United States District Court, D. Maine
MICHAEL GREENE, and DEBBIE BERNIER, on behalf of E.G. their minor child Plaintiffs,
NEW ENGLAND SUZUKI INSTITUTE, Defendant.
ORDER ON MOTION FOR PRELIMINARY INJUNCTION
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
student's parents seek preliminary injunctive relief
against the operator of a summer educational program
requiring it to allow them to participate alongside their
daughter in the 2018 program scheduled to begin on June 24,
2018-a mere two days from now. The Plaintiffs allege that the
organization's decision to ban them from participation in
the 2018 program constitutes retaliation against them for
their assertion and advocacy for the right of their daughter
under the Americans with Disabilities Act (ADA) to
accommodation of her allergy to animal fur and saliva, such
retaliation also being in violation of the Act. The Defendant
organization opposes the motion, arguing that its decision to
ban the Plaintiffs was motivated by their aggressive,
confrontational, and threatening behavior and language. The
Defendant organization affirms, and the Plaintiffs
acknowledge, that the Defendant organization has welcomed the
Plaintiffs' daughter to participate in the 2018 program
unaccompanied or with a chaperone who is not one of her
parents. The organization states that she is in fact
enrolled. Therefore, the only relief the parents seek against
the organization is for permission for them, as opposed to
E.G., to attend. The Court denies the parents' motion for
preliminary injunction because it concludes that they have
failed to show that they are likely to succeed on the merits
of their retaliation claim, that the balance of the relevant
impositions absent an injunction tips in their favor, that an
injunction would advance the public interest, and that the
harm they stand to experience without injunctive relief is
April 2, 2018, Michael Greene and Debbie Bernier, parents and
guardians of E.G., filed a complaint. Compl. (ECF
No. 1). New England Suzuki Institute (NESI) answered on May
10, 2018. Answer (ECF No. 5). On May 15, 2018, the
Plaintiffs filed a motion for a preliminary injunction.
Pls.' Mot. for Prelim. Inj. with Incorporated Mem. of
Law (ECF No. 8) (Pls.' Mot.). On June 4,
2018, NESI filed its response in opposition to the motion
along with the declarations of three of its staff: Assistant
Director Wendy Sawicki, Co-Director Yasmin Vitalius, and
President Elizabeth Sellers. Def.'s Obj. to Pls.'
Mot. for Prelim. Inj. (ECF No. 9) (Def.'s
Opp'n); Def.'s Opp'n Attach. 1
Decl. of Wendy Sawicki (Sawicki Decl.);
Def.'s Opp'n Attach. 2 Decl. of Yasmin
Vitalius (Vitalius Decl.); Def.'s
Opp'n Attach. 3 Decl. of Elizabeth Sellers
(Sellers Decl.). On June 14, 2018, the Plaintiffs
filed their reply together with declarations by each of them.
Reply Mem. in Support of Pls.' Mot. for Prelim.
Inj. (ECF No. 10) (Pls.' Reply);
Pls.' Reply Attach. 1 Decl. of Michael
Greene (Greene Decl.); Pls.' Reply
Attach. 3 Decl. of Debbie Bernier (Bernier
Plaintiffs are residents of Windham, Maine. Compl.
a 12-year old aspiring musician pursuing her musical
education through the Suzuki Method. Compl. ¶
8; Pls.' Mot. at 1. She has a disability in the
form of a severe, potentially life-threatening allergy that
can be triggered by exposure to animal fur and saliva.
Compl. ¶ 9; Pls.' Mot. at 2. An
allergic reaction can quickly compromise her ability to
breathe, speak, and swallow. Compl. ¶ 9;
Pls.' Mot. at 2. E.G.'s treating physician
has recommended that she avoid exposure to animals.
Compl. ¶ 10; Pls.' Mot. at 2;
Pls.' Reply Attach. 4 Letter of Jane Ho,
a Maine-based 501(c)(3) nonprofit organization with a
principal place of business in Portland, Maine.
Compl. ¶ 6; Def.'s Opp'n at
The Suzuki Method
Suzuki Method was developed by Japanese violinist Shinichi
Suzuki. Compl. ¶ 8 n.1 (citing Suzuki
Association of America www.suzukiassociation.org/
about/suzuki -method). He applied the basic principles of
language acquisition to the learning of music. Id.
The method's central features are: parent responsibility,
loving encouragement, constant repetition, individual and
group lessons, and lessons designed to build music skills
within the context of the music rather than technical
exercises. Id. Parental involvement is a key
feature. Id. Parents attend lessons with the child
and serve as “home teachers.” Id.
The NESI Summer Program
NESI summer program is held in Standish, Maine. Id.
. ¶ 6. NESI offers a week-long music program for
children each June at Saint Joseph's College of Maine on
Sebago Lake. Id. ¶ 11. NESI's program is
the only summer program featuring the Suzuki Method in the
southern Maine region. Id. ¶ 11; Pls.'
Mot. at 1. The program consists of music lessons for
students of a variety of string instruments and culminates in
a student performance at the end of the week. Compl.
¶ 12. An important component of the NESI program is the
involvement of a child's parents. Compl. ¶
13; Pls.' Mot. at 2. The fundamental components
of the NESI program are related to musical instruction,
practice, and performance and do not include anything that
would require the presence of animals at the program
location. Compl. ¶ 15; Pls.' Mot.
at 2. Animals are not part of the NESI program, but the
administrators have an informal practice of allowing families
to bring pets to the program. Compl. ¶ 16;
Pls.' Mot. at 2.
E.G.'s and Plaintiffs' Participation in the NESI
and the Plaintiffs have attended the NESI summer program for
the past seven years. Compl. ¶¶ 2, 13;
Pls.' Mot. at 2. The Plaintiffs have been fully
involved in E.G.'s Suzuki-Method music training and have
attended the NESI program with her each summer.
Compl. ¶ 14; Pls.' Mot. at 2.
Attendance at NESI each summer is an important family event
for the Plaintiffs. Compl. ¶ 14; Pls.'
Mot. at 2.
Plaintiffs state that they have provided at least three
letters regarding E.G.'s allergy from the doctor to NESI.
Compl. ¶ 10; Pls.' Mot. at 2. NESI
maintains that prior to 2016, NESI was completely unaware
that E.G. had allergies or needed to be kept away from furred
animals. Def.'s Opp'n at 17. It also
represents that the Plaintiffs first raised the issue upon
seeing a therapy dog accompanying another student at the 2016
summer program. Id.
The Presence of a Dog at the 2016 Summer Program, the
Plaintiffs' Complaints, and NESI's Response
the participating families brought a therapy dog to the 2016
program. Compl. ¶ 17; Pls.' Mot.
at 3. The Plaintiffs were told that the dog was a service dog
for one of the students, but they later learned that the dog
was not specially trained to perform work for the student as
required by the ADA; instead it was a therapy dog that did
not accompany the student at all times. Compl.
¶ 17 n.2; Pls.' Mot. at 3.
of the risk posed to E.G. by the presence of a dog at the
program, the Plaintiffs requested that NESI make an
accommodation for E.G. so that she would be able to access
the summer music program without danger of being exposed to
the dog. Compl. ¶ 18; Pls.' Mot.
at 3. NESI states that on June 26, 2016, the Plaintiffs first
made NESI Assistant Director Wendy Sawicki aware of
E.G.'s allergy to dogs. Def.'s Opp'n at
4. Plaintiffs provided the NESI administration with a clear
explanation that she needed a learning space, performance
space, and eating area free from animals, animal fur, and
animal saliva. Compl. ¶ 19; Pls.'
Mot. at 2, 3. NESI characterizes the Plaintiffs as
having been agitated, confrontational, angry, and
antagonistic in their interactions with NESI about the dog.
Def.'s Opp'n at 2, 4-5. When NESI requested
documentation from E.G.'s physician, Plaintiffs provided
it. Compl. ¶ 19. According to the Plaintiffs,
NESI assured them that E.G. would not be in the same
classroom with the student and the dog, but made no effort to
keep the dog out of other areas of the facility including the
dining area. Id. ¶ 20; Pls.' Mot.
describes its actions as “major steps to make sure that
both [E.G. and the student with the therapy dog] could be
fairly accommodated throughout the one-week session.”
Def.'s Opp'n at 2. Ms. Sawicki consulted the
class schedule and determined that E.G. and the student with
the therapy dog did not share any classes but did have a
class in a mutual classroom; E.G. was in the classroom in the
morning and the other student was in the same classroom in
the afternoon. Id. at 4. Ms. Sawicki asked both
families if they would sit in opposite parts of the classroom
in the same seat each day, and both families agreed to do
this. Id. Ms. Sawicki arranged to have the room
cleaned each night. Id. at 4, 17. NESI states that,
on July 1, 2016, the Plaintiffs first expressed a concern
that the therapy dog was in the cafeteria at the same time as
E.G. Id. at 4. An agreement was reached to ensure
that the two did not sit near each other and any area where
the therapy dog was sitting was cleaned each night.
Id. at 17.
to NESI, before the final concert, Mr. Greene told NESI in a
threatening manner that there “would be trouble”
if their request to ban the therapy dog from the open-air
tent were not granted. Id. at 2, 5. Ms. Sawicki
spoke with the family of the student with the therapy dog
about the Plaintiffs' concerns, and the family expressed
a countervailing concern that they did not want to be
segregated out of the final concert and wanted to be able to
see the event. Id. at 6.
family, along with the therapy dog, was seated in the third
row from the very back of the concert area. Id. Mr.
Greene engaged in a very agitated conversation with Clorinda
Noyes, a Co-Director of NESI. Id. He confronted Ms.
Sawicki aggressively and told her that she was
“supposed to take care of this problem” and
suggested that Ms. Sawicki had not done so. Id. Mr.
Greene demanded that the therapy dog be outside the tent,
even though it was nowhere near where the Plaintiffs would be
sitting or where E.G. was present. Id. Ms. Sawicki
then asked the family to sit in the back row of the tent and
have the dog lie behind the chair which would have the dog
just outside the tent, and the family complied. Id.
Mr. Greene challenged the father of the student with the
therapy dog as to whether his child needed to have a trained
therapy animal. Mr. Greene demanded that the dog be moved to
the other side of the building which would have prevented the
father of the student with the therapy dog from seeing the
concert. Id. at 6, 17. Nonetheless, the father of
the student with a therapy dog volunteered to sit at the edge
of the building which, though he could not see his
daughter's concert, at least allowed him to hear it.
Id. Ms. Sawicki's interactions with Mr. Greene
caused her to become fearful. Id. at 7.
The Presence of Dogs at the 2017 Summer Program, the
Plaintiffs Complaints, and NESI's Response
to the 2017 summer session, the Plaintiffs reminded the NESI
administrators of E.G.'s disability accommodation and
made additional requests that animals not be allowed in
proximity to E.G. in the classroom as well as the performance
area and dining area. Compl. ¶ 21;
Pls.' Mot. at 3. NESI indicated that it would
only provide E.G. with an animal-free classroom for her
lessons, but it would not be able to provide an animal-free
eating area or performance space. Compl. ¶ 22;
Pls.' Mot. at 3. NESI did not change its
informal practice of allowing pets and did not ask the
participants and their families to leave their pets at home
during the week. Compl. ¶ 23; Pls.'
Mot. at 3.
most part, E.G. did not encounter animals during the
week-long program. Compl. ¶ 24. However, at the
student performance at the conclusion of the week, some NESI
families brought their pet dogs to the performance.
Id. ¶ 25; Pls.' Mot. at 3. When
the Plaintiffs noticed that dogs were at the concert and that
the dog handlers were entering the performance space, the
Plaintiffs became concerned that E.G. might come in to
contact with allergens and have a reaction that would disrupt
her performance and potentially cause a life-threatening
reaction. Compl. ¶ 26; Pls.' Mot.
describes the Plaintiffs' response as
“hyperaggressive and bellicose.” Def.'s
Opp'n at 18. NESI indicates that there were two dogs
a significant distance from the open tent where the final
concert was being held. Id. at 1, 7, 9. At all
times, the dogs were under control of handlers. Id.
at 9. The Plaintiffs spoke with the dog handlers, disclosed
that E.G. suffered from a severe allergy, and asked them to
take their pets away from the performance areas.
Compl. ¶ 27; Pls.' Mot. at 4. The
dog handlers complied with the Plaintiffs' request.
Compl. ¶ 27. Ms. Sawicki understood that one
dog was placed in a car, despite the eighty-degree heat, at
Mr. Greene's request. Def.'s Opp'n at 7.
However, one dog remained just outside the performance space
and was handled by various children who were not aware that
the dog was not allowed inside or near the performance space.
Compl. ¶ 27. Ms. Sawicki told Ms. Bernier and
Mr. Greene that, as long as the dogs were not in the tent,
everything should be fine. Def.'s Opp'n at
during the 2017 concert, Ms. Sawicki was approached again by
Ms. Bernier and Mr. Greene who were very agitated and angry.
Id. They suggested that the dogs came up to the
tent, but Ms. Sawicki did not believe that to be the case.
Id. NESI Co-Director Yasmin Vitalius spoke to both
families with dogs and asked that they keep their dogs away
from the tent, and both families complied with her request.
Id. at 9.
conclusion of the performance, the Plaintiffs spoke with NESI
administrators about having to confront people during the
performance. Compl. ¶ 28; Pls.'
Mot. at 4. They expressed their distress and concern
that NESI's inaction in the face of their request for
disability accommodation for their daughter had caused a
potentially dangerous situation for her. Id. The
Plaintiffs state, “[i]n an attempt to convey the weight
of their concern and the seriousness of their daughter's
condition, Plaintiffs drew a parallel between what it felt
like for them to see a person with a pet dog getting near to
E.G. with what it might feel like for any parent to see a
person with a gun in proximity to children.”
Compl. ¶ 29; Pls.' Mot. at 4. Ms.
Bernier states that she said, “What if someone brought
a gun, would you just stand there and do nothing like you are
doing now?” Bernier Decl. ¶ 13.
recounts the episode differently, stating that “[Ms.]
Bernier became extremely angry and threatened to bring a
firearm to NESI so, according to her, everyone else could
feel what she described as her level of anxiety . . .
.” Def.'s Opp'n at 1. According to
NESI, Ms. Bernier said to NESI Co-Director Yasmin Vitalius,
“What do I have to do? Bring a gun to the concert to
let people know how uncomfortable we feel? If I had a gun, I
would be approached immediately.” Id. at 8,
18. NESI also describes the interaction this way:
After the concert [Ms.] Bernier approached [Ms.] Sawicki and
said, “Can I ask you a question?” and [Ms.]
Sawicki said that she would certainly answer a question. It
was at this point that [Ms.] Bernier said in an agitated and
intense way “How would you feel if we brought a loaded
gun to this campus?”
Id. at 7. According to the Plaintiffs, at the time
this conversation took place, the NESI administrators
involved in this conversation did not express alarm at the
analogy and did not indicate that the Plaintiffs'
statements were understood as threatening in any way.
Compl. ¶ 29; Pls.' Mot. at 4.
However, NESI states that the comment was
“terrifying” and “disturbing, ”
causing Ms. Sawicki to become “shocked” and
“extremely alarmed.” Def.'s
Opp'n at 8. NESI observes that Ms. Sawicki did not
know if the Plaintiffs had a gun at that time, whether they
were going to get a gun, or whether they would bring a gun to
NESI in the future. Id. NESI connects Ms.
Sawicki's reaction to news media accounts of school
shootings. Def.'s Opp'n at 8. NESI states
that Ms. Vitalius' reaction was similar. Id. at
9. Ms. Vitalius took the comment as extremely alarming and
threatening, “especially given the way that [Ms.
Bernier] said it in a very agitated manner.”
July, Plaintiffs received a letter from NESI's attorney
accusing them of making a comment that “was incredibly
disturbing, inappropriate, and could have been taken as a
direct or veiled threat.” Compl. ¶ 30;
Pls.' Mot. at 4. The letter also stated,
“In this day and age, making suggestions about bringing
firearms to an area where parents, children, and families are
present is especially wrong.” Compl. ¶
30. The letter indicated that NESI had “made a
record” of the statement for future action,
id., and that NESI had reported the alleged threats
to the police. Pls.' Mot. at 4.
NESI Bans the Plaintiffs from Participating in the ...