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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK

JAERED N. ANDREWS,COREY D. CLARK,JACOB JOHN SMALLEY,DONNIE WILLIAMS,TERRELL BRITTENUM,DERRELL BRITTENUM,THOMAS DANIELS,AKRON WATSON,JUNOT JOYNER,CHRIS GOLIGHTLY

Plaintiffs,

vs.

FREMANTLEMEDIA N.A., INC.,AMERICAN IDOL PRODUCTIONS, INC.,19 ENTERTAINMENT LTD.CORE MEDIA GROUP, INC.21StCENTURY FOX, INC.FOX BROADCASTING COMPANY, INC.NIGEL LYTHGOE, KEN WARWICKFORD MOTOR COMPANY, INC.,COCA-COLA COMPANY, INC.,

AT&T

Defendants.

Case No. 13-CV-5174(NRB)

HON. JUDGEBUCHWALD

ORAL ARGUMENT

REQUESTED

ECF CASE

PLAINTIFFS MEMORANDUM OF LAW IN OPPOSITION TODEFENDANTS MOTION TO DISMISS THE THIRD AMENDED COMPLAINT

PURSUANT TO RULE 12(b)(6)

Case 1:13-cv-05174-NRB Document 55 Filed 04/01/14 Page 1 of 30


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TABLE OF AUTHORITIES

Cases

Bazemore v. Friday,

478 U.S. 385, 400 (1986)................................................................................................... 16

Barner v. City of Harvey,1998 WL 664951 (N.D. Ill. Sept. 18, 1998),..................................................................... 14

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).................................................... 2

Bobbitt, 19 F. Supp. 2d 518-19;............................................................................................ 9

Buckeye Cmty. Hope Found. v. City of Cuyahoga Falls,263 F.3d 627, 636637 (6th Cir. 2001)......................................................................... 24

Calloway v. Westinghouse Elec. Corp.,642 F. Supp. 663, 69598 (M.D. Ga. 1986)................................................................. 14

Capaci v. Katz & Besthoff, Inc.,711 F.2d 647 (5th Cir. 1983), cert. denied, 466 U.S. 927 (1984)......................... 13

Charity v. Dennys, Inc.,1999 WL 544687, at *5 (E.D. La. 1999).......................................................................... 9

Christian v. Wal-Mart Stores, Inc.,

252 F.3d 862, 874 (6th Cir.2001).......................................................................................... 4

Clarke vs. Universal Builders,501 F.2d 324, 334 (th Cir. 1974)........................................................................................... 9

Domino's Pizza, Inc. v. McDonald,46 U.S. 470, 476 126 S.Ct. 1246, 163 L.Ed.2d 1069 (2006). at 476.................... 4

EEOC v. Andrew Corp.,No. 81 C 4359, 1989 WL 32884, at *1314 (N.D. Ill. Apr. 3, 1989) .................... 14

EEOC v. O&G Spring and Wire Forms Specialty Co.,38F.3d 872, 87678 & n.8 (7th Cir. 1994)..................................................................... 16

Erickson v. Pardus,551 U.S. 89, 94 (2007).......................................................................................................... 2

Ewing v. Coca Cola Bottling Co.,2001 WL 767070, at *6 (S.D.N.Y. June 25, 2001)..................................................... 12



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Ferrill v. Parker Group, Inc., 168 F.3d 468, 472, 473, n. 7 (11th Cir.1999)........ 23

General Bldg. Contractors Ass'n v. Pennsylvania,458 U.S. 375, 391, 102 S.Ct. 3141, 3150, 73 L.Ed.2d 835 (1982)........................ 7

Gerdom v. Cont'l Airlines, 692 F.2d 602, 608 (9th Cir. 1982)..................................... 8

Goodman v. Lukens Steel Co., 482 U.S. 656, 107 S.Ct. 2617, 96 L.Ed.2d 572(1987)........................................................................................................................................ 22

Halebian v. Berv, 644 F.3d 122, 130 n.7 (2d Cir. 2011)............................................... 2

Hall vs. Pennsylvania State Police,570 F.2d 86 (3d Cir. 1978.................................................................................................... 9

Hampton v. Dillard Dep't Stores, Inc.,247 F.3d 1091, 1101 n. 1 (10thCir. 2001)..................................................................... 4

Hampton v. Dillard Department Stores,18 F. Supp.2d 1256 (D. Kan. 1998), affd 247 F.3d at 1107 (10thCir. 2001)..... 8

Hill v. Shell Oil, Co.,78 F. Supp. 2d 764, 777 (N.D. m. 1999)............................................................................. 9

Intl Bhd. of Teamsters v. United States,

431 U.S. at 335 n.15................................................................................................................. 8

Joseph v. New York Yankees Partnership,2000 WL 1559019 (S.D.N.Y. Oct.19, 2000)................................................................... 8

Knight v. Nassau County Civil Serv. Comm'n,649 F.2d 157, 162 (2d Cir. 1981)........................................................................................ 24Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, ___

U.S. ___, ___, 113 S.Ct. 1160, 1162-63, 122 L.Ed.2d 517 (1993).......................... 2

Loyd v. Phillips Bros.,

35 F.3d 518, 524 n.4 (7th Cir. 1994)............................................................................. 13

Lynn v. Regents of the Univ. of Cal.,656 F.2d 1337, 1343 n.5 (9th Cir. 1981).......................................................................... 22

Mian v. Donaldson, Lufkin & Jenrette Sec. Corp.,7 F.3d 1085, 1087 (2d Cir.1993)........................................................................................... 3



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Montana v. First Fed. Sav. & Loan Ass'n,869 F.2d 100, 103 (2d Cir.1989)....................................................................................... 2

NAACP v. Town of East Haven,

70 F.3d 219 (2d Cir. 1995) (Miner, C.J.)....................................................................... 12

Ortiz-Del Valle v. National Basketball Assn,42 F. Supp. 2d 334, 337, n.1 (S.D.N.Y. 1999)............................................................ 13

Ottaviani v. State University of New York,875 F.2d 365, 371-72 (2d Cir. 1989)................................................................................. 16

Phillip v. University of Rochester,316 F.3d 291, 298-299 (2d Cir. 2003)............................................................................. 6

Price Waterhouse v. Hopkins,490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989).......................................... 22

Pullman-Standard v. Swint,456 U.S. 273, 287-90, 102 S.Ct. 1781, 1789-91, 72 L.Ed.2d 66 (1982)............. 7

Ragin v. New York Times Company, 923 F.2d 995 (2d Cir. 1991)...10

Roper vs. Edwards,815 F.2d 1474 (11thCir. 1987)............................................................................................... 9

Smith v. Xerox Corp.,196 F.3d 358, 370 (2d Cir.1999), overruled on other grounds by Meacham v.Knolls Atomic Power Lab., 461 F.3d 134 (2d Cir.2006), vacated, 554 U.S. 84,128 S.Ct. 2395, 171 L.Ed.2d 283 (2008)...................................................................... 11

Sprint/United Management Co. v. Mendelsohn,128 S.Ct. 1140 (2008)............................................................................................................. 16

Teamsters v. United States.................................................................................................... 16

Thomas v. Eastman Kodak Co.,183 F.3d 38, 5861 (1st Cir.1999).................................................................................. 23

United States v. Hinds County School Board,417 F.2d 852, 858 (5thCir. 1969).................................................................................... 13

Washington v. Duty Free Shoppers, Ltd.,710 F. Supp. 1288, 1289 (N.D. Cal. 1988)......................................................................... 9



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Watson v. Fort Worth Bank & Trust,87 U.S. 977, 99091 (1988)..................................................................................................... 25

Zemsky v. City of New York,821 F.2d 148, 150 (2d Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 456, 98 L.Ed.2d

396 (1987)................................................................................................................................. 7



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LEGAL STANDARD

To avoid dismissal under Federal Rule of Civil Procedure 12(b)(6), a

complaint must allege enough facts to state a claim to relief that is plausible on

its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In applying this

standard, a court must accept as true all well-pleaded factual allegations and

must draw all reasonable inferences in favor of the plaintiff. See Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (per curiam); The Court may also properly

consider matters of which judicial notice may be taken, or documents either in

plaintiff[s] possession or of which plaintiff[] had knowledge and relied on in

bringing suit. Halebian v. Berv, 644 F.3d 122, 130 n.7 (2d Cir. 2011) (citation

omitted). A newspaper article may not be admissible evidence, but it is sufficient

to make the allegations plausible. Geinosky v. City of Chicago, 675 F.3d 743,

745 n.1 (7th Cir. 2012) (referring to events described in newspaper article to

support sufficiency of allegations).

The Supreme Court has adopted a policy to liberally construe civil rights

complaints, see Leatherman v. Tarrant County Narcotics Intelligence and

Coordination Unit, ___ U.S. ___, ___, 113 S.Ct. 1160, 1162-63, 122 L.Ed.2d 517

(1993). Moreover, summary judgment is sparingly used where intent and state

of mind are at issue, Montana v. First Fed. Sav. & Loan Ass'n, 869 F.2d 100,

103 (2d Cir.1989), because careful scrutiny of the factual allegations may reveal

circumstantial evidence to support the required inference of discrimination, see

Belfi, 191 F.3d at 135; Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81,

87 (2d Cir.1996).



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ARGUMENT

NOTES: In Further Opposition to Defendants Motion, Plaintiffs HerebyIncorporate by Reference their Memorandum Reply Statement to theEEOC, dated June 17, 2013. See Freeman Declaration, Exhibit C-5.

Plaintiffs Reserve the Right to Cross-Move With Respect to Any AffirmativeDefenses Raised in Defendants Rule 12(b)(6) Motion Which are Not Listedin Rule 12, Namely Statute of Limitations and First Amendment,

Plaintiffs Oppose All Arguments Proffered by Defendants in Their PrincipalBrief, Stand on the Strength of the Allegations Set Forth on the Face of theThird Amended Complaint; and Reserve the Right to Seek Leave to File aSupplemental Brief or Sur-Reply to Address Any Matters Not Raised HereinDue to Space Constraints.

PLAINTIFFS HAVE ALLEGED SUFFICIENT FACTS TO SUPPORTA PLAUSIBLE CLAIM FOR RELIEF UNDER COUNTS I-V (42 U.S.C. 1981)

In order to assert a claim under 42 U.S.C. 1981,1a plaintiff must allege

that: (1) he is a member of a racial minority; (2) the discrimination concerned

one or more of the activities enumerated in the statute, including the making

and enforcing of contracts; (3) the defendants had an intent to discriminate

against him on the basis of race. Mian v. Donaldson, Lufkin & Jenrette Sec.

Corp., 7 F.3d 1085, 1087 (2d Cir.1993)2

1Section 1981 provides: All persons within the jurisdiction of the United States shall have thesame right in every State and Territory to make and enforce contracts, to sue, be parties, giveevidence, and to the full and equal benefit of all laws and proceedings for the security of personsand property as is enjoyed by white citizens, and shall be subject to like punishment, pains,penalties, taxes, licenses, and exactions of every kind, and to no other. Act of Apr. 9, 1866, ch.31, 14 Stat. 27, 27 (reenacted by Enforcement Act of 1870, ch. 114, 18,16 Stat. 140, 144

(1870) (codified as amended at 42 U.S.C. 1981 (2000)

2 Section 1981 was enacted as part of the Civil Rights Act of 1866 to protect fromdiscrimination identifiable classes of persons who are subjected to intentional discriminationbecause of their ancestry or ethnic characteristics. St. Francis Coll. v. AlKhazraji, 481 U.S.604, 609 (1987); Parker v. Metropolitan Tr. Auth., 97 F.Supp 2d 437 (S.D.N.Y. 2000). Thestatute has long been viewed as prohibiting certain forms of discrimination based on race, YickWo v. Hopkins, 118 U.S. 356, 369, 374, 6 S.Ct. 1064, 1070, 1073, 30 L.Ed. 220 (1886). Thestatutes reference to rights enjoyed by white citizens establishes the racial character of therights being protected. McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 293, 96 S.Ct.2574, 2585, 49 L.Ed.2d 493 (1976) (quoting Georgia v. Rachel, 384 U.S. 780, 791, 86 S.Ct.



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A. EACH PLAINTIFF HAS ALLEGED THAT HE IS A MEMBER OF A RACIALMINORITY

Each of the named Plaintiffs have alleged that they are African-American and

are therefore members of a protected class. Plaintiff Andrews [TAC, 425];

Plaintiff Clark [TAC, 555]; Plaintiff Smalley [TAC 573]; Plaintiff Williams [TAC

584]; Plaintiff T. Brittenum [TAC 651]; Plaintiff D. Brittenum, [TAC, 652];

Plaintiff Watson [TAC 724]; Plaintiff Daniels [TAC 724]; Plaintiff Joyner [TAC,

758]; Plaintiff Golightly, [TAC 813]. See also TAC 1166. Defendants do

not dispute these allegations.

B. EACH PLAINTIFF HAS ALLEGED THAT DISCRIMINATION CONCERNED ONE ORMORE OF THE ACTIVITIES ENUMERATED IN THE STATUTE

Section 1981 offers relief when racial discrimination blocks the creation

of a contractual relationship, as well as when racial discrimination impairs an

existing contractual relationship, so long as the plaintiff has or would have

rights under the existing or proposed contractual relationship. Domino's Pizza,

Inc. v. McDonald, 546 U.S. 470, 476 126 S.Ct. 1246, 163 L.Ed.2d 1069 (2006).

at 476. Section 1981 applies to discrimination that blocks the creation of a

contractual relationship that does not yet exist. Domino's Pizza at 476, 126.

Accordingly, an essential element of a 1981 claim is an actual loss of a

contract interest. Hampton v. Dillard Dep't Stores, Inc., 247 F.3d 1091, 1101 n.

1 (10thCir. 2001).3

1783, 1789, 16 L.Ed.2d 925 (1966)). In addition, the statute applies to acts of private racialdiscrimination. Runyon v. McCrary, 427 U.S. 160, 168-75, 96 S.Ct. 2586, 2593-97, 49 L.Ed.2d415 (1976).

3See also Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 874 (6th Cir.2001) (holding that aplaintiff who had selected merchandise for purchase by placing it in her cart, had the means to



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Each Plaintiff met the PRODUCER-DEFENDANTS published contest eligibility

requirements [TAC 1167]and was awarded a Golden Ticket toHollywood by

the panel of American Idol Expert Judges in their respective seasons. [TAC

1168].

(1) COUNT I: All Plaintiffs [TAC 1165-1999] arises under the same right to make and enforce contracts . . . as is enjoyed by white citizens pursuant

to the Reconstruction Act of 1866 and alleges that but for Defendants

interference on the basis of race, each Plaintiff would have rights under a

proposed contractual relationship called the 19 Entertainment Prize Contracts,

[TAC 1171-], which consist of a bundle of various, long-term industry

contracts.4By their express terms, the 19 Entertainment Prize Contracts would

appear to vest only if a plaintiff wins the #1 or #2 ranking in the American Idol

contest their season; or, otherwise, upon the exercisable option of Defendant 19

Entertainment. See, e.g. TAC, Ex. CDC_000488, 1.40.

(2) COUNT II: All Plaintiffs [TAC 1200-1211]arises under the same right to make and enforce contracts . . . as is enjoyed by white citizens pursuant to

the Reconstruction Act of 1866 and alleges that but for Defendants interference

on the basis of race, each Plaintiff would have rights under a proposed

contractual relationship called the Advertised Prize Contracts which offered

prospective contestants the opportunity to be awarded at the very least - a

purchase, and would have purchased the merchandise had she not been asked to leave thestore had shown a sufficient contractual relationship to bring a 1981 claim). Denny v.Elizabeth Arden Salons, Inc., 456 F.3d 427, 435 (4th Cir.2006) (holding that plaintiffs who hadpurchased and received a gift package entitling the recipient to a variety of salon services haddemonstrated a contractual relationship).4Examples of these contracts are attached to the pleading: [CDC-000477-

550(Season Two)] and CDC_003525_3615 (Season Eight)]



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recording contract with the cash equivalent of one million dollars

($1,000,0000.00) [TAC 1203]

(3) COUNT III: All Plaintiffs [TAC 1212-1222]arises under the same right to make and enforce contracts . . . as is enjoyed by white citizens pursuant

to the Reconstruction Act of 1866 and alleges that but for Defendants

interference on the basis of race, each Plaintiff would have rights under what

purported to be a bona fide contractual relationship called the American Idol

Contestant Agreement, but Plaintiffs allege is void ab initio; but which

nonetheless created a reasonable expectancy interest in the prizes to be

awarded for winning the contest. [TAC, 1218]

(4) COUNT IV: All Plaintiffs [TAC 1165-1999] arises under the same right to make and enforce contracts . . . as is enjoyed by white citizens pursuant

to the Reconstruction Act of 1866, except for Plaintiff Clark whose claim arises

under the Civil Rights Act of 1991, and alleges that but for Defendants

interference on the basis of race, each plaintiff would have been retained as an

AFTRA-covered principal performer.

(5) COUNTV:PlaintiffsAndrews, Clark, T. Brittenum, D. Brittenum( EQUALBENEFITS [TAC 1271-1275] deprive each of Plaintiff CLARK, ANDREWS, T.

BRITTENUM, D. BRITTENUM of the full and equal benefit of a law or

proceeding for the security of persons and property by utilizing their PENDING

criminal background check information to boost ratings for American Idol. In

doing so, ENTERPRISE-DEFENDANTS attempted to trigger a legal proceeding,

or alter the on-going investigation of these proceedings. See Phillip v. University

of Rochester, 316 F.3d 291, 298-299 (2d Cir. 2003) (plaintiffs' allegations are



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sufficient [on Rule 12(b)(6)] because plaintiffs claim that defendants attempted

to trigger a legal proceeding against plaintiffs but would not have taken the

same action had white students engaged in the same conduct.)

C. EACH PLAINTIFF HAS ALLEGED THAT DEFENDANTS HAD AN INTENT TODISCRIMINATE AGAINST HIM ON THE BASIS OF RACE

Essential to an action under Section 1981 are allegations that the defendant

committed acts with the intent to discriminate against plaintiff based on race.

General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391, 102 S.Ct.

3141, 3150, 73 L.Ed.2d 835 (1982); Zemsky v. City of New York, 821 F.2d 148,

150 (2d Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 456, 98 L.Ed.2d 396 (1987).

Findings of discriminatory intent are findings of fact. Pullman-Standard v.

Swint, 456 U.S. 273, 287-90, 102 S.Ct. 1781, 1789-91, 72 L.Ed.2d 66 (1982).

Here, Plaintiffs have alleged that ENTERPRISE-DEFENDANTS decisions to only

publically disqualify Black Golden Ticket Holders over the course of eleven

continuous seasons (ten years), relative to the glaring absence of White or non-

Black Golden Ticket holders, was caused by racial animusfor African-Americans.

See TAC 1085; 1088; 1118; 1127; 1131; 1147; 1183; 1194-1199; 1268;

1270; 1295; 1374. The element of causation that establishes a link between the

racial animus and the injury sustained by each Plaintiff is also set forth on the

face of the Third Amended Complaint: Plaintiff Andrews [TAC, ]; Plaintiff

Clark [ ]; Plaintiff Smalley, [TAC, 573]; Plaintiff Williams [TAC, 584];

Plaintiff T. Brittenum [ 651]; Plaintiff D. Brittenum [TAC, 627]; Plaintiff

Daniels, [TAC 724]; Plaintiff Joyner [TAC, 399]; Plaintiff Golightly, [TAC, 813].

See also TAC, 1189-1193.



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Defendants argue that Plaintiffs claims of racial disparate treatment are

conclusory and seek to characterize them as disparate impact claims. See

MTD, p. ]Quite to the contrary, Plaintiffs have pled detailed facts sufficient to

give rise to a plausible inference of racial intent, animus, bias, and/or

stereotyping based on a wide range of probative information set forth on the face

of the Third Amended Complaint, including: (1) statistical evidence; (2) use of

criminal conduct exclusions; (3) unfettered, subjective criteria; (4) corporate

culture and past history of convictions the finder of fact, is required to weigh all

the evidence and to assess the credibility of the witnesses in order to determine

whether the plaintiff was the victim of intentional discrimination based upon his

race.

(1) The Mere Fact of Differences in Treatment Over a Ten-Year PeriodEvidencing that Black Golden Ticket holders with Criminal RecordHistory Were Invariably Subjected to Less Favorable Terms andConditions Than ALL other White Golden Ticket Holders

Proof of discriminatory motive is critical [to disparate treatment liability],

although it can in some situations be inferred from the mere fact of differences

in treatment. Intl Bhd. of Teamsters v. United States, 431 U.S. at 335 n.15.

Under 42 U.S.C. 1981, liability may attach where a plaintiff shows that

defendants offered African-Americans different and less favorable contractual

terms than offered to white consumer. See, e.g., Joseph v. New York Yankees

Partnership, 2000 WL 1559019 (S.D.N.Y. Oct.19, 2000) [I]mposing an additional

condition upon minority customers that is not imposed upon non-minorities

states a section 1981 claim for discrimination concerning the making and

enforcing of contracts. Where additional conditions are placed on minorities



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entering the contractual relationship, those minorities have been denied the

right to contract on the same terms and conditions as is enjoyed by white

citizens. Id. at *4 Hampton v. Dillard Department Stores, 18 F. Supp.2d 1256

(D. Kan. 1998), affd 247 F.3d at 1107 (10th Cir. 2001) (general evidence of

discriminatory surveillance and higher detention rates for African-American

shoppers was sufficient indirect proof of discrimination); Gerdom v. Cont'l

Airlines, 692 F.2d 602, 608 (9th Cir. 1982) (stating that in some cases facially

different treatment itself implies intent to discriminate). (emphasis added). 5

Here, without conducting any sophisticated statistical analysis, it is

plausible to infer that each Plaintiff, and prospective class member, was treated

less favorably in the making of their prize contracts because, as alleged on the

face of the Third Amended Complaint, the ENTERPRISE-DEFENDANTS applied a

different, more onerous set of disciplinary rules to Black Golden Ticket holders

than they did to White Golden Ticket holders. [TAC, 1184] with respect to

criminal background checks and any adverse action based upon the information

derived from such process. The Third Amended Complaint alleges that decisions

concerning the Defendants application of disciplinary rules governing American

5 See also Roper vs. Edwards, 815 F.2d 1474 (11 th Cir. 1987) (where sales of defective burialvaults were made according to purchasers race, the defendants offer to contract was defectivein a way that the products they offered to whites was not); Clarke vs. Universal Builders, 501F.2d 324, 334 (th Cir. 1974) (realtors exploited the existence of a dual market for black andwhites, by demanding process and terms from African-Americans in excess of those demanded

of whites_ Hall vs. Pennsylvania State Police, 570 F.2d 86 (3d Cir. 1978); Washington v. DutyFree Shoppers, Ltd., 710 F. Supp. 1288, 1289 (N.D. Cal. 1988) (Black shoppers who did nothave airline tickets or passports were consistently prevented from entering the duty free shop,while white shoppers were regularly admitted without proof that they were traveling overseas);Hill v. Shell Oil, Co., 78 F. Supp. 2d 764, 777 (N.D. m. 1999) (holding that Black plaintiffs whopurchased gasoline stated a cause of action where defendant forced them, but not whites, topre-pay); Bobbitt, 19 F. Supp. 2d 518-19 (requirement that plaintiffs prepay for food altered afundamental characteristic of service and was sufficient to state a cause of action under 1981);Charity v. Dennys, Inc., 1999 WL 544687, at *5 (E.D. La. 1999)."



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Idolcontestants were predominantly made on the basis of a contestants race.

[TAC, 1188] Plaintiffs also allege that Defendants implemented a policy

deliberately adopted by the ENTERPRISE-DEFENDANTS, and ratified by the

SPONSOR-DEFENDANTS, to disqualify Black Golden Ticket holders from the

American Idol contest on vastly different terms and conditions which did not

burden participating White Golden Ticket holders. [TAC, 1186]

According to EEOC Enforcement Guidance, 915.002 (p. 8):

The fact that a charging party was treated differently thanindividuals who are not in the charging partys protected group by,for example, being subjected to more or different criminalbackground checks or to different standards for evaluating criminalhistory, would be evidence of disparate treatment.

Each named Plaintiff had a record of criminal arrest as of the date of their

disqualifications: Plaintiff Andrews [TAC, 443-45]; Plaintiff Clark [TAC,

477-481]; Plaintiff Smalley [TAC, 558-560]; Plaintiff T. Brittenum [TAC,

588-591]; Plaintiff D. Brittenum [TAC, 652]; Plaintiff Daniels [TAC, 724;

Plaintiff Joyner [TAC, 399]; Plaintiff Golightly [TAC, 813]; except for Plaintiff

Williams, who received a citation for driving under the influence and was

charged with a misdemeanor but was not arrested. [TAC, 578, 582]. The Third

Amended Complaint alleges that each of the prospective class members also had

a record of arrest at the time of their disqualification. Conversely, within the

population of 2145 Golden Ticket holders over the course of eleven seasons,

there were at least 11 White Golden Ticket Holders with records of criminal

arrest who did not suffer the stigma of disqualification. There are likely

hundreds of other White Golden Ticket holders who were disqualified behind the

scenes (or who continued in the contest) but whose criminal record information



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was never disclosed to the public.

(2) EVIDENCE OF THE INEXORABLE ZEROIS SUFFICIENT TO PROVE PLAINTIFFSPRIMA FACIECASE OF RACIAL DISPARATE TREATMENT (&DISPARATE IMPACT)

Statistics showing racial or ethnic imbalance are probative in a case such

as this one only because such imbalance is often a telltale sign of purposeful

discrimination; absent explanation, it is ordinarily to be expected that

nondiscriminatory hiring practices will in time result in a work force more or

less representative of the racial and ethnic composition of the population in the

community from which employees are hired. Teamsters, at 339 n.20

If the statistical disparity is extreme, such as when there is an inexorable

zero based on a data sample of a sufficiently sized population, then the

inexorable zero standing alone can establish a prima facie case of racial

disparate treatment. Id. at 341 n.23 (In any event, fine tuning of the statistics

could not have obscured the glaring absence of minority line drivers . the

company's inability to rebut the inference of discrimination came not from a

misuse of statistics but from the inexorable zero.).6

In disparate treatment cases, a plaintiff may [] present statistical findings

6Accord Johnson v. Transportation Agency, 480 U.S. 616, 656 (U.S. 1987) (OConnor, J.,Concurring Opinion) (at the time the affirmative action plan was adopted, there were no womenin its skilled craft positions. Petitioner concedes that women constituted approximately 5% ofthe local labor pool of skilled craft workers in 1970 . . . Thus, when compared to the percentageof women in the qualified workforce, the statistical disparity would have been sufficient foraprima facieTitle VII case brought by unsuccessful women job applicants. See Teamsters,431U.S. at 342, n. 23 Kadas v. MCI Systemhouse Corp., 255 F.3d 359 (7th Cir. 2001) (Although itis unlikely that a pure correlation, say between age and terminations, would be enough toestablish a prima faciecase of intentional discrimination, it would be precipitate to hold that itcould never do so. If 100 employees in a department of 1,000 employees were riffed and everyone of the 100 was 40 years old or older and every one of the 900 retained was under 40, thatwould, we should think, be enough evidence of age discrimination (the probability of itsoccurring by chance being inconceivably minute) to place on the employer a burden ofexplaining, which is all that making out aprima faciecase means.)



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as circumstantial evidence of intentional discrimination. Smith v. Xerox Corp.,

196 F.3d 358, 370 (2d Cir.1999), overruled on other grounds by Meacham v.

Knolls Atomic Power Lab., 461 F.3d 134 (2d Cir.2006), vacated, 554 U.S. 84,

128 S.Ct. 2395, 171 L.Ed.2d 283 (2008). Indeed, the Second Circuit has

consistently held that the inexorable zero may, in and of itself, support an

inference of intent to discriminate based on race. See Ragin v. New York Times

Company, 923 F.2d 995 (2d Cir. 1991).

In NAACP v. Town of East Haven, 70 F.3d 219 (2d Cir. 1995) (Miner, C.J.),

plaintiffs appealed the district courts denial of a motion for preliminary

injunction to enjoin further hiring of police officers pending resolution of the

suit. Id. The NAACP alleged that the Towns failure to ever hire a full-time

black employee could not be explained by normal variance in light of a sizeable

black population in the Town. The Second Circuit vacated the order of denial;

instructing the district court, on remand, to consider statistical evidence and

noting that in doing so [the district court] must also consider the fact of the

inexorable zero. The Court of Appeals further described the inexorable zero

as evidence that an employer in an area with a sizeable black population has

never hired a single black employee which, by itself, supports an inference of

discrimination. Id. (citations omitted).7

7The dominant view in other Circuits is that statistical data alone can be used to establish aprima facie case of intentional discrimination (i.e., disparate treatment). See.e.g., Alexander vs.Local 496, Laborers International Union, 1999 WL 298316, at *24 (6 thCir. Apri. 30, 1999, certdenied 120 S.Ct. 1158 (2000) (statistical evidence is enough to establish a prima faciecase andsupports an inference of intentional discrimination); Walther v. Lone Star Gas Co., 977 F.2d161 (5th Cir. 1992) (per curiam) (recognizing that in unusual cases, statistics alone can supportan ultimate finding of intentional discrimination); MacDissi v. Valmont Industries Inc., 856 F.2d1054, 1058 n. 3 (8th Cir. 1988); Chrisner v. Complete Auto Transit, Inc., 645 F.2d 1251, 1259n. 7 (6th Cir. 1981) (Statistical evidence may establish a prima facie case of employmentdiscrimination in an individual action as well as in a class action); Davis v. Califano, 613 F.2d



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Similarly, in Ewing v. Coca Cola Bottling Co., 2001 WL 767070, at *6

(S.D.N.Y. June 25, 2001) (McMahon, J.), the Southern District of New York

found a racial discrimination claim under 42 U.S.C. 1981 was sufficient to

defeat a motion to dismiss pursuant to Fed. R. Civ. P 12(b)(6) where the alleged

inexorable zero promotion rate of minorities into higher-skilled jobs would

reflect de facto segregation and therefore would support an inference of

intentional discrimination. See also Ortiz-Del Valle v. National Basketball Assn,

42 F. Supp. 2d 334, 337, n.1 (S.D.N.Y. 1999) (Stein, J.) (denying the NBAs

motion for judgment as a matter of law on female referees disparate treatment

claim and recognizing that evidence of an inexorable zero, even within a small

data population, can support a jurys finding of sex discrimination).

The weight of authority in sister circuits accords with the dominant view

that an inexorable zero serves as a probative indicator of an employers

attitude towards members of a protected class. See, e.g., Loyd v. Phillips Bros.,

35 F.3d 518, 524 n.4 (7th Cir. 1994) (finding that district court erred in failing

to consider evidence of an inexorable zero because a 100% sex-segregated

workforce is highly suspicious and is sometimes alone sufficient to support

judgment for the plaintiff; observing that [the employers] promotional

957, 962-63 (D.C. Cir. 1980) (Statistical proof may alone be used, without presentation of

specific instances of discrimination, to establish a prima faciecase of employment discrimination this is so in an individual action as well as class action . Although the prima faciecase didnot conclusively demonstrate that all of the employer's decisions were part of the proveddiscriminatory pattern and practice, it did create a greater likelihood that any single decisionwas a component of the overall pattern); Reed v. Lockheed Aircraft Corp., 613 F.2d 757, 762(9th Cir. 1980) (in sex discrimination case alleging that employer maintained a continuouspolicy of favoring males in selecting employees for promotions and for training programs,plaintiff may establish a prima facie case through statistical data indicating a disparity betweenthe overall percentage of female employees at defendant-company and the percentage of femalesin better paid managerial positions).



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procedure inexorably maintained the existing zero is strong evidence that it was

intended to do so; and noting the zeros peculiarly persuasive quality.); Capaci

v. Katz & Besthoff, Inc., 711 F.2d 647 (5th Cir. 1983), cert. denied, 466 U.S.

927 (1984) (We differ with the defendants suggestion that zero is just a

numberzero may be just another integer, but to us it carries special

significance in discerning firm policies and attitudes.); United States v. Hinds

County School Board, 417 F.2d 852, 858 (5th Cir. 1969) (holding that the

inexorable zero of non-blacks among laid-off police officers speaks volumes

and clearly supports an inference of discrimination); EEOC v. Andrew Corp., No.

81 C 4359, 1989 WL 32884, at *1314 (N.D. Ill. Apr. 3, 1989) ([t]he data in this

case respecting Black office and clerical workers is dominated by the inexorable

zero and cannot be explained away); Calloway v. Westinghouse Elec. Corp.,

642 F. Supp. 663, 69598 (M.D. Ga. 1986) (finding a prima facie case of

disparate treatment among races in the selection of supervisors where the

evidence show[ed] that there were no black managers or supervisors until

1972, thereby obviating the need to adjust statistics for employment

qualifications).

In Barner v. City of Harvey, 1998 WL 664951 (N.D. Ill. Sept. 18, 1998),

the plaintiffs, a group of African-Americans, claimed that the defendant-

municipality laid off a hugely disproportionate number of blacks after the

election of a new mayor. Relying on the inexorable zero identified in the

number of whites / non-blacks who were laid off, the district court ruled that

the plaintiffs had overcome a summary judgment challenge with a showing that

100% of those laid off for budgetary reasons happened to be black. The Court



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noted:

In the end, the tremendous drop in African-American presence inHarvey's workforce, both in general and across the board, and theinexorable zero means that Plaintiffs, despite their lack ofstatistical sophistication, have successfully shown a prima facie

case both of disparate impact and disparate treatment [i]ncases, such as this one, the inexorable zero speaks volumes andclearly supports an inference of discrimination.

Id. at *50.

Here, the Third Amended Complaint alleges the existence of an

inexorable zero occurring in a statistically significant data sample consisting of

a total population of 2145 Golden Ticket holders. TAC, 1014-1043. Of the

2145 Total American IdolContestants who received Golden Tickets to Hollywood,

1523 Contestants [or seventy-one percent (71%)] were White (or non-black). Of

the 2145 Total American Idol Contestants who received Golden Tickets to

Hollywood, 622 Contestants or [twenty-nine percent (29%)] were Black. [TAC,

1021] Zero (0%) out of the 1523 White (or non-black) American Idolcontestants

were Publicly Disqualified. [TAC, 1022] In stark contrast, seventeen (17) out of

622 Black American IdolGolden Ticket Holders were Publicly Disqualified. [TAC,

1023] One-hundred percent (100%) of all 2145 American IdolGolden Ticket

Holders who were publicly disqualified from 2002-2012 were Black. [TAC,

1027]. Numbers of this magnitude clearly warrant a shifting of the burden to

Defendants so as to provide a reasoned explanation for what amounts to be the

most astounding inexorable zero in the history of U.S. Civil Rights law.8 Based

8The inexorable zero in this case is more glaring than the data analyzed by the U.S. SupremeCourt in the landmark case which established the legal standard for both the inexorable zeroinference rule and the pattern and practice standard of proof. In Teamsters, the totalpopulation of the data sample was 3099 employees: 2919 whites and 180 minorities. 38%percent of the white employees (1117/2919) were positioned in the less desirable position (city



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on the weight of authority cited above, the inexorable zero alleged in the Third

Amended Complaint, TAC, 1014-1043. is sufficient to defeat Defendants

motion to dismiss for failure to state a claim. Ewing, 2001 WL 767070, at *6;

Ortiz-Del Valle, 42 F. Supp. 2d at 337, n.1.

(3) A 7-Sigma Gross Statistical Disparity Constitutes Prima FacieProof of a Pattern or Practice of Discrimination

Where gross statistical disparities can be shown, they alone may in a

proper case constitute prima facie proof of a pattern or practice of

discrimination. Hazelwood, 433 U.S. at 30708; Sprint/United Management Co.

v. Mendelsohn, 128 S.Ct. 1140 (2008) (finding statistical evidence admissible in

individual disparate treatment cases).

The disparity indicated should be statistically significant, meaning

unlikely to have occurred by chance.See Hazelwood, 433 U.S. at 311 n.17 (a

fluctuation of more than two or three standard deviations would undercut the

hypothesis that [employment] decisions were being made randomly.); Ottaviani

v. State University of New York, 875 F.2d 365, 371-72 (2d Cir. 1989) (unless

there is no more than a 5 percent probability that we would observe a statistical

correlation between the dependent variable (act of disqualification) and the

independent variable having legal significance (race) even if the variables were

uncorrelated in the population from which the sample was drawn.) The

probative value of statistics also may be affected by the size of the at issue pool

drivers); whereas 93% of the minority employees (167/180) occupied the city driver position.Teamsters, 431 U.S. at 341 n.23 If the minority employees from Teamsters were American Idolcontestants, and being cast in the role of publicly disgraced contestant were deemed equal tooccupying the city driver position, then 100% of city drivers would have been black and 0% ofthe white employees would be city drivers.



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(i.e., sample size). See Teamsters, 431 U.S. at 339 n.20. Bazemore v. Friday, 478

U.S. 385, 400 (1986) (regression analysis that accounted for major relevant

factors was admissible;failure of analysis to include all measurable variables

went not to admissibility, but to probative value).

A systemic pattern or practice of intentional discrimination involves

statistical and/or other evidence that demonstrates that discrimination is

standard operating procedure the regular rather than the unusual practice.

Teamsters v. United States, 431 U.S. 324, 336 (1977); EEOC v. O&G Spring and

Wire Forms Specialty Co., 38F.3d 872, 87678 & n.8 (7th Cir. 1994) (company

engaged in pattern or practice of race discrimination despite the fact that Blacks

made up 20 percent of a companys applicants for manufacturing jobs and 22

percent of the available manufacturing workers, but not one of the 87 jobs filled

during a six-year period went to a Black applicant.).

Plaintiff has alleged a statistical disparity between White and Black

American Idolcontest disqualifications given an eleven-season (ten-year) sample

set of public record disqualification of Golden Ticket Holders. Court may use

p-values to test the likelihood of Plaintiffs theory of the case: that Defendants

race was the predominate cause of Plaintiffs disqualifications from American

Idol.A p-value is a calculation that tests the probability of obtaining data as

extreme or more extreme than what has been observed in a given set of data. If

the p-value is low, for example 0.01, this means that there is only a small

chance (one percent for p=0.01) that the data would have been observed by

chance without the correlation. The p-value measures how unlikely it is to

obtain the disparity ratio shown in the sample data of publicized American Idol



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disqualifications as a matter of chance (rather than as the result of Defendants

racial intent). Until the Plaintiffs discharge their burden, the Court may

presuppose the null hypothesis, i.e. that Defendants race was not the

predominant cause of their disqualifications.

The U.S. Supreme Court has established a p-value threshold under the

Civil Rights Acts for rejecting the null hypothesis and crediting the Plaintiffs

theory that race was the predominant cause of disqualifications. In

discrimination cases, the Court will consider 2-3 standard deviations as the

range for statistical significance. Therefore, as a rule, if the difference between

an expected value and the observed number is greater than 3 standard

deviations, the disparate treatment (or impact) showing on the public record

between Black and White American Idol disqualifications is greater than that

which can be attributed to chance.

The difference between the proportion of the disqualified Black Golden

Ticket holders (p value) and the proportion of All disqualified Golden Ticket

holders (qvalue) has a normal distribution with a mean and standard deviation.

value description = calculation

r the number of publiclydisqualifiedBlack Golden Ticket holders

17 n/a

n the number of publiclydisqualifiedGolden Ticket Holders

17 n/a

p the proportion of GoldenTicket Holders that are Black(the expected value)

0.29 622/2145



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q proportion of Golden TicketHoldersthat were publicly disqualified

0.008(17+0) /(622 + 1523)

(r/n) Observed value 1 17/17

Under the law of mathematics, a 2-sigma event (0.135%) is to be expected

1 time every 43.956; 3-sigma event is to be expected about every 740.80; 4-

sigma event is to be expected about every 31,560.00; 5-sigma event is to be

expected one time every 3,483,046.00; 6-sigma event is to be expected one time

every 1,009,976,678.00. Using the data sample alleged in the Third Amended

Complaint TAC, 1014-1043 and the fixed mathematical formula, the

calculation below yields a standard deviation of6.477.

[(r-n) p]-------------[sqrt(p * (1-p) / n) * sqrt(1- q)]

[(17-17) 0.29]-------------------[sqrt(0.29 * (1-0.29) / 17) * sqrt(1- 0.008)]

To place the calculated 6.477 standard deviation into context, if Plaintiffs

statistical data had shown a lesser value at a 5-sigma confidence level, then

theres a 1 in 3.5 million probability that the racial disparity indicated in the

data sample occurred by mere chance.9 If it is presumed that no more than 17

9To give them some perspective: a 5-sigma event corresponds to an expected occurrence of lessthan just one day in the entire period since the end of the last Ice Age [10,000 years]; a 6-sigmaevent corresponds to an expected occurrence of less than one day in the entire period since ourspecies, Homo Sapiens, evolved from earlier primates [one million years]; and a 7-sigma eventcorresponds to an expected occurrence of just once in a period approximately five times thelength of time that has elapsed since multicellular life first evolved on this planet [600 millionyears] . then a mere 8- sigma event should occur less than once in the entire history of the



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Golden Ticket holders across eleven American Idolseasons (2002-2017) could be

publically disqualified, then to avoid an inference under disparate impact

analysis, the original data sample would need to show a rate of approx. 5 out of

622 Black Golden Ticket holders were disqualified as compared to 12 out of

1523 WGTs. This disparity ratio yields a cumulative probability of 0.576449 (or

58/42% chance) of any given disqualification decision in that scenario being

racially unbiased. The null hypothesis, i.e., that Public-DQ Plaintiffs

disqualifications from American Idolwere random decisions; logically must be

refuted because there is less than 1 in a billion chancethat the gross disparity

ratio evidenced here by the public disqualifications would have resulted from

non-biased application of the American Idolcontest rules. In other words, the 7-

Sigma event presents a statistical significance so great that the Court may infer

a prima faciecase of racial discrimination as a matter of law with absolute 0%

chance of error. The burden of production therefore shifts to Defendants.

Ratio

Publicly

Disqualified

Black

Golden Ticket

Holders

Ratio

Publicly

Disqualified

White

Golden Ticket

Holders

Ratio

Disparity

b/w Publically

Disqualified

Black & White

Golden Ticket

Holders

Probability Probability

of Public DQ Rate of

Disparity Occurring if

the Plaintiffs

Disqualifications were

a Result of Chance

1-SIGMA (Normal Distribution) p = 0.68

5/622 12/1523 98.02% 0.209111 0.576449

[50/50% chance]

universe. How Unlucky is 25-Sigma? By Kevin Dowd, John Cotter, Chris Humphrey andMargaret Woods (March 24 2008)



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2-SIGMA (95.45% of values are within 2 standard deviations of mean) p = 0.43956

6/622 11/1523 74.87% 0.170663 0.367338

7/622 10/1523 58.34% 0.109188 0.196675

3-SIGMA (99.73% of values are within 3 standard deviations of mean) p = 0.135

8/622 9/1523 45.95% 0.055442 0.087486

9/622 8/1523 36.30% 0.022469 0.032045

10/622 7/1523 28.59% 0.007268 0.009575

4-SIGMA (99.994% of values are within 4 standard deviations of mean p = 0.00317

11/622 6/1523 22.28% 0.001866 0.002307

12/622 5/1523 17.02% 0.000376 0.000441

13/622 4/1523 12.57% 0.000058 0.000065

5-SIGMA 0.000029

14/622 3/1523 8.75% 0.000007 0.000007

15/622 2/1523 5.45% 0.000001 0.000001

6-SIGMA 0.000000099

16/622 1/1523 2.55% 0 0

17/622 0/1523 0.00% 0 0

7-SIGMA 0.000000000129



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Under the four-fifth Rule, inference of Disparate Impact is appropriate if

only 6 out of 622 Black Golden Ticket holders were disqualified as compared to

11 of 1523 White Golden Ticket holders. The disparity ratio is 74.87% or less

than 4/5th. If it is presupposed that public disqualifications are normally

distributed between Black and White American IdolGolden Ticket Holders, such

that they obey the classic bell curve.Standard deviations of 5 or more, which

are generally used by particle physicists to announce scientific discoveries, have

been used in "disparate treatment" cases where an inexorable zero is grounds

for the Court to infer intentional discriminatory treatment.There is les than 1 in

a billion chance that coincidences would align to give disparate results as

striking as have been observed by the American Idol public disqualifications,

equals in firm management. Perhaps NOTE The resulting inference, under this

approach, serves as a presumption-shifting device for eliciting information from

the defendant employer, the party more knowledgeable about the challenged

employment decisions, policies, or outcomes.10

(4) Defendants Use Of Plaintiffs Criminal Record Information AsGrounds For Disqualification From American IdolCould Plausibly BeViewed As Evidence Of Racial Stereotyped-Thinking Against African-Americans.

The Supreme Court has held that intentional discrimination includes

those acts or decisions based on unthinking racial stereotypes or cognitive bias.

See, e.g., Goodman v. Lukens Steel Co., 482 U.S. 656, 107 S.Ct. 2617, 96

L.Ed.2d 572 (1987) (holding that liability for intentional discrimination under

1981 requires only that decisions be premised on race, not that decisions be

motivated by invidious hostility or animus); Price Waterhouse v. Hopkins, 490



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U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (plurality opinion) (As for the

legal relevance of sex stereotyping, we are beyond the day when an employer

could evaluate employees by assuming or insisting that they matched the

stereotype associated with their group, for " '[i]n forbidding employers to

discriminate against individuals because of their sex, Congress intended to

strike at the entire spectrum of disparate treatment of men and women resulting

from sex stereotypes.); Robinson v. Polaroid Corp., 732 F.2d 1010, 1015 (1st

Cir. 1984) (noting that plaintiffs in a disparate treatment case can challenge

"subjective evaluations which could easily mask covert or unconscious race

discrimination on the part of predominantly white managers"); Lynn v. Regents

of the Univ. of Cal., 656 F.2d 1337, 1343 n.5 (9th Cir. 1981) ("[W]hen plaintiffs

establish that decisions regarding . . . employment are motivated by

discriminatory attitudes relating to race or sex, or are rooted in concepts which

reflect such attitudes, however subtly, courts are obligated to afford the relief

provided by Title VII.") Hopkins, 825 F.2d at 469"unwitting or ingrained bias is

no less injurious or worthy of eradication than blatant or calculated

discrimination.") Thomas v. Eastman Kodak Co., 183 F.3d 38, 5861 (1st

Cir.1999) (applying principles regarding sex stereotyping to racial discrimination

context), cert. denied, 528 U.S. 1161, 120 S.Ct. 1174, 145 L.Ed.2d 1082 (2000);

Racial animus and intent to discriminate are not synonymous . . . In other

words, ill will, enmity, or hostility are not prerequisites of intentional

discrimination. Ferrill v. Parker Group, Inc., 168 F.3d 468, 472, 473, n. 7

(11th Cir.1999). It is clear that a defendant who acts with no racial animus but

acts, whether consciously or unconsciously, on the basis *1205 of racial



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stereotypes or preconceived notions about African-Americans can be held liable

for intentional discrimination within the meaning of section 1981. citing Ferrill

vs. Parker Group. at 47273 (defendant who acted without racial animus but

consciously and intentionally made job assignments based on racial stereotypes

is liable for intentional discrimination); the court can discern no reason why the

Supreme Court's statements regarding sex stereotypes would not apply with

equal force to racial stereotyping.

Here, a trier of fact plausibly may conclude that the contest

disqualifications of each Plaintiff, and members of the prospective class, were

linked to stereotyped-thinking about young black males as criminals. Plaintiffs

have alleged in the Third Amended Complaint that the ENTERPRISE-DEFENDANTS

decisions to disqualify them resulted from stereotyped-thinking prevalent in

American history which tends to associate young Black males with criminal

activity. See TAC 1085; 1088; 1118; 1127; 1131; 1147; 1183; 1194-1199;

1268; 1270. Causation that establishes a link between stereotyped thinking

and the injury sustained by each Plaintiff is also set forth on the face of the

Third Amended Complaint. Plaintiff Andrews [TAC, ]; Plaintiff Clark [ ;

Plaintiff Smalley, [TAC, 573]; Plaintiff Williams [TAC, 584]; Plaintiff T.

Brittenum [ 651; Plaintiff D. Brittenum [TAC, 627], 652; Plaintiff Daniels,

[TAC 724]; Plaintiff Joyner, 399; Plaintiff Golightly, 813

Buckeye Cmty. Hope Found. v. City of Cuyahoga Falls, 263 F.3d 627,

636637 (6th Cir. 2001) (finding that statements could be seen as expressions

of racial bias against African Americans because [the statement] mirrored racial

stereotypes of African Americans). As acknowledged by the Sixth Circuit, racial



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stereotypes prevalent in our society associate blacks with crime, drugs, and lower

class status. Id. at 636. Hence, a reasonable juror could conclude that the

former Mayor George's letter reflected this stereotypical view of African

Americans and that Defendants' proffered reasons are pretextual and rooted in

discriminatory animus. See also Knight v. Nassau County Civil Serv. Comm'n,

649 F.2d 157, 162 (2d Cir. 1981) (finding that assignment of black employee to

minority recruitment job based on a racial stereotype that blacks work better

with blacks and on the premise that Knight's race was directly related to his

ability to do the job violated Title VII); Bridgeport Guardians v. Delmonte, 553 F.

Supp. 601, 611 (D. Conn. 1983) (finding, among other violations, that

assignment of black and Latino officers to poor, crime-ridden neighborhoods

violated Title VII); cf Ferrill v. Parker Group, Inc., 168 F.3d 468, 473 (11th Cir.

1999) (holding that assignment of telemarketers by race violated 42 U.S.C.

1981)

(5) Unfettered, Subjective Criteria

Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 99091 (1988) (If an

employers undisciplined system of subjective decision-making has precisely the

same effects as a system pervaded by impermissible intentional discrimination,

it is difficult to see why Title VIIs proscription against discriminatory actions

should not apply.). TAC, 1185-1186

(6) Identical Decision-Makers Over Ten-Year Data Period

The same exact group of senior executive supervisors, television

producers, contest sponsors and broadcast network, acting as a joint venture



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for profit, publically disqualified 17 out of 622 Black Golden Ticket Holders and

0 out of 1523 White (or non-black) Golden Tickets. The disqualification

decisions were entirely within Defendants discretion - and outside the

jurisdiction of American Idol Expert Judges or the American voting public. No

objective criteria existed for making decisions concerning contest

disqualifications of Golden Ticket Holders.

(7) Corporate Culture / Past History of Discrimination

OVERSEER-DEFENDANTS status as foreign nationals born and raised before the

Civil Rights Movement TAC, 1077-1082; 1118-1120]; Defendant

FremantleMedias longstanding history of disseminating racial propaganda films

that denigrate blacks and other minorities [ 1083-1085; 1118-1120 ];

Network-Defendants past convictions for civil rights violations and well-

established corporate pattern of race-baiting, 1086-1088; 1118-1120;

NETWORK-DEFENDANTS past conduct of disqualifying Black reality TV sho

contestants for purported failure to disclose information that wa obviously

known. [TAC, 1089-1099]

March 31, 2014JH FREEMAN LAW

By: s/ James H. Freeman

f James H. Freeman3 Columbus Circle, 15 FLNew York, NY 10019

Tel.: (212) 931-8535Fax: (212) 496-5870

[email protected]


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