’ breach of contract claims and claims of unconscionability of

provisions in the dancers’ agreements with Defendants.

15. Venue is proper in this District because all Defendants are located in Harris County,

as is Plaintiff.

16. The Court retains jurisdiction over this class action as Defendants expressly waived:

their contractual option (at a hearing on May 12, 2022) to remove claims herein to

arbitration; and Defendants also expressly waived contractual prohibitions against

Plaintiff bringing certain claims in court, and against Plaintiff pursuing claims in collective

or class actions.

IV. FACTS

17. Starting in in about August, 2013, Plaintiff was a dancer at Defendant A.H.D.

HOUSTON, INC. d/b/a CENTERFOLDS. She recalls she first applied for a dancer

position there in about June 2013, when she and another Caucasian woman applied

together. Though the Caucasian applicant had a plump, less attractive figure, and had no

front teeth, she was given a position and Plaintiff was not. Plaintiff believes, however, that

solely because this Caucasian applicant actively supported it to management, in August

2013 Plaintiff was given a dancer position at CENTERFOLDS.

18. Plaintiff does not recall signing the agreement and attachments (the “Centerfolds

Agreement” Exhibit A hereto) which she signed with A.H.D. HOUSTON, INC. d/b/a

CENTERFOLDS in June and August 2013. She does recall that no one explained any

23-20440.588

(12a)

Case 4:21-cv-02624 Document 45-2 Filed on 05/18/22 in TXSD Page 6 of 20

part of the Centerfolds Agreement to her, she was not told she could have it reviewed by

a lawyer before signing, and she was not given a copy of the Centerfolds Agreement.

19. Plaintiff typically worked up to about seven shifts per week at six hours per shift during

her time at A.H.D. HOUSTON, INC. d/b/a CENTERFOLDS.

20. All of Plaintiff’s income consisted of monies paid to her directly by the customers at

CENTERFOLDS, usually in cash. Customers were also her sole income source at all

Defendant Clubs.

21. Regularly during her time at CENTERFOLDS, sometimes as often as once or twice

per week, Plaintiff would arrive for her shift after having fully made-up, coiffed, painted

her nails and/or applied extensions, shaved and perfumed her entire skin surface, and

prepared her clothing so as to be able to remove it attractively and appropriately while

dancing, only to be told by the door girl upon entering the premises she could not work at

that time. When she investigated the cause she would be told that other Black Dancer(s)

(identified by name(s)) were already there. When she would investigate with the acting

manager, often Chris M. or a manager known as “Reggie” (unknown last name), they

would explain that there were too many Black Dancers already working. On several

occasions Reggie told Plaintiff that management did not like more than a small number

of Black Dancers on the premises at the same time. At other times one of the managers

would tell her there were too many Black Dancers working and exclude her, if she

encountered them before the door girl. Plaintiff never heard of a Caucasian dancer being

excluded in a similar manner.

22. Defendant A.H.D. HOUSTON, INC. d/b/a CENTERFOLDS would charge scaled fees

based on time of entry, with evening and late night costing more than earlier times.

Managers would often deny access, terminate, and especially fine, Plaintiff and other

Black Dancers for non-compliance with unwritten rules regarding dress, performance and

sharing of income with managers (and sometimes other employees) in CENTERFOLDS.

Plaintiff was often propositioned by Managers to provide sexual favors as quid pro quo

for continuing working or for withdrawing fines. Plaintiff knows of other Black Dancers who

had sex with Managers, though Plaintiff did not. Plaintiff also would need to generously

tip the DJ in order to have him play music she wanted. Plaintiff was eventually barred by

23-20440.589

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CENTERFOLDS for not sharing enough of her income with particular managers and

employees.

23. Through Plaintiff’s discussions with other dancers at CENTERFOLDS she learned

that Black Dancers were nearly always levied larger fines by the management than

Caucasian dancers and/or were forced to share a larger percentage of their earnings with

managers and other employees for continued access rights to the premises.

24. Plaintiff also saw Reggie trash or destroy applications for employment from Black

Dancers.

25. Starting in late September 2014, after she was barred by CENTERFOLDS, Plaintiff

became a dancer at Defendant D WG FM, Inc. d/b/a SPLENDOR for several years.

Plaintiff typically worked four (4) shifts per week at seven (7) hours per shift.

26. Plaintiff does not recall signing the agreement and attachments (the “Splendor

Agreement” Exhibit B hereto) which she signed with D WG FM, Inc. d/b/a SPLENDOR

in late September, 2014. She does recall however that no one explained any part of the

Splendor Agreement to her, she was not told she could have it reviewed by a lawyer

before signing, and she was not given a copy of the Splendor Agreement.

27. She recalls two managers at SPLENDOR, Reggie (same person as at

CENTERFOLDS) and “Joey” (unknown last name). Reggie would also destroy and/or

trash Black Dancers’ applications at SPLENDOR regularly.

28. Again, during her time at SPLENDOR, on a number of occasions, the door girl or an

acting manager would send her home after Plaintiff arrived for her shift because there

were already “too many black girls” working. On some occasions she would see Bob

Furey (Director of Operations for all three Defendants) on the premises, and she would

be told she could not work because Bob Furey was already there.

29. At SPLENDOR, Joey told Plaintiff that both the Individual Defendants and upper

management did not want too many Black Dancers on the premises. At another time Joey

forcibly attempted to have intercourse with Plaintiff in his office, but was forcefully rejected

by her. Plaintiff knew other Black Dancers who had sex with Joey.

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Case 4:21-cv-02624 Document 45-2 Filed on 05/18/22 in TXSD Page 8 of 20

30. At SPLENDOR, managers would often suspend, terminate, and fine Plaintiff and other

Black Dancers for non-compliance with unwritten rules regarding dress, performance, and

especially for not paying sufficient “tips” to managers (and sometimes other employees).

Plaintiff was refused entry to work on multiple occasions unless she paid managers. She

also would need to generously tip the DJ in order to have him play music she wanted. At

one point she had to pay $1500 for access after being excluded. Thereafter, she was

barred at SPLENDOR.

31. After SPLENDOR, in about November 2016, Plaintiff was granted a position as a

dancer at Defendant W.L. YORK, INC. d/b/a COVER GIRLS (see Exhibit C, the “Cover

Girls Agreement.”). Plaintiff does not recall signing the agreement and attachments in the

Cover Girls Agreement. She does recall that no one explained any part of the Cover Girls

Agreement to her, she was not told she could have it reviewed by a lawyer before signing,

she was not given a copy of the Cover Girls Agreement, and she was not given an

opportunity so ask any questions she had pertaining to the Cover Girls Agreement.

32. At COVER GIRLS, Plaintiff would often work six shifts per week, each shift being

about six to eleven hours, until late November 2017.

33. The Cover Girls Agreement states that Plaintiff has the right to determine her schedule,

including her ability to arrive and leave the premises at any time without penalty. Plaintiff

was in fact required to pay a fee to COVER GIRLS varying from $20 to $80 (depending

on the shift starting time) every time she came to work. Although the Cover Girls

Agreement states there is no mandatory tip sharing arrangement among dancers,

management and employees, she was again often forced to tip managers and other

employees for access to the premises. She was also sent home on some occasions

because there were already “too many” Black Dancers on the premises. She also was

excluded on one occasion until she paid management a “fine.” She also would need to

generously tip the DJ in order to have him play music she wanted.

34. In late November, 2017 Plaintiff arrived for a shift at COVER GIRLS and was told by

a manager that she could not perform because there were already “too many black girls.”

Plaintiff was thereby barred from COVER GIRLS. Caucasian dancers remained at the

COVER GIRLS premises that night, continuing to make income. On information and belief,

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Case 4:21-cv-02624 Document 45-2 Filed on 05/18/22 in TXSD Page 9 of 20

a large number of Caucasians applied, interviewed and were granted dancer positions at

Defendant W.L. YORK, INC. d/b/a COVER GIRLS between November 2017 and the filing

of this action.

35. Before being barred from COVER GIRLS, Plaintiff had been concomitantly working

as a dancer at Solid Platinum Cabaret, in Houston, and she continued to work at Solid

Platinum Cabaret for several months, until pregnancy forced her to stop. She was

damaged because in a typical shift at Solid Platinum Cabaret, she would earn less than

one-half and often less than one-quarter of what she had been earning per shift at COVER

GIRLS.

36. Plaintiff sought to revive her career as a dancer and entered CENTERFOLDS on June

24, 2021 during business hours and requested a position as a dancer, but was told they

were not hiring. She was damaged because she could not earn as she had when she had

worked at CENTERFOLDS (see paragraphs 17, 19 and 20). After being rejected, Plaintiff

stayed

CENTERFOLDS

and

saw

several

Caucasian

dancers

enter

the

CENTERFOLDS’ premises in street clothes, then change and start their shift as dancers.

37. On August 11, 2021 at about 7 PM, Plaintiff entered SPLENDOR and requested a

position as a dancer. She was told by the purported manager who was a relative of the

Individual Defendants that they were not hiring, and that she would have a better chance

of a dancer position at CENTERFOLDS. She also saw Joey at SPLENDOR that day.

They spoke outside and he told her he would like to hire her but that they were not hiring

Black Dancers at SPLENDOR, and that she should try at CENTERFOLDS or at Joy of

Houston Men’s Club.

38. While applying for the dancer position at SPLENDOR on August 111, 2021, Plaintiff

saw a Caucasian dancer dressed in street clothes enter the SPLENDOR premises and

proceed to the change area, apparently to start her shift as a dancer. On information and

belief, a number of other Caucasian dancers also started their shifts as dancers at

SPLENDOR on August 11, 2021 after Plaintiff applied for a position there, as many

dancers who perform in the evenings and to closing time (2 AM) begin their shifts after 7

PM when Plaintiff was there (which was still during daylight hours). When Plaintiff worked

there, Splendor often had about fifteen to twenty (20) dancers on premises in the evenings

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Case 4:21-cv-02624 Document 45-2 Filed on 05/18/22 in TXSD Page 10 of 20

and the vast majority (except for no more than about two or three Black or Brown Dancers)

were Caucasian.

39. Plaintiff was damaged by the rejection at SPLENDOR, because she could not earn

as she had when she had worked at SPLENDOR (see paragraph 25).

40. A former manager of The Mile High Club, Humble, Texas (laid off in 2020 due to the

pandemic) has stated that all the clubs owned or operated by the Individual Defendants

are well-known by those in the local adult entertainment industry as not hiring and/or

severely limiting the total number of Black Dancers on their respective premises. This

person had also worked at Defendant Clubs and observed Defendants’ Racist Policy

executed by the then management there.

41. Andrew Skwera was a long-time management employee at establishments owned by

the Individual Defendants, and his declaration (Exhibit D hereto) describes an incident in

2019 when Bob Furey (Director of Operations for all Defendant Clubs) noted there were

a number of Black dancers on the COVER GIRLS premises, and assuming Mr. Skwera

was responsible, removed Mr. Skwera’s authority to retain dancers on the spot. Mr.

Skwera also describes other events surrounding Defendants’ Racist Policy and the

reputation of the Defendant Clubs in the industry for limiting the numbers of Black or

Brown Dancers in the clubs, and generally not providing them with dancer positions.

42. The former manager of The Mile High Club estimates that at least about fifty (50) or

more Black or Brown Dancers per month apply at each of the Defendant Clubs; based on

her having received applications from ten to fifteen Black or Brown dancers per week who

had been recently rejected at one or more of the Defendant Clubs. During their interviews,

those rejected Black or Brown Dancers often reported to this manager feeling that their

rejection at the Defendant Club(s) was based on their race. A large number of Caucasian

dancers would have, of course, exercised their access right in their own License and

Access Agreements (see paragraph 44 below), and performed at each such rejecting

Defendant Club after each such Black or Brown Dancer was rejected.

43. Even considering that during 2020 Defendant Clubs were shut for a few months, fifty

(50) rejected Black or Brown Dancer applicants per month (paragraph 42) would yield

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Case 4:21-cv-02624 Document 45-2 Filed on 05/18/22 in TXSD Page 11 of 20

about one thousand (1,000) Black or Brown Dancers applying at each of the three

Defendant Club in the two year period before this action was filed; a very few of which

were not rejected but were offered and entered a License and Access Agreement.

44. As supported in Exhibit D (Declaration of A. Skwera) every dancer at COVER GIRLS,

SPLENDOR and CENTERFOLDS (including the Caucasian dancers who entered

CENTERFOLDS after Plaintiff did on June 24, 2021 and the Caucasian dancers who

entered SPLENDOR after Plaintiff did August 11, 2021) was under a License and Access

agreement with the respective club she entered, with terms similar to those in Plaintiff’s

agreements (Exhibits A to C) which are similar to the terms in the sample agreement Mr.

Skwera references in his declaration. Counsel for Defendants, Casey Wallace, also

stated at the hearing on May 12, 2022 that all dancers are required to sign a License and

Access agreement (which is what all Exhibits A to C and the sample agreement with the

Skwera declaration are entitled) before commencing work. Accordingly, Plaintiff is an

adequate representative of other Black or Brown Dancers who entered similar

agreements that were similarly breached.

45. Plaintiff’s claims stemming from her illegal barring (under Defendants’ Racist Policy)

from COVER GIRLS and Defendants’ illegal (under Defendants’ Racist Policy) failure to

enter a new agreement with Plaintiff at CENTERFOLDS and SPLENDOR, or to honor

their existing agreements (respectively from 2013 and 2014) with her allowing her access,

are essentially identical to the claims of all Black or Brown Dancers at Defendant Clubs,

who have the same claims for refusal to grant access and refusal to make and honor

agreements; and Plaintiff can therefore adequately represent the interests of the class.

46. Defendants’ Racist Policy or the agreements entered, tie Plaintiff’s and other class

members’ claims together.

47. There is likely to be over three thousand (3,000) Black or Brown Class Members (see

paragraph 43 above). Records in the Defendant Clubs may not reflect the number of

Black or Brown Dancers who actually submitted applications at Defendant Clubs, if the

destruction of Black or Brown Dancers’ applications continued at the Defendant Clubs

(see paragraphs 24 and 27 above).

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Case 4:21-cv-02624 Document 45-2 Filed on 05/18/22 in TXSD Page 12 of 20

48. As such, Plaintiff brings her claims as a class action on behalf of Black or Brown Class

Members because but for Defendants’ execution of Defendants’ Racist Policy in violation

of 42 U.S.C. § 198: Plaintiff and other Black or Brown Dancers would have been given

dancer positions or allowed to retain access for dancer positions (as applicable), and

Defendants would not have breached agreements and/or refused to enter access

agreements with Plaintiff and other Black or Brown Dancers.

49. Because Plaintiff is bringing breach of contract claims for the first time in this Third

Amended Complaint for being barred from COVER GIRLS in late November, 2017 (see

paragraph 34): Plaintiff asserts that the statute of limitations is tolled at least until filing of

this cause of action for breach of the Cover Girls Agreement Defendants had a duty to

produce the Cover Girls Agreement to Plaintiff under the Court’s INITIAL DISCOVERY

PROTOCOLS FOR EMPLOYMENT CASES ALLEGING ADVERSE ACTION by Nov. 3,

2021, and it was not produced until April 5, 2021.

50. Jonathan Edwards, a reporter for the Washington Post, called the undesigned counsel

on about August 18, 2021 and stated that he had spoken with Casey Wallace, lead

attorney for Defendants, who had told him that no personnel records for Plaintiff had been

located by any of Defendants. On October 1, 2021, the undersigned counsel emailed a

letter to Defendants’ counsel informing him that the Court’s INITIAL DISCOVERY

PROTOCOLS FOR EMPLOYMENT CASES ALLEGING ADVERSE ACTION was to

apply to initial disclosures required in this case, and noting that Defendants’ initial

disclosures under those rules (which include Plaintiff’s complete personnel records and

all her agreements with Defendants) were due by November 3, 2021. Plaintiff provided

Defendants her initial disclosures on November 3, 2021 but without identifying witnesses,

which Plaintiff sought to maintain confidential through a proposed protective order, that

Defendants’ counsel refused to enter. Defendants did not reciprocate with any initial

disclosures at that time; and not until April 5, 2022.

51. Had the Cover Girls Agreement been produced by Defendants on Nov. 3, 2021 as

the rules required, Plaintiff (who did not remember signing it) would have been aware of

it in sufficient time to file breach of contract claims within four years of Defendant W.L.

YORK, INC. d/b/a COVER GIRLS breach of the Cover Girls Agreement. Plaintiff did not

23-20440.595

(19a)

Case 4:21-cv-02624 Document 45-2 Filed on 05/18/22 in TXSD Page 13 of 20

demand her agreements immediately after Nov. 3, 2021 in separate correspondence or

production requests to Defendants’ counsel, because the undersigned counsel had been

told that no such records had been located (see paragraph 50).

52. Plaintiff further alleges that the following sections of her agreements (Exhibits A to

C) with Defendants are unconscionable and unenforceable, and related provisions in the

agreements with Defendant Clubs are also unenforceable:

Cover Girls Agreement (Exhibit C) ¶12: THE DANCER SHALL 1NDEMNIFY, HOLD

HARMLESS AND PAY FOR COVER GIRLS' DEFENSE FROM AND AGAINST ANY

AND ALL CLAIMS, LOSSES OR LIABILITY, INCLUDING ATTORNEYS' FEES,

AR1S1NG FROM OR RELATING TO THIS AGREEMENT OR THE DANCER'S

RELATIONSHIP WITH COVER GIRLS, INCLUDING LIABILITY ARISING FROM

COVER GIRLS’ OWN NEGLIGENCE.

Splendor Agreement (Exhibit B) ¶12: THE DANCER SHALL INDEMNIFY, HOLD

HARMLESS AND PAY FOR SPLENDOR'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 SPLENDOR, INCLUDING LIABILITY ARISING FROM SPLENDOR'S OWN

NEGLIGENCE.

Centerfolds Agreement (Exhibit A) ¶8: THE DANCER SHALL INDEMNIFY, HOLD

HARMLESS AND PAY FOR CENTERFOLDS'S DEFENSE FROM AND AGAINST ANY

AND ALL CLAIMS, LOSSES OR LIABILITY, INCLUDING ATTORNEYS' FEES, ARISING

FROM OR RELATING TO THE DANCER'S RELATIONSHIP WITH CENTERFOLDS,

INCLUDING LIABILITY ARISING FROM CENTERFOLDS'S OWN NEGLIGENCE.

Cover Girls Agreement (Exhibit C) ¶13(C): ANY AND ALL COVERED DISPUTES,

CLAIMS AND CONTROVERSIES SHALL BE SUBMITTED TO THE AMERICAN

ARBITRATION ASSOCIATION (THE "AAA”) OR ITS SUCCESSOR, INITIALLY FOR

MEDIATION.

23-20440.596

(20a)

Case 4:21-cv-02624 Document 45-2 Filed on 05/18/22 in TXSD Page 14 of 20

Splendor Agreement (Exhibit B) ¶13(C): ANY AND ALL COVERED DISPUTES, CLAIMS

AND CONTROVERSIES SHALL BE SUBMITTED TO THE AMERICAN ARBITRATION

ASSOCIATION (THE "AAA”) OR ITS SUCCESSOR, INITIALLY FOR MEDIATION.

Centerfolds Agreement (Exhibit A) ¶10 [A]ll disputes, claims or controversies arising out

of or relating to this Agreement and any matter related to alleged employment

independent contractor status, terms or conditions of service or employment, or

compliance with the Fair Labor Standards Act (the "FLSA") shall be submitted to the

American Arbitration Association (the "AAA"), or its successor, for mediation.

Cover Girls Agreement (Exhibit C) ¶13(H): NEITHER COVER GIRLS NOR THE

DANCER CAN FILE A CIVIL LAWSUIT IN COURT AGAINST THE OTHER PARTY

RELATING TO ANY COVERED DISPUTES, CLAIMS AND CONTROVERSIES.

Splendor Agreement (Exhibit B) ¶13(H): NEITHER SPLENDOR NOR THE DANCER

CAN FILE A CIVIL LAWSUIT IN COURT AGAINST THE OTHER PARTY RELATING TO

ANY COVERED DISPUTES, CLAIMS AND CONTROVERSIES.

Centerfolds Agreement (Exhibit A) ¶11: THE DANCER WHOSE NAME APPEARS

BELOW KNOWINGLY AND AFFIRMATIVELY WAIVES ANY RIGHT TO PARTICIPATE

IN ANY COLLECTIVE ACTION OR CLASS ACTION COMMENCED OR TO BE

COMMENCED IN ANY COURT OF LAW CONCERNING ANY CLAIMS RELATED TO

THIS AGREEMENT, TO HER RELATIONSHIP TO CENTERFOLDS AS A LICENSEEE,

OR OTHERWISE AS TO HER LEGAL RELATIONSHIP WITH CENTERFOLDS.

Cover Girls Agreement (Exhibit C) ¶11: In the event any action is commenced to enforce

or interpret the terms or conditions of this Agreement, Cover Girls shall, in addition to any

costs or other relief, be entitled to recover its reasonable attorneys' fees.

Splendor Agreement (Exhibit B): ¶11: In the event any action is commenced to enforce

or interpret the terms or conditions of this Agreement, Splendor shall, in addition to any

costs or other relief, be entitled to recover its reasonable attorneys' fees.

23-20440.597

(21a)

Case 4:21-cv-02624 Document 45-2 Filed on 05/18/22 in TXSD Page 15 of 20

Centerfolds Agreement (Exhibit A) ¶7: In the event any action is commenced to enforce

or interpret the terms or conditions of this Agreement, Centerfolds shall, in addition to any

costs or other relief, be entitled to recover its reasonable attorneys' fees.

Cover Girls Agreement (Exhibit C):¶14. WAIVER OF CLASS OR COLLECTIVE

CLAIMS.¶

Splendor Agreement (Exhibit B) ¶14. WAIVER OF CLASS OR COLLECTIVE CLAIMS.

Centerfolds Agreement (Exhibit A) ¶11:

Arbitration sha11 proceed solely on an

individual basis without the right for any c1aims to be arbitrated on a collective or c1ass

action basis or on bases involving claims brought in a purported representative capacity

on behalf of others.

Cover Girls Agreement (Exhibit C) ¶15: COVER GIRLS 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 COVER GIRLS AND THE DANCER IS ONE OF

EMPLOYER AND EMPLOYEE, THE DANCER SHALL SURRENDER, REIMBURSE

AND PAY TO COVER GIRLS ALL MONEY RECEIVED BY THE DANCER AT ANY TIME

SHE PERFORMED ON THE PREMISES OF COVER GIRLS - ALL OF WHICH WOULD

OTHERWISE HAVE BEEN COLLECTED AND KEPT BY COVER GIRLS HAD THE

PARTIES NOT ENTERED INTO THIS LICENSE AGREEMENT, AND THE DANCER

SHALL IMMEDIATELY PROVIDE A FULL ACCOUNTING TO COVER GIRLS OF ALL

INCOME WHICH SHE RECEIVED DURING THE RELEVANT TIME PERIOD.

Splendor Agreement (Exhibit B) ¶15: SPLENDOR 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 SPLENDOR AND THE DANCER IS ONE OF EMPLOYER AND EMPLOYEE,

THE DANCER SHALL SURRENDER, REIMBURSE AND PAY TO SPLENDOR ALL

MONEY RECEIVED BY THE DANCER AT ANY TIME SHE PERFORMED ON THE

PREMISES OF SPLENDOR - ALL OF WHICH WOULD OTHERWISE HAVE BEEN

COLLECTED AND KEPT BY SPLENDOR HAD THE PARTIES NOT ENTERED INTO

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(22a)

Case 4:21-cv-02624 Document 45-2 Filed on 05/18/22 in TXSD Page 16 of 20

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.

Cover Girls Agreement (Exhibit C) ¶16. THE SUBMISSION OF AN APPLICATION,

AUDITION AS A DANCER, ACCEPTANCE AS A DANCER OR THE CONTINUED

PERFORMANCE AS A DANCER SHALL BE DEEMED TO BE ACCEPTANCE OF THIS

ARBITRATION POLICY AND WAIVER OF CLASS OR COLLECTIVE ACTION CLAIMS.

NO SIGNATURE SHALL BE REQUIRED FOR THE ARBITRATION POLICY TO BE

APPLICABLE.

Splendor Agreement (Exhibit B) ¶16. THE SUBMISSION OF AN APPLICATION,

AUDITION AS A DANCER, ACCEPTANCE AS A DANCER OR THE CONTINUED

PERFORMANCE AS A DANCER SHALL BE DEEMED TO BE ACCEPTANCE OF THIS

ARBITRATION POLICY AND WAIVER OF CLASS OR COLLECTIVE ACTION CLAIMS.

NO SIGNATURE SHALL BE REQUIRED FOR THE ARBITRATION POLICY TO BE

APPLICABLE.

53. As noted in paragraph 44, Andrew Skwera (Exhibit D) notes that all dancers are

required to enter agreements at the Defendant Clubs similar to the one attached to his

declaration. This was confirmed by Defendants’ counsel at the hearing on May 12, 2022.

The recent exemplary agreement signed by a dancer in 2020 and referenced by Mr.

Skwera (Exhibit D), includes all of the same or similar unconscionable provisions as the

provisions listed in paragraph 52 for the Centerfolds Agreement (Exhibit A), the Splendor

Agreement (Exhibit B), and the Cover Girls Agreement (Exhibit C), meaning all the

unconscionable portions of Exhibits A to C continue to be required to be entered by

dancers at Defendant Clubs.

V. CAUSES OF ACTION

54. The effect of Defendants’ Racist Policy has been to deprive Plaintiff and other

prospective, current and former Black or Brown Dancers, as a class, of the same right to

make and enforce contracts as Caucasian female entertainers: who were not subject to

any numerical limitation at any Defendant Club based on their race. As such, Defendants’

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Case 4:21-cv-02624 Document 45-2 Filed on 05/18/22 in TXSD Page 17 of 20

execution of Defendants’ Racist Policy is in violation of 42 U.S.C. § 1981 and but for it,

Plaintiff and other Black or Brown Dancers would have been given dancer positions or

allowed to retain access for dancer positions (as applicable). Defendants’ execution of

Defendants’ Racist Policy and denial of access to Black or Brown Dancers is also a

material breach of the License and Access agreement which all dancers are required to

enter.

55. The Individual Defendants are jointly and severally liable with the corporate

defendants for all damages cause by Defendants Racist Policy as explained above in

paragraphs 12 and 13.

56. Defendant W.L. YORK, INC. d/b/a COVER GIRLS, is liable for numerous material

breaches of its License and Access Agreements with Plaintiff (which damaged Plaintiff)

including the following breaches:

(i) Cover Girls Agreement (Exhibit C): Plaintiff was denied the access right granted in

paragraph 1 “to perform entertainment services at Cover Girls.”

(ii) Plaintiff was denied the rights granted in the Cover Girls Agreement (Exhibit C)

paragraph 3 to: (i) “determine her schedule in performing the services,” (ii) “to arrive and

leave the premises at any time without penalty”; and (iii) to set her “own schedule of when

and what hours she works.” (see paragraphs 17 to 34 above). She was also denied the

“right to choose her own music.” (see paragraphs 22, 30 and 33 above); and

(iii) Defendant W.L. YORK, INC. d/b/a COVER GIRLS also breached its express

representation No. 19 in the “Policies Regarding Dancer Conduct” attached to the Cover

Girls Agreement (Exhibit C): “There is no mandatory tip sharing arrangement among

management, dancers, and employees. If you choose to voluntarily tip any manager,

dancer, waitress, bus boy, DJ, valet, or any other individual affiliated with Cover Girls, you

do so at your sole discretion.”

57. D WG FM, INC. d/b/a SPLENDOR materially breached its Splendor Agreement

(Exhibit B) which damaged Plaintiff, by denying Plaintiff the access right granted in

paragraph 1: “to perform entertainment services at Splendor.” See paragraphs 37-39

above.

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(24a)

Case 4:21-cv-02624 Document 45-2 Filed on 05/18/22 in TXSD Page 18 of 20

58. A.H.D. HOUSTON, INC. d/b/a CENTERFOLDS materially breached its Centerfolds

Agreement (Exhibit A) which damaged Plaintiff, by denying Plaintiff the access right

granted in paragraph 1: “to perform entertainment services at Centerfolds.” See

paragraph 36 above.

59. Plaintiff seeks a declaratory judgment that agreements with provisions the same or

similar to the Cover Girls Agreement (Exhibit C), the Splendor Agreement (Exhibit B)

and/or the Centerfolds Agreement (Exhibit A) are unconscionable and unenforceable

because they include unconscionable provisions (see paragraph 52) and are required to

be executed by dancers under circumstances where the unconscionable provisions are

not explained, or reviewed, and where even later review is impossible as no copy of the

agreement is provided to the dancer (see paragraphs 18, 26 and 31).

60. Plaintiff seeks a declaratory judgment that all the provisions listed in paragraph 52

from the Cover Girls Agreement (Exhibit C), the Splendor Agreement (Exhibit B) and

the Centerfolds Agreement (Exhibit A) are unconscionable and unenforceable against

Plaintiff; and further that all of paragraph 13 of the Cover Girls Agreement (Exhibit C)

and the Splendor Agreement (Exhibit B); and all of paragraphs 8 to 11 of the Centerfolds

Agreement (Exhibit A) are unconscionable and unenforceable against Plaintiff.

61. The unlawful practices enacted under Defendants’ Racist Policy were intentional and

when they are established at trial, make punitive damages appropriate as they can

provide an exemplary penalty for Defendants’ intentional and outrageous conduct.

VI. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that the Court:

62. Grant a Declaratory Judgment that Cover Girls Agreement (Exhibit C), the Splendor

Agreement (Exhibit B) or the Centerfolds Agreement (Exhibit A) are unconscionable

and unenforceable against Plaintiff;

63. Grant both a preliminary and a permanent injunction enjoining the Defendants, their

officers, successors, assigns, and all persons in active concert or participation with them,

from continuing to require dancers to enter agreements similar to any of the Cover Girls

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(25a)

Case 4:21-cv-02624 Document 45-2 Filed on 05/18/22 in TXSD Page 19 of 20

Agreement (Exhibit C), the Splendor Agreement (Exhibit B) or the Centerfolds

Agreement (Exhibit A).

64. Grant both a preliminary and a permanent injunction enjoining the Defendants, their

officers, successors, assigns, and all persons in active concert or participation with them,

from continuing Defendants’ Racist Policy or otherwise denying access or executing

policies and practices which discriminate against Black or Brown Dancers on the basis of

race, and remedying the effects of past discrimination by requiring additional proactive

hiring of Black or Brown Dancers at Defendant Clubs (i.e., entering License and Access

Agreements with additional Black or Brown Dancers);

65. Order Defendants to make whole Plaintiff and the Black or Brown Class Members by

awarding them appropriate back pay, with prejudgment interest in amounts to be

determined at trial, and other affirmative relief necessary to eradicate the effects of their

unlawful practices;

66. Order the reinstatement of Plaintiff and the Black or Brown Class Members as

entertainers/dancers with access, or award them front pay in the amounts to be

determined at trial if reinstatement is impractical;

67. Order Defendants to make Plaintiff and the Black or Brown Class Members whole by

providing compensation for past and future pecuniary losses resulting from the unlawful

practices described above;

68. Award punitive damages to Plaintiff and the Black or Brown Class Members for

Defendants’ intentional, outrageous and malicious conduct described above, in amounts

to be determined at trial;

69. Award Plaintiff’s Attorneys’ fees and costs associated with this action;

70. Award pre-judgment and post-judgment interest on all amounts recovered as

permitted by law; and

71. Grant such further relief as the Court deems necessary and proper in the public

interest.

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(26a)

Case 4:21-cv-02624 Document 45-2 Filed on 05/18/22 in TXSD Page 20 of 20

VII. JURY TRIAL DEMAND

Plaintiff requests a jury trial.

Respectfully Submitted,

By: /s/Eric P. Mirabel

Eric P. Mirabel

Texas State Bar No. 14199560

Southern District ID No. 9708

eric@emirabel.com

3783 Darcus St.

Houston, Texas 77005

Tel: 281 772-3794

Fax: 713 667 4234

CERTIFICATE OF SERVICE

On this 18th day of May, 2021, I hereby certify that a true and correct copy of the

foregoing document was served via the Clerk of the Court through the ECF system.

/s/ Eric Mirabel

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United States District Court

Southern District of Texas

ENTERED

September 28, 2022

Nathan Ochsner, Clerk

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Oral Deposition of Chanel E.M. Nicholson

Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CHANEL E.M. NICHOLSON, on

behalf of herself and

other similarly situated

Plaintiffs,

Plaintiff,

VS.

A.H.D. HOUSTON, INC.

d/b/a CENTERFOLDS, et

al.,

Defendants.

)

) CIVIL ACTION NO.

) 4:21-cv-02624

)

**************************************************

ORAL DEPOSITION OF

CHANEL E.M. NICHOLSON

NOVEMBER 18, 2022

(REPORTED REMOTELY)

**************************************************

ORAL DEPOSITION OF CHANEL E.M. NICHOLSON, produced

as a witness at the instance of the Defendant, and duly

sworn, was taken in the above-styled and numbered cause

on November 18, 2022, from 1:00 p.m. to 4:19 p.m.,

before Donna Wright, CSR in and for the State of Texas,

reported by machine shorthand and remotely via Zoom,

pursuant to the Federal Rules of Civil Procedure, the

22nd Emergency Order Regarding the COVID-19 State of

Disaster, and any stipulations or agreements stated on

the record or attached hereto.

Infinity Reporting Group, LLC

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Oral Deposition of Chanel E.M. Nicholson

Page 2

APPEARANCES

FOR THE PLAINTIFF:

Mr. Eric P. Mirabel

ERIC PAUL MIRABEL, JD, LLM

3783 Darcus Street

Houston, Texas 77005

(281) 772-3794

eric@emirabel.com

FOR THE DEFENDANTS A.H.D. HOUSTON, INC. D/B/A

CENTERFOLDS, ET AL.:

Mr. William X. King

WALLACE & ALLEN, LLP

440 Louisiana Street

Suite 590

Houston, Texas 77002

(713) 227-1744

wking@wallaceallen.com

Page 4

CHANEL NICHOLSON,

having been first duly sworn, testified as follows:

EXAMINATION

BY MR. KING:

Q. Good afternoon, Ms. Nicholson. How are you?

A. I'm fine. How are you?

Q. I'm doing all right. My name is William King

and I'm one of the attorneys for the defendants in this

case. Have you ever been deposed before?

A. No.

Q. Okay. Well, since you have never been deposed

before, I'll just give you a couple of etiquette and

ground rules.

The first one is during the course of

depositions, people start to get into kind of a

conversational mode with each other and sometimes

people talk over each other a little bit, and that

makes it hard for the court reporter to take down

what's being said. So if I say, you know, "Hold on" or

"Let me finish my question," please don't take that

personally.

A. Okay.

Q. The second thing is, sometimes I ask questions

that come out like word salad and don't make any sense.

So if -- if you don't understand a question that I'm

Page 3

INDEX

Appearances..................................... 2

CHANEL E.M. NICHOLSON

Examination by Mr. King......................... 4

Witness' Signature Page......................... 138

Reporter's Certificate.......................... 140

EXHIBITS

NUMBER

DESCRIPTION

Exhibit A ................................ 10

Houston Chronicle article dated

8/16/21

Exhibit B ................................ 12

Washington Post article dated

8/19/21

Exhibit C ................................ 15

Chanel Nicholson's resume

Exhibit D ................................ 30

TikTok Creator Fund Dashboard

Exhibit E ................................ 53

Cover Girls Dancer Packet

Exhibit F ................................ 75

Splendor Dancer Packet

PAGE

Page 5

asking, please ask me for clarification and I'll be

happy to do so. Okay?

A. Okay.

Q. All right. The third thing is it's also easy

for witnesses to go "uh-huh" or "huh-uh" to give a yes

or no. So if I ask you, "Can you give me a yes or no",

again, please don't take that personally. All right?

A. Uh-huh.

Q. Okay.

A. Yes.

Q. "Okay" is fine, too.

A. Okay.

Q. All right. What have you done -- excuse me.

What have you done to prepare for today's

deposition?

A. I just looked over my complaint.

Q. Okay. So you've read the lawsuit that's been

filed in this case, right?

A. Yes, the third amended complaint.

Q. Great. Have you done anything else?

A. No.

Q. Did you talk with your lawyer?

A. Yes.

Q. Okay. And I don't want to know what y'all

talked about. A "yes" is just fine.

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Oral Deposition of Chanel E.M. Nicholson

Page 22

to Splendor in late 2016?

A. Yes.

Q. Got it. And then when did your time at

Splendor permanently come to an end? Was that November

of 2016?

A. It came to an end -- I wouldn't -- they didn't

really fire me. They just didn't let me in the club.

So it was around -- around that time.

Q. That time being somewhere -- November of 2016,

somewhere in that month, right?

A. When I stopped or when I started?

Q. When you stopped.

A. Yes, late 2016.

Q. What was the next club that you started

working at?

A. After Splendor?

Q. Yes, ma'am.

A. I started working at Glamour Girls and -yeah, I started working at Glamour Girls.

Q. Approximately when did you start working at

Glamour Girls?

A. In 2017.

Q. Do you remember about what month, maybe?

A. No.

Q. Was it in early 2017?

Page 24

A. Yes.

Q. Got it. All right. Exhibit C also says that

you worked at Solid Platinum.

A. Uh-huh.

Q. From about when to when were you working at

Solid Platinum?

A. Around the same time. Like I went from

Glamour Girls to Cover Girls, and then I started doing

Solid Platinum all within that timeframe.

Q. That timeframe being -A. End of 2017.

Q. End of 2017?

A. Uh-huh.

Q. All right. About how long were you working at

Solid Platinum?

A. A few months. I would jump between Solid

Platinum and Cover Girls.

Q. How would you decide which club to perform at?

A. As in Davari clubs?

Q. Well, as between Solid Platinum and Cover

Girls.

A. Well, when I would walk in they would tell me

that I couldn't work there. So I would just -- they

didn't allow me access to Cover Girls, so I would just

go up the street to Glamour Girls because it was right

Page 23

A. Yes, around early 2017.

Q. Are you able to put that into like a season or

maybe an approximate month?

A. No. I don't really remember.

Q. After Glamour Girls, where did you start

performing?

A. Cover Girls.

Q. Before we talk about Cover Girls, is there any

reason that you left Glamour Girls?

A. The money was just not doing what it was

supposed to do.

Q. You just didn't find Glamour Girls to be a

particularly lucrative club for yourself, right?

A. No, but I had to work there.

Q. I have got that you began working at Cover

Girls at some point in November of 2016; is that

accurate?

A. Yes.

Q. Okay. And that your time at Cover Girls came

to an end in November of 2017, right?

A. My time at what club?

Q. Cover Girls.

A. November 2017.

Q. Okay. So were you working at both Glamour

Girls and Cover Girls kind of at the same time?

Page 25

around the corner.

Q. Okay. Is Glamour Girls another club that you

would characterize as like a Davari club?

A. No.

Q. No, it's not?

A. No.

Q. You also worked at Sunset Strip?

A. Yes.

Q. Can you give me a rough date range when you

were working at Sunset Strip.

A. End of 2017.

Q. So you began working at Sunset Strip somewhere

in the latter part of 2017?

A. Yes.

Q. And about how many months were you working

there?

A. Not long because I got pregnant with my second

child. So I would say about like -- oh, it says it

right here, March -- around March 2017.

Q. So you stopped work at -- did you stop work at

all clubs in around March of 2017?

A. No. I'm trying to remember. Give me a

second.

Q. Sure.

A. I got pregnant. What was the question again?

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Oral Deposition of Chanel E.M. Nicholson

Page 50

A. Yes. Which question are you asking me?

Q. Sorry?

A. Which question are you asking me, how many

times did I try or how many times that I actually was

able to go in?

Q. Right. We will start with how many times you

tried on average per week.

A. Okay. About six -- six days a week. I would

like to work Monday through Saturday.

Q. So your preference was to try to work six

shifts per week, Monday through Saturday, right?

A. Uh-huh.

Q. Sorry, was that a yes?

A. Yes.

Q. How many shifts on average were you able to

actually work at Cover Girls?

A. I would probably get in for my shift, pay my

house fee, and then the manager would come tell me I

have to go. So it was like -- it was hard to really

count it. Does that make sense? I'll get in there and

start to work and then I had to go. So -Q. Okay. How often would that circumstance

happen where you pay your house fee, start performing,

and then you're told to leave?

A. A lot.

Q. Are you able to quantify that on like an

average basis per week?

A. At least three times a week.

Q. Would you get a refund of your house fee?

A. No.

Q. Average per week, how many times would you be

able to complete a shift without being told to go home?

A. Maybe three -- three days.

Q. So in other words, 50 percent of the time that

you would go to perform at Cover Girls between November

2016 and November 2017, you would be told to go home?

A. Yes.

Q. And who -- who were the managers telling you

to go home?

A. Whatever acting manager was there at the time.

I don't remember.

Q. And did you -- did you try to work every week

at Cover Girls between November 2016 and November 2017?

A. I tried, but it didn't work out like that.

Q. When you would go to Cover Girls to try to

work a shift, how often -- excuse me -- how often would

you sign in and then be told you needed to go home?

A. A lot.

Q. A lot? Are you able to put that on like an

average basis?

Page 52

A. I would get into the club, into the locker

room, change, on the floor, and then told to leave.

Q. And was every time that you were told you had

to leave because somebody told you that there were

already too many black dancers working that shift?

A. Are you asking me a question?

Q. Yes.

A. What's the question?

Q. Sure. On every one of those occasions where

you would sign in, you would get on the floor, and a

manager would tell you, "You've got to go home," was it

because the manager told you there were already too

many black dancers working that shift?

A. Yes. This was like not a secret. It wasn't

like a -- everybody knew. This was just normal.

Q. Right.

A. Like it was just a thing and you would just

have to accept it.

Q. And I know some of my questions are dumb.

I've just got to ask them.

A. No. I believe you already know the answers.

You know how these clubs are.

Q. So every time that you were told to go home, a

manager would say, "We've already got so many black

dancers here"?

Page 51

Page 53

A. Not every single time, but most of the time.

Q. More than 50 percent?

A. Yes, more than 50 percent.

THE REPORTER: Did you say 75?

THE WITNESS: 50.

THE REPORTER: Okay, I'm sorry.

THE WITNESS: It's okay.

Q. (BY MR. KING) Did this -- did this

circumstance start happening like in November of 2016?

A. Like the racism?

Q. Where you would show up, sign in, and be told

to take a hike.

A. No, it started when I was 18 years old.

Q. Oh, I'm just talking about Cover Girls right

now.

A. Oh, Cover Girls.

Q. Yes.

A. So did it start from the beginning all of the

way to the end?

Q. Yeah.

A. Yes.

Q. It started from the beginning, right?

A. Uh-huh.

Q. Let me do this.

(Exhibit E marked)

14 (Pages 50 to 53)

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Oral Deposition of Chanel E.M. Nicholson

Page 54

Q. (BY MR. KING) I put into the chat Exhibit E.

A. Okay.

Q. Just let me know when you're able to pull that

up.

A. Okay, I've got it. Royce, I haven't seen that

name in so long. Okay, I'm looking at it. I've got

it.

Q. Have you ever seen Exhibit E before?

A. Yes.

Q. If you would turn to the second page of

Exhibit E, is that your signature at the bottom?

A. The second page?

Q. Yeah, where it says Nicholson_AHD_000023.

A. No, it says 000022.

Q. I'm talking about the next page, sorry.

A. Okay. Yes.

Q. All right. You're not denying that you signed

this document, right?

A. No, that's my signature. I don't remember

signing it, but that's my signature.

Q. Sure, I get it. But you're not saying like

somebody forged your signature on this or anything like

that, right?

A. No.

Q. Okay. And this shows that you signed it on

Page 56

Q. Yeah. Was it like the next day, the next

week?

A. It was within the first week, but I was kind

of used to it. It wasn't like -- I don't know. I

would just leave and go to the freaking club up the

street.

THE REPORTER: Wait, what was that last

part?

THE WITNESS: When they would tell me to

leave because there were too many black girls, I would

just go to the club up the street, which was Glamour

Girls.

Q. (BY MR. KING) Did you ever tell anybody -well, strike that.

Can you turn to Page 37? It's like 16

pages down.

A. Okay, one second. 37?

Q. Yeah, Nicholson_AHD_000037.

A. 37 or 36?

Q. 37.

A. Okay. Just making sure, 37.

Q. All right. Do you recall Andy Skwera signing

this document?

A. Not really, no.

Q. Do you recall working with Andy Skwera at

Page 55

November 6th of 2016.

A. Uh-huh.

Q. Does that sound accurate?

A. Yes.

Q. Okay. So after you signed this Exhibit E, do

you recall when you started performing like your

first -- your first shift at Cover Girls, do you

remember when that was?

In other words, was it like the same day

or the next day or a week later?

A. When they started the racist stuff, making me

leave?

Q. No. Just when you started working, like your

first shift.

A. What are you asking me?

Q. Okay. So you signed this -- sure. You signed

this document on November 6th.

A. Okay.

Q. When was your first shift at Cover Girls?

A. More than likely that night.

Q. Okay, got it. And do you recall after

November 6th, roughly, when, you know, your first -the first time somebody told you you've got to leave

for a racist reason?

A. Do I recall the first time it happened?

Page 57

Cover Girls?

A. Yes, kind of.

Q. Did he ever tell you that you needed to leave

because there were already too many black dancers

there?

A. He didn't tell me that. He was kind of nice

to me. But we would -- we would talked about like -this was like not a secret thing. Like this was

something that was a little talked about, and he would

talk about it all the time.

Q. Okay. So did he ever say, "You've got to go

home"?

A. Not that I recall, no.

Q. Did you have any kind of schedule at Cover

Girls?

A. Like a time that I had to be there?

Q. Yeah.

A. No, I could come and go as I would choose.

Q. How much income during a shift would you make

during your time at Cover Girls?

A. Oh, it ranges. That can range from 300

to 2,000, 3,000.

Q. It depends on a lot of different things,

right?

A. Yes. Every day was very different. So when I

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Oral Deposition of Chanel E.M. Nicholson

Page 74

happens sometimes.

A. Oh, it happens.

Q. Yeah. And so no one ever said, "Hey, we think

that you're, you know, soliciting prostitution," or

something like that, right?

A. No.

Q. Okay.

A. It was encouraged.

Q. But, to your knowledge, at Cover Girls, no

managers ever said, "Hey, Chanel, Royce, you can't -you can't do that with customers"?

A. No.

Q. And you never got in any fights with any other

dancers or anything like that?

A. No. I don't fight. Look at this.

Q. Dancer fights happen. Have you ever seen a

dancer fight?

A. Yes. That's why I never do it. Oh, no, I'll

get in the car and leave. I'll run. I'm a runner. I

don't do that. Call me scared all you want to. My

hair costs a lot. No.

Q. All right. Let's talk about Splendor. You

were there between, roughly, September 2014 and

November 2016, true?

A. Okay. So that would be -- I'm trying to

Page 76

A. Yes.

Q. After you signed this, do you recall working

the same day or -A. Yes.

Q. You did?

A. It was always the same day.

Q. And -- okay. You worked at Splendor through

November of 2016, right?

A. Yes.

Q. How often, on average, would you actually work

a shift at Splendor on a weekly basis?

A. About four shifts a week, about seven hours.

Q. And how often at Splendor would you be told

you can't work a shift?

A. A lot. I've had to hide before because Bob

Piers was there.

THE REPORTER: You had to -- I'm sorry,

can you say it again?

THE WITNESS: Oh, you're writing it down.

I forgot. I said I've had to hide before because Bob

Piers was there.

Q. (BY MR. KING) All right. And so you

typically worked four shifts a week during your time at

Splendor?

A. Yes.

Page 75

adjust my seat. Can I go grab one of my pillows to sit

on? Is that okay?

Q. Sure. You want to take a five-minute break?

A. No, we're not getting no breaks.

Q. Go for it.

(Recess from 2:40 p.m. to 2:46 p.m.)

THE REPORTER: We're back on the record.

Q. (BY MR. KING) All right. Ms. Nicholson,

we're back on the record, and I want to ask you about

Splendor. You began working there in roughly September

of 2014. I'm going to put in the chat Exhibit F.

(Exhibit F marked)

Q. (BY MR. KING) All right. Let me know when

you open that up.

A. Opening it now. Oh, Lordy. Yes, I got it.

Q. Okay. Have you ever seen Exhibit F before?

A. I guess. I don't remember seeing it, but my

signature -- is that my signature? Yeah, that's my

signature. I don't remember seeing it, no.

Q. But you're not -- you're not denying that's

your signature on Nicholson_AHD_000054?

A. Yeah, that's -Q. Okay. And it appears that this was signed on

September -- it looks like 29th of 2014. Does that -does that seem right?

Page 77

Q. And how many times would you be told per week,

on average, you know, you've got to go home?

A. Two to three.

Q. Okay.

A. The difference was -- with Splendor is -- this

is disgusting, but I could have stayed if I would have

performed a sexual favor.

Q. My question is a little different. I'm just

trying to figure out what like portion of the time -amount of time would you be told you can't work a shift

by a manager?

A. A couple times a week.

Q. Okay. So would you go and try to work a shift

at Splendor like five or six times a week or something

like that?

A. I would try to go all seven days just because

I was told to leave. So I'm like, "Okay, well, I've

still got to make some money, so let me keep trying to

go and I can get in when I can get in."

I hope that answers your question.

Q. Yeah. And that's what I'm -- I'm just trying

to figure out kind of the math a little bit.

A. Okay.

Q. Because in the complaint it says that you

typically worked four shifts per week.

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A. Uh-huh.

Q. And so I'm trying to figure out like, okay,

well, on an average basis weekly, how many times were

you told to go home?

A. Okay. So those four shifts a week were the

days I was able to work.

Q. Right.

A. I would try to work the whole week, but it

always ended up being like four shifts for this many

hours because I was told to leave. Does that make

sense?

Q. Yes.

A. Okay.

Q. You went back to Splendor on August 11th

of 2021, right?

A. Yes.

Q. And this was a couple years after your last

day at Splendor, which was at some point in November

of 2016, right?

A. Yes.

Q. Let's -- let's start with your last day at

Splendor in November of 2016.

A. Okay.

Q. Were you -- were you permanently barred -- did

anyone say you were permanently barred from working

Page 80

A. No, not him.

Q. Not him. When he said, "Go try out at Joy -Joy Men's Club," did he suggest that you go work at

Centerfolds?

A. Uh-huh.

Q. He did?

A. Uh-huh. He said, "You should try

Centerfolds."

Q. Did you try to go to Centerfolds after that?

A. No, because I talked to Joey right after I

talked to him, and Joey walked me outside.

Q. Was Joey a manager on duty at the time?

A. Yes. He usually is the hiring manager, but he

said he had his hiring privileges taken from him.

Q. So do you know Joey's last name?

A. No.

Q. Where did you meet Joey?

A. Splendor.

Q. Yes. Was it like inside the club?

A. Oh, are you talking about when did I first

meet him or -Q. I'm sorry, I'm just talking about -A. Oh, that day?

Q. Yeah, that day.

A. Oh, okay. I asked to speak with Joey. I go,

Page 79

there in November of 2016?

A. Because I was -- no, I was never told like,

"You're fired," no.

Q. You just decided to stop performing there at

some point?

A. Right, uh-huh.

Q. Going back to August 11th of 2021, you showed

up there at 7:00, right?

A. Uh-huh.

Q. And who did you talk to?

A. First I talked to a relative of the Davaris,

some short round guy.

Q. A short brown guy?

A. Uh-huh, he was round. Very round.

Q. Oh, round. I thought you said brown.

A. No, round with black hair. I don't know his

name.

Q. You don't know his name?

A. Never seen him before. That was my first

time.

Q. And what did he tell you?

A. Oh, he said, "We're not hiring. You've got a

better chance trying to get hired at like Joy or

something."

Q. Anything else that he told you?

Page 81

"Can I talk to Joey?" And Joey comes out, then he

starts to walk with me outside and then -- yeah, he

walked me outside.

Q. And what did Joey tell you?

A. He told me he would hire me in a heartbeat,

but they're not taking any more black girls at this

location, especially since COVID. Those are his exact

words.

Q. You broke up there on the last part or got

garbled.

A. He said they're not taking any more black

girls at this location, especially since COVID, so I

should go try Centerfolds or Joy.

Q. Do you know why he said go try Centerfolds?

A. No.

Q. Do you know how many black dancers were at

Splendor on August 11th, 2021 when you showed up?

A. I don't think there were any because I was

kind of able to look, but I didn't see any. I saw a

lot of blonde Spanish women and some white girls, but I

did not see one black girl, not one. I didn't see any.

Q. How far into Splendor were you able to get?

A. Have you been inside of Splendor?

Q. No.

A. Okay. So just right -- basically through the

21 (Pages 78 to 81)

Infinity Reporting Group, LLC

Office: 832-930-4484 Fax: 832-930-4485

23-20440.1327

(55a)

Case 4:21-cv-02624 Document 61-1 Filed on 12/05/22 in TXSD Page 22 of 58

Oral Deposition of Chanel E.M. Nicholson

Page 82

door. You can kind of see in the club. If you look,

you can see inside. So it's not -Q. But you didn't -- you didn't make it to the

locker room, though, right?

A. No.

Q. And did you see white dancers going into the

club?

A. Uh-huh.

Q. You did?

A. Uh-huh.

Q. How many?

A. Maybe two.

Q. Out of curiosity, how did you know that they

were dancers versus, you know, customers or waitresses

or something?

A. Waitresses look completely different than

dancers. I have been -- I have been in it a long time.

I can see the difference.

Q. So it was your impression that the white women

walking by you were -- they were going in to work as

dancers?

A. Yes. They had big bags to go change into

their dance clothes.

Q. Okay. Do you know if those individuals, those

white dancers, were applying for a position or already

Page 84

A. No.

Q. Was there a reason why you asked for Joey to

come out?

A. Because I remembered Joey. I don't know if he

would remember my face, but I was hoping he would

remember my face so I could be -- he could be like,

"Oh, okay, I know her, she can work here." I thought,

you know, I can pull some strings and get in. So

that's why I asked for Joey, but he didn't remember me.

Q. At the time, did you consider the contract

that you signed at Splendor, Exhibit F, still enforced?

A. I don't understand your question. Like did

I -- did I still work there? Like -Q. Let me ask it like this.

At every club you've ever worked at, you

signed some agreement like Exhibit F, right?

A. Uh-huh.

Q. Like a -- like a dancer agreement, right?

A. Yes.

Q. And you can't work as a dancer unless you sign

some kind of agreement with the club, right?

A. Correct.

Q. And you've heard of dancers' contracts being

canceled right?

A. No.

Page 83

had a position at Splendor?

A. I'm not sure what they were doing. If they

were applying or -- I don't know.

Q. You just don't know one way or the other,

right?

A. Huh-uh.

Q. Is that a no?

A. Right.

Q. Did you ask anybody if -- well, let me -- let

me back up.

This round individual who you say -- who

you believe was a relative -A. Yes, Joey told me he was a relative of the

Davaris.

Q. Okay. Joey told you he was a relative?

A. Uh-huh.

Q. Okay. Did that individual say, "You can't

work here because you're black"?

A. No.

Q. Joey came out, talked to you, and said, "We're

not hiring" -A. "Because you're black."

Q. Okay. Excuse me.

Did you have any phone calls with Joey

after that?

Page 85

Q. You've never heard of that?

A. Not being canceled, no.

Q. So when you went to Splendor in August

of 2021, were you expected to sign a new contract?

A. No.

Q. And is that because you recalled that you had

already signed a contract with Splendor -A. Yes.

Q. -- back in 2014?

A. I knew that I never got like fired, so I

didn't think I would have to go through the whole

rehiring process again, yeah.

Q. Right. Like giving your license and doing a

background check and stuff like that, right?

A. Yes.

Q. Okay. Was there anything in particular that

caused you to want to revive your dance career in 2021?

A. Uh-huh.

Q. What was that?

A. By this point, I had two little ones and I

wanted to buy my babies a house. That was my -- I'm

like, "Okay, we've been renting. I want to buy my kids

a house because they deserve a house."

And I want to, you know, now that I'm

older, take this money and invest it, do things with it

22 (Pages 82 to 85)

Infinity Reporting Group, LLC

Office: 832-930-4484 Fax: 832-930-4485

23-20440.1328

(56a)

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Oral Deposition of Chanel E.M. Nicholson

Page 122

normally do. But I'm going to start it back up pretty

soon. I've just got to get out of this depression funk

and get out of this.

Q. Okay. Do you have any other -- well, strike

that.

Do you have any entities?

A. What do you mean?

Q. Like any companies, like a limited liability

company or a nonprofit or -A. No, no, no.

Q. Cover Girls, the race discrimination you

experienced happened basically right after you signed

that contract with them and started performing, right?

A. Yes.

Q. And it continued throughout your time at Cover

Girls, right?

A. Yes.

Q. So in November of 2016, right away the

managers were preventing you from performing because of

your race, right?

A. Well, I went to try to get hired at Cover

Girls a few times before I was actually brought on.

Q. Right.

A. I always found like some kind of a connection

with a girl inside that would help me get in because

Page 124

Q. It was immediate?

A. Uh-huh.

Q. And after signing Exhibit E, do you recall

working the day after signing Exhibit E at all?

A. Which one is Exhibit E?

Q. That's the Cover Girls agreement.

A. Okay. What's the question?

Q. Yes. Did you work the next day,

November 7th, 2016? Do you recall that?

A. More than likely I did, but I don't remember

the day.

Q. I mean, I don't expect you to -A. More than likely I worked the next day, but I

don't remember like exactly what happened on that

particular day.

Q. Sure. But shortly after signing this you

encountered racial discrimination at Cover Girls,

right?

A. Yes.

Q. That resulted in you not being able to access

the club, right?

A. Yes.

Q. At Splendor, you signed the Splendor agreement

on September -- what does it say -- it looks like

September 27th, 2014, right? That's Exhibit F.

Page 123

they wouldn't let me in until somebody talked to a

really cool manager and was like, "Please, let my

friend in." So -- but, yes, right away.

Q. Okay. And you signed the Cover Girls

agreement on November 16th, 2016, and then you started

performing the same day, I think you said, right?

A. Uh-huh.

Q. How soon after you signed this did you first

experience any kind of denial of access because of your

race?

A. I want to say while I was signing the

contract, just about every -- because when -- at first

I didn't remember signing the contract, especially

after y'all said I didn't. You know, remember when

y'all came up and said, "We don't have any records for

her, she's crazy." Then y'all found the records and I

was like, "Okay, maybe I did sign it."

Then I started to remember how everything

went, and usually every time I would sign one I'm

always talking with a manager and they would literally

tell me, you know, "We really don't like to hire black

women here, but you know such and such, so we're going

to let you in, blah, blah, blah, sign here, sign here.

Go get on the floor," or whatever.

So yeah, immediately.

Page 125

A. Okay.

Q. The same questions. Did you experience racial

discrimination at Splendor that eliminated your right

or impaired your right to access the club like right

after signing this?

A. Yes.

Q. And that continued throughout your time at

Splendor, true?

A. Yes, my whole dance -- my whole dance career,

yes.

THE REPORTER: Yes, what? I didn't hear.

THE WITNESS: That was my whole dance

career with the Davari clubs.

Q. (BY MR. KING) This wasn't something that, you

know -- it wasn't like you started performing at Cover

Girls, and then six months after you signed the

contract all of a sudden -A. No.

Q. -- bad things were happening, right?

A. I wish I had a good six months to go in there

and make some money like that. But, no, I never had -I never got a chance to do that, no.

Q. The same issue with Splendor, it wasn't as

though you signed this contract, you worked there for

six months without a problem, and then all of the

32 (Pages 122 to 125)

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Office: 832-930-4484 Fax: 832-930-4485

23-20440.1338

(57a)

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Oral Deposition of Chanel E.M. Nicholson

Page 126

sudden you got a manager interfering with your -A. Immediately.

Q. It was immediate? Okay.

You went back to try to work at Splendor.

It was your -- you were under the impression that you

didn't need to audition all over again because you had

already been working there, right?

A. Uh-huh.

Q. That's a yes?

A. Yes, that's a yes.

Q. And at Cover Girls, your last day there was at

some point in November of 2017, but you don't remember

exactly when, right?

A. I don't know the exact date, no.

Q. All right. And you don't remember whether it

was in the first half of November or the last half of

November, right?

A. No, I don't remember.

Q. And you don't recall whether your last day at

Cover Girls was before or after Thanksgiving, right?

A. It was after. It was a little bit after, like

right after Thanksgiving.

Q. Okay. Right after Thanksgiving?

A. Right after, yeah, because I remember going to

my mom's house.

Page 128

were going to, you know, try to do me. I didn't think

it was going to be that bad. I didn't think he was

going to come out there and tell me, "We're not hiring

anymore black girls, especially since COVID."

Q. It didn't come as a shock to you, though, what

happened on August of 2021?

A. It kind of did at the time.

Q. Yeah?

A. At that particular time, yes, because at first

I thought Joey would remember me, but he didn't so. I

was shocked because he didn't remember me. I was like,

"Dude, you sexually assaulted me and everything. How

do you not remember me? Look at my face."

So yes, it was kind of a shock at that

time because I looked really good, I -- nothing was

wrong with me. I was perfectly qualified. And, yeah,

I'm too black.

Q. Can you give me the names of the medical

professionals that you are seeing for anxiety?

A. Yes. His name is Dr. Kachi at Next Level

Psychiatry.

Q. Do you know Dr. Kachi's first name?

A. Oh, no. He is an African man. It's very hard

to say. It's really long.

Q. Do you know how to spell Kachi?

Page 127

Q. And you don't recall anyone telling you at

Cover Girls that you were permanently barred, right?

A. No.

Q. No one ever told -- said, "Hey, you're

permanently barred, don't ever come back," right?

A. No.

Q. And the same is true with respect to Splendor;

no one at Splendor ever said, "Hey, don't ever come

back," right?

A. No.

Q. Okay. At Centerfolds, no one ever told you,

"You're permanently barred, you can never come back,"

right?

A. No.

Q. When you were at Splendor in 2021, were you at

all braced for the possibility that you would be told

you could not perform because there were too many black

girls there?

A. Yeah, I was prepared for it, but I wasn't

prepared to not be able to go in there at all.

Q. What do you mean?

A. You know, by this time I know how -- you know,

I'm older and I have experience with how this works and

what it is. I thought I would be -- yes, I thought I

would be able to get a job. I kind of knew how they

Page 129

A. I spelled it K-a-c-h-i, but I don't know if

that's the right spelling.

Q. Is Dr. Kachi a therapist?

A. No, he is my psychiatrist.

Q. He is -- okay. So he's your psychiatrist.

How long have you been seeing Dr. Kachi?

A. About a year with him. No, about seven months

with Dr. Kachi. And then I had -Q. So you -A. I bounced around for psychiatrists.

Q. Okay. So you began seeing Dr. Kachi after

this lawsuit was filed?

A. Uh-huh. After it, I couldn't -- I literally

thought the Davari brothers were going to like shoot at

my house. Like I swear, I'm not even trying to be

funny. I got so many like disturbing calls from other

like clients saying like, "Are you really doing this?

It's really dangerous."

So I was like terrified to sleep, so

that's when I got in touch with Dr. Kachi. So when

this first started happening, so I can -- I guess about

a little over a year.

Q. Has anyone made any threats against you?

A. No.

Q. No one has made any kind of threatening phone

33 (Pages 126 to 129)

Infinity Reporting Group, LLC

Office: 832-930-4484 Fax: 832-930-4485

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(58a)

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Oral Deposition of Chanel E.M. Nicholson

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CHANGES AND SIGNATURE

WITNESS NAME: CHANEL E.M. NICHOLSON

DATE OF DEPOSITION: NOVEMBER 18, 2022

PAGE

______________________________________________________

I, CHANEL E.M. NICHOLSON, have read the foregoing

deposition and hereby affix my signature that same is

true and correct, except as noted above.

___________________________

CHANEL E.M. NICHOLSON

LINE

CHANGE

Page 140

REASON

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CHANEL E.M. NICHOLSON, on )

behalf of herself and )

other similarly situated )

Plaintiffs,

)

Plaintiff,

)

VS.

) CIVIL ACTION NO.

) 4:21-cv-02624

A.H.D. HOUSTON, INC.

)

d/b/a CENTERFOLDS, et )

al.,

)

Defendants.

)

REPORTER'S CERTIFICATION OF THE ORAL

DEPOSITION OF CHANEL E.M. NICHOLSON

NOVEMBER 18, 2022

(REPORTED REMOTELY)

I, Donna Wright, a Certified Shorthand

Reporter and Notary Public in and for the State of

Texas, hereby certify to the following:

That the witness, CHANEL E.M. NICHOLSON, was

remotely duly sworn by the officer and that the

transcript of the oral deposition is a true record of

the testimony given by the witness;

That the original deposition was delivered to

Mr. William X. King;

That a copy of this certificate was served on

all parties and/or the witness shown herein on

______________________;

Page 139

THE STATE OF ________ )

COUNTY OF _________ )

Before me, _______________, on this day personally

appeared CHANEL E.M. NICHOLSON, known to me (or proved

me under oath or through ______________) (description

of identity card or other document) to be the

person whose name is subscribed to the foregoing

instrument and acknowledged to me that he executed

the same for the purposes and consideration therein

expressed.

Given under my hand and seal of office, this

_______ day of _________________, __________.

________________________

NOTARY PUBLIC IN AND FOR

THE STATE OF ___________

My commission expires: _________________________

____ No Changes Made ____ Amendment Sheet(s) Attached

Page 141

I further certify that pursuant to FRCP Rule

30(3) that the signature of the deponent:

__X__ was requested by the deponent or a party

before the completion of the deposition and that the

signature is to be before any notary public and

returned within 30 days from date of receipt of the

transcript. If returned, the attached Changes and

Signature Page contains any changes and the reasons

therefore:

____ was not requested by the deponent or a

party before the completion of the deposition.

I further certify that I am neither counsel

for, related to, nor employed by any of the parties or

attorneys in the action in which this proceeding was

taken, and further that I am not financially or

otherwise interested in the outcome of the action.

Certified to by me on this, the ______ day of

_______________, 2022.

_______________________________

DONNA WRIGHT, Texas CSR 1971

Expiration Date: 11/30/24

INFINITY REPORTING GROUP, LLC

11200 Richmond Avenue

Suite 410

Houston, Texas 77082

(832) 930-4484

Firm Registration No. 702

36 (Pages 138 to 141)

Infinity Reporting Group, LLC

Office: 832-930-4484 Fax: 832-930-4485

23-20440.1342

(59a)

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Oral Deposition of Chanel E.M. Nicholson

Page 142

COUNTY OF TRAVIS )

STATE OF TEXAS )

I hereby certify that the witness was notified

on _________________ that the witness has 30 days or

(______ days per agreement of counsel) after being

notified by the officer that the transcript is

available for review by the witness and if there are

changes in the form or substance to be made, then the

witness shall sign a statement reciting such changes

and the reasons given by the witness for making them;

That the witness' signature was/was not returned as

of _____________________.

Subscribed and sworn to on this, the ________ day

of ____________________, 2022.

_______________________________

INFINITY REPORTING GROUP, LLC

11200 Richmond Avenue

Suite 410

Houston, Texas 77082

(832) 930-4484

Firm Registration No. 702

37 (Page 142)

Infinity Reporting Group, LLC

Office: 832-930-4484 Fax: 832-930-4485

23-20440.1343

(60a)

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47-2 Filed on 12/05/22

06/24/22 in TXSD Page 6 of 32

NICHOLSON_AHD_000056

23-20440.1370

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47-2 Filed on 12/05/22

06/24/22 in TXSD Page 7 of 32

NICHOLSON_AHD_000057

23-20440.1371

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NICHOLSON_AHD_000058

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NICHOLSON_AHD_000059

23-20440.1373

(64a)

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47-2 Filed on 12/05/22

06/24/22 in TXSD Page 10 of 32

NICHOLSON_AHD_000060

23-20440.1374

(65a)

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47-2 Filed on 12/05/22

06/24/22 in TXSD Page 11 of 32

NICHOLSON_AHD_000061

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NICHOLSON_AHD_000025

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NICHOLSON_AHD_000026

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NICHOLSON_AHD_000027

23-20440.1403

(69a)

Case

Case4:21-cv-02624

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Filedon

on06/24/22

12/05/22in

inTXSD

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on06/24/22

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inTXSD

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23-20440.1406

(72a)

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United States District Court

Southern District of Texas

ENTERED

May 24, 2023

Nathan Ochsner, Clerk

23-20440.1541

(73a)

Case 4:21-cv-02624 Document 68 Filed on 05/24/23 in TXSD Page 2 of 14

23-20440.1542

(74a)

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23-20440.1543

(75a)

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23-20440.1544

(76a)

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23-20440.1545

(77a)

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23-20440.1546

(78a)

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23-20440.1547

(79a)

Case 4:21-cv-02624 Document 68 Filed on 05/24/23 in TXSD Page 8 of 14

23-20440.1548

(80a)

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23-20440.1549

(81a)

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23-20440.1550

(82a)

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23-20440.1551

(83a)

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23-20440.1552

(84a)

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23-20440.1553

(85a)

Case 4:21-cv-02624 Document 68 Filed on 05/24/23 in TXSD Page 14 of 14

23-20440.1554

(86a)

Case: 23-20440

Document: 21

Page: 1

Date Filed: 10/30/2023

APPENDIX B

No. 23-20440

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Chanel E.M. Nicholson, On Behalf of Herself and Other Similarly Situated

Plaintiffs,

Plaintiff - Appellant

W.L. York, Incorporated, doing business as Cover Girls; D WG FM, Incorporated,

doing business as Splendor,

Defendants - Appellees

On Appeal from

United States District Court for the Southern District of Texas

4:21-CV-2624

BRIEF OF APPELLANT CHANEL NICHOLSON

SUBMITTED BY:

Eric Paul Mirabel

(281) 772-3794

3783 Darcus Street

Houston, TX 77005

(87a)

Case: 23-20440

Document: 21

Page: 2

Date Filed: 10/30/2023

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed persons and

entities as described in the fourth sentence of 5th CIR Rule 28.2.1 have an interest in

the outcome of this case. These representations are made in order that the judges of

this court may evaluate possible disqualification or recusal.

Appellees:

D WG FM, Incorporated

Counsel for Appellees:

William King of McDowell

Hetherington, L.L.P. Houston, TX

Casey Wallace of Wallace & Allen,

L.L.P. Houston, TX

Benjamin Allen of Wallace & Allen,

L.L.P. Houston, TX

William King of McDowell

Hetherington, L.L.P. Houston, TX

Casey Wallace of Wallace & Allen,

L.L.P. Houston, TX

Benjamin Allen of Wallace & Allen,

L.L.P. Houston, TX

Counsel for Appellants:

Eric Mirabel Houston, TX

Counsel for Interested Parties:

Nicholas Ventola,

OASIS FINANCIAL

9525 Bryn Mawr Avenue

Rosemont, IL 60018

D WG FM, Incorporated

W.L. York, Incorporated

Appellants:

Chanel Nicholson

Other Interested Parties:

Oasis Financial

S/Eric Paul Mirabel

Attorney of record for Appellant,

Chanel E.M. Nicholson

(88a)

Case: 23-20440

Document: 21

Page: 3

Date Filed: 10/30/2023

STATEMENT REGARDING ORAL ARGUMENT

Appellant waives oral argument.

iii

(89a)

Case: 23-20440

Document: 21

Page: 4

Date Filed: 10/30/2023

TABLE OF CONTENTS

Page(s)

Contents

CERTIFICATE OF INTERESTED PERSONS ....................................................... ii

STATEMENT REGARDING ORAL ARGUMENT ............................................. iii

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

TABLE OF AUTHORITIES .................................. Error! Bookmark not defined.

JURISDICTIONAL STATEMENT ..........................................................................3

STATEMENT OF THE ISSUES...............................................................................3

STATEMENT OF THE CASE ..................................................................................4

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

Payment and Often Resulting in Denial of Access, in Violation of the Terms of

Plaintiff’s L&A Agreements………………………………………………………4

A. Prior Work Experience and Work Experience at Centerfolds and Splendor ……5

B. Work Experience at Cover Girls ………………………………………………..7

C. Another Application and Rejection at Splendor ………………………….……..9

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

Are Not Employment Agreements…………………………………………..….10

3. Plaintiff’s License and Access Agreements with Cover Girls and Splendor

Imposed Ongoing Obligations on Defendants and Were Never Terminated by

Either Party ……………………………………………………………………..12

SUMMARY OF THE ARGUMENT ......................................................................13

ARGUMENT ...........................................................................................................15

(90a)

Case: 23-20440

Document: 21

Page: 5

Date Filed: 10/30/2023

A. Standard of Review ………………………………………………………15

B. Where There Are Discrete Discriminatory Acts, As Here, the Statutory

Clock for Section 1981 Claims Begins Anew with Each Such Discrete

Discriminatory Acts ………………………………………………………16

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

Commenced on August 11, 2021………………………………………….16

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

Against Cover Girls Commenced in Late November 2017 ……………..22

CONCLUSION ........................................................................................................23

CERTIFICATE OF SERVICE ..............................................................................244

CERTIFICATE OF COMPLIANCE .....................................................................255

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TABLE OF AUTHORITIES

CASES

PAGES

Boeing Co. v. Shipman,

411 F.2d 365 (5th Cir.1969) ............................................................................ 15

Cibolo Waste, Inc. v. City of San Antonio,

718 F.3d 469 (5th Cir. 2013) ........................................................................... 15

Delaware State College v. Ricks,

449 U. S. 250 (1980) ............................................................................. …17, 20

Hackett v. United Parcel Serv., No. 17-20581 (5th Cir. 2018) ………………..22

In re Monumental Life Ins. Co.,

365 F.3d 408 (5th Cir. 2004) ..................................................................... 16, 18

Johnson v. Crown Enters., Inc.,

398 F.3d 339 (5th Cir. 2005) ........................................................................... 22

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574; 106 S.Ct. 1348; 89 L.Ed.2d 538 (1986) ................................... 15

Moore v. Mississippi Valley State Univ.,

871 F.2d 545 (5th Cir.1989) ............................................................................ 15

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

536 U.S. 101 (2002) ........................................... 14, 15, 16, 17, 18, 19, 20, 21

Reid v. State Farm Mut. Auto. Ins. Co.,

784 F.2d 577 (5th Cir.1986) ............................................................................ 15

Teamah v. Applied Materials, Inc.,

715 Fed. Appx. 343 (5th Cir. 2017) ................................................................ 21

Valley Const. Co. v. Marsh,

984 F.2d 133 (5th Cir. 1993) ........................................................................... 15

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Waltman v. International Paper Co.,

875 F.2d 468 (5th Cir.1989) ............................................................................ 15

STATUTES

28 U.S.C.

§ 1291 ................................................................................................................ 3

§ 1331 ................................................................................................................ 3

42 U.S.C.

§ 1981 ................................................................................................................ 3

FEDERAL RULES

Federal Rules of Appellate Procedure

Rule 5 .............................................................................................................. 25

Rule 31(a)(1) ..................................................................................................... 3

Rule 32(a)(5) ................................................................................................... 25

Rule 32(a)(6) ................................................................................................... 25

Rule 32(a)(7)(B) .............................................................................................. 25

Rule 32(f) ........................................................................................................ 25

Federal Rules of Civil Procedure

Rule 59 .............................................................................................................. 3

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JURISDICTIONAL STATEMENT

(A) The district court had subject matter jurisdiction under 28 U.S.C. § 1331 because

this action arises under 42 U.S.C. § 1981. This is a case of intentional discrimination

in contracting where Plaintiff, an African-American, was not granted the same right

to contract as white citizens;

(B) This, the court of appeals’ jurisdiction is under 28 U.S.C. § 1291, because the

district court issued a final order and judgment on 6.19.2023 (ROA 1642-1646)

refusing to grant Appellant’s motion under Fed. R. Civ. P. 59 to amend or alter the

summary judgment (ROA.1541-1556) entered in favor of defendants;

10.23.2023, making filing of this Appellant’s Brief within the 40 day time period in

FRAP 31(a)(1); and

(D) This appeal is from a final order and judgment on 6.19.2023 (ROA 1642-1646)

denying Appellant’s motion amend or alter the summary judgment, and establishing

the court of appeals’ jurisdiction.

STATEMENT OF THE ISSUES

The sole issues for review are:

1. Was Defendant WL York dba Cover Girls (“Cover Girls”) refusing access to

its premises to Plaintiff Nicholson in late November 2017, because she is

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Black, a discrete act of discrimination commencing a new four-year statute of

limitations clock (to file an action) whereby the statutory period did not accrue

from denials of access to her at Cover Girls prior to the statutory period?

2. Was D WG FM, INC. d/b/a SPLENDOR’s (“Splendor”) refusing access to its

premises to Plaintiff Nicholson on August 11, 2021, because she is Black, a

discrete act of discrimination commencing a new statute of limitations clock

(to file an action) whereby the statutory period did not accrue from denials of

access to her at Splendor prior to the statutory period?

STATEMENT OF THE CASE

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

Payment and Often Resulting in Denial of Access, in Violation of the Terms of

Plaintiff’s L&A Agreements.

Plaintiff was never an employee of any of the defendants. Each time she had

a dancer/entertainer position she was party to a License & Access (“L&A”)

Agreement, the provisions of which are discussed in more detail in Section 1.D

below. The L&A Agreements with Splendor and Cover Girls granted Plaintiff

unlimited access to defendants’ 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

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penalty.1 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 also provide that there is no mandatory tipping of

managers or staff.3 The L&A Agreements had no automatic termination or timetriggered termination,4 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.

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

Plaintiff Nicholson began working as a dancer/entertainer at age 18 (in 2013)

at A.H.D. Houston, Inc. d/b/a Centerfolds (hereinafter “Centerfolds”).5 She worked

there for about one year until 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.6

She was required to pay the hostess at the door a fee every time she came to work.

ROA.1190-1216; ROA.1223-1248, respectively.

ROA.1190; ROA.1223.

ROA.1190-1216; ROA.1223-1248, respectively

ROA.1191; ROA.1229, respectively.

ROA.713. A.H.D. Houston, Inc. d/b/a Centerfolds was a defendant in this case until dismissed

by the Order of Sept. 28, 2022 (ROA.1075-1095).

See ROA.1180, Plaintiff’s Declaration to Plaintiff’s Motion for Summary Judgment. Note that

this Declaration by Plaintiff is also cited in Plaintiff’s Opposition and Response to Defendants’

Motion for Summary Judgment, ROA.1428-1435.

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The fee varied depending on her shift starting time.7 Her sole compensation was

from customers, none came from Centerfolds.8

After she was denied access at Centerfolds, Plaintiff Nicholson started

working at Splendor, near the end of September, 2014.9 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.”10 As at Centerfolds, Plaintiff was

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

The fee varied depending on her shift starting time.11 Her sole compensation was

from customers, none came from Splendor.12

On multiple occasions Plaintiff was refused entry to work at Centerfolds and

at Splendor, unless she paid certain managers additional requested monies.13 At

Splendor, managers would often also deny access to Plaintiff and to other Black

dancers for non-compliance with unwritten rules regarding dress, performance, or

for leaving a shift early.14 At Splendor and Centerfolds, Plaintiff and other Black

dancers were also usually forced to tip managers and other employees at the end of

See ROA.1180; ROA.714.

ROA.714.

See ROA.1180; ROA.715.

See ROA.1182; ROA.716.

See ROA.1180; ROA.716.

ROA.714.

See ROA.1180-1181; ROA.714-716.

See ROA.1181; ROA.716.

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their shifts, or they would not be allowed future access.15 At one point, Plaintiff had

to pay $1500 for access at Splendor, after being excluded.16 In about November

2016, Plaintiff was barred at Splendor for refusing to pay a particular manager a

substantial “fine.”17

There were times when Plaintiff 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 is designated as one of the two managers in Plaintiff’s L&A agreements

with both Splendor and Cover Girls) was there.18

B. Work Experience at Cover Girls

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

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

working there.19 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

See ROA.1180-1181; ROA.714-716.

See ROA.1181; ROA.716.

. See ROA.1182; ROA.716.

See ROA.1181; ROA.715.

19 See ROA.1183; ROA.716.

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came to work.20 Her sole compensation was from customers, none came from Cover

Girls.21

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. She was also was

excluded once until she paid a manager a “fine.”22

Plaintiff 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.23 In late November 2017, Plaintiff was denied access

when she was told by a manager that there were already “too many Black” dancers

on the premises.24

Bob Furey is designated as a manager in Plaintiff’s License & Access

agreements with both Splendor and Cover Girls.25 He once removed a day manager’s

hiring authority for retaining a black dancer, after demanding identification of him

as the person who retained her.26 Cover Girls’ general manager Hal Naumann, who

reported to Bob Furey, almost never hired non-Caucasian dancers and was observed

20 See ROA.1183; ROA.716.

21 ROA.714.

See ROA.1183; ROA.716.

See ROA.1184; ROA.716.

ROA.1380-1381; ROA.1411.

Skwera deposition, ROA.1259:13-20.

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refusing to hire unidentified dancers seeking positions, once he learned they were

Black.27 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.28

Plaintiff 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.29 She became pregnant with a second child a few months

later.30

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

positions, Plaintiff sought to resume dancing and went to apply for a dancer position

at Centerfolds.31 She was refused. Several Caucasian dancers were observed by her

on the premises.32

C. Another Application and Rejection at Splendor

After her rejection at Centerfolds, on Aug. 11, 2021 Plaintiff 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

ROA.1258-1259; ROA.1259:15-18; ROA.1285:2-23.

ROA.1181-1182.

29 ROA.1313; ROA.717.

ROA.1313-1314; ROA.717.

ROA.717.

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at Centerfolds.33 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.34

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.35 Whether Splendor had honored Plaintiff’s

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

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

pay the “tip-out” (entry) fee that time and each time she came there to work.36

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

Are Not Employment Agreements

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

Defendant Cover Girls (ROA.1223-1248) and with Defendant Splendor

(ROA.1190-1216) are substantially identical, but for the first party name. Each

agreement emphasizes throughout that Plaintiff is not an employee, and that

Defendants will provide no compensation or other benefit of any kind to Plaintiff,

as illustrated by the following agreement excerpts.

The L&A Agreements (ROA.1223; ROA.1190) state in para. 3:

ROA.717; ROA 1182.

ROA.1326:8-19 ROA.715.

36 ROA.1251:2-20; ROA.1180; ROA.716.

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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 bours she works. [emphasis added]

The L&A Agreements state in para. 4 (ROA.1223; ROA.1190):

The Dancer understands that [Defendant] 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 w

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