# Rovnyak v. City of Charlotte

> District Court, W.D. North Carolina · July 6, 2022

URL: https://www.frixlaw.com/law-library/cases/10258605

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** July 6, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:22-cv-00064-FDW-DSC

STEVEN M. ROVNYAK, )
)
Plaintiff, )
)
vs. )
) ORDER
CITY OF CHARLOTTE and MEDIC )
MECKLENBURG EMS AGENCY, )
)
Defendants. )
)

THIS MATTER is before the Court on Defendant City of Charlotte’s (“City”) Motion to
Dismiss, (Doc. No. 9), and Defendant Medic Mecklenburg EMS Agency’s (“Medic”) Motion to
Dismiss, (Doc. No. 6), filed on March 17, 2022, and March 16, 2022, respectively. The Motions have
been fully briefed and are ripe for review. For the reasons set forth below, the Court GRANTS
Defendants’ Motions.
I. BACKGROUND
The allegations of Plaintiff’s Complaint are outlined herein. Plaintiff filed this action on
December 22, 2021, against Defendants, asserting the following claims: (1) violations of Titles II
and III of the Americans with Disabilities Amendments Act (the “ADA”) and Section 504 of the
Rehabilitation Act of 1973; (2) intentional infliction of emotional distress; and (3) negligent
infliction of emotional distress. (Doc. No. 1-2).
For the past twenty-five years, Plaintiff has suffered from a documented mood disorder
that requires him, per his doctors’ recommendation, to massage his muscles and stretch several
times a day. (Doc. No. 1-2, pp. 1-2). For twenty years, Plaintiff has massaged his muscles,
including those in his inner thighs, in public spaces. Id. On December 27, 2018, while traveling
from Indianapolis, Indiana to Charlottesville, Virginia, Plaintiff had a layover in Charlotte Douglas
International Airport. Id. at 2. While waiting for his connecting flight, Plaintiff stretched and
massaged his inner thigh muscles within view of other patrons for approximately forty-five
minutes before he was approached by a Charlotte Mecklenburg Police Officer. Id. In the presence
of onlookers, the officer stated employees of Defendant, Medic, were going to check Plaintiff’s

vital signs and asked him if he had a medical condition and whether he was on medication. Id.
Plaintiff notified the officer of his disorder and explained his need to massage his inner thighs. Id.
The officer asked for Plaintiff’s identification card and returned it after relaying the information
over his radio. Id. Plaintiff asserts he did not feel free to leave and was prohibited from doing so
while he waited for Medics arrival. Id.
Soon after, an airport employee (“City’s First Employee”) and two employees of Medic
arrived. Id. at 3. City’s First Employee told City’s officer there had been several complaints about
Plaintiff rubbing his inner thighs and told Plaintiff he should do such activity in the men’s
restroom. Id. After notifying employees of Medic of his disability, they asked Plaintiff a series of

four questions with the last being, “How many quarters are in a dollar fifty?” Id. Plaintiff asserts
prior to asking the fourth question, Medic employees paused and began to approach him on both
sides so as to confine him so he could not leave. Id. After asking the fourth question, employees
of Medic took a half step back. Plaintiff asserts City’s First Employee explained Plaintiff was on
warning and “that a similar incident would result in a ban from the Airport.” Id. Then, City’s First
Employee told Plaintiff he was free to leave. Id.
Later, while seated in the boarding area, another airport employee (“City’s Second
Employee”) approached Plaintiff and insisted Plaintiff follow him. Id. at 4. Plaintiff told City’s
Second Employee he was waiting to board his flight and the City’s Second Employee insisted
Plaintiff follow him to a gate agent to board the plane during preboarding time for passengers who
identify as having special needs. Id. Plaintiff asserts he was not accompanied past the gate and was
left alone to walk a considerable distance and did not obviously know which jetway to board. Id.
Plaintiff asserts Defendants threatened and detained him without authority based on his
disability. Id. Plaintiff asserts the occurrences caused him to experience feelings of panic, distress,

anxiety, racing thoughts, mental anguish, and emotional distress; all of which he alleges persists
to this day. Id. Despite this, Plaintiff continues to use the Charlotte Airport, but states he suffers
under the threat of ban every time he travels. Id. at p. 7.
Plaintiff now seeks relief under Titles II and III of the ADA, Section 504 of the
Rehabilitation Act of 1973, and Intentional Infliction of Emotional Distress or, in the alternative,
Negligent Infliction of Emotional Distress under North Carolina law. Id.
II. STANDARD OF REVIEW
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a motion may be
dismissed for failure to state a claim upon which relief can be granted. A Rule 12(b)(6) inquiry is

limited to determining if the pleader’s allegations constitute “a short and plain statement of the
claim showing the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To
survive a 12(b)(6) motion to dismiss, Plaintiff’s “complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Id. (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility exists only when the factual
content allows a court to draw the reasonable inference that the defendant is liable for the
misconduct. Iqbal 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Court must draw all
reasonable factual inferences in favor of the party asserting the claim. Priority Auto Grp., Inc. v.
Ford Motor Co., 757 F.3d 137, 139 (4th Cir. 2014).
In a Rule 12(b)(6) analysis, the Court must separate facts from legal conclusions, as mere
conclusions are not entitled to a presumption of truth. Iqbal, 556 U.S. at 678. Importantly,
“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. However, well-pled factual allegations are entitled to a presumption
of truth, and the court should determine whether the allegations plausibly give rise to an entitlement

to relief. Id. at 679.
III. ANALYSIS
A. Title II of the ADA (“Title II”)
Plaintiff first asserts Defendants violated his rights under Title II of the ADA. Specifically,
Plaintiff asserts Defendants:
48. denied [him] equal services, programs, or activities and public accommodation
due to his disability . . . [and] treated [him] in a different and inferior manner than
people without a disability and retaliated against [him] due to his disability.

49. committed acts and omissions toward [him] . . . based on mere speculation,
stereotypes, or generalizations about individuals with disabilities of this nature.

50. discriminated against [him] on the basis of disability in the full and equal
enjoyment of the goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation.

51. excluded [him] from participation in or denied the benefits of such service,
program, or activity, or otherwise discriminated against [him] on the basis of his
disability. . . .”

(Doc 1-2 p. 8). Defendants, in response, argue Plaintiff’s Complaint fails to assert plausible
allegations that Defendants either excluded him from or denied him of a benefit or discriminated
against him in any way. (Doc. Nos. 6, 9).
To prevail on a claim for a violation of Title II, a plaintiff must allege: (1) he has a disability
as defined by the ADA, (2) he is otherwise qualified to receive the benefits of a public service,
program, or activity, and (3) he was excluded from participation in or denied the benefits of such
service, program, or activity, or otherwise discriminated against, on the basis of his
disability. Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 498 (4th Cir.
2005) (citing, Baird v. Rose, 192 F.3d 462, 467–70 (4th Cir. 1999)); 42 U.S.C. § 12132).
In his Complaint, Plaintiff fails to specifically allege (a) what service, program, activity, or
public accommodation he was denied or excluded from; or (b) how Defendants treated him

differently than a person without a disability. See (Doc. No. 1-2). In fact, as alleged, City actually
permitted Plaintiff to preboard the plane, a benefit which Plaintiff did not request and was not
otherwise eligible. Id. at pp. 4-5. Moreover, Plaintiff admits he continues to use Charlotte Douglas
Airport, without restriction, for his travels. Id. at p. 5. Accordingly, during and since the alleged
incident, Plaintiff has not been denied or excluded from any service, program, activity, or public
accommodation at Charlotte Douglas Airport, nor has he been discriminated against on the basis
of his disability. Id.; see Constantine, 411 F.3d at 498. Based on the forgoing, the facts alleged in
Plaintiff’s Complaint are insufficient to support his claim for a violation of Title II of the ADA,
and the Court finds dismissal of this claim appropriate.

i. Section 504 of the Rehabilitation Act of 1973 (“Section 504”)
The Court now moves to Plaintiff’s Section 504 claim. The elements of a Section 504
claim are nearly identical to those required in Title II. Constantine, 411 F.3d at 495. Accordingly,
in order to establish a claim pursuant to Section 504, a plaintiff must allege: (1) he has a disability
as defined by the ADA, (2) he is otherwise qualified to receive the benefits of a public service,
program, or activity, and (3) he was excluded from participation in or denied the benefits of such
service, program, or activity, or otherwise discriminated against, on the basis of his disability. Id.
Section 504, however, requires the alleged denial of benefits be based solely on an individual’s
disability Id. For the reasons set forth above as to Plaintiff’s Title II claim, the Court also finds
Plaintiff has failed to state a claim under § 504.
ii. Title III of the ADA (“Title III”)
Next, the Court moves to Plaintiff’s Title III claim. Title III provides, in relevant part, “[n]o
individual shall be discriminated against on the basis of disability in the full and equal enjoyment
of the goods, services, facilities, privileges, advantages, or accommodations of any place of public

accommodation by any person who owns, leases (or leases to), or operates a place of public
accommodation.” 41 U.S.C. § 12182(a). Accordingly, to prevail under Title III, a plaintiff must
show: (1) he is disabled within the meaning of the ADA; (2) the defendant owns, leases, or operates
a place of public accommodation; and (3) the defendant discriminated against him because of his
disability. J.D. by Doherty v. Colonial Williamsburg Found., 925 F.3d 663, 670 (4th Cir. 2019).
“The term ‘place of public accommodation,’ applies only to private entities providing public
accommodations, not to public entities.” Costello v. Univ. of N. Carolina at Greensboro, 394 F.
Supp. 2d 752, 759 (M.D.N.C. 2005) (see also PGA Tour Inc. v. Martin, 532 U.S. 661, 677 (2001)).
Based on the aforementioned well-settled law, City contends, and the Court agrees, it is

not subject to Title III. Id. Here, it is undisputed that City is a public entity, and therefore, not a
private entity. (Doc. No. 1-2, pp. 1). Accordingly, Plaintiff’s Title III claim against City must be
dismissed.
Medic, on the other hand, argues Plaintiff’s Complaint does not sufficiently plead that it
discriminated against Plaintiff on the basis of his disability. (Doc. No. 9, p. 6). In his Complaint,
Plaintiff asserts Medic violated his ADA rights by unreasonably asking “How many quarters are
in a dollar-fifty” and appearing to confine him so as to make him feel unfree to leave. (Doc 1-2, p.
3, 19). He asserts, in conclusory fashion, he was discriminated against based on his disability
because he was denied equal services, program, or activities and public accommodation. Id. at 8.
As set forth above, the third element of a Title III claim requires the plaintiff to show the
defendant discriminated against him because of his disability. Id. Thus, the third element depends
on a proper construction of the term “discrimination.” Title III defines “discrimination” as a failure
to make reasonable modifications in policies, practices, or procedures, when such modifications
are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations

to individuals with disabilities, unless the entity can demonstrate that making such modifications
would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or
accommodations.” Martin, 532 U.S. at 677 (citing § 12182(b)(2)(A)(ii)). The Supreme Court has
explained the following three inquiries are critical in evaluating a Title III claim: (1) whether the
requested modification is “necessary” for the disabled individual; (2) whether the requested
modification is “reasonable”; and (3) whether the requested modification would “fundamentally
alter the nature” of the public accommodation. Martin, 532 U.S. at 683.
Again, even assuming Plaintiff has sufficiently established the first two elements of his

Title III claim, his claim fails at element three. Plaintiff’s Complaint is filled with conclusory
statements asserting Medic violated Plaintiff’s ADA rights and it does not contain sufficiently pled
facts to support his Title III claim. 42 U.S.C. § 12182 (1990). He does not assert any facts regarding
his asking or and being denied a modification for a public accommodation. Plaintiff has therefore
failed to meet his burden of showing he was excluded from participation in, or denied the benefits
of, a program or service offered by a public entity, or subjected to discrimination by that entity.
C.f., Martin, 532 U.S. at 690 (finding the plaintiff adequately pled his disability discrimination
claims where his complaint set forth facts of a specific instance in which he requested and was
denied accommodations for his walking disability and subsequently prevented from participating
in a golf tournament). Accordingly, Plaintiff's Complaint fails to state a claim for a violation of
Title III of the ADA against Defendants, and the claim must be dismissed.
b. Intentional Infliction of Emotional Distress
Plaintiff’s Complaint also includes a claim against Defendants for intentional infliction of
emotional distress (“IIED”). (Doc. No. 1-2, p. 8). To prevail on a claim for IIED under North

Carolina law, Plaintiff must show Defendants intentionally or recklessly engaged in (1) extreme
and outrageous conduct (2) that caused (3) severe emotional distress. Jackson v. Kimel, 992 F.2d
1318, 1324 (4th Cir. 1993) (citing, Hogan v. Forsyth Country Club Co., 340 S.E.2d 116, 119 (N.C.
Ct. App. 1986)). The alleged act must be “done with the intention of causing emotional distress or
with reckless indifference to the likelihood that emotional distress may result.” Norton v. Scotland
Mem'l Hosp., Inc., 793 S.E.2d 703, 708 (N.C. Ct. App. 2016) (citing, Dickens v. Puryear, 276
S.E.2d 325, 333 (N.C. Ct. App. 1981) (citations, quotations, and ellipsis omitted)). Accordingly,
“[a] defendant is liable for [IIED] when he desires to inflict severe emotional distress or knows
such distress is certain, or substantially certain, to result from his conduct or where he acts

recklessly in deliberate disregard of a high degree of probability the emotional distress will follow,
and the mental distress does in fact result.” Norton, 793 S.E.2d at 708. “Conduct is extreme and
outrageous when it is so outrageous in character, and so extreme in degree, as to go beyond all
possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.” Chidnese v. Chidnese, 708 S.E.2d 725, 738 (N.C. Ct. App. 2011) (citing, Johnson v.
Colonial Life & Accident Ins. Co., 618 S.E.2d 867, 872 (N.C. Ct. App. 2005)); Guthrie v.
Conroy, 567 S.E.2d 403, 408–09 (N.C. Ct. App. 2002)).
“The determination of whether conduct rises to the level of extreme and
outrageous behavior is a question of law.” Chidnese, 708 S.E.2d at 738 (quoting, Foster v.
Crandell, 638 S.E.2d 526, 537 (N.C. Ct. App. 2007)). Thus, it is the Court’s responsibility to
determine whether the alleged conduct may reasonably be regarded as extreme and outrageous
behavior before the issue can be given to the jury. Johnson v. Bollinger, 356 S.E.2d 378, 382 (N.C.
Ct. App. 1987) (citing Briggs v. Rosenthal, 327 S.E.2d 308, 311 (N.C. Ct. App. 1985)). “Extreme
and outrageous is a high bar; mere insults, indignities, threats, annoyances, petty oppressions, or

other trivialities are not enough.” Bollinger, 356 S.E.2d at 382.
As to City, Plaintiff asserts, in conclusory fashion, the following conduct rises to the level
of extreme and outrageous behavior: detaining, embarrassing, and humiliating Plaintiff without
authority, consent, or reasonable cause; expressing the threat of a ban, assaulting, and harassment
based on disability. (Doc. 1-2, pp. 8). Based on a thorough review of the record, it is clear to the
Court that Defendants actions as alleged in Plaintiff’s Complaint are not extreme or outrageous as
a matter of law. Indeed, Plaintiff mistakenly cites to case law that further supports the Court’s
finding.1
In a similarly unavailing argument against Medic, Plaintiff claims Medic’s outrageous

conduct was in asking Plaintiff a fourth question and holding him against his will. Notably,
however, Plaintiff does not raise a claim for false imprisonment in his Complaint. Consistent with
the remainder of his Complaint, Plaintiff’s claim for IIED relies on conclusory allegations, and
Plaintiff fails to sufficiently assert conduct by Medic to support a finding of outrageous conduct.
Plaintiff also fails to assert any facts establishing Medic knew or had a substantial certainty

1 See e.g., West v. King’s Dep’t Store, Inc., 365 S.E.2d 621, 624 (N.C. Ct. App. 1988), the Court of Appeals
of North Carolina found a department store manager’s conduct outrageous when he continuously and loudly accused
the plaintiffs of stealing from the store, despite being made aware that the elder woman was receiving outpatient care
for her anxiety. Here, City’s threat to interdict Plaintiff from the airport if he did not massage his inner thighs in the
restroom does not amount to outrageous conduct because the demand was singular, not made loudly, and is not the
type of conduct that “exceeds all bounds usually tolerated by a decent society” to satisfy the first element of the tort.
Plaintiff would suffer severe emotional distress as a result of standard procedural questions.2
For the reasons set forth above, Plaintiff’s Complaint also fails to state a plausible claim
for relief against Defendants for IIED, and Defendants’ Motions to Dismiss, to the extent they seek
dismissal of Plaintiff's IIED claim, are granted.

c. Negligent Infliction of Emotional Distress
Finally, the Court moves to Plaintiff’s claim for negligent infliction of emotional distress
(“NIED”). Defendants contend, and the Court agrees, dismissal of Plaintiff's NIED claim is
appropriate because Plaintiff has failed to assert facts that substantiate the necessary elements
needed for a NIED claim. (Doc Nos. 6 and 9). To establish a claim for NIED under North Carolina
law, a plaintiff must show: (1) the defendant negligently engaged in conduct; (2) it was reasonably
foreseeable such conduct would cause the plaintiff severe emotional distress; and (3) the conduct
did in fact cause the plaintiff severe emotional distress. Johnson v. Scott, 528 S.E.2d 402, 404
(N.C. Ct. App. 2000) (quoting Johnson v. Ruark Obstetrics and Gynecology Assoc., 395 S.E.2d

85, 97 (N.C. Ct. App.1990)). North Carolina courts have consistently held the first element of an
NIED claim requires allegations that the “defendant failed to exercise due care in the performance
of some legal duty owed to [the] plaintiff under the circumstances[.]” Horne v. Cumberland Cnty.
Hosp. Sys., Inc., 746 S.E.2d 13, 19 (N.C. Ct. App. 2013) (citing, Guthrie v. Conroy, 567 S.E.2d
403, 410–11 (N.C. Ct. App. 2002)).
Here, Plaintiff’s Complaint fails to refer to any duty owed to him by Defendants. This
omission alone is fatal to Plaintiff’s NIED claim. See Guthrie., 567 S.E.2d at 411 (“[P]laintiff

2 See e.g., Piro v. McKeever, 782 S.E.2d 367, 372 (N.C. Ct. App. 2016), the plaintiff raised a claim for intentional
infliction of emotional distress after a social worker conducting therapy sessions and forensic interviews of his
minor son engaged in “overly suggestive questioning”. The Court of Appeals of North Carolina ruled the social
worker’s conduct did not meet the threshold of extreme and outrageous conduct. . . .” Again, here employees of
Medic asked standard procedural questions as described by their job.
alleges no duty that [defendant] owed plaintiff. . .. Absent a breach of duty of care, plaintiff's suit
against [defendant] for NIED cannot be maintained.”). Moreover, beyond the conclusory claim
that “Defendants’ conduct . . . constitutes negligent infliction of emotional distress . . .” (Doc. No.
1-2, p. 10), Plaintiff's Complaint recites only intentional conduct on the part of Defendants.
Allegations of intentional conduct, such as Plaintiff's, even when construed liberally on a motion
to dismiss, cannot satisfy the critical element of an NIED claim—negligence. See Sheaffer _v.
County of Chatham, 337 F.Supp.2d 709, 734 (M.D.N.C. 2004) (“Even taking all these allegations
as true, they demonstrate intentional acts for which Plaintiff has made other claims; they do not
show negligent acts required for a claim of NEID.”). Plaintiff, therefore, has failed to establish any
duty owed to him by Defendants and has failed to properly plead an element essential to his NIED
claim. For these reasons, Plaintiff's NIED claim must also be dismissed.
B. CONCLUSION
IT IS THEREFORE ORDERED that Defendants’ Motions to Dismiss, (Doc. Nos. 6, 9),
are GRANTED and Plaintiff's Complaint, (Doc. No. 1-2), is hereby DISMISSED WITHOUT
PREJUDICE to Plaintiff refiling his Complaint in accordance with this Order and the Federal
Rules of Civil Procedure.
IT IS SO ORDERED.
Signed: July 5, 2022

Frank D. Whitney □□
United States District Judge ae

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10258605. Public record. Not legal advice.