Greene ex rel. Child v. Institution, 2:18-cv-00141-JAW

• Court: U.S. District Court — District of Maine
• Writing for the Court: JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
• Decision Date: 22 June 2018
• Docket Number: 2:18-cv-00141-JAW
• Citation: Greene ex rel. E.G. v. New England Suzuki Inst. , 2:18-cv-00141-JAW (D. Me. Jun 22, 2018)
• Parties: MICHAEL GREENE, and DEBBIE BERNIER, on behalf of E.G. their minor child Plaintiffs, v. NEW ENGLAND SUZUKI INSTITUTE, Defendant.

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

2:18-cv-00141-JAW

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

June 22, 2018

ORDER ON MOTION FOR PRELIMINARY INJUNCTION

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 Background¹

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 thesame 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...