Betancourt v. Avak Enterprise LLC

Filing 38

ORDER plaintiff's motion for summary judgment 23 is granted as to the issue of her disabled status but otherwise denied; defendant's motion for summary judgment 26 is granted as to specifics listed in the order; the parties are directed to submit a proposed order and judgment by 08/01/2015 or if unable to reach agreement a joint statement as to their positions as to issues not resolved...the trial setting is stricken. Signed by Honorable Joe Heaton on 07/02/2015. (lam)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
GUADALUPE BETANCOURT,
Plaintiff,
v.
AVAK ENTERPRISE, LLC,
Defendants.

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NO. CIV-14-659-HE

ORDER
Plaintiff filed this case against defendant Avak Enterprise, LLC, alleging that it
discriminated against her in violation of the American with Disabilities Act (“ADA”). She
seeks an injunction requiring defendant’s hotel, Red Roof Inn, to remove certain alleged
barriers to access. Both parties have filed motions for summary judgment, which are now
at issue.
Summary judgment is only appropriate “if the movant shows that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.Pro. 56(a). To meet its burden, the moving party must support its assertions of
fact with proper support. Fed.R.Civ.Pro. 56(c). If it does so, the non-moving party must
then specifically controvert those facts with its own properly supported assertions in order
to avoid summary judgment. Fed.R.Civ.Pro. 56(c); L.Cv.R. 56.1(c). If a genuine dispute
of material fact exists, summary judgment must be denied.

Cross-motions must be

considered separately. Christian Heritage Acad. v. Okla. Secondary Sch. Activities Ass’n,
483 F.3d 1025, 1030 (10th Cir. 2007).
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Plaintiff asserts that she “has cerebral palsy and must use a wheelchair to ambulate.”
Plaintiff’s Undisputed Fact No. 1. This assertion is properly supported by an affidavit. Doc.
#24-1 at ¶ 2. Though defendant has denied the assertion, it has failed to support its denial
with evidence sufficient to create a justiciable factual dispute. Plaintiff has therefore
established that she has a condition which substantially limits her ability to walk and that she
is “disabled” under the ADA. See 42 U.S.C. §12102. Plaintiff’s motion is granted to that
extent.
Her motion will otherwise be denied, because it does not come close to stating a basis
for summary judgment as to issues beyond plaintiff’s own status. The only other “facts”
supported by any evidentiary submission is that plaintiff was at the location on a stated date,
was denied access, and that she has an expert and he submitted a report. The fact that the
expert submitted a report does not entitle the plaintiff to judgment, and plaintiff makes no
effort to identify what facts and circumstances the report addresses which she believes entitle
her to judgment. It is not the court’s job to create a summary judgment brief or argument for
her.
Plaintiff’s response to defendant’s motion for summary judgment is even more
lacking. Defendant argues the Red Roof Inn location at issue was “constructed in the 1960's”
and hence need only remove barriers that are “readily achievable.”

42 U.S.C.

§12182(b)(2)(A)(iv). Plaintiff says she doesn’t know the date, but, in any event, she does
not controvert the alleged fact with any evidence and it is deemed established. Defendant’s
motion also identifies various conditions and circumstances which it concedes were
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violations and have been, or are being, fixed and also identifies other matters as to which it
says correction is unfeasible. Plaintiff’s response makes zero effort to respond to those
factual allegations with evidence or other materials as contemplated by Rule 56. Rather, she
submits what is essentially a form of answer to a complaint–denying this or that, or stating
that she “believes” or “does not believe” certain assertions. Her unsupported “beliefs” or
“denials” are insufficient to controvert a factual allegation that is otherwise properly
supported by the movant. Defendant’s motion will therefore be granted as to those assertions
relating to defendant’s efforts and the feasibility of remedying other conditions not conceded
or already resolved.
The only factual dispute which appears to remain, based on actual evidentiary
submissions from the parties in their motions/responses, is the question of whether plaintiff
was ever even actually at the Red Carpet Inn location in question. Plaintiff’s affidavit says
she was. Defendant has submitted evidence that its records show no record of plaintiff
having been there. The court would hope that, in light of the disposition of the motions
effected here, the parties can resolve that issue by agreement.
In any event, plaintiff’s motion for summary judgment [Doc. #23] is GRANTED as
to the issue of her disabled status, but is otherwise DENIED. Defendant’s motion for
summary judgment [Doc. #26] is GRANTED as to issues other than plaintiff’s presence at
the location, resulting in what is essentially a determination that it has corrected, or is
correcting, certain conditions identified in its response and that, as to others remaining,
remedying them is not “readily achievable” within the meaning of 42 U.S.C. § 12181(9).
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The parties are directed to confer (a) in an attempt to resolve the issue of whether plaintiff
actually sought accommodations from defendant, and hence has standing to pursue any
claims here, (b) assuming the agreement is that she did, to reach agreement as to the form of
an order and judgment consistent with the above—directing correction of those conditions
identified in defendant’s motion as having been addressed, or which are being addressed, and
denying relief as to other conditions as to which defendant has challenged the feasibility of
a remedy, and (c) regarding whether and to what extent plaintiff is entitled to recover
attorneys fees based on the extent of the relief granted. The parties are directed to submit a
proposed order and judgment by August 1, 2015, or, if they are unable to reach agreement,
to submit a joint statement by that date identifying the parties’ positions as to issues not
resolved by the disposition of the summary judgment motions and/or their own agreement.
The trial setting is STRICKEN.
IT IS SO ORDERED.
Dated this 2nd day of July, 2015.

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