P. v. Meredith, NH, Town of

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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
Case No. 19-cv-1114-SM
v. 	Opinion No. 2022 DNH 026
Town of Meredith,
Defendant
O R D E R
This case presents a sympathetic plaintiff whose 20-year-
old son, N.P., has profound cognitive disabilities. 	In 2019,
the Town of Meredith suspended N.P. from a municipal summer camp
program for uttering words constituting death threats,
notwithstanding N.P.’s developmental age of about six years, and
despite his apparent lack of ability to carry out any such
threats. 	N.P.’s suspension was based on that misconduct, and
its asserted negative effects on camp staff and other campers.
That is, the Town determined that N.P.’s threatening words
themselves warranted imposition of discipline, without regard to
the context (N.P.’s childlike cognitive abilities) and the
absence of any assessment of whether N.P. posed a credible risk
of actual harm (the Town concedes that it did not perform any
“risk assessment”; it suspended N.P. based on the misconduct
alone).
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Angelika P. (“Angelika”) filed this suit on behalf of
herself and as guardian and next friend of N.P., against the
Town of Meredith, asserting, inter alia, violations of the
Americans with Disabilities Act, 42 U.S.C. § 12101 et. seq., and
the Rehabilitation Act of 1973, 29 U.S.C. § 794. 	The Town moved
for judgment on the pleadings, and the court dismissed several
of plaintiff’s claims, including those she asserted on behalf of
herself. 	The Town now moves for summary judgment on plaintiff’s
remaining claims, all of which fall under Title II of the
Americans with Disabilities Act.
Standard of Review
When ruling on a motion for summary judgment, the court is
“obliged to review the record in the light most favorable to the
nonmoving party, and to draw all reasonable inferences in the
nonmoving party's favor.” 	Block Island Fishing, Inc. v. Rogers,
844 F.3d 358, 360 (1st Cir. 2016) (citation omitted). 	Summary
judgment is appropriate when the record reveals “no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” 	Fed. R. Civ. P. 56(a). 	In this
context, a factual dispute “is ‘genuine’ if the evidence of
record permits a rational factfinder to resolve it in favor of
either party, and ‘material’ if its existence or nonexistence
has the potential to change the outcome of the suit.” 	Rando v.
Leonard, 826 F.3d 553, 556 (1st Cir. 2016) (citation omitted).
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Consequently, “[a]s to issues on which the party opposing
summary judgment would bear the burden of proof at trial, that
party may not simply rely on the absence of evidence but,
rather, must point to definite and competent evidence showing
the existence of a genuine issue of material fact.” 	Perez v.
Lorraine Enters., 769 F.3d 23, 29–30 (1st Cir. 2014). 	In other
words, “a laundry list of possibilities and hypotheticals” and
“[s]peculation about mere possibilities, without more, is not
enough to stave off summary judgment.” 	Tobin v. Fed. Express
Corp., 775 F.3d 448, 451–52 (1st Cir. 2014). 	See generally
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Background
The undisputed material facts, and disputed material facts
construed in the light most favorable to Angelika P., are as
follows. 	N.P lives in Meredith, New Hampshire. 	He is
profoundly intellectually and emotionally disabled. 	At the time
of the events giving rise to this suit, N.P. was 20 years old,
but his intellectual and emotional development were roughly
equivalent to that of a six-year-old child. 	N.P. cannot be left
at home alone, nor can he go anywhere unattended. 	He requires
assistance to dress appropriately for weather conditions, and
cannot follow two-step directions. 	N.P. was provided with
special education services throughout years in public school.
When he attended school, he was placed in a classroom with other
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students with serious disabilities. 	He was provided with a
full-time one-on-one aide, and received group speech therapy
services. 	According to plaintiff, N.P. “does not understand the
depth and meaning of what he says. 	He will often offer an
appropriate response to a question, but when asked for his
understanding of what was asked, it can be completely unrelated
to what was actually asked.” 	Pl.’s Obj. to Summary Judgment at
2-3. 	N.P.’s grandmother testified similarly, noting that N.P.
“talks no sense all the time.” 	Id. at 3.
The Town of Meredith operates a summer day camp program for
students entering kindergarten through eighth grade (roughly
ages five through 14). 	The camp is operated by Meredith’s Parks
and Recreation Department. 	N.P. has been accepted into the camp
each summer since 2016, despite his falling outside the camp’s
(biological) age range. 	Before N.P. attended camp for the first
time, his mother, Angelika, met with Sarah Perkins, the camp
director, to explain his disabilities, diagnoses, medications,
and treatment plans. 	In the years that followed, when she
dropped N.P. off at camp in the morning, Angelika spoke with
staff about N.P.’s appointments, medication adjustments, and
general well-being (e.g., whether N.P. had slept well and was
rested).
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The events giving rise to this suit occurred in August of
2019, at the Meredith Community Center, about ten days before
the end of the camp’s season. 	On August 6th, J.S., a day camper
in the sixth-to-eighth grade age group, reported to Director
Perkins that N.P. made threats to kill her, Kirby Corliss (a
counselor at the camp), and Corliss’s son (who was also a
camper). 	Perkins called her supervisor, Vint Choiniere, the
Director of Meredith’s Parks and Recreation Department, and
Meredith Police Officer Keith True, to pass along the report of
N.P.’s threatening words. 	Officer True went to the Community
Center to look into the matter.
1. 	Officer True’s Investigation
Officer True served as the resource officer at the Town’s
high school and, in that capacity, he was familiar with N.P. 	He
arrived at the Meredith Community Center around noon. 	He spoke
with Perkins, and then with J.S. 	J.S. told Officer True that he
overheard N.P. make a comment about killing “Sarah.” 	According
to J.S., another camper then mentioned that “Sarah” was the camp
director, and N.P. allegedly responded, “Not for long, I’m gonna
kill her and Kirby [Corliss] and [Kirby’s son].” 	Def.’s Mot.
for Summary Judgment, Exh. 1 at 1. 	J.S. told N.P. that he was
going to report N.P.’s comment to Perkins, and N.P. walked away
“swearing at [J.S.] under his breath.” 	Id. 	Officer True later
testified that J.S. “was very concerned about what was being
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said because [J.S.] thought for sure that somebody could get
hurt[,] and if he didn’t say something he would feel bad about
it.” 	Def.’s Mot. for Summary Judgment, Exh. 8, True Dep. 48:10-
13.
Officer True then spoke with N.P., who at that time was
with other campers in or near the gymnasium. 	True pulled him
aside, into the hallway. 	N.P. denied making the statements. 	He
told Officer True that he had not even been at camp, but instead
claimed to have been at an appointment. 	True later testified
that N.P. seemed “normal,” and “seemed like the [N.P.] I knew”
from school. 	Def.’s Mot. for Summary Judgment, Exh. 8, True
Dep. 31:1-4. 	After speaking with N.P., True left him with the
other campers (supervised by the camp’s staff), and went to
speak with Director Perkins again. 	Perkins told True that N.P.
had recently taken her cell phone and keys home with him, and
that she would sometimes find N.P. staring at her for extended
periods of time.
After being assured that one of the camp’s counselors would
keep an eye on N.P., Officer True returned to the Meredith
Police Department. 	He called Angelika and left a message asking
her to return his call. 	True also spoke with the Director of
the Parks and Recreation Department, Vint Choiniere, who
expressed a general concern for the safety of his staff and any
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campers who might have overheard N.P.’s threatening words. 	True
told Choiniere that he had never known N.P. to be violent at
school, but “that does not ensure that [his] behavior couldn’t
escalate.” 	Def.’s Mot. for Summary Judgment, Exh. 1 at 2.
Officer True spoke with Angelika the next day. 	He noted
that she “was very defensive” about the fact that N.P. had been
suspended, telling True “that N.P. has made these threats ‘year
after year’,” but no action had been taken in the past. 	Id.
True responded that, while he had played no part in the decision
to suspend N.P. from the summer camp, “the comments that N.P.
made terrorized at least one camper[,] and certainly raised
concern for one other camper and two staff members.” 	Id.
No formal charges were filed against N.P. 	At his
deposition, Officer True explained the Meredith Police
Department’s decision not to bring any criminal charges:
In this case, it was reported that one juvenile
overheard another saying something, then that was
forwarded to Sarah Perkins . . . so by the time it got
to me, it was already – it had already been third-hand.
. . .
I’ve known [N.P.] for a long time, never known him to
respond like this. 	He didn’t seem amped up at the
time, and then after speaking with Sarah and speaking
with Vint, they . . . just wanted to address it with
[Angelika] to ensure that it didn’t happen again.
Def.’s Mot. for Summary Judgment, Exh. 8, True Dep. 46:22-47:10.
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2. 	N.P.’s Suspension
After receiving the call from Perkins reporting what J.S.
said about N.P.’s comments, Choiniere met with Meredith’s Town
Manager, Philip Warren, Jr., to discuss the incident. 	Then,
when Angelika arrived at camp to pick up N.P. at around 3 p.m.
that afternoon, Choiniere handed her a “Meredith Parks and
Recreation Behavior Report” recounting the incident. 	He told
her that, because of N.P.’s threats, Warren had determined that
N.P. would be suspended indefinitely from the Town’s Parks and
Recreation facilities.
Angelika emailed Warren that evening. 	She explained that
N.P. has an estimated IQ of 41, is intellectually disabled, and
“has no real concept of what is being said or discussed beyond
the surface,” or any idea that he had made any threats. 	Pl.’s
Opp. to Summary Judgment, Exh. 1, p. 14. 	Angelika told Warren
that N.P. “enjoys camp so much,” and, “knowing [camp] is coming
to an end makes him sad,” so he had behavioral incidents towards
the end of camp in past years. 	Id. 	She asked to meet with
Warren in person to discuss the suspension and stated that: “a
significant consequence was an appropriate course of action, but
[the indefinite suspension] is extreme for someone who does not
even know what he did or said[,] and has the mental ability of a
young child.” 	Id., at p. 15. 	Angelika wrote:
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I would like to request this suspension be temporary,
maybe for one or two days, but allow [N.P.] to return
to camp on the condition[] that if he has another
outburst like the one today, I would be called
immediately and remove him from camp for the rest of
the day.
Id.
Warren responded the next morning, August 7, 2019. 	He told
Angelika that he needed to review the police and internal
reports, and that “threats of this type, regardless of who makes
them, need to be taken seriously.” 	Id., at p. 13. 	He wrote
that N.P.’s “suspension [would] remain in place until the
investigation and research into this matter is completed,” and,
once completed, Angelika would be notified of the outcome. 	Id.
Angelika responded to the Parks and Recreation Behavior
Report on August 7, 2019, and asked that her written response be
appended to that Report. 	In her response, she wrote that N.P.
had a “significant intellectual disability that limits his
understanding of questions being asked,” and that he “usually
respond[s to questions] based on what he thinks the person
[asking] wants to hear.” 	Pl.’s Opp. to Summary Judgment, Exh.
1, at p. 19. 	She added, “N.P. does not understand, or even
recall the event, but the staff at the Community Center,
especially those who have known N.P for the past four years,
should understand that just because he is older, his
intellectual ability remains that of a six-year-old.” 	Id. 	She
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questioned N.P.’s suspension, arguing that N.P.’s punishment was
inconsistent with the camp’s treatment of the incident as “non-
urgent,” as N.P. had remained at camp with other campers for the
rest of the day. 	Finally, Angelika expressed her disappointment
that the Town had not involved her in the decision-making
process “in order to get a better understanding of an
intellectually-challenged individual.” 	Id.
Warren emailed Angelika on August 12, 2019. 	He informed
her that the indefinite suspension had been reduced, but that
N.P. would remain suspended for a period of 60 days (through
October 7, 2019, a date well after camp ended for the season),
at which point Angelika could speak to Choiniere about
readmitting N.P. to the Parks and Recreation Department’s other
programs and facilities. 	Warren later stated that the 60-day
period was determined to be a “reasonable response based on
N.P.’s intellectual disabilities. 	. . . [I]f this was a person
that did not have intellectual disabilities, they would have
been banned permanently from the facility.” 	Def.’s Mot. for
Summary Judgment, Exh. 9, Warren Dep. 32:12-16. 	On September 2,
2019, Angelika requested a copy of the investigatory findings
that Warren had referenced in his August 7 email. 	Warren
responded that “the investigation was a review of police and
internal reports,” and that no formal report had been drafted.
Pl.’s Opp. to Summary Judgment, Exh. 1 at p. 16.
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On September 4, 2019, Angelika met with Jeannie Forrester
and Ray Moritz, two members of the Town’s Select Board, to
discuss the incident, N.P.’s disability, and her complaints
about N.P.’s suspension. 	Moritz stated that he and Forrester
would present the matter to other members of the Select Board.
On September 16, 2019, the Select Board met in a nonpublic
session. 	Warren was invited to attend the session, but Angelika
was not. 	On September 17, 2019, Moritz emailed Angelika,
informing her that the Meredith Select Board supported the
action taken by the Parks and Recreation Department.
N.P.’s suspension ended on October 7, 2019. 	Angelika P.
subsequently brought this action seeking declaratory judgment,
and compensatory damages.
DISCUSSION
Defendant has moved for summary judgment on plaintiff’s
remaining claims: Counts I-III, asserted under Title II of the
Americans with Disabilities Act.1
1 	At oral argument on defendant’s summary judgment motion,
plaintiff agreed to voluntarily withdraw the Rehabilitation Act
claim. 	Therefore, the only claims that remain are plaintiff’s
ADA claims.
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Title II of the ADA
Title II of the ADA provides that “no qualified individual
with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.’” 	Nunes v.
Massachusetts Dep’t of Correction, 766 F.3d 136, 144 (1st Cir.
2014) (quoting 42 U.S.C. § 12132). 	To state an ADA claim, a
plaintiff must allege “(1) that he is a qualified individual
with a disability; (2) that he was either excluded from
participation in or denied the benefits of some public entity’s
services, programs, or activities or was otherwise discriminated
against; and (3) that such exclusion, denial of benefits, or
discrimination was by reason of the plaintiff’s disability.”
Parker v. Universidad de Puerto Rico, 225 F.3d 1, 5 (1st Cir.
2000). 	In disability discrimination cases under federal law,
the plaintiff “bears the burden of proving each element” of the
claim. 	Cook v. State of R.I., Dep’t of Mental Health,
Retardation, & Hosps., 10 F.3d 17, 22 (1st Cir. 1993).
Plaintiff advances three claims under the ADA. 	Her first
claim asserts that the Town excluded N.P. from services,
programs, and activities because of his disability. 	In other
words, she says that, based upon N.P.’s disability, defendant
subjected him to disparate treatment. 	Her second claim is a
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“disparate impact” claim, as she asserts that the Town violated
the Act by employing criteria and methods of administration that
subjected N.P. to discrimination on the basis of his disability.
Finally, plaintiff asserts a “failure to accommodate” claim,
alleging that the Town violated the ADA by failing to engage in
an interactive process to identify reasonable accommodations
that would have allowed N.P. to attend at least a portion of the
remaining camp season, as well as other Parks and Recreation
activities.
The Town moves for summary judgment on all claims, arguing
that there is no genuine dispute as to any material fact, and
that it is entitled to judgment as a matter of law. 	As a
preliminary matter, the Town asserts that Angelika cannot
prevail on any of her remaining claims because N.P. is not a
“qualified individual” under the ADA. 	Once N.P. made threats to
kill, the Town contends, that misconduct rendered him
“unqualified” to attend the summer camp program. 	Turning to the
merits of Angelika’s specific ADA claims, the Town says the
record evidence cannot support a finding that it discriminated
against N.P. based upon his disabilities. 	The Town’s position
is fairly straightforward. 	It says that N.P. was suspended from
its program because Town officials determined that he threatened
physical harm to two camp staff members and another camper, and
not because of or “by reason of” his disability. 	N.P.’s conduct
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was plainly unacceptable, the Town argues, and certainly
warranted disciplinary action without regard to N.P.’s
disabilities. 	Finally, the Town notes that a 60-day suspension
was, from its perspective at least, both a reasonable and
proportionate sanction under the circumstances.
1. 	“Qualified Individual”
The text of 42 U.S.C. § 12131 defines a “qualified
individual with a disability” as:
an individual with a disability who, with or without
reasonable modifications to rules, policies, or
practices, 	. . . , or the provision of auxiliary aids
and services, meets the essential eligibility
requirements for the receipt of services or the
participation in programs or activities provided by a
public entity.
42 U.S.C.A. § 12131. 	“When determining if a plaintiff is
otherwise qualified, it is necessary to consider the extent to
which reasonable accommodations that will satisfy the legitimate
interests of both the [institution] and the [plaintiff] are (or
are not) available and, if such accommodations exist, the extent
to which the institution explored those alternatives.” 	Joseph
M. v. Becker Coll., No. CV 18-40167-TSH, 2021 WL 1209587, at *10
(D. Mass. Mar. 31, 2021). 	“Reasonable accommodations are those
which do not require a modification of the essential nature of
the program or impose an undue burden on the [institution].”
Id. (quotations omitted).
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Although the Town does not dispute that N.P. is disabled,
it asserts that he is not a “qualified individual” under the
ADA. 	With regard to N.P.’s biological age, the Town concedes
that it routinely accommodated his request to attend the summer
camp, no doubt recognizing that his developmental age made him
an acceptable fit for the program. 	See Pl.’s Opp. to Summary
Judgment, Exh. 13 (Document No. 19-13, p. 3). 	The Town argues,
however, that when N.P. made death threats, he was no longer
“otherwise qualified” to participate in the program within the
meaning of applicable federal law. 	That is, once the Town
received reliable reports that N.P. made threats of physical
harm or death against staff and a camper, and then plausibly
determined that he actually made such threats, N.P. no longer
met the Town’s behavioral eligibility requirements for
participation in the summer camp program.
As noted in the court’s earlier order in this case,
defendant’s argument is well-supported by precedent. 	Courts
have consistently made clear that “[r]equiring others to
tolerate misconduct, . . . is not the kind of accommodation
contemplated by the ADA.” 	McElwee v. Cty. of Orange, 700 F.3d
635, 645 (2d Cir. 2012). 	See also Bercovitch v. Baldwin Sch.,
Inc., 133 F.3d 141, 154–55 (1st Cir. 1998) (“A school’s code of
conduct is not superfluous to its proper operation; it is an
integral aspect of a productive learning environment. 	Therefore
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[plaintiff] cannot be ‘otherwise qualified’ unless, with
reasonable accommodations, he can meet disciplinary
requirements.”). 	C.f., Calef v. Gillette Co., 322 F.3d 75, 87
(1st Cir. 2003) (“Put simply, the ADA does not require that an
employee whose unacceptable behavior threatens the safety of
others be retained, even if the behavior stems from a mental
disability. 	Such an employee is not qualified.”). 	Accordingly,
uttering death threats targeting the camp’s director, a
counselor, and another camper, are (or “constitute”) the type of
misconduct that could have rendered N.P. unqualified to attend
the summer camp. 	It is commonly accepted that threats to injure
or kill others need not be tolerated in civil society, and the
ADA makes no exception for such conduct.
Plaintiff counters that defendant has not established that
N.P. actually made the disqualifying threats, noting that the
Town offers only inadmissible hearsay as evidence: 	Perkins’s
testimony recounting J.S.’s statements to her, and Officer
True’s statements repeating what J.S. said to him, and J.S.’s
statement as recounted in the police report.
Plaintiff’s argument is unpersuasive for a couple of
reasons. 	First, “[h]earsay is commonly defined as ‘a statement,
other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the
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matter asserted.’” 	U.S. v. Walker, 665 F.3d 212, 230 (1st Cir.
2011) (quoting Fed. R. Evid. 801(c)). 	“The hearsay rule does
not pertain to statements adduced merely to show that they were
made or that they had some effect on the future actions of a
listener.” 	U.S. v. Castro-Lara, 970 F.2d 976, 981 (1st Cir.
1992) (citations omitted). 	The Town offers evidence of N.P.’s
statements not to prove the truth of the matter asserted – that
N.P. was actually intent on injuring – but to establish the
reason for his suspension.2
2 	The Town relied on the reports made, determined that N.P.
made the threats, and determined that such threats are serious
enough to warrant discipline without regard to the likelihood of
their being carried out. 	It then determined an appropriate
sanction or corrective response. 	While the reaction and
judgment of Town officials under the circumstances described
might be subject to reasonable criticism, still, the record
establishes that they were the product of the Town’s considered
determination and judgment. 	Challenging the exercise of that
judgment as an overreaction does not provide a basis upon which
discriminatory animus can be found under federal law.
The reports would be admissible to show that the statements
were made by N.P., and that the words used “had some effect on
the future actions of a listener.” 	Castro-Lara, 970 F.2d at
981. 	The Town has established the effects N.P.’s statements
had: J.S. was sufficiently concerned that he reported N.P.’s
statements to Perkins, and then again to Police Officer True.
See Pl.’s Opp. to Summary Judgment, Exh. 8, Perkins Dep. 46:1-
47:23; Def.’s Mot. for Summary Judgment, Exh. 1. 	Perkins called
Officer True after hearing J.S.’s report, and reported an
incident of “Criminal Threatening.” 	See id.; see also Pl.’s
Opp. to Summary Judgment, Exh. 8, Perkins Dep. 49:10-22.
Officer True responded to the Community Center and conducted an
investigation. 	See Def.’s Mot. for Summary Judgment, Exh. 1.
Warren later testified that he understood N.P. “made a threat to
injure – to do bodily harm to three people.” 	Def.’s Mot. for
Summary Judgment, Exh. 9, Warren Dep. 53:10-12.
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Second, the Town is not required to “prove” that N.P. made
the threats as reported. 	Even if mistaken (i.e., N.P. said
something else), the Town still acted based upon reports that
N.P. made threats – reports the Town found reliable. 	The issue
remains the same: did the Town discriminate based on N.P.’s
disability by imposing discipline for threatening statements it
found that he made. 	There is no evidence suggesting that Town
officials did not think N.P. made the reported threats. 	Nor is
there evidence that the Town merely used what it knew (or should
have known) were bogus reports as a pretext to discipline N.P.
for misconduct when its actual intent was discriminatory.
Instead, the record establishes that the Town viewed N.P.’s
reported threats as serious, inappropriate, and inconsistent
with the camp’s behavioral standards. 	See Def.’s Mot. for
Summary Judgment, Exh. 4, Choiniere Dep. 73:13-15. 	(“My opinion
is that the threat itself is what was serious and needed to be
taken seriously.”); Exh. 6, Mortiz Dep. 44:4-6 (“The
seriousness, in my mind, was the fact that he verbalized such a
threat and intimidated other children there.”); see also id. at
45:20-21 (“It’s the threat that’s the problem, not whether you
follow up on it or not.”); 46:18-20 (“I tried to make it clear
[to plaintiff] that the making of threats was unacceptable and
that we could not fail to take that seriously and act upon
it.”).
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Moreover, the Town says it did take N.P.’s disability into
consideration when it reduced N.P.’s suspension to 60 days.
While plaintiff understandably doubts that it did so, or that it
did so adequately, again, the Town’s actions have not been shown
to be based on unlawful disability discrimination, or based upon
any other discriminatory animus. 	Insensitivity and
inflexibility do not, in this case, add up to discrimination.
A recent District of Massachusetts case, Joseph M. v.
Becker Coll., No. CV 18-40167-TSH, 2021 WL 1209587, at *10 (D.
Mass. Mar. 31, 2021), is illustrative. 	In Joseph M., the
plaintiff, who suffered from Autism Spectrum Disorder, engaged
in misconduct, including threatening to spray gasoline all over
his dormmates’ rooms, and to “hold a gun” on another student.
Id. at *5-6. 	Because plaintiff’s behavior violated the school’s
code of conduct, he was dismissed. 	Id. at *11. 	Plaintiff filed
suit asserting claims under the ADA and Rehabilitation Act,
arguing that the defendant discriminated against him on the
basis of his disability. 	In considering whether plaintiff was a
“qualified individual,” the court noted that instead of
identifying and requesting an accommodation that might have
allowed him to abide by the school’s code of conduct (as in this
case), plaintiff instead complained only that “the punishment
[for his misconduct] was too severe.” 	Id. at 11. 	Under those
circumstances, the court necessarily found that plaintiff was
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“not otherwise qualified to continue his education”3 at
defendant’s school. Id. at *11.
Reasonable people could well disagree about whether N.P.’s
punishment was excessive, but the record evidence demonstrates
that Town officials reliably concluded that N.P. made the
reported death threats, and plausibly determined that N.P.’s
threats were inconsistent with its behavioral standards, which
rendered him unqualified for further participation, at least
during the suspension period. 	And, because there is no evidence
of discriminatory animus, the court cannot find that the Town’s
actions were unlawful. 	Cf., Axelrod v. Phillips Acad., Andover,
46 F. Supp. 2d 72, 83 (D. Mass. 1999) (“Absent evidence that
[defendant’s] standards were motivated by an intent to
discriminate against the disabled, the Court will not substitute
its judgment for that of the [defendant] as to whether a given
grade is appropriate or whether a student’s academic record
warrants his dismissal.”).
3 	As our court of appeals has stated, “many of the issues
that arise in the ‘qualified’ analysis, also arise in the
context of the ‘reasonable modifications’ or ‘undue burden’
analysis. 	That is, if more than reasonable modifications are
required of an institution in order to accommodate an
individual, then that individual is not qualified for the
program.” 	Bercovitch, 133 F.3d at 154.
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The Town certainly did not have to act as it did. 	Others
acting on the Town’s behalf may well have seen things
differently. 	But, the Town’s imposition of a 60-day suspension
for making threats, even though there was little chance that
those threats could or would be carried out, or that N.P. could
appreciate the potential harm his words might cause, cannot be
reasonably characterized as either plainly discriminatory or
otherwise unlawful.
The record, construed most favorably to plaintiffs, does
not support the necessary allegation that N.P. met the
“essential eligibility requirements” for continued participation
in the Town’s summer camp program. 	That is, it does not support
the essential allegation that N.P. was a “qualified” individual
with a disability, nor that the Town’s actions, however
insensitive and inflexible, were based on N.P.’s disability
rather than his actual misconduct. 	Consequently, Angelika
cannot prevail on any of her remaining ADA claims.
Nevertheless, even assuming N.P. continued to meet the
camp’s eligibility requirements and was a “qualified individual”
under the ADA (not withstanding his use of threatening words),
Angelika’s remaining claims would still fall short.
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2. 	Disparate Treatment
The record does not support the allegation that the Town
discriminated against N.P. based on disparate treatment. 	As our
court of appeals has noted, disparate treatment claims allege
that “disability actually motivated the defendant’s challenged
adverse conduct,” and are “governed by the same analytic
framework governing claims of racial discrimination under Title
VII of the Civil Rights Act of 1964.” 	Nunes, 766 F.3d at 144–
45.
If N.P.’s reported conduct (uttering death threats) was a
consequence of, or was “caused” by, his disability, that would
not end the legal inquiry. 	The ADA requires that plaintiff
establish that the alleged discrimination at issue was “by
reason of” his disability. 	42 U.S.C. § 12132. 	The Town argues
that it is entitled to judgment because plaintiff cannot show
that N.P.’s disability was the cause of his suspension from the
program (even if that disability somehow caused N.P. to utter
threats, or if uttering such threats was an unavoidable
manifestation of his disability). 	Disability-caused misconduct
is still misconduct, and absent a request for reasonable
available accommodation, misconduct remains subject to
discipline.
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Plaintiff does not point to any evidence tending to show
that the Town’s determination was not based on misconduct, or
was in any way motivated by discriminatory animus. 	See
Bercovitch, 133 F.3d at 153 (“there is not a shred of evidence
of discriminatory intent toward disabled persons on the part of
the school. 	There is not even a whisper of a suggestion of
stereotyping based on handicap.”).
Plaintiff also fails to point to any admissible evidence
suggesting that the Town’s disciplinary procedures (suspending a
summer camper for making death threats) were applied to N.P. in
any way that differed from how they have been applied to
children without disabilities. 	Instead, plaintiff generally
argues that the Town “takes ‘threats’ from non-disabled adults
differently,” by pointing to statements made by Town Select
Board member Jonathan James at an October 29, 2020, meeting.
Pl.’s Opp. to Summary Judgment at 22 (emphasis added). 	At that
meeting, James, commenting about noise complaints involving a
restaurant, remarked that, if he lived by the restaurant, and
“[i]f I had a gun, I’d shoot that place.” 	Id.
As our court of appeals has observed, however, “to be
probative of discriminatory animus, a claim of disparate
treatment ‘must rest on proof that the proposed analogue is
similarly situated in material respects.’” 	Gonzalez-Bermudez v.
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24
Abbott Lab'ys P.R. Inc., 990 F.3d 37, 44 (1st Cir. 2021)
(quoting Vélez v. Thermo King de P.R., Inc., 585 F.3d 441, 451
(1st Cir. 2009)) (further quotations omitted). 	“Though the
comparison cases need not be perfect replicas, they must be
similar enough that apples are compared to apples.” 	Id.
(internal quotations omitted). 	Mr. James and N.P. are not
“similarly situated.” 	While James’s ill-considered statements
were, of course, objectionable on many levels and subject to
valid social criticism and public accountability, James was not
a camper participating in the Town’s summer camp program, under
the direction and supervision of counselors and Town officials.
The Town’s officers and subordinate officials were not duty
bound to act as disciplinarians with regard to James’s public
statements. 	Operating a summer camp for children is an entirely
different matter. 	Camp counselors and Town officials were duty
bound to set and administer standards of behavior and rules, as
necessary to provide a safe and acceptable camp environment for
the children under their care.
In short, then, plaintiff has failed to point to any
evidence that would permit a trier of fact to conclude that the
Town’s imposition of discipline upon N.P. for misconduct was
related to his disability – that is, that non-disabled campers
would have been treated differently for similar conduct.
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3. 	Disparate Impact
To prevail on her “disparate impact” claim under the ADA, a
plaintiff must “(1)identify the challenged employment practice
or policy, and pinpoint the defendant's use of it’ (2)
‘demonstrate a disparate impact on a group characteristic ...
that falls within the protective ambit of [the ADA]’; and (3)
‘demonstrate a causal relationship between the identified
practice and the disparate impact.’” 	Femino v. NFA Corp., 274
Fed. Appx. 8, 10 (1st Cir. 2008) (quoting E.E.O.C. v. Steamship
Clerks Union, Local 1066, 48 F.3d 594, 601 (1st Cir. 1995))
(further citations omitted).
Plaintiff’s disparate impact claim here is largely
undeveloped. 	She fails to identify with any specificity the
“criteria or methods” that she says operate to subject
“qualified individuals with disabilities to discrimination on
the basis of disability” in the Town’s summer camp program. 	28
C.F.R. § 35.130(b)(3). 	Plaintiff also fails to identify any
other disabled persons who have been disproportionately impacted
by any Town practices. 	The only evidence plaintiff offers in
support of her claim is that N.P. was suspended from the Town’s
Parks and Recreation facilities and programs for 60 days. 	“This
is not enough to demonstrate a disparate impact on the
particular group appellant identifies.” 	Femino, 274 Fed. Appx.
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at 10. 	Accordingly, defendant is entitled to judgment on
plaintiff’s disparate impact claim.
4. 	Failure to Accommodate
Turning to plaintiff’s “failure to accommodate” claim,
“[f]ederal regulations implementing Title II require public
entities to ‘make reasonable modifications in policies,
practices, or procedures when the modifications are necessary to
avoid discrimination on the basis of disability, unless the
public entity can demonstrate that making the modifications
would fundamentally alter the nature of the service, program, or
activity.’” 	Kiman v. N.H. Dep’t of Corr., 451 F.3d 274, 283
(1st Cir. 2006) (quoting 28 C.F.R. § 35.130(b)(7)).
Plaintiff says she “requested a reasonable accommodation
for [N.P.’s] disability in her August 6 email to Warren when she
notified him of [N.P.]’s disability, explained how his
disability impacted his comprehension and use of language, and
requested that, if suspension would be required, it last only
one or two days.” 	Pl.’s Obj. to Summary Judgment at 11.
Plaintiff says her request was reasonable, given the camp’s
published discipline policy (that policy was meant to be
progressive, beginning with a verbal warning for minor
infractions, and escalating to suspension for physical violence
and/or multiple behavior report write-ups). 	Plaintiff further
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27
argues that her request was reasonable because the Town could
not (or, at a minimum, should not) have believed N.P.’s threats
were credible, noting that the camp took no immediate action to
isolate N.P. following the incident. 	Instead, “the camp
operated as normal,” and N.P. continued to interact with other
summer campers and counselors till the day’s end. 	Id. at 12.
Finally, plaintiff says the Town has not shown that her request
for accommodation would have caused a “fundamental alteration”
to its program and services.
As defendant points out, however, the camp’s policy
reserved the discretion to discipline camper misconduct by
suspending a child’s enrollment “at any time.” 	Pl.’s Opp. to
Summary Judgment, Exh. 11, Warren Dep. 52:4-6. 	While the camp’s
policy does not specifically mention “death threats,” the Town
was not precluded from equating N.P.’s threatening words to
“serious misconduct” warranting discipline. 	The Town retained
the authority and discretion to discipline N.P., or any other
camper for misconduct, as it deemed appropriate, so long as the
Town did not exercise that authority in a discriminatory or
otherwise unlawful manner. 	And, again, there is no such
evidence in the record.
Moreover, plaintiff fails to proffer evidence tending to
show that she requested an accommodation for N.P. that related
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28
to his communicative and cognitive disabilities before the
incident at issue. 	Nor is there evidence that she ever
explained to Town officials how N.P.’s disabilities might affect
his conduct, nor did she disclose that those disabilities might
give rise to threatening utterances. 	“[T]he ADA’s reasonable
accommodation requirement usually does not apply unless
triggered by a request.” 	Kiman, 451 F.3d at 283 (internal
quotations omitted). 	After the incident, Angelika did tell
Officer True (and some Town Select Board members) that N.P. had
made death threats in the past. 	See Def. Mot. for Summary
Judgment, Exh. 1, at 2 (“Angie said that NP has made these
threats ‘year after year’ and nothing has been done about it.”);
Exh. 6, Moritz Dep. 41:20-23 (“[Angelika] told us that [N.P.]
had made similar threats in the past and that no actual physical
harm was done by him, even though he had made these threats in
the past.”). 	But, there is nothing in the record showing that
she ever put the Town on notice that N.P. might make
inappropriate, threatening comments, or that a reasonable
accommodation was being requested with respect to such a
disability-related or disability-caused propensity to utter
threatening words.4
4 	Indeed, it might have been difficult to fashion a
reasonable and effective accommodation. 	Perhaps a plan calling
for N.P.’s immediate social correction on such occasions, as
well as a minor and appropriate sanction proportionate to N.P.’s
abilities, accompanied by an informed assessment of the risk of
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29
Instead, plaintiff says, only generally, that when N.P.
began attending camp in 2016, she spoke with camp administrators
about N.P.’s disabilities. 	See Pl.’s Opp. to Summary Judgment,
Exh. 1, at ¶ 10 (“I met with the camp director . . . to explain
NP’s multiple disabilities, diagnoses, and current treatments
and medication. 	I wanted to make sure that they could meet his
needs.”). 	Notably lacking are the details of that conversation,
or details regarding any follow-up conversations that may have
occurred in which a requested accommodation was discussed – a
requested accommodation that might operate to permit N.P. to
participate notwithstanding his potential for uttering threats.
The record does demonstrate that plaintiff requested what
she calls an “accommodation” after N.P.’s misconduct, but in the
form of a less severe sanction. 	In other words, after N.P.
misbehaved, plaintiff requested that the Town modify its
announced discipline, given N.P.’s disability. 	But, multiple
courts have held that “after the fact” requests for
accommodation are necessarily unreasonable. 	See, e.g., McElwee
v. Cty. of Orange, 700 F.3d 635, 641 (2d Cir. 2012) (“A
actual harm posed, and harmful impact, if any, of the words
used, along with giving a full explanation of N.P.’s disability
to all staff and campers, as well as pointing out the importance
of inclusion, might have proven acceptable as a reasonable
accommodation for N.P. 	But, there was no such request, and even
that plan would require some toleration of threats to injure or
kill, at least to the extent of wisely considering the context.
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30
requested accommodation that simply excuses past misconduct is
unreasonable as a matter of law.”). 	In Halpern v. Wake Forest
Univ. Health Scis., 669 F.3d 454 (4th Cir. 2012), the Court of
Appeals for the Fourth Circuit observed:
A school, if informed that a student has a disability
with behavioral manifestations, may be obligated to
make accommodations to help the student avoid engaging
in misconduct. 	But, the law does not require the
school to ignore misconduct that has occurred because
the student subsequently asserts it was the result of
a disability. 	[Plaintiff’s] argument that he was owed
an opportunity to continue at the Medical School and
correct his misbehavior is, therefore, without merit.
Id. at 465. 	See also Profita v. Regents of the Univ. of
Colorado, 709 Fed. Appx. 917, 923 (10th Cir. 2017) (plaintiff’s
accommodation request, which came months after he had twice
failed rotations and had been dismissed from the M.D. program,
did not obligate the defendants to reinstate him “simply because
[he] purported to request, at the eleventh hour, an
accommodation.”). 	Cf., Jones v. Nationwide Life Ins. Co., 696
F.3d 78, 90 (1st Cir. 2012) (“When an employee requests an
accommodation for the first time only after it becomes clear
that an adverse employment action is imminent, such a request
can be ‘too little, too late.”).
There is substantial (and essentially uncontradicted)
evidence in the record showing that the Town considered N.P.’s
misconduct to be serious, and was genuinely concerned about the
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31
disruptive effect of his words on other campers and staff. 	See,
e.g., Def.’s Mot. for Summary Judgment, Exh. 6, Moritz Dep.
36:22-37:6 (“I mean the fact that it was a threat that
frightened or could frighten other children and employees there
is a pretty serious incident, even though, you know, nothing
happened. 	I mean certainly no one was killed, but just the
threat itself was serious enough to say, [w]e need to take some
serious measures about this.”); id. at Exh. 4, Choiniere Dep.
73:13-15 (“My opinion is that the threat itself is what was
serious and needed to be taken seriously.”); id. at Exh. 1 at 2
(True Police Report noting that he spoke with Choiniere who
“advised me he was going to have a discussion about the incident
to ensure the safety of all staff and campers.”).
While some reasonable and well-informed people might
consider N.P.’s threats as the typical hyperbole of a six-year-
old, and respond accordingly, the record establishes that the
Town considered the matter, and reacted differently.
Importantly, however, the Town reacted based on the misconduct
itself. 	It determined that the misconduct warranted a
significant consequence. 	And even six-year-old children are
invariably (and not improperly) subject to some form of
corrective action for uttering threats or other inappropriate
words – if only in the form of an oral reprimand and brief
parental or teacher counseling.
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32
N.P.’s disability was taken into account in reducing the
severity of the sanction initially imposed, and, while still
seemingly harsh, a 60-day suspension cannot be characterized as
unlawful. 	Programs and activities operated by the Town need not
countenance death threats against staff and their families, nor
must Town officials hazard a guess about a threat’s credibility,
or the likelihood of actual future injury, before disciplining
threatening behavior. 	Again, even if one plausibly posits that
the Town should have reacted less harshly, that is not what the
ADA commands. 	There is nothing in this case, “not even a
whisper,” Bercovitch, 133 F.3d at 153, suggesting that the Town
acted as it did based on N.P.’s developmental disability.
The record establishes that the Town’s administrators did
take N.P.’s disabilities into account, as well as the
information that Angelika provided concerning those
disabilities, in fashioning the sanction finally imposed. 	See,
e.g., Def.’s Mot. for Summary Judgement, Exh. 9, Warren Dep.
38:10-13 (“[In making a decision], I spoke with Mr. Choiniere.
I reviewed the [behavior] report that was presented and . . . I
also reviewed e-mails that were received from Ms. P.”). 	See
also id. at Exh. 5, Forrester Dep. (“I called Angelika and
invited her to come over and speak with [me and Ray Mortiz].
She came over to my home and met with the both of us and relayed
her – kind of her experience and her concerns about what had
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33
happened.”); id. at Exh. 6, Mortiz. Dep. 41:9-14 (describing a
meeting between Forrester, Angelika P. and himself: “[Angelika]
went on to describe her version of the events, . . . what she
believed to be the situation. 	She described her son’s
disability and the implications to that, and she presented us
with some demands.”).
Given all the above, plaintiff has not proffered evidence
from which a properly instructed jury could reasonably conclude
that N.P. was denied either a (timely) requested or a reasonable
accommodation.
For similar reasons, plaintiff’s arguments concerning
defendant’s failure to engage in an “interactive process” to
determine whether a reasonable accommodation might be fashioned
also fails. 	First, given the timing of the request, it was
unlikely that such a process was required. 	See, e.g., Shaikh v.
Lincoln Mem'l Univ., 46 F. Supp. 3d 775, 786 (E.D. Tenn. 2014)
(“The majority of federal courts agree that an after-the-fact
accommodation request is not timely.”); see also Halpern, 669
F.3d at 465; Profita, 709 Fed. Appx. at 923. Cf., Jones, 696
F.3d at 90. 	But, even assuming that such a process was required
under these circumstances, the record reflects that the Town did
consider the information Angelika proffered, and did interact
with her (at in-person meetings, and via email) concerning
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34
N.P.’s disabilities and limitations, as part of the process
leading to its decision to modify the sanction initially
imposed. 	And, of course, there does not appear to have been any
effective, requested, and reasonable accommodation proposed or
discussed by the parties, or suggested in the pleadings.
CONCLUSION
The Town’s officials might have first made an effort to be
better informed with regard to N.P.’s disabilities, and their
effects, and perhaps could have better balanced the virtually
non-existent risk of actual harm against the very important
benefits (to N.P. and society in general) of promoting
inclusion. 	They could have been more empathetic and
understanding, could have taken a more accommodating approach,
might have been more compassionate and less reactionary, and
could have taken the opportunity at hand to better educate and
inform camp staffers and campers alike about N.P.’s limitations,
and the positive social benefits of supporting the full
participation of disabled children in its program, all of which
would have helped implement not only the requirements, but the
spirit of the ADA. 	But, the Town’s actions cannot, on this
record, be found to have been unlawfully discriminatory based
upon disability in violation of the ADA.
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For the foregoing reasons, as well as those given in
defendant’s memoranda (document nos. 18-1 and 20), defendant’s
motion for summary judgment (document no. 18) is necessarily
GRANTED. 	The clerk shall order judgment in accordance with this
order and close the case.
SO ORDERED.
____________________________
Steven J. McAuliffe
United States District Judge
March 9, 2022
cc: 	Counsel of Record
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