Black v. National Board of Medical Examiners
Filing
57
ORDER denying 43 --motion to amend/correct; denying 44 --motion to amend/correct; granting 31 --motion for summary judgment; directing the clerk to ENTER JUDGMENT for the National Board of Medical Examiners and against Elizabeth A. Black, to TERMINATE any pending motion, and to CLOSE the case. Signed by Judge Steven D. Merryday on 9/1/2017. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ELIZABETH A. BLACK,
Plaintiff,
v.
CASE NO. 8:16-cv-2117-T-23TGW
NATIONAL BOARD OF
MEDICAL EXAMINERS,
Defendant.
____________________________________/
ORDER
The National Board of Medical Examiners administers to each prospective
doctor of medicine in the United States a series of examinations (designated Steps
One through Three) that test scientific knowledge and clinical ability. A graduate
of Princeton University and a student at the University of South Florida’s medical
school, Elizabeth Black failed the Step One examination three times. Suing the
Board under the Americans with Disabilities Act, Black alleges (Doc. 29) in a
single-count complaint that an ADHD diagnosis requires the Board to allow Black
time-and-a-half on a fourth sitting for the Step One examination. Arguing that the
evidence fails to show that ADHD “substantially limits” Black’s ability to read, to
remember, to think, or to concentrate, the Board moves (Doc. 31) for summary
judgment, and Black moves (Doc. 44) to amend the complaint.
I. Black’s motion to amend the complaint
Eleven months after an order cautioned the parties that a motion to amend
a pleading “is distinctly disfavored after issuance of this order” (Doc. 17 at 1), two
months after the close of discovery, and a month after the Board’s motion for
summary judgment, Black moves (Doc. 44) to amend the complaint to assert that
ADHD “substantially limits” Black’s ability to “work” and to “take tests.” The
motion warrants denial for three reasons.
First, Black unduly delayed moving for leave to amend. See Foman v. Davis,
371 U.S. 178, 182 (1962) (holding that “undue delay” or the “repeated failure to cure
deficiencies by amendments previously allowed” warrants denying leave to amend).
Black variously attributes the delay to “diligent legal research,” to new decisions
cited by the Board, and to testimony from a recent deposition, but none of the
proffered explanations excuses Black’s tardiness. Diagnosed with ADHD in 2009,
Black undoubtedly knew about the purported limitations years before this action and
could have alleged “working” and “test-taking” in the original complaint or in the
May 31, 2017 amended complaint. And every decision cited by the Board except
one1 preceded this action. Additionally, Black argues that the deposition of
Dr. Kevin Murphy revealed for the first time some new argument, but Black neither
1
The Board cites Doe v. Bibb Cty. Sch. Dist., 2017 WL 2240825 (11th Cir. May 22, 2017), for
the proposition (established three decades earlier in Anderson v. Liberty Lobby, Inc., 477 U.S. 242
(1986)) that defeating summary judgment requires more than a “mere scintilla” of evidence
favorable to the non-moving party. (Doc. 31 at 3 (quoting Doe))
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identifies the new argument nor explains why she waited several months after the
deposition to move for leave to amend.
Second, amending the complaint at this time unduly prejudices the Board.
The proposed complaint, which would likely require re-opening discovery, prolongs
the resolution of this action by at least several months. See Foman, 371 U.S. at 182
(holding that “undue prejudice to the opposing party” warrants denying leave to
amend); Tech. Res. Serv., Inc. v. Dornier Med. Sys., Inc., 134 F.3d 1458, 1464
(11th Cir. 1998) (affirming the denial of leave to amend where the proposed
amendment “probably would have required that discovery be reopened”).
Third, the proposed complaint is futile. See Foman, 371 U.S. at 182 (holding
that “futility of amendment” warrants denying leave to amend). As Section II of this
order explains, the record reveals Black’s long history of superlative performance in
“working” and “test-taking” and militates mightily against the prospect that Black
suffers from a “substantial limitation” in comparison to the average person. The
motions (Docs. 43 and 44) to amend the complaint are DENIED.
II. The Board’s motion for summary judgment
Black alleges that the Board violated several regulations promulgated under
the ADA. For example, Black alleges a violation of 36 C.F.R. § 36.309(b)(1), which
requires that the Board “select[]” and “administer[]” the examination “so as to best
ensure that, when the examination is administered to a person with a disability that
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impairs sensory, manual, or speaking skills, the examination” measures the person’s
innate aptitude without artificial diminution attributable to a disability.
The Board argues that Black fails to qualify for accommodation under the
ADA and the ADA regulations. Section 12102(1)(A) of the ADA defines a
“disability” as “a physical or mental impairment that substantially limits one or
more major life activities” or a “record of such an impairment.” Under 28 C.F.R.
§ 36.105(e)(1), qualifying for an accommodation through a “record of such an
impairment” requires showing a “history of . . . mental or physical impairment that
substantially limits one or more major life activities.” Black identifies “learning,”
“reading,” “memory,” and “concentrating” as the major life activities substantially
limited by Black’s ADHD. (E.g., Doc. 39-15)
Although Black insists that the Board must compare Black’s performance to
her “medical-school peers” (E.g., Doc. 32 at 9), under 28 C.F.R. § 36.105(d)(1)(v)
the substantial-limitation determination depends on a person’s performance in
comparison to “most people in the general population.” Of course, average (or
above-average) performance presumptively establishes the absence of a substantial
limitation. In this action, Black’s history of superlative academic performance
refutes the claim that ADHD substantially limits Black’s ability to learn, to read, to
remember, or to concentrate in comparison to the average person.
The results of standardized examinations administered to Black in primary
school uniformly show average or above-average performance. In first grade, Black
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scored in the 71st percentile (that is, Black scored better than seventy-one percent of
children her age) on the Otis-Lemon School Ability Test; in fourth grade, the 79th
percentile; in seventh grade, the 68th percentile. (Doc. 32-3) A series of
“Metropolitan Achievement Tests” administered to Black in elementary and middle
school consistently show her performing above the median (typically, far above the
median). (Doc. 32-4) The results evidence no substantial limitation compared to the
average person.
Again, Black’s performance in high school vividly illustrates a superior ability
and strongly suggests the absence of a substantial limitation. Despite a challenging
schedule of Honors and Advanced Placement classes, Black graduated ninth in a
class of two-hundred and ninety-five students. (Doc. 32-10 at 18) Black maintained
an impressive 3.941 GPA while participating in the Student Council and competing
in field hockey, lacrosse, and basketball. (Doc. 32-10 at 19) In each of three attempts
on the SAT, Black, who requested no accommodation on the SAT, scored better
than at least 80% of test-takers.
Black’s high-school performance merited admission to Princeton University,
where Black earned mostly As and Bs. (Doc. 32-7) Although some Cs and Ds
appear on the Princeton transcript, Black attributes these outlying grades to the
“normal adjustment” to college and to a busy schedule, which included a “rigorous
course load” and “countless hours practicing” field hockey. (Doc. 32-10 at 13)
Black’s field-hockey coach, who interacted daily with Black for four years at
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Princeton, writes that Black showed that “she can succeed at the highest level.”
(Doc. 32-10 at 39)
After graduating from Princeton, Black worked as a legal assistant at
Shearman & Sterling in New York City, where she “reviewed, drafted, and organized
legal documents, surveys, [and] title policies.” (Doc. 32-1 at 2) Black’s employment
at Shearman & Sterling required attention to detail; Black reviewed documents for
accuracy. (Doc. 32 at 25) In a recommendation to Columbia University, Shearman
& Sterling commended Black’s performance at the firm. (Doc. 32 at 26, stating that
“I got good evaluations from [Shearman & Sterling] to go work at Columbia.”)
After a brief time working at Columbia University, Black enrolled at the
University of Pennsylvania, where she earned a “certificate of advanced studies.” In
four semesters at Penn, Black earned seven As and one B in a rigorous curriculum
that included organic chemistry and physics. (Doc. 32-10 at 3 and 32)
Black graduated from the University of Pennsylvania and worked for several
years in Haiti and the Dominican Republic. Among other jobs, Black worked for a
not-for-profit organization and managed “logistics and procurement, particularly
after the Haitian earthquake.” (Doc. 32 at 20) Also, Black managed the
organization’s finances, another responsibility that required carefully reading and
concentrating. (Doc. 32 at 21, at which Black testifies that she “was responsible for
the financial books”) Black never requested an accommodation during employment
or during an internship. (Doc. 32 at 16)
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From kindergarten through the University of Pennsylvania, Black neither
requested nor received any accommodation from a school or a standardized-test
administrator. (Doc. 32 at 16) Black states that she requested no accommodation on
the MCAT because the test administrator “flags your score report.” (Doc. 32 at 36)
Although Black scored better than just 32% of test-takers on a first attempt at the
MCAT, Black explains that she prepared for the examination in less than a month
and studied intermittently with a tutor. (Doc. 32 at 48) After an “intensive Kaplan
[review] course,” on a second sitting Black scored better than 73% of MCAT
test-takers despite receiving no additional time. (Doc. 32 at 35–36) Black’s success
on the MCAT counsels strongly against the claim that ADHD substantially impairs
Black’s ability to succeed on a timed and standardized examination.
Black’s performance at Princeton, at the University of Pennsylvania, and on
the MCAT earned Black a spot at the University of South Florida’s Morsani College
of Medicine, where Black enrolled in 2011. Among other items, a matriculating
student must certify possessing the “perseverance, diligence, and consistency to
complete the medical school curriculum and enter the independent practice of
medicine.” (Doc. 32-9) Black affirmed when she enrolled at USF that she suffered
from no condition requiring accommodation.2 (Doc. 32-9)
2
Although Black’s father signed the certification on her behalf, Black admits the accuracy of
the certification. (Doc. 32 at 38)
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Black passed her first- and second-year USF-administered examinations. On
her first attempt at the Step 1 examination, Black requested no accommodation from
the Board. On the second and third attempts at the Step 1 examination, Black
requested but the Board denied for lack of supporting documentation time-and-a-half.
After failing the examination a third time, Black discussed with a USF “student
advocate” Black’s sitting for the examination a fourth time. In a series of e-mails to
the advocate, Black appears to disclaim the necessity of an accommodation. For
example, Black states that she “would obviously like to take [the examination] with
extra time” but “would also like to take [the examination] if I . . . think I’m ready to
take it, whether or not I have the accommodations.” (Doc. 32-14)
To evidence a substantial limitation in comparison to the average person,
Black cites (Doc. 39) the reports or the diagnoses of four purportedly “qualified”
professionals: Megan McMurray (a psychology student at USF), Dr. Booth-Jones,
Dr. Vigil-Otero, and Dr. Saneholtz.3 None of these providers’ reports or diagnoses
shows a “substantial” limitation in comparison to the average person.
First, Megan McMurray administered several “scales” or “examinations,”
which mostly involved Black’s self-reporting of her perceived symptoms. The results
3
The Board correctly questions the validity of the ADHD diagnoses, which suffer from a
pronounced lack of methodological rigor. Except for the diagnosis by the graduate student (which
showed a “54% chance” that Black suffers from ADHD), the diagnoses typically involved only a
brief, informal interview with Black. The psychologists, at least one of whom admits that the
purpose of Black’s examination for ADHD was to allow Black to continue a Vyvanse prescription,
failed to review Black’s history, failed to confirm with a third party Black’s self-reported symptoms,
and failed to administer clinical tests in accord with the accepted protocol for diagnosing ADHD.
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led McMurray to conclude that Black’s “memory” and “processing speed” are
“average when compared to that of her same-aged peers.” (Doc. 32-15 at 5) If
anything, McMurray’s conclusions counsel against a substantial limitation in
comparison to the average person.4
Second, Dr. Booth-Jones offers no opinion about a substantial limitation.
Even if Dr. Booth-Jones opines that ADHD substantially impairs Black, the record
reveals that Dr. Booth-Jones, whose name appears on a report produced by
McMurray, lacks an informed basis to identify a substantial limitation resulting from
Black’s ADHD. An employee of the Moffitt Cancer Center, Dr. Booth-Jones
volunteered to “supervise” McMurray’s interaction with Black, but Dr. Booth-Jones
never met Black, never reviewed Black’s records, and neither conducted nor oversaw
the administration of any test to establish the extent to which ADHD purportedly
impairs Black in comparison to the average person.
Third, Dr. Vigil-Otero conducted a “global assessment of functioning” and
assigned Black a “GAF” score of 80, which Dr. Vigil-Otero testifies evidences
Black’s “occasional struggles[,] but obviously [Black’s ADHD is] not severe.”
(Doc. 39-7 at 52) The Diagnostic and Statistical Manual of Mental Disorders
confirms Dr. Vigil-Otero’s conclusion that a score of 80 evidences no substantial
4
The testimony of Dr. Booth-Jones, who “supervised” McMurray, severely undermines the
validity of McMurray’s diagnosis. Rather than administer a thorough evaluation, McMurray
conducted a brief “reevaluation” “just to maintain” Black’s Vyvanse prescription. (Doc. 35 at 15)
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limitation. Under the manual, a score of 80 signifies some “difficulty concentrating”
but “no more than a slight impairment.”5 (Doc. 39-7 at 53)
Fourth, Black submits no evidence or argument that Dr. Saneholtz, who saw
Black for nine brief “general counseling sessions,” concluded that ADHD
substantially limits Black in comparison to the average person.
CONCLUSION
To qualify for accommodation under the ADA, a person must demonstrate
that a disorder “substantially” limits her in comparison to “most people in the
general population.” Black alleges that ADHD substantially limits her ability to
read, to remember, to think, and to concentrate, but Black’s biographical record
consistently reveals average or above-average performance. After graduating at the
top of her high-school class and excelling on the SAT, Black graduated from
Princeton University, where she earned respectable grades while competing in
Division I field hockey. After working at Shearman & Sterling, Black enrolled at the
University of Pennsylvania, and Black’s performance earned her an award reserved
for the top 20% of the Penn program. From kindergarten through the University of
5
Although Dr. Vigil-Otero assigned Black a score of 80, Dr. Vigil-Otero states during this
litigation that Black’s score “was going down into the 40s.” (Doc. 39-7 at 69) A score in the range
typically results, for example, in “suicidal ideation, severe obsessional rituals, [or] frequent
shoplifting,” but Dr. Vigil-Otero agrees that Black manifested none of these behaviors. (Doc. 39-7
at 73) Nevertheless, Dr. Vigil-Otero states that Black’s “specific difficulties were seriously impairing
her in her occupational, or in this case school functioning.” (Doc. 39-7 at 73) But Dr. Vigil-Otero
fails to compare Black’s “impair[ed]” performance to the performance of an average person.
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Pennsylvania, Black neither requested nor received an accommodation from a school
or a standardized-test administrator.
The psychologists’ opinions provide little or no evidence that ADHD
substantially impairs Black’s ability to learn, to read, to remember, or to concentrate
in comparison to the average person. In any event, defeating summary judgment
requires more than a mere “scintilla of evidence.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 252 (1986). Considered in contrast to more than two decades of
above-average performance, the superficial, equivocal, or unqualified opinions create
no genuine dispute of material fact. Even viewing the record favorably to Black, no
reasonable finder of fact could conclude that ADHD substantially limits Black in
comparison to most people in the general population. The Board’s motion (Doc. 31)
for summary judgment is GRANTED, and the clerk is directed (1) to enter judgment
for the National Board of Medical Examiners and against Elizabeth A. Black, (2) to
terminate any pending motion, and (3) to close the case.
ORDERED in Tampa, Florida, on September 1, 2017.
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