392 F.Supp.2d 42 (2005) | Cited 1 time | D. Massachusetts | May 3, 2005


The plaintiff Heidi A. Baer, a medical student at DrexelUniversity College of Medicine, seeks a preliminary injunctioncommanding the defendant National Board of Medical Examiners("NBME") to permit her to have extended time in taking Step 1 ofthe United States Medical Licensing Examination ("USMLE"). Baeralleges that the defendant's refusal to accommodate her requestfor a testing period that is one and a half times as long as thenormal test period to take the USMLE violates the American WithDisabilities Act ("ADA"), 42 U.S.C. § 12189, and theMassachusetts public accommodation statute, Mass. Gen. Lawsch. 272, § 98. She predicts that unless she is allowed extra time shewill likely fail the exam and consequently she will be dismissedfrom medical school. After careful review of the parties' briefsand supporting affidavits, and after oral argument, I concludethat the plaintiff's motion for a preliminary injunction ought tobe denied. I. Factual Background

The USMLE is a national standardized test administered by theNBME, a non-profit organization. The test is given under stricttime limitations. There are three parts, given separately,commonly referred to as Steps 1, 2, and 3. In order to obtainmedical licensure, a prospective doctor such as Baer is requiredto pass all three steps. Drexel requires its students to takeStep 1 before continuing with their third year of medical school,and generally expels students who cannot pass Step 1 after threeattempts. Baer has taken and failed Step 1 of the USMLE on threeoccasions prior to filing this lawsuit. On October 1, 2004,Drexel approved her request to take Step 1 a fourth time, butnotified her that this would be her final attempt.

Step 1 is offered year-round. An examinee registers for a threemonth eligibility period during which she must take the exam. Itis the examinee's responsibility to schedule a test date withinthe three month period. If an examinee is unable to take Step 1within her eligibility period, an extension is available to takethe test during the next contiguous three month eligibilityperiod.

Baer is eligible to take Step 1 at any time from May 1, 2005through July 31, 2005. She has selected May 5, 2005 as her testdate because she has completed a test preparation review courseas of the end of April, and she wants to maximize the effects ofthe review course, hoping thereby to increase her chances ofpassing the exam. She also needs a passing score on Step 1 toenroll in internship programs required of third year medicalstudents at Drexel, which begin on July 4, 2005.

The basis for Baer's claim for an extended time accommodationis that she suffers from a learning disability, which impairs herability to read, comprehend and process written material at thesame rate as most people. She also claims to suffer fromAttention Deficit Hyperactivity Disorder ("ADHD"), which limitsher ability to focus and concentrate. These conditions are saidto interfere with her ability to effectively demonstrate her knowledge of thetested subject matter on timed standardized tests, such as theUSMLE. If she is given a time accommodation, she can minimize theinterference of her impairments with her test performance andgive a true indication of her knowledge of the subject matter.

Baer's academic history includes extended time accommodations.In grammar school, on an apparently informal basis, Baer wasgiven some time latitude in taking quizzes and tests. Morerecently, in preparation for medical school, Baer took theMedical College Admission Test ("MCAT") three times — the firsttwo times without any time accommodation and the third time withan accommodation that allowed her time and a half, which wasgranted by the test administrator after Baer submitted a reportfrom Dr. Christopher Connolly, Ph.D. diagnosing her with alearning disability (dyslexia; reading disorder). On theaccommodated third test, Baer's MCAT score went up substantiallyover the first two tests. At Drexel, Baer has also requested andreceived extra time on exams.

Her academic history also indicates that she has sometimesperformed in the mid-average range on timed tests without anyaccommodation. In high school, she took the Scholastic AptitudeTest ("SAT") three times without any time accommodations andreceived scores generally in the range of the national mean forfemale test-takers. After high school, Baer attended DukeUniversity, graduating with a cumulative 2.95 average. Sheperformed well in the field of her major (English), largely, shesays, because her academic performance in that major was notmeasured by timed exams. However, she was less successful in mathand science classes. She attributes the performance differentialto the fact that the math and science courses evaluatedperformance using timed tests, without time accommodations. On each of the three prior occasions when Baer has taken Step 1of the USMLE, she requested and was denied additional time tocomplete the exam. In November 2004, she applied for a timeaccommodation for her fourth attempt at Step 1. In support of herapplications for an accommodation, she has provided the NBME withfive doctors' reports indicating that she suffers from a readingdisorder and from ADHD, a personal statement, her grade schoolevaluations, and her undergraduate and medical schooltranscripts.

The NBME submitted the materials she provided to its own expertadvisers, who concluded that she had not shown that she had alearning/reading disability or ADHD so as to warrant beinggranted extended time on the exam. Relying on these conclusions,on January 14, 2005, the NBME denied her request for anaccommodation. On April 12, 2005, Baer filed this action and hermotion for a preliminary injunction. A hearing on the motion washeld on April 28, 2005. Baer seeks a mandatory preliminaryinjunction ordering the NBME to provide her with time and a halfwhen she takes Step 1 of the USMLE on May 5.

II. Discussion

A plaintiff seeking a preliminary injunction in an ADA casemust demonstrate (1) that she has a likelihood of success on themerits of her claim; (2) that she will suffer irreparable harm ifthe injunction is denied; (3) that the balance of hardshipsfavors the issuance of an injunction; and (4) that the issuanceof an injunction will not adversely affect the public interest.Bercovitch v. Baldwin Sch., Inc., 133 F.3d 141, 151 (1st Cir.1998). A. Likelihood of Success on the Merits

The basis of the plaintiff's statutory claims is that she is"disabled" within the meaning of the ADA.1 She bears theinitial burden of showing that she is likely to succeed inestablishing that essential proposition. Bercovitch,133 F.3d at 155. Under the ADA, a person has a "disability" if, asrelevant here, the person has a mental impairment thatsubstantially limits one or more major life activities.42 U.S.C. § 12102(2). While Baer has shown that she likely suffers fromsome weakness or impairment that adversely affects her ability toread, comprehend and process written material quickly, she hasnot shown that she is likely to succeed in demonstrating that herimpairment has such a severe impact on her that it can properlybe regarded as "substantially limiting" her in a "major lifeactivity," so as to amount to a "disability" for which the ADAprovides remedial protection.

It must be understood that there is, at least potentially, adifference between what a psychologist may mean when she uses theterm "disability," and what the relevant statute means when ituses that term. It is possible for a person to be diagnosed by apsychologist as having a "learning disability," for example, andyet not be considered to have a "disability" within the meaningof the ADA. As the Supreme Court has succinctly put it, "Merelyhaving an impairment does not make one disabled for purposes ofthe ADA. Claimants also need to demonstrate that the impairmentlimits a major life activity." Toyota Motor Mfg., Inc. v.Williams, 534 U.S. 184, 195 (2002). "It is insufficient forindividuals attempting to prove disability status under this testto merely submit evidence of a medical diagnosis of animpairment." Id. at 198. See also Lessard v. OsramSylvania, Inc., 175 F.3d 193, 197 (1st Cir. 1999) ("Under the ADA, notall impairments lead to protection. Only those impairments whichsubstantially limit a major life activity do so.") (internalcitation omitted).

The plaintiff relies on the reports of psychologists who haveadministered a variety of assessment tests in support of herclaim that she has a learning disability and/or ADHD. Thedefendant responds with affidavits from experts criticizing theconclusions of the plaintiff's experts and disagreeing that thetests show that she has either. At this stage, it seems the ADHDdiagnosis is suspect: It has surfaced only very late in theseries of evaluations of the plaintiff occurring over many years,and it is not made in conformity with the generally acceptedstandards of the American Psychiatric Association's Diagnosticand Statistical Manual, Fourth Edition ("DSM-IV"). On the otherhand, it appears that the plaintiff does have a well-documentedweakness in reading fluency and comprehension, though theseriousness of the deficit is disputed. Overall, the plaintiff'sperformance on the diagnostic testing was within the averagerange, sometimes low average, sometimes high, with occasionalscores above and below the average range.

There is also an apparent gap between the plaintiff's very highIQ scores and her actual performance on certain tasks thatsuggests an impairment of some kind and degree. It may be grantedthat evidence of a disparity between a person's overallintelligence, IQ, or ability and her actual performance on examsor in school generally might support a finding of a mentalimpairment. See Gonzales v. Nat'l Bd. of Med. Exam'rs,225 F.3d 620, 629 (6th Cir. 2000), cert. denied, 532 U.S. 1038(2001). On the other hand, poor performance on exams might alsobe attributable to numerous other factors, such as anxiety,stress, nervousness, cautiousness, poor organization, poor timemanagement, lack of motivation, lack of appropriate preparation,or weakness in a particular subject matter. Argen v. New York State Bd. of Law Exam'rs,860 F. Supp. 84, 88 (W.D.N.Y. 1994); Pazer v. New York State Bd. of LawExam'rs, 849 F. Supp. 284, 287 (S.D.N.Y. 1994). Some of thesefactors are present in Baer's case. See, e.g., Weinstein Report(Compl. Ex. A) at 4 (noting her "poor organization" and"idiosyncratic strategy"); Forman/Kerns Report (Compl. Ex. M) at2 (indicating Baer's belief that she is not an "effectivestudier" because she is "too into the details"); Prather Report(Compl. Ex. P) at 3, 10 (noting her "reducedattention/organization skills," "mild obsessiveness," and "testanxiety"); Duke Tr. (Compl. Ex. E) (reflecting lower performancein math and science classes relative to other subjects).

The ADA "create[s] a demanding standard for qualifying asdisabled," requiring that the terms "substantially limits" and"major life activity" "be interpreted strictly." Toyota,534 U.S. at 197. A "major life activity" is one that is "of centralimportance to daily life." Id. Baer argues that her impairmentsubstantially limits the major life activities of learning andreading. Reading and learning may be considered major lifeactivities, see Bercovitch, 133 F.3d at 155 ("[L]earning is amajor life activity."); Bartlett v. New York State Bd. of LawExam'rs, 226 F.3d 69, 80 (2d Cir. 2000) (holding that reading isa "major life activity"), but Baer's evidence does not show thather reading weakness affects her in her activities of daily life.Her claim is that she is disadvantaged when required to takestandardized tests under regulated time pressure. See, e.g.,Connolly Report (Compl. Ex. H) at 3 ("she presents as having areading disorder, but this is primarily the function of speed."),Prather Report (Compl. Ex. P) at 7 ("current findings reflectedsuperior logical, analytic reasoning on both verbally andvisually mediated tasks — though not when time constraints wereimposed."). The specific task of taking timed tests, however, isnot the kind of "major life activity" protected under the ADA.Cf. 28 C.F.R. § 36.104(2) ("The phrase major life activitiesmeans functions such as caring for one's self, performing manual tasks, walking, seeing,hearing, speaking, breathing, learning, and working.").

"Substantially limits" means "[s]ignificantly restricted as tothe condition, manner or duration under which an individual canperform a particular major life activity as compared to thecondition, manner, or duration under which the average person inthe general population can perform that same major lifeactivity." 29 C.F.R. § 1630.2(j)(1)(ii); see also Toyota,534 U.S. at 198 ("[A]n individual must have an impairment thatprevents or severely restricts the individual from doingactivities that are of central importance to most people's dailylives.") (emphasis added) (addressing a physical impairment);Knapp v. Northwestern Univ., 101 F.3d 473, 481 (7th Cir. 1996)(With respect to an impairment that affects the major lifeactivity of learning, "`[t]he impairment must limit [learning]generally.' . . . An impairment that interferes with anindividual's ability to perform a particular function, but doesnot significantly decrease that individual's ability to obtain asatisfactory education otherwise, does not substantially limitthe major life activity of learning.") (emphasis in original)(citation omitted), cert. denied, 520 U.S. 1274 (1997).

In Calef v. Gillette Co., 322 F.3d 75 (1st Cir. 2003), theplaintiff claimed that when he was under stress, his ADHD led himto lose the ability to express himself coherently and made himprone to explosive outbursts. He asserted that his impairmentsubstantially limited him in his major life activities ofspeaking and learning and that his employer violated the ADA whenit fired him after one such outburst. The First Circuit concludedhe had not shown that he had a "disability" within the meaning ofthe ADA because he had not shown a general effect on his abilityto learn or speak in every day life. Id. at 85. Episodiceffects of the impairment was not enough to show that his ADHDsubstantially limited a major life activity. Id. at 86. Baer acknowledges that her prior educational and testingexperiences demonstrate that her impairment is not substantiallylimiting when she is not under time pressure. As she points out,she performed well at Duke as an English major where she did nothave to take many timed tests. In addition, as noted above, shehas exhibited predominantly average diagnostic test scores in thepsychologists' reports. In sum, Baer has not shown she is likelyto succeed in demonstrating that she has an impairment thatsubstantially limits her learning or reading generally. SeeWong v. Regents of the Univ. of California, 379 F.3d 1097,1109-10 (9th Cir. 2004).2

For these reasons, Baer has not met her burden of showing thatshe is likely to succeed in establishing that she is "disabled"as that term is specifically understood for purposes of applyingthe ADA.

B. Irreparable Harm

Although inability to show a likelihood of success on themerits is alone enough to deny the motion for a preliminaryinjunction, Baer has also failed to demonstrate that she wouldsuffer irreparable harm absent a preliminary injunction. Matosv. Clinton Sch. Dist., 367 F.3d 68, 73 (1st Cir. 2004)("[I]rreparable harm is a necessary threshold showing forawarding preliminary injunctive relief."). "`Irreparable injury'in the preliminary injunction context means an injury that cannotadequately be compensated for either by a later-issued permanentinjunction, after a full adjudication on the merits, or by a later-issued damages remedy." Rio GrandeCmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 76 (1st Cir.2005); see also Massachusetts Coalition of Citizens withDisabilities v. Civil Def. Agency and Office of EmergencyPreparedness, 649 F.2d 71, 74 (1st Cir. 1981) ("Only a viablethreat of serious harm which cannot be undone authorizes exerciseof a court's equitable power to enjoin before the merits arefully determined."). Baer claims that unless she is allowed extratime on Step 1 she will likely fail the exam a fourth time andsuffer the irreparable harm of being dismissed from medicalschool.

First of all, it is not certain that she will suffer thepredicted harm; she may pass the test. Moreover, her inability tocontinue as a medical student without interruption at Drexel,while desirable, is not a harm that is irreparable to Baer'spotential medical career. The record indicates that she mayplausibly seek admission to other medical schools that, unlikeDrexel, do not condition matriculation on passing the Step 1exam.

Nor is any harm necessarily imminent. Baer is eligible to takeStep 1 until July 31, 2005. She might also have a second threemonth window within which to take the exam if allowed anextension. Her reasons for selecting the May 5 test date — adesire to maximize the effects of a review course and report herscores to Drexel as soon as possible so that she can continuewith medical school without interruption — are understandable,but it is an exaggeration to say that not achieving them amountsto irreparable harm.

It may also be noted that Baer brought this action forinjunctive relief only three weeks before her scheduled testdate, but three months after the NBME denied her fourth requestfor an accommodation. The NBME's most recent denial of herrequest, like the three before it, was based on its conclusionthat Baer had not shown that she was disabled within the meaningof the ADA. Around the same time the NBME denied her request for anaccommodation Baer began her review course for the exam. She knewin mid-January of this year that she was once again faced withthe prospect of taking Step 1 without an accommodation.Furthermore, she knew that if she were to fail on this fourthattempt that she would likely be dismissed from Drexel. On anexpedited schedule, a full adjudication on the merits could becompleted within the period of her eligibility for the Step 1exam. If Baer believed her lifelong dream of becoming a doctorwas about to come to an end, as she alleges in her verifiedcomplaint, then perhaps her pursuit of a judicial remedy shouldhave been more expeditious. Her slowness in filing this actionafter receiving the NBME's denial letter is unexplained, and anyconsequent time binds she faces are self-inflicted. See SanFrancisco Real Estate Inv. v. Real Estate Inv. Trust of America,692 F.2d 814, 818 (1st Cir. 1982); Pazer,849 F. Supp. at 287-88.

III. Conclusion

Because the plaintiff is unable to demonstrate a likelihood ofsuccess on the merits of her claims, or the likelihood ofirreparable harm absent a preliminary injunction, her motion fora preliminary injunction is DENIED.


1. The parties agree that the Massachusetts publicaccommodation statute provides the same kinds of protections asthe ADA and requires a similar analysis. They have not suggestedthat I conduct separate analyses under state and federal law, andaccordingly, I address the issue in terms of the federal statuteand its standards of proof.

2. Even if taking timed tests could be considered a "majorlife activity," the record is ambiguous as to whether herimpairment affects to a substantial degree her ability to taketimed tests. Baer's scores on the timed SAT, which she took threetimes without any accommodations, were more or less in line withthe national mean score for female test-takers. She did, however,perform relatively poorly on the MCAT (her first two attempts),the USMLE, and in math and science classes at Duke which she saysinvolved timed tests. This evidence may suggest that anyimpairment she has substantially limits only her performance ontimed math and science tests, not timed tests generally.

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