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Peter Strojnik, State Bar No. 6464

STROJNIK P.C.

2375 East Camelback Road Suite 600

Phoenix, Arizona 85016

Telephone: (602) 524-6602

ADA@strojnik.com

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

ANGELICA T. DAMIANO

Plaintiff,

vs.

RED ROCK HOSPITALITY, INC. dba 

HOLIDAY INN EXPRESS HOTEL & 

SUITES GALLUP EAST,

Defendant.

Case No:

VERIFIED COMPLAINT

Americans with Disabilities Act

1. 28 CFR § 36.302(e)

2. Negligence

JURY TRIAL REQUESTED

INTRODUCTION

1. Plaintiff brings this action pursuant to the Americans with Disabilities Act, 

42 U.S.C. §12101 et seq. and corresponding regulations, 28 CFR Part 36 and Department 

of Justice Standards for Accessible Design (“ADA”).

2. Plaintiff is a disabled individual. Plaintiff ambulates with the aid of a cane, 

walker or wheelchair, depending on the distance of movement as a result of Neuropathy 

related to Diabetic Nerve Damage and Degenerative Arthritis. Plaintiff suffers from a 

disability as this term is defined in 42 U.S.C. 12102 and 28 CFR §36.105 (c)(1)(i) which 

includes, inter alia, disabilities in “walking, standing, sitting, reaching, lifting [and] 

bending” and other activities.

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3. Plaintiff is constantly and relentlessly segregated and discriminated 

against, excluded, denied equal services, or otherwise treated differently than other 

individuals because of her disability, and has been denied the opportunity to participate 

in or benefit from services, facilities and opportunities available people without 

disabilities.

4. Plaintiff incorporates herein Congressional Findings and Purpose set forth 

in 42 U.S.C. §12-101 and 28 CFR §36.101.

5. Plaintiff is being subjected to discrimination on the basis of disability in 

violation of Subchapter III of the Americans with Disabilities Act or has reasonable 

ground to believe that that she is about to be subjected to discrimination in violation of 

42 U.S.C. §12183.

6. Plaintiff alleges that she has actual notice that Defendant has failed to 

comply with Subchapter III of the ADA, 28 CFR 36 as more fully alleged below.

7. Plaintiff alleges that she has no obligation to engage in futile gestures as 

referenced in 42 U.S.C. §12188(A)(1) and 28 C.F.R. Subpart E

8. Defendant has discriminated against Plaintiff by the following actions and 

failures to act –

a. Failing to make reasonable modifications in policies, practices, or 

procedures which are necessary to afford Plaintiff and others similarly situated 

accessibility to Defendant’s place of public accommodation, thus violating 42 

U.S.C. §12182(b)(2)(A)(ii) and 28 C.F.R. §36.302(a); and

b. Failing to take such steps as may be necessary to ensure that no 

individual with a disability is excluded, denied services, segregated or otherwise 

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treated differently than other individuals because of the absence of auxiliary aids 

and services, thus violating 42 U.S.C. §12182(b)(2)(A)(iii); and

c. Failing to remove barriers to accessibility where such removal is 

readily achievable, thus violating 42 U.S.C. §12182(b)(2)(A)(iii), 28 CFR 36 and 

the 2010 Standards.

PARTIES

9. Plaintiff is a disabled person and a committed individual to advance the 

time when places of public accommodations will be compliant with the ADA. Plaintiff 

resides in Mesa, Arizona.

10. Defendant, Red Rock Hospitality, Inc. D/B/A Holiday Inn Express Hotel 

& Suites Gallup East, owns, leases (or leases to another), or operates a hotel at 3850 East 

Historic Highway 66, Gallup, NM 89301, which is a public accommodation pursuant to 

42 U.S.C. § 12181(7)(A) which offers public lodging services See 28 CFR §36.104 and 

a listing of public accommodations in 42 U.S.C. §12181(7).

SUBJECT MATTER JURISDICTION

11. District Court has jurisdiction over this case or controversy by virtue of 28 

U.S.C. §§ 28-1331 and 42 U.S.C. § 12188 and 28 U.S.C. § 1367.

12. Plaintiff brings this action as a private attorney general who has been 

personally subjected to discrimination on the basis of her disability, see 42 U.S.C.12188 

and 28 CFR §36.501.

13. Venue is proper pursuant to 28 U.S.C. § 1391.

PERSONAL JURISDICTION

14. Defendant, directly and through its booking agents, maintains interactive 

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booking websites which are expressly aimed at Arizona residents, including Plaintiff.

15. For purposes of personal jurisdiction, the actions of Defendant’s booking 

agents are attributable to the Defendant. Defendant’s booking agent's conduct, on behalf 

of the principal, gives rise to this cause of action. Plaintiff further alleges, upon 

information and belief, that:

a. Defendant’s Booking Agents have express authority to act on its behalf; 

and/or

b. Defendant’s booking agents reasonably believe, in accordance with the 

Defendant’s manifestations, that the Defendant wishes the booking agents

to so act in a manner specified below; and/or

c. Defendant allows booking agents to conclude that booking agents are

authorized to maintain booking websites and/or make booking 

representations and/or to actually book a room to Plaintiff; and/or

d. Defendant’s conduct created apparent authority to Plaintiff that booking 

agents’ have the authority to act for Defendant through booking websites 

and/or oral representations.

16. Defendant’s booking agencies are Defendant’s actual or apparent agents, 

that is, (1) they have power to affect the principal's legal relations in accord with the 

agent's reasonable understanding, at the time the agent acts, of the principal's 

manifestations to the agent, and/or (2), Defendant has intentionally or inadvertently 

induced Plaintiff to believe that booking agents were Defendant’s agents.

17. Defendant, directly and/or through its booking agents, maintains interactive 

websites which permit the residents of the State of Arizona, including Plaintiff herein, to 

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enter into contracts for renting of rooms and otherwise conducting business through the 

internet.

18. Defendant has purposefully directed its activities or consummated some 

transaction with Arizona residents, including Plaintiff herein. 

STANDING TO SUE JURISDICTION

19. Plaintiff reviewed Defendant’s online reservation services to book an 

ambulatory and wheelchair accessible room. Plaintiff was denied equal opportunity to 

use and enjoyment of a critical public accommodation through Defendant’s acts of 

discrimination and segregation alleged below.

20. Plaintiff intends to book a room at the Defendant’s hotel once Defendant 

has removed all accessibility barriers, including the ones not specifically referenced 

herein, and has fully complied with the ADA.

21. Because of Defendant’s denial of Plaintiff’s use and enjoyment of a critical 

public accommodation through Defendant’s acts of discrimination and segregation, she 

is deterred from visiting that accommodation by accessibility barriers and other violations 

of the ADA.

22. Defendant has denied Plaintiff -

a. The opportunity to participate in or benefit from the goods, services, 

facilities, privileges, advantages, or accommodations at its hotel.

b. The right to be included in the population at large who benefits from 

Defendant’s hotel without being segregated because of her disability.

23. Plaintiff intends to book a room at Defendant’s hotel in the future, but she 

will likely suffer repeated injury unless and until the barriers of accessibility and 

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ambulatory and wheelchair accessibility barriers have been removed.

CONTINUING JURISDICTION

24. ADA violations which form the subject matter of this Verified Complaint 

change frequently due to regular maintenance, remodels, repairs, and normal wear and 

tear and policy modifications.

25. Defendant’s ADA Violations are of the type that can reasonably be 

expected to start up again, allowing Defendant to be free to return to the old ways' after 

the threat of a lawsuit had passed.

26. If one or more ADA violation are cured, Plaintiff alleges that they were 

cured and timed to anticipate the current lawsuit, and not as a good faith effort to comply 

with the ADA.

27. To remedy the violations of 28 CFR 36.302(e), Defendant would be 

required not only to modify all Defendant’s Booking Agents and Defendant’s own 

lodging and booking websites, but would be required to do so truthfully and accurately.

COUNT ONE

Violation of Plaintiff’s Civil Rights under the ADA

28. Plaintiff realleges all allegations heretofore set forth.

29. By virtue of her disability, Plaintiff requires an ADA compliant lodging 

facility particularly applicable to her mobility, both ambulatory and wheelchair assisted.

30. On or about February 3, 2018 Plaintiff decided to visit Gallup.

31. Plaintiff visited Defendant’s booking agent’s website, www.expedia.com

(“Defendants’ Booking Agent”) to book a room there.

32. Defendant’s Booking Agent’s website did not permit Plaintiff to make 

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reservations for accessible guest rooms during the same hours and in the same manner as 

individuals who do not need accessible rooms, requiring Plaintiff to make additional 

notes before booking relating to “specific accessibility needs” as referenced below.

33. Defendant’s Booking Agent’s website failed to identify and describe 

mobility related accessibility features and guest rooms offered through its reservations 

service in enough detail to reasonably permit Plaintiff to assess independently whether 

Defendant’s hotel meets her accessibility needs.

34. Defendant’s Booking Agent’s website failed to disclose the following 

accessibility features in enough detail to reasonably permit Plaintiff to assess 

independently whether Defendant’s hotel and guest rooms meets her accessibility needs:

a. Whether accessible routes comply with § 206 of the 2010 Standards; 

and

b. Whether operable parts on accessible elements, accessible routes 

and accessible rooms comply with §§205 and 803 of the 2010 Standards; 

and

c. Whether any accessible means of egress comply with §207 of the 

2010 Standards.

d. Whether parking spaces comply with §§208 and 502 of the 2010 

Standards; and

e. Whether passenger loading zones comply with §§209 and 503 of the 

2010 Standards; and

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f. Whether any drinking fountains comply with §211 of the 2010 

Standards; and

g. Whether any kitchens, kitchenettes and sinks comply with §§212 

and 804 of the 2010 Standards; and

h. Whether toilet facilities and bathing facilities comply with §213 of 

the 2010 Standards; and

i. Whether any washing machines and clothes dryers comply with 

§§214 and 611 of the 2010 Standards; and

j. Whether accessible hotel rooms comply with §224 of the 2010 

Standards; and

k. Whether dining surfaces and work surfaces comply with §§226 and 

902 of the 2010 Standards; and

l. Whether sales and service elements comply with §227 of the 2010 

Standards; and

m. Whether any saunas and steam rooms comply with §§241 and 612 

of the 2010 Standards; and

n. Whether any swimming pools, wading pools and spas comply with 

§§242 and 1009 of the 2010 Standards; and

o. Whether floor and ground surfaces comply with §302 of the 2010 

Standards; and

p. Whether changes in level comply with §303 of the 2010 Standards; 

and

q. Whether turning spaces comply with § 304 of the 2010 Standards; 

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and

r. Whether floor and ground spaces comply with §305 of the 2010 

Standards; and

s. Whether knee and toes clearances comply with §306 of the 2010 

Standards; and

t. Whether protruding objects comply with §307 of the 2010 

Standards; and

u. Whether the reach ranges comply with §308 of the 2010 Standards; 

and

v. Whether the operating parts on accessible features comply with 

§309 of the 2010 Standards; and

w. Whether accessible routes comply with §402 of the 2010 Standards; 

and

x. Whether walking surfaces comply with §403 of the 2010 Standards; 

and

y. Whether doors, doorways and gates comply with §404 of the 2010 

Standards; and

z. Whether ramps comply with § 405 of the 2010 Standards; and

aa. Whether curb ramps comply with §406 of the 2010 Standards; and

bb. Whether any elevators comply with §407 of the 2010 Standards; and

cc. Whether any platform lifts comply with §410 of the 2010 Standards; 

and

dd. Whether any stairways comply with §504 of the 2010 Standards; 

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and

ee. Whether handrails on elements requiring handrails comply with 

§505 of the 2010 Standards; and

ff. Whether the plumbing facilities comply with Chapter 6 of the 2010 

Standards with respect to all the following subchapters of Chapter 6: §§ 

602 (drinking fountains), 603 (toilets and bathing rooms), 604 (water 

closets and toilet compartments, 605 (urinals), 606 (lavatories and sinks), 

607 (bathtubs), 607 (shower compartments), 608 (grab bars), 610 (seats in 

bathtubs and shower compartments), and

gg. Whether service counters comply with 904 of the 2010 Standards.

35. Thereafter, Plaintiff consulted Defendant’s website at

https://www.hiexpress.com/hotels/us/en/gallup/gupes/hoteldetail?qAdlt=1

&qBrs=6c.hi.ex.rs.ic.cp.in.sb.cw.cv.ul.vn.ki.sp.nd.ct&qChld=0&qFRA=1

&qGRM=0&qIta=99504425&qPSt=0&qRRSrt=rt&qRef=df&qRms=1&q

Rpn=1&qRpp=20&qSHp=1&qSmP=3&qSrt=sBR&qWch=0&srb_u=1&i

cdv=99504425&dp=true&glat=SEAR

to determine the information unavailable from the Defendant’s Booking 

Agent’s website.

36. Defendant’s website failed to identify and describe mobility related 

accessibility features and guest rooms offered through its reservations service in enough 

detail to reasonably permit Plaintiff to assess independently whether Defendant’s hotel 

meets her accessibility needs.

37. Defendant’s website disclosed the following accessibility features:

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38. In particular, Defendant’s website failed to disclose the following 

accessibility features in enough detail to reasonably permit Plaintiff to assess 

independently whether Defendant’s hotel and guest rooms meets her accessibility needs:

a. Whether accessible routes comply with § 206 of the 2010 Standards; 

and

b. Whether operable parts on accessible elements, accessible routes 

and accessible rooms comply with §§205 and 803 of the 2010 Standards; and

c. Whether any accessible means of egress comply with §207 of the 

2010 Standards.

d. Whether parking spaces comply with §§208 and 502 of the 2010 

Standards; and

e. Whether passenger loading zones comply with §§209 and 503 of the 

2010 Standards; and

f. Whether any drinking fountains comply with §211 of the 2010 

Standards; and

g. Whether any kitchens, kitchenettes and sinks comply with §§212 

and 804 of the 2010 Standards; and

h. Whether toilet facilities and bathing facilities comply with §213 of 

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the 2010 Standards; and

i. Whether any washing machines and clothes dryers comply with 

§§214 and 611 of the 2010 Standards; and

j. Whether accessible hotel rooms comply with §224 of the 2010 

Standards; and

k. Whether dining surfaces and work surfaces comply with §§226 and 

902 of the 2010 Standards; and

l. Whether sales and service elements comply with §227 of the 2010 

Standards; and

m. Whether any saunas and steam rooms comply with §§241 and 612 

of the 2010 Standards; and

n. Whether any swimming pools, wading pools and spas comply with 

§§242 and 1009 of the 2010 Standards; and

o. Whether floor and ground surfaces comply with §302 of the 2010 

Standards; and

p. Whether changes in level comply with §303 of the 2010 Standards; 

and

q. Whether turning spaces comply with § 304 of the 2010 Standards; 

and

r. Whether floor and ground spaces comply with §305 of the 2010 

Standards; and

s. Whether knee and toes clearances comply with §306 of the 2010 

Standards; and

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t.Whether protruding objects comply with §307 of the 2010 Standards; and

u. Whether the reach ranges comply with §308 of the 2010 Standards; 

and

v. Whether the operating parts on accessible features comply with 

§309 of the 2010 Standards; and

w. Whether accessible routes comply with §402 of the 2010 Standards; 

and

x. Whether walking surfaces comply with §403 of the 2010 Standards; 

and

y. Whether doors, doorways and gates comply with §404 of the 2010 

Standards; and

z. Whether ramps comply with § 405 of the 2010 Standards; and

aa. Whether curb ramps comply with §406 of the 2010 Standards; and

bb. Whether any elevators comply with §407 of the 2010 Standards; and

cc. Whether any platform lifts comply with §410 of the 2010 Standards; 

and

dd. Whether any stairways comply with §504 of the 2010 Standards; 

and

ee. Whether handrails on elements requiring handrails comply with 

§505 of the 2010 Standards; and

ff. Whether the plumbing facilities comply with Chapter 6 of the 2010 

Standards with respect to all the following subchapters of Chapter 6: §§ 602 

(drinking fountains), 603 (toilets and bathing rooms), 604 (water closets and 

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toilet compartments, 605 (urinals), 606 (lavatories and sinks), 607 (bathtubs), 

607 (shower compartments), 608 (grab bars), 610 (seats in bathtubs and 

shower compartments), and

gg. Whether service counters comply with 904 of the 2010 Standards.

39. As a result of the deficiencies described above, Plaintiff declined to book a 

room at the hotel.

40. The removal of accessibility barriers listed above is readily achievable.

41. As a direct and proximate result of ADA Violations, Defendant’s failure to 

remove accessibility barriers prevented Plaintiff from equal access to the Defendant’s 

public accommodation.

WHEREFORE, Plaintiff prays for all relief as follows:

A. Relief described in 42 U.S.C. §2000a – 3; and 

B. Relief described in 42 U.S.C. § 12188(a) and (b) and, particularly -

C. Injunctive relief order to alter Defendant’s place of public accommodation to

make it readily accessible to and usable by ALL individuals with disabilities; 

and

D. Requiring the provision of an auxiliary aid or service, modification of a 

policy, or provision of alternative methods, to the extent required by 

Subchapter III of the ADA; and

E. Nominal damages in the form of equitable relief to secure complete justice; 

and

F. For costs, expenses and attorney’s fees; and

G. All remedies provided for in 28 C.F.R. 36.501(a) and (b).

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COUNT TWO

Negligence

42. Plaintiff realleges all allegations heretofore set forth.

43. Defendant had a duty to Plaintiff to remove ADA accessibility barriers so 

that Plaintiff as a disabled individual would have full and equal access to the public 

accommodation.

44. Defendant breached this duty.

45. Defendant is or should be aware that, historically, society has tended to 

isolate and segregate individuals with disabilities, and, despite some improvements, such 

forms of discrimination against individuals with disabilities continue to be a serious and 

pervasive social problem1.

46. Defendant knowingly and intentionally participated in this historical 

discrimination against Plaintiff, causing Plaintiff damage.

47. Discrimination against individuals with disabilities persists in the use and 

enjoyment of critical public accommodations2.

48. Defendant’s knowing and intentional persistence in discrimination against 

Plaintiff is alleged, causing Plaintiff damage.

49. Individuals with disabilities, including Plaintiff, continually encounter 

various forms of discrimination, including outright intentional exclusion, the 

discriminatory effects of architectural, overprotective rules and policies, failure to make 

 

1

42 U.S.C. § 12101(a)(2)

2

42 U.S.C. §12101(a)(3)

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modifications to existing facilities and practices, exclusionary qualification standards and 

criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, 

or other opportunities3.

50. Defendant’s knowing and intentional discrimination against Plaintiff 

reinforces above forms of discrimination, causing Plaintiff damage.

51. Census data, national polls, and other studies have documented that people 

with disabilities, as a group, occupy an inferior status in our society, and are severely 

disadvantaged socially, vocationally, economically, and educationally4.

52. Defendant’s knowing and intentional discrimination has relegated Plaintiff 

to an inferior status in society, causing Plaintiff damage.

53. The Nation’s proper goals regarding individuals with disabilities are to 

assure equality of opportunity, full participation, independent living, and economic selfsufficiency for such individuals5

.

54. Defendant’s knowing and intentional discrimination has worked counter to 

our Nation’s goals of equality, causing Plaintiff damage.

55. Continued existence of unfair and unnecessary discrimination and 

prejudice denies people with disabilities the opportunity to compete on an equal basis and 

to pursue those opportunities for which our free society is justifiably famous, and costs 

the United States billions of dollars in unnecessary expenses resulting from dependency 

 

3

42 U.S.C. §12101(a)(5)

4

42 U.S.C. §12101(a)(6)

5

42 U.S.C. §12101(a)(7)

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and nonproductivity6.

56. Defendant’s knowing and intentional unfair and unnecessary 

discrimination against Plaintiff demonstrates Defendant’s knowing and intentional 

damage to Plaintiff.

57. Defendant’s breach of duty caused Plaintiff damages including, without 

limitation, the feeling of segregation, discrimination, relegation to second class citizen 

status the pain, suffering and emotional damages inherent to discrimination and 

segregation and other damages to be proven at trial.

58. By violating Plaintiff’s civil rights, Defendant engaged in intentional, 

aggravated and outrageous conduct.

59. The ADA has been the law of the land since 1991, but Defendant engaged 

in a conscious action of a reprehensible character, that is, Defendant denied Plaintiff her 

civil rights, and cause her damage by virtue of segregation, discrimination, relegation to 

second class citizen status the pain, suffering and emotional damages inherent to 

discrimination and segregation and other damages to be proven at trial

60. Defendant either intended to cause injury to Plaintiff or defendant 

consciously pursued a course of conduct knowing that it created a substantial risk of 

significant harm to Plaintiff.

61. Defendant is liable to Plaintiff for punitive damages in an amount to be 

proven at trial sufficient, however, to deter this Defendant and others similarly situated 

from pursuing similar acts.

 

6

42 U.S.C. §12101(a)(8)

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WHEREFORE, Plaintiff prays for relief as follows:

A. For finding of negligence; and

B. For damages in an amount to be proven at trial; and

C. For punitive damages to be proven at trial; and

D. For such other and further relief as the Court may deem just and proper.

REQUEST FOR TRIAL BY JURY

Plaintiff respectfully requests a trial by jury in issues triable by a jury.

DATED this 17th day of February, 2018.

STROJNIK, P.C.

Peter Strojnik, 6464

Attorneys for Plaintiff

VERIFICATION

Plaintiff verifies that she has read the forgoing and that the factual allegations stated above 

are true and correct to the best of her knowledge, information and belief. Plaintiff makes 

this verification under the penalty of perjury.

/s/ Angelica T. Damiano

Authorized Electronically

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