Gonzales v. National Brd. of Medical Examiners

Decision Date25 January 2000
Docket NumberNo. 99-1931,99-1931
Citation225 F.3d 620
Parties(6th Cir. 2000) Michael Gonzales, Plaintiff-Appellant, v. National Board of Medical Examiners, Defendant-Appellee. Argued:
CourtU.S. Court of Appeals — Sixth Circuit

Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 99-72190--Lawrence P. Zatkoff, Chief District Judge. [Copyrighted Material Omitted] Richard J. Landau, Jeffrey N. Silveri, DYKEMA GOSSETT, Ann Arbor, Michigan, for Appellant.

Roy C. Hayes, III, HAYES LAW FIRM, Charlevoix, Michigan, for Appellee.

Before: NELSON, SUHRHEINRICH, and GILMAN, Circuit Judges.

SUHRHEINRICH, J., delivered the opinion of the court, in which NELSON, J., joined. GILMAN, J. (pp. 632-37), delivered a separate dissenting opinion.

OPINION

SUHRHEINRICH, Circuit Judge.

Plaintiff Michael Gonzales ("Gonzales" or "Plaintiff") appeals the district court's denial of his request for preliminary injunctive relief under the Americans with Disabilities Act, 42 U.S.C. § 12101 et. seq. ("ADA"). Plaintiff requested that Defendant National Board of Medical Examiners ("NBME" or "Defendant") be ordered to allow him extended time to take the United States Medical Licensing Examination Step 1 ("Step 1 Examination") because of an alleged disability.

I. BACKGROUND

In 1998, after successfully completing two years of medical school at the University of Michigan Medical School ("UMMS"), Gonzales applied to take the Step 1 Examination a prerequisite to proceeding with the third year of medical school. The Step 1 Examination is the first of three United States Medical Licensing Examinations ("USMLE") required for medical licensure in all states. The NBME administers the USMLE.

Before taking the Step 1 Examination on June 9-10, 1998, Gonzales asserted a learning disability and requested the NBME to allow him extended time, one and a half times the standard time, on the examination. He supported his request for test accommodations (which was endorsed by UMMS) with a psychological evaluation which Gordon L. Ulrey ("Ulrey"), Ph.D.,1 prepared in 1994 when Gonzales was an undergraduate student at the University of California at Davis ("UCD").

In 1994, Ulrey interviewed Gonzales and reported that Gonzales's main concern was low scores on multiple-choice tests, especially the Medical College Aptitude Test ("MCAT"). In addition to the interview, Ulrey based his evaluation of Gonzales on a battery of tests: 1) Wechsler Adult Intelligence Scale - Revised; 2) Wide Range Achieve Test - Revised, Level II; 3) Learning Efficiency Test, 2nd Edition; 4) Nelson-Denny Reading Test, Form E. Ulrey diagnosed Gonzales as having a learning disability2. Ulrey concluded that Gonzales "showed significant difficulty with the auditory sequential processing of information as seen by his performance on the arithmetic and digit span test as well as on both the visual and auditory memory tests for the Learning Efficiency Exam." Ulrey found it appropriate that Gonzales be given 50% more time for standardized testing, and he suggested that Gonzales record lectures and review written lecture notes.

Ulrey also found that on the Wechsler Scale, Gonzales's verbal and performance skills ranged "from the average to superior range with verbal IQ 109, performance IQ 120 and full scale IQ 115."3 Ulrey concluded that Gonzales has "significant strengths both in verbal conceptual ability as well as perceptual organization."

UCD had arranged accommodations for Gonzales during his third and fourth years of study based on Ulrey's report. Also on the basis of Ulrey's report, the UMMS provided Gonzales with basically the same accommodations he received during his third and fourth years at UCD: extended time on tests, assistance with note-taking, and permission to tape classroom lectures. UMMS allowed Gonzales double time on examinations.

The NBME referred Gonzales's request and documentation for extended time on the June 1998 Step 1 Examination to Dawn Flanagan, Ph.D., an expert in the field of learning disabilities.4 Flanagan opined that Gonzales does not have a learning disability in reading and that the data in the area of written language is insufficient to diagnose a written language disorder. The NBME denied Gonzales's request for extended time, stating his impairment did not significantly impair a major life activity within the framework of the ADA.

In June 1998, when Gonzales took the Step 1 Examination without accommodations, he failed the examination.

Following its usual practice, the UMMS allowed Gonzales to begin his third-year clinical rotations before he learned the results of his June 1998 Step 1 Examination. When Gonzales learned that he had failed the examination, he had completed one month of a three-month surgical rotation. Gonzales chose to take a leave of absence to prepare to retake the Step 1 Examination.

Before submitting a request for extended time on the October 1998 Step 1 Examination, Gonzales consulted Bruno Giordani ("Giordani"), Ph.D.5 Giordani diagnosed Gonzales as having a learning disability. Giordani based his diagnosis on Gonzales's history and on formal testing6 and concluded that Gonzales met the criteria for Reading Disorder (315.00) and for Disorder of Written Expression (315.2). Giordani also found strengths in Gonzales's abilities. Giordani reported that Gonzales "scored within the average to superior ranges" on the intelligence test "with a marked difference between the Verbal and Performance subscales of 21 points (Verbal IQ = 100, Performance IQ = 121, Full Scale IQ = 109)."7 Giordani compared Gonzales's reading scores to those of fourth year college students and to college graduates. On reading comprehension tests where Gonzales's scores were compared to those of the general population, Giordani reported that Gonzales scored within the average range. Nonetheless, Giordani supported the medical school's decision to grant Gonzales extra time on exams and additional accommodations and recommended that "this accommodation be extended to other settings."

Gonzales presented Giordani's report with his request for extended time on the October 1998 Step 1 Examination. The NBME did not meet with or interview Gonzales. Rather, it sent the documentation Gonzales submitted with his request for accommodations to an expert in the field of learning disabilities, George Litchfield, Ph.D.8, who reviewed the materials and issued a report. Again, the NBME denied Gonzales's request for accommodations. In October 1998, Gonzales took the examination without accommodations and failed.

Gonzales applied to take the Step 1 Examination a third time and documented his request for accommodations. At the request of the NBME, Litchfield reviewed the material and issued a report. The NBME denied his request for accommodations.

Before taking the Step 1 Examination a third time without accommodations, Gonzales filed an action in federal court under the ADA, alleging that the NBME illegally refused to accommodate his disability by failing to provide him with additional time to take the USMLE Step 1. Gonzalez sought, inter alia, injunctive relief requiring the NBME to allow extended time on the Step 1 Examination.

After a four-day evidentiary hearing, the district court denied Gonzales's request for injunctive relief, finding that there was no substantial likelihood that Gonzales would succeed on his ADA claim because Gonzales is not disabled under the ADA. The district court rejected Gonzales's claim that he is disabled in the major life activities of reading and writing. The district court credited the NBME's experts, who opined that Gonzales "does not have a documented history of academic achievement below expectations that would support a diagnosis of a learning disability." Based on their testimony, the district court found that "Plaintiff's performance in both reading and writing tests fell within the average to superior range when compared to most people." The district court also held that he was not disabled in the major life activity of working.9

Gonzales appeals, arguing that the district court erred in holding that he has no likelihood of success of establishing that he has a reading disability under the ADA. Second, he claims that the district court failed to address his writing disability. Third, Gonzales faults the district court's holding that he does not have a disability that affects the major life activity of working.

II. DISCUSSION
A. Standard of Review

The ADA includes injunctive relief as an appropriate remedy in disability discrimination. See 42 U.S.C.A. § 12188(a)(1) (West 1995) (incorporating the provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000a-3). We review a denial of a preliminary injunction for abuse of discretion and afford great deference to the district court's decision. See Blue Cross & Blue Shield Mut. of Ohio v. Blue Cross and Blue Shield Ass'n, 110 F.3d 318, 322 (6th Cir. 1997). We will reverse a district court's denial of injunctive relief only if "the district court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard." Id.

District courts assess four factors in analyzing a preliminary injunction issue: (1) whether the plaintiff has a strong likelihood of succeeding on the merits; (2) whether the plaintiff will suffer irreparable injury absent the injunction; (3) whether issuing the injunction will cause substantial harm to others; and (4) whether the public interest will be furthered by the issuance of the injunction. See id. Although no one factor is controlling, a finding that there is simply no likelihood of success on the merits is usually fatal. See Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1249 (6th Cir. 1997).

B. Merits

Title III of the ADA prohibits discrimination against persons with disabilities in professional examinations...

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