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Black v. National Board of Medical Examiners

United States District Court, M.D. Florida, Tampa Division

September 1, 2017

ELIZABETH A. BLACK, Plaintiff,
v.
NATIONAL BOARD OF MEDICAL EXAMINERS, Defendant.

          ORDER

          STEVEN D. MERRYDAY UNITED STATES DISTRICT JUDGE

         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 one[1] preceded this action. Additionally, Black argues that the deposition of Dr. Kevin Murphy revealed for the first time some new argument, but Black neither 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 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 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 ...


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