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Lewis v. Durham Wellness and Fitness Sports Clubs, Inc.

United States District Court, M.D. North Carolina

February 20, 2019

PAUL E. LEWIS, Plaintiff,
v.
DURHAM WELLNESS AND FITNESS SPORTS CLUBS, INC., d/b/a/ MILLENUIM SPORTS CLUB, and PATRICK CONTEH, Defendants.

          MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          JOE L. WEBSTER UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Defendants Millennium Sports Club and its manager, Patrick Contech (hereinafter, “Defendants”) motion for summary judgment.[1] (Docket Entry 61.) Plaintiff Paul Lewis (hereinafter, “Plaintiff”) has responded to the motion. The matter is ripe for disposition. For the reasons stated herein, the Court recommends that Defendants' motion for summary judgment be granted.

         I. FACTUAL BACKGROUND

         In his Amended Complaint, Plaintiff asserts multiple causes of action against Defendants. First, Plaintiff alleges that Defendants violated his rights under 42 U.S.C. § 12101 (“Americans With Disabilities Act”) by requiring Plaintiff to go to the back of a Zumba class at the facility when arriving late and subsequently terminating Plaintiff's gym membership when he failed to comply. (See generally Amended Complaint ¶¶ 35, 37, 39, 42, 46 and 49, Docket Entry 17.) In addition, Plaintiff asserts state tort causes of action against Defendant Conteh for defamation, intentional infliction of emotional distress, negligent infliction of emotional distress, and punitive damages. (Id.)

         Plaintiff asserts that he has been disabled since August 2011 due to degenerative disc disease, arthritis in his back, neck, knees and joints, as well as mental health issues. (Am. Compl. ¶ 12.) Plaintiff states that, due to his disabilities, he would arrive to group fitness classes late and situate himself in a spot in the front of the class. (Id. ¶¶ 24-25.) More specifically, Plaintiff asserts that his morning medication makes him “sick”, which “makes it difficult” to arrive in time for the class to start. (Id. ¶¶ 42-43.) Moreover, Plaintiff asserts that he only could stand in the front because he has “50% hearing loss.” (Id. ¶ 26.) Plaintiff further asserts that his rights under the ADA have been violated because he has not been allowed to attend public fundraisers and events held on the premises. (Id. ¶¶ 86-87.)

         Defendants argue that Plaintiff's termination had nothing to do with his alleged disability. In order to avoid disrupting the class, Defendant Conteh would ask Plaintiff to go to the back of the class if he arrived late. (See Defs' Answer, ¶¶ 35, 37, Docket Entry 37; Conteh Aff. ¶ 12, Document Entry 62-13; see also Document 62 at 3.) In addition, Defendant Conteh noted that Plaintiff would disrupt class by “selling shimmy scarves.” Furthermore, Plaintiff's actions made some of the female members “harassed and intimidated” due to Plaintiff's large stature, and Plaintiff would become “verbally combative” when asked about his actions. (Conteh Aff. ¶ 8-9.) After failing to follow Defendant Conteh's instructions and repeated warnings, Plaintiff's membership was terminated. (See Defs' Answer ¶ 49.) Furthermore, Defendants assert that Plaintiff never told Conteh he was allegedly disabled. (Document Entry 62 at 3.) Moreover, in addition to Zumba, Defendants assert that Plaintiff participated in multiple classes, including cardio boot camp and weightlifting, as well as other physically strenuous activities at the facility. (Id.) Defendant Conteh denies ever telling Plaintiff that he could not attend public fundraisers or events held on the premises. (Id.)

         Plaintiff further alleges that “Defendant [Conteh] made libelous statements that Plaintiff had been terminated from Millennium because he had ‘harassed female members of the class' and ‘used intimidation and language' at the gym . . . knowing such statements were false, in an effort to discredit Plaintiff.” (Am. Compl. ¶¶ 92-93.)

         Defendants believe the defamation claim stems from Plaintiff's complaint against Defendants to the Consumer Protection Division of the North Carolina Department of Justice. (See Docket Entry 62 at 4-5, referencing Docket Entry 1-4.) On behalf of Millennium and Conteh, Defendant Nauseef wrote a letter in response to the North Carolina DOJ's inquiry, stating, “[t]he manager of the facility has spoken to Plaintiff on at least nine (9) occasions about his harassment of female members in the Zumba class . . . [and] his interruption and disruption of many of the Zumba classes and his intimidation and language while on the premises.” (See Docket Entry 1-5.) The letter also indicated that Plaintiff had never communicated that he had a disability, nor “would it have been a factor in the termination of his membership privileges.” (Id.) Ultimately, the North Carolina DOJ took no action. (See Docket Entry 1-6.)

         II. PROCEDURAL BACKGROUND

         On May 5, 2017, Plaintiff filed an Amended Complaint against Defendants asserting claims under Title III of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., N.C. G.S. § 168A-4 (North Carolina Persons with Disabilities Protection Act), and other state tort causes of action. (See generally Amended Complaint, Docket Entry 17.) On July 10, 2017, Defendants filed their answer to Plaintiff's Amended Complaint. (See generally Defs' Answer, Docket Entry 37.) On November 9, 2018, Defendants filed this motion for summary judgment. (Docket Entry 61.)

         III. STANDARD OF REVIEW

         Summary judgment is appropriate when there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Zahodnick v. Int'l Bus. Machs. Corp., 135 F.3d 911, 913 (4th Cir. 1997). The party seeking summary judgment bears the initial burden of coming forward and demonstrating the absence of a genuine issue of material fact. Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991) (citing Celotex v. Catrett, 477 U.S. 317, 323 (1986)). Once the moving party has met its burden, the non-moving party must then affirmatively demonstrate that there is a genuine issue of material fact which requires trial. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a fact finder to return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Sylvia Dev. Corp. v. Calvert Cty., Md., 48 F.3d 810, 817 (4th Cir. 1995). Thus, the moving party can bear his burden either by presenting affirmative evidence or by demonstrating that the non-moving party's evidence is insufficient to establish his claim. Celotex, 477 U.S. at 331 (Brennan, J., dissenting). When making the summary judgment determination, the court must view the evidence, and all justifiable inferences from the evidence, in the light most favorable to the non-moving party. Zahodnick, 135 F.3d at 913; Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196 (4th Cir. 1997).

         IV. ANALYSIS

         Defendants move for summary judgment with respect to all claims. As further stated below, Plaintiff failed to adequately respond to the motion. Defendants argue that summary judgment should be granted because: (1) Plaintiff has not produced any proof that he is disabled; (2) Plaintiff has not produced any evidence that he was discriminated against on the basis of his disability; and (3) the lack of connection ...


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