Berger v. Nat'l Bd. of Med. Examiners

BRENDAN J. BERGER, Plaintiff, v. NATIONAL BOARD OF MEDICAL EXAMINERS, Defendant.

Case No. 1:19-cv-99

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

August 27, 2019

Litkovitz, M.J.

ORDER

Plaintiff, Brendan J. Berger, brings this action against the National Board of Medical Examiners ("NBME") alleging, inter alia, violations of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. Mr. Berger alleges he is a person with a disability under the ADA and is entitled to extra testing time and other accommodations based upon a learning disability and Attention Deficit Hyperactivity Disorder ("ADHD"). NBME denies that Mr. Berger is disabled within the meaning of the ADA or entitled to accommodations. This matter is before the Court on Mr. Berger's motion for a preliminary injunction (Doc. 20) and NBME's response in opposition (Doc. 27). On July 29 and 30, 2019, the Court held an evidentiary hearing on plaintiff's motion. The parties have submitted proposed findings of fact and conclusions of law. (Docs. 34, 35, 36). For the reasons stated below, the undersigned GRANTS plaintiff's motion for preliminary injunction.

I. Findings of Facts

A. The Parties

1. Brendan Berger began medical school at the American University of the Caribbean School of Medicine (AUC) in 2011. (Doc. 30, Tr. 65-66).

2. He was expected to graduate from AUC in 2015. (Doc. 30, Tr. 66:9-13).

3. Mr. Berger has completed all course work and clinical rotations necessary to graduate from AUC with a Doctor of Medicine (M.D.) degree except for passing the United States Medical Licensing Examination ("USMLE") Step 2 CK. (Doc. 30, Tr. 29:15-23).

4. The NBME is a not-for-profit organization that administers the USMLE together with the Federation of State Medical Boards. The NBME reviews, processes, and approves (or denies) requests for accommodations presented in accordance with the ADA. (DX 23, Declaration of Catherine Farmer, Psy.D. at ¶¶ 3, 4).

B. The USMLE

5. The USMLE is designed to assess a physician's ability to apply knowledge, concepts, and principles, and to demonstrate fundamental patient-centered skills, that constitute the basis of safe and effective patient care. (DX 23, Farmer Decl. at ¶ 4).

6. There are three Steps to the USMLE, namely USMLE Step 1, USMLE Step 2 Clinical Knowledge (CK), USMLE Step 2 Clinical Skills (CS), and USMLE Step 3. All exams must be passed before an individual with an M.D. degree is eligible for medical licensure in the United States. (DX 23, Farmer Decl. at ¶ 6).

7. Mr. Berger has taken the USMLE Step 1 without accommodations. A passing score was set at 192. Mr. Berger passed with a scaled score of 198. (PX 38).

8. Mr. Berger took the Step 2 CS exam, without accommodations, for the first time on April 13, 2016. (Doc. 30, Tr. 152). He did not pass. (Doc. 30, Tr. 152-53).

9. Mr. Berger took the Step 2 CS exam, without accommodations, a second time on August 17, 2016. He received a passing outcome. See Step 2 CS Score Report (Aug. 17, 2016) (DX 16 at 5-6).

10. Mr. Berger has taken the Step 2 CK exam twice, without testing accommodations and under standard testing conditions. He did not achieve a passing score on either attempt. Step 2 CK Score Reports (DX 16 at 7-10).

11. The USMLE Step 2 CK under standard administration consists of approximately 318 multiple choice test items, divided into eight 60-minute blocks, administered in one nine-hour testing session. (Plaintiff Complaint and Defendant's Answer at ¶ 37).

12. NBME's published performance data indicates that 95%-96% of examinees from US/Canadian schools pass the USMLE Step 2 CK. (PX 57). AUC's published performance data reflects that 89% to 92% of AUC's students pass the USMLE Step 2 CK. (PX 58).

C. Mr. Berger's Academic History

13. Mr. Berger's mother is from the United States of America and his father is from France. (Doc. 30, Tr. 19-20). His mother is fluent in French, as are his two older sisters. (Doc. 30, Tr. 26, 119-20).

14. English was the primary language spoken in Mr. Berger's home during his childhood, and he speaks English fluently. 2010 Beach Report (PX 5 at PX000016). While some French was spoken in the home, it is estimated that during Mr. Berger's early childhood, more that 90% of the time English was spoken around him. (Doc. 30, Tr. 22:1-25, 23: 3-11). Mr. Berger is presently unable to speak French. (Doc. 30, Tr. 35:14-15).

15. Mr. Berger attended a public school in the first grade.

16. While in first grade he received intervention for literacy skills and also received tutoring at home. (Doc. 30, Tr. 38:2-39:4).

17. Mr. Berger was homeschooled in the second, third and fourth grades due to the difficulty he was experiencing in reading and learning. (Doc. 30, Tr. 29, 39). He was home- schooled by his mother, a professional educator, who provided intensive instruction on reading, spelling, written expression, and math computation from second through fourth grades. (PX 33).

18. While in second grade Mr. Berger was evaluated by a psychologist, Jeanne Artner, Ph.D., due to trouble with reading and behavioral concerns. Dr. Artner reported that Mr. Berger's behaviors raised the possibility of Attention Deficit Disorder. She further recommended teaching methods to stress a phonics approach in reading sight words and using a multisensory technique in reading lessons. (PX 17).

19. Mr. Berger took the Stanford Achievement Tests in the second, third and fourth grades. (PX 18, PX 19, PX 20); (Doc. 30, Tr. 134-35). His Total Reading and Reading Comprehension scores were rated average in the second and third grades and above-average in fourth grade. The Stanford Achievement Tests Score Reports do not reflect standard or non-standard test administration.

20. Mr. Berger resumed his school-based education at the St. Gabriel Consolidated School in the fifth grade and attended that school through the eighth grade. (Doc. 30, Tr. 40).

21. While attending St. Gabriel School, Mr. Berger was given accommodations, which included extended time to complete class assignments, examinations, and quizzes. He was administered oral exams because of his difficulty reading. He was also allowed to take tests in a small quiet room. (Doc. 30, Tr. 40:15-41:3); (PX 1).

22. Mr. Berger took the Iowa Tests of Basic Skills and Cognitive Abilities Test in the sixth grade. (PX 21). His total reading score was in the 96th percentile nationally and his reading comprehension score was in the 82nd percentile. (Id.). The score report does not reflect whether or not Mr. Berger received accommodations on the test.

23. Mr. Berger attended Archbishop Moeller High School (Moeller) from ninth through twelfth grades. During ninth, tenth, and part of eleventh grade, Mr. Berger was given informal accommodations by his teachers, which included extra time to complete tests, extra sets of textbooks for highlighting, and use of audio books to address issues of reading and sustained focus. (Doc. 30, Tr. 41:17-44:19).

24. During Mr. Berger's eleventh grade year, he underwent a psychoeducational evaluation with Dr. Alexander Smith in January through February 2003. (PX 23). Following his evaluation, Mr. Berger received formal accommodations set forth in a Moeller Assistance Plan, which continued to provide extended time for reading and writing assessments due to his difficulty completing such tasks, a separate area for testing, and allowance for extra copies of texts and use of audio tapes of novels. (Doc. 30, Tr. 42:22-45:15); (PX 2).

25. During the eleventh grade, Mr. Berger took the PSAT exam without accommodations. (Doc. 30, Tr. 46:8-10). Mr. Berger testified he struggled with the time constraints of the exam. (Doc. 30, Tr. 46:11-47:4). He testified he ran out of time while testing and omitted answers to some questions. (Doc. 30, Tr. 48-51). He acknowledged there was a "guessing penalty," students were encouraged not to guess, and his omitted answers did not come only at the end of sections. (Doc. 30, Tr. 138-39). Mr. Berger scored in the 72nd percentile on the verbal section and in the 73th percentile on the writing skills section of the PSAT. (Doc. 30, Tr. 51:13-52:5); (PX 3 and DX 24-5).

26. In Mr. Berger's senior year, the College Board granted his request for accommodations on all College Board Exams, which included the SAT, PSAT, and AP exams. He was approved for "50% Extended Time accommodations." (Doc. 30, Tr. 52:6-25); (PX 4) 27. In January 2004, Mr. Berger took the SAT with 50% extended time and scored in the 91st percentile nationally on the Reading section of the test. (Doc. 30, Tr. 53:7-25); (PX 25).

28. Mr. Berger began college at the University of Cincinnati ("UC"). At the start of his matriculation, he submitted a request for accommodations to the University's Disability Services Office. The University of Cincinnati approved Mr. Berger's request and granted him accommodations, including double (100%) extended time, a proof reader, and audio versions of written text. He also took exams with extended time at the Disability Services Office. (Doc. 30, Tr. 54:3-55:14); (PX 27).

29. Mr. Berger graduated from UC in 2009, with a B.A. degree in Asian Studies and a B.S. degree in Biology. (Doc. 30, Tr. 55); UC Transcript (PX 28).

30. While at UC, Mr. Berger spent a year abroad in Japan, where he learned and became fluent in Japanese. (Doc. 30, Tr. 35, 120).

31. Mr. Berger enrolled at the American University of the Caribbean School of Medicine in 2011 and is currently on an indefinite leave of absence. (Doc. 30, Tr. 66). He received "time and a half in a reduced distraction environment as his testing accommodation" at AUC. AUC Letter (May 2013) (PX 10). Mr. Berger's class rank in the Medical Sciences part of the school's curriculum was 70 out of 92 students, with a grade point average of 78.97. In the Clinical Sciences portion of the school's curriculum. Mr. Berger achieved 11 grades of "honors" and 2 grades of "pass." AUC Transcript (DX 15).

32. Mr. Berger has...