March 2021 - Parks & Recreation - 30

L AW R EV I EW

intellectually-challenged individual. "
The town manager emailed
Angelika again on August 12, 2019.
He informed her that N.P. would
remain suspended for an initial period of 60 days (through October 7,
2019), after which Angelika could
speak to the parks and recreation
director about readmitting N.P. to
the Parks and Recreation Department's programs and facilities. N.P.
was emotionally upset and very sad
when told he could not return to
camp for the rest of the summer.

The federal district court
acknowledged: " Courts have
nearly uniformly rejected the
idea that the ADA requires
entities to countenance
misconduct. "
On September 2, 2019, Angelika
requested a copy of the investigatory findings that the town manager had referenced in his August
7 email. He responded that " the
investigation was a review of police and internal reports, " and that
no report had been drafted. Two
days later, Angelika met with two
members of the Town's Select
Board. During the meeting, one of
the board members told Angelika
that by allowing N.P. to remain at
camp through the end of the day
on August 6, 2019, the Town had
been " compassionate, " as " they
could have called to have him
handcuffed and dragged away. "
The board member further stated
that he would present the matter
to other members of the Select
Board privately.
On September 17, 2019, the
board member emailed Angelika,
30 Parks & Recreation

informing her that the Town's Select Board supported the action
taken by the Parks and Recreation
Department. N.P.'s suspension
ended on October 7, 2019.
According to the Town, no summer or school vacation camps
were offered between August 16,
2019 and October 7, 2019. As a
result, the Town contended that
" N.P.'s suspension from Town
programs and parks was, in effect,
eight days long. "

Non-Discriminatory
" Safety Measure "
In response to Plaintiffs' lawsuit,
the Town did not contest that N.P.
is a " qualified individual with
a disability, " as defined by the
Americans with Disabilities Act
(ADA). As cited by the federal
district court, the ADA defines a
" qualified individual with a disability " as follows:
[A]n individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of
architectural, communication,
or transportation barriers, 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. §
12131.
The Defendant Town, however,
argued that Plaintiffs' claims under the ADA should fail because
the Town did not discriminate
against N.P. based on his disability, but rather acted in response to
" threats " that N.P. made. Specifically, Defendant contended that
" the complaint, at best, essentially pleads that because N.P. has an

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intellectual disability, he uttered
words that, literally, amount to
threats to which the Town lawfully responded by suspending him. "
According to the Town, even
though N.P.'s " threats " may have
resulted from his disability, that
does not make his suspension based
on those threats a discriminatory act. On the contrary, the Town
maintained N.P.'s suspension was
not discrimination, but a " safety
measure, " which was taken only
after N.P. had made the " threats "
concerning other participants and
staff within the camp program.
Moreover, the Town pointed out
that " N.P. has participated in the
summer day-camp program for
several years, " and N.P. " had behavior incidents toward the end of
camp in past years. "

Consider Threat Context
As noted by the federal district
court, the Town's argument would
prevail if N.P. " did, in fact, make
credible or even sincere death
threats against three individuals
at summer camp, even if those
threats were a consequence of
Plaintiff N.P.'s disability. " In so
doing, the federal district court
acknowledged: " Courts have
nearly uniformly rejected the idea
that the ADA requires entities to
countenance misconduct. " Accordingly, the court found " misconduct - even misconduct related to a disability - is not itself a
disability and may be a basis for
dismissal. " Similarly, the court
acknowledged the ADA does not
require that an individual " whose
unacceptable behavior threatens
the safety of others be retained,
even if the behavior stems from a
mental disability. "

March 2021 - Parks & Recreation

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