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Greene v. New England Suzuki Institute

United States District Court, D. Maine

June 22, 2018

MICHAEL GREENE, and DEBBIE BERNIER, on behalf of E.G. their minor child Plaintiffs,
v.
NEW ENGLAND SUZUKI INSTITUTE, Defendant.

          ORDER ON MOTION FOR PRELIMINARY INJUNCTION

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         A 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 irreparable.

         I. BACKGROUND

         A. Procedural Background

         On 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 Decl.).

         B. Factual Background[1]

         1. The Parties

         The Plaintiffs are residents of Windham, Maine. Compl. ¶ 5.

         E.G. is 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, M.D.

         NESI is a Maine-based 501(c)(3) nonprofit organization with a principal place of business in Portland, Maine. Compl. ¶ 6; Def.'s Opp'n at 10.

         2. The Suzuki Method

         The 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.

         3. The NESI Summer Program

         The 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.

         4. E.G.'s and Plaintiffs' Participation in the NESI Summer Program

         E.G. 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.

         The 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.

         5. The Presence of a Dog at the 2016 Summer Program, the Plaintiffs' Complaints, and NESI's Response

         One of 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.

         Because 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. at 3.

         NESI 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.

         According 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.

         The 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.

         6. The Presence of Dogs at the 2017 Summer Program, the Plaintiffs Complaints, and NESI's Response

         Prior 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.

         For the 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. at 3-4.

         NESI 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 7.

         Later 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.

         At 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.

         NESI 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.” Id.

         In 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.

         7. NESI Bans the Plaintiffs from Participating in the ...


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