United States District Court, M.D. North Carolina
PAUL E. LEWIS, Plaintiff,
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
WEBSTER UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendants Millennium Sports
Club and its manager, Patrick Contech (hereinafter,
“Defendants”) motion for summary
judgment. (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.
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.)
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.)
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.)
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.
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.)
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.)
STANDARD OF REVIEW
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).
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 ...