Angelika P., for herself and as guardian and next friend of N.P., an incapacitated adult, Plaintiffs v. Town of Meredith, Defendant

2021 DNH 140

• Court: District Court, D. New Hampshire
• Decided: September 2, 2021
• Docket: 19-cv-1114-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Angelika P., for herself and as guardian and next friend of N.P., an incapacitated adult, Plaintiffs

v. Case No. 19-cv-1114-SM Opinion No. 2021 DNH 140 Town of Meredith, Defendant

O R D E R

The issues raised in the legal memoranda filed in support

of and in opposition to summary judgment give rise to nuanced

questions of law and fact. Having considered the matter in some

depth, the court is of the view that oral argument would be

helpful in determining whether some facts are potentially

material, and if so, whether a genuine dispute exists with

respect to those facts. Resolution of the pending motion,

either as it currently stands or as supplemented, will likely

resolve the case, either because plaintiff cannot state a valid

ADA claim, or, because defendant is plainly liable under the ADA

for disability discrimination.

For counsels’ convenience and consideration in preparing

for a hearing, they are referred to the following law review

article, which, while dated, fairly outlines the split in legal

1 authority applicable in this case: Timmons, “Accommodating

Misconduct Under the Americans With Disabilities Act,” 57 Fla.

L. Rev. 187 (2005). The court anticipates productive argument

related to the following specific matters, and any related

questions that counsel might deem significant. Counsel are

urged to confer before the hearing and endeavor in good faith to

stipulate to identified (and related) factual matters about

which there is no genuine dispute.

1. Did the Town decision makers assess the threatening

words N.P. reportedly used in an effort to gauge

whether those words constituted either a “serious” or

a “credible” threat (or both)? Is there evidence in

this record of that assessment and the conclusion(s)

drawn?

2. Did the Town decision makers know, or should they have

known, that N.P. uttered identical, similar, or

analogous threatening words during his previous camp

sessions, as Angelika P. contends?

3. Did the Town, in past camp sessions, effectively

modify its camp program in a way that tolerated or

responded differently to similar utterances by N.P. in

light of N.P.’s developmental and intellectual

disabilities? That is, were means other than

suspension/dismissal used to correct or mitigate the

2 potential effects of such conduct in prior camp

sessions? Is there record evidence of such action, in

addition to statements to that effect by Angelika P.?

If such action was taken, was it sufficient, from the

Town’s perspective, to permit N.P.’s continued

participation? If such modifications were made and

were sufficient, was Angelika P. advised at any time

before N.P.’s suspension/dismissal at issue here that

such modifications to the camp program would no longer

be implemented?

4. Did the Town decision makers assess the seriousness

or credibility of the threat represented by the words

reportedly uttered by N.P. in the context of his

alleged six-year-old intellectual and emotional

developmental level?

5. Did the Town decision makers assess the seriousness or

credibility of the threat represented by the words

biological age or his physical size?

6. Have other campers in the program, aged six, or

approximately aged five to ten years, and who were not

intellectually or developmentally disabled, uttered

words that were identical to, similar, or analogous to

3 those reportedly uttered by N.P.? If so, were similar

sanctions imposed?

7. Is it necessary for a jury to first determine whether

the Town decision makers (or a “reasonable person”)

could have fairly concluded that the words reportedly

uttered by N.P. amounted, in context, to an actual

threat (as opposed to, say, typical childish banter,

such as “I’ll kill you [sibling] if you tell Mom I ate

the cookie!”), before it can be determined as a matter

of law whether N.P. could have been

suspended/dismissed from the program without violating

the provisions of the ADA? If so, is summary judgment

then necessarily precluded by the existence of a

genuine dispute as to a material fact?

8. Is it necessary for a jury to first determine whether

the Town decision makers (or a “reasonable person”}

uttered by N.P. constituted a serious, or credible, or

serious and credible threat, before it can be

determined whether N.P. could have been

suspended/dismissed from the program for uttering

those words, without violating the provisions of the

ADA?

4 9. On this record, can the court find, as a matter of

law, that, in context, no reasonable person could have

fairly concluded that the words uttered by a long-time

camper in the Town’s program, with known intellectual

and developmental disabilities, and a developmental

age of approximately six years, constituted either an

actual threat, or a serious and/or credible threat,

comparable to those threats made by employees

described in case precedent in some jurisdictions that

recognize the distinction under the ADA between

discipline imposed for “making a threat” and

discipline imposed for “posing a threat?” That is,

even if the Town could suspend/dismiss a camper for

“making” a threat without considering whether the

camper “poses a threat” under the ADA, to avoid

liability under the ADA, must the alleged threat

actually constitute a “threat” and not amount to a

mere six-year-old’s childish emotional outburst?

Relatedly, is N.P.’s developmental age or biological

age the controlling factor? Would such a finding

necessarily preclude summary judgment for the Town and

entitle plaintiff to summary judgment?

10. Is the Town asserting the defense that N.P. posed a

“direct threat” within the meaning of the ADA? Did

5 the Town decision makers assess that asserted threat

by considering the factors outlined in the regulations

implementing the ADA? Or, is the Town relying

exclusively on the “made a threat” ground rather than

the “posed a threat” ground to justify its imposition

of discipline?

11. The Rehabilitation Act arguments are unclear, or,

perhaps better put, the bases for those arguments are

unclear. Does the plaintiff dispute the fact that the

so-called “Fire Act Grant” provided the Town with

federal funds earmarked for and exclusively used by

the Town to acquire a fire truck for the Town’s Fire

Department? Are the grant’s terms disputed? (Neither

party filed the grant as an exhibit, but presumably

its terms are not the subject of any material factual

dispute.)

The trial date currently scheduled in this case is

continued. Trial will be rescheduled, if necessary, after the

pending dispositive motion is resolved. Anticipating that all

material facts are, in the end, unlikely to be genuinely

disputed, this case appears to be one that can be resolved by

applying the pertinent law, as it is determined to be, to those

undisputed material facts. It may be, however, that the record

is insufficiently developed to permit summary disposition, but

6 that additional discovery could prove useful in resolving any

assertions of a genuine dispute regarding a material fact.

The clerk will schedule oral argument on the pending motion

for summary judgment as the docket allows, preferably in the

last week of September, 2021. Counsel should confer with each

other and then Deputy Clerk Wagner to schedule a convenient time

if the proposed scheduling is not convenient.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

September 2, 2021

cc: Sheila O’Leary Zakre, Esq. Dona Feeney, Esq.