Jessica Ramsay v. National Board of Medical Exam ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 20-1058
______________
JESSICA RAMSAY
v.
NATIONAL BOARD OF MEDICAL EXAMINERS,
Appellant
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-19-cv-02002)
District Judge: Honorable J. Curtis Joyner
______________
Argued July 1, 2020
______________
Before: GREENAWAY, JR., SHWARTZ, and RENDELL,
Circuit Judges.
(Filed: July 31, 2020)
______________
Lawrence D. Berger
Reisman Carolla Gran & Zuba
19 Chestnut Street
Haddonfield, NJ 08033
Mary C. Vargas [ARGUED]
Stein & Vargas
10 G Street, N.E.
Suite 600
Washington, DC 20002
Counsel for Plaintiff-Appellee Jessica Ramsay
Robert A. Burgoyne [ARGUED]
Caroline M. Mew
Perkins Coie
700 13th Street, N.W.
Suite 600
Washington, DC 20005
Alison R. Caditz
Perkins Coie
1201 Third Avenue
Suite 4900
Seattle, WA 98101
Counsel for Defendant-Appellant National Board of
Medical Examiners
2
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OPINION
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SHWARTZ, Circuit Judge.
Medical student Jessica Ramsay sought testing
accommodations for dyslexia and attention deficit
hyperactivity disorder (“ADHD”) from the National Board of
Medical Examiners (“the Board”). The Board denied her
requests, and she sued under the Americans with Disabilities
Act (“ADA”). The District Court granted a preliminary
injunction, requiring the Board to provide her
accommodations. We will affirm.
I
A
The Board administers the United States Medical
Licensing Examination (“USMLE”). The USMLE has three
components, or “Steps,” that medical students must pass before
they can apply for a medical license. Step 1 is a computer-
based, multiple choice exam that assesses a student’s grasp of
scientific concepts. Students typically take Step 1 before their
final year of medical school. Step 2 has two parts: Clinical
Knowledge (“CK”), a computer-based, multiple choice exam
that assesses medical knowledge and clinical science, and
Clinical Skills (“CS”) that assesses students in a clinical
setting. Step 2 must be taken before graduation. Step 3 is a
computer-based exam that assesses the application of medical
3
and scientific knowledge to the practice of medicine. Step 3
must be taken before applying for a medical license.
Ramsay, while a third-year medical student at Western
Michigan University (“WMed”), requested an
accommodation, namely extra testing time, for Step 1 and Step
2 CK. The basis of her request was that she had ADHD and
dyslexia. She submitted to the Board:
• a diagnosis of ADHD and probable dyslexia by her
family physician, Dr. Alan Smiy, made when she was
an undergraduate;
• records of accommodations provided by her
undergraduate institution and by WMed;
• evaluations from Charles Livingston, a licensed social
worker, who administered several assessments that
supported a diagnosis of ADHD and a likelihood of
dyslexia and showed, in his opinion, that Ramsay had
“relatively low attention and concentration and very
low processing speed,” although “[h]er native
intelligence has been some compensation for low
abilities in the identified areas”;
• her MCAT scores, taken without accommodations,
placing her in the 67th and 31st percentiles for verbal
reasoning and writing, respectively;
• academic records and other standardized test scores,
taken without accommodations, showing a high level
of achievement; and
4
• a personal statement attesting that she struggled from
an early age with maintaining concentration, reading,
and writing, but that she achieved academic success
through mitigating strategies, informal
accommodations from teachers, and accommodations
from her undergraduate and medical schools.
The Board provided Ramsay’s materials to an outside
reviewer, Dr. Stephen Zecker, who opined that Ramsay was
not “substantially limited in functioning in a manner that
warrants accommodations.” App. 766. The Board also
reviewed Ramsay’s documentation and, noting her record of
achievement without accommodations, concluded that the
documents did not “demonstrate a record of chronic and
pervasive problems with inattention, impulsivity, behavioral
regulation, or distractibility that has substantially impaired
[her] functioning during [her] development or currently.” App.
1126. Based on Dr. Zecker’s recommendation and the Board’s
review of Ramsay’s materials, the Board denied her request.
Thereafter, Ramsay took Step 1 without
accommodations in her third year, but she failed by one point.
Because WMed requires students to pass Step 1 by the
beginning of their fourth year, she took a leave of absence.
Ramsay renewed her request for extra testing time and
submitted an evaluation and test data from neuropsychologist
Dr. Alan Lewandowski. Dr. Lewandowski met with Ramsay,
conducted assessments, found that she had abnormal
functionalities in thinking, processing speed, attention, and
sequencing, and concluded that she had ADHD. Ramsay also
submitted a letter from her treating psychiatrist, Dr. Bruce
Ruekberg, who concurred with Mr. Livingston’s and Dr.
5
Lewandowski’s assessments, stating that she had abnormal
scanning and processing speed that impaired her reading and
written expression. The Board denied her request for extra
testing time, again concluding that she had not shown she was
substantially limited in any functions as compared to most
people.1
Ramsay sought reconsideration of the Board’s denial.
As additional support, she provided an evaluation by Dr.
Robert D. Smith, a psychologist and neuropsychologist. Dr.
Smith met with Ramsay, reviewed her records, and performed
similar assessments. He reported that the assessments
revealed that she had abnormally low abilities in processing
information, writing, and reading, indicating dyslexia and
ADHD. Among other things, his testing revealed that Ramsay,
as compared to others in her age group, was in the fourth
percentile in reading comprehension and fluency, second
percentile in word reading speed, and first percentile in oral
reading fluency.
The Board provided Ramsay’s file to outside expert Dr.
Benjamin Lovett, who concluded that Ramsay did not show
poor academic skills or impairments compared to the general
population and thus lacked a condition that would warrant
accommodations. Based on Dr. Lovett’s recommendation and
further review, the Board denied Ramsay’s request for
reconsideration.
1
The Board granted Ramsay’s requests for additional
break time and a separate testing room as accommodations for
migraines and deep vein thrombosis.
6
B
Ramsay sued the Board in May 2019, alleging that it
had violated the ADA.2 The next month, WMed informed
Ramsay that it could extend her leave only until March 2020,
“with the expectation that [she] will sit for the USMLE Step 1
exam in a manner that allows [her] to return to the WMed
curriculum by that date.” App. 1520. WMed informed
Ramsay that if she did not pass Step 1 and return by March
2020, she would be dismissed or could voluntarily withdraw,
but readmission would not be guaranteed.3 Ramsay accepted
WMed’s conditional extension of leave.
Because Ramsay had to pass Step 1 to avoid dismissal,
she sought a preliminary injunction to require the Board to
grant her accommodations. The District Court held a three-day
evidentiary hearing featuring testimony from, among others,
Ramsay, Dr. Smith, Dr. Zecker, and Dr. Lovett.
For the reasons explained in its careful and thorough
opinion, the District Court granted Ramsay a preliminary
injunction and required the Board to provide Ramsay with
double the testing time on Step 1, Step 2 CK, any written or
reading portions of Step 2 CS, and Step 3. Ramsay v. Nat’l
2
Ramsay also alleged a Rehabilitation Act claim, 29
U.S.C. § 794, but the parties agree that only her ADA claim is
relevant to the preliminary injunction.
3
The Board contends that Ramsay only had to take, not
pass, Step 1 to remain enrolled in school. Given that WMed
students must pass Step 1 by the beginning of their fourth year,
however, Ramsay could not continue into her fourth year at
WMed without passing Step 1.
7
Bd. of Med. Exam’rs, No. 19-CV-2002, 2019 WL 7372508(E.D. Pa. Dec. 31, 2019). The Court found that all the experts
were qualified, but that the testimony and reports of the experts
who met with Ramsay were more persuasive. Id. at *17.
Those experts stated that their assessments and evaluations all
showed that Ramsay had low reading, writing, and processing
abilities. Id. at *15-16. The Court also found that the Board’s
experts’ analyses contradicted applicable regulations by
focusing too much on Ramsay’s academic achievements,
substituting their own opinions for those of experts who met
with Ramsay, and placing too demanding a burden on Ramsay.
Id. at *17-18. Based on this evidence and the governing law,
the Court found that Ramsay had a disability under the ADA.
Id. at *18.
The Court also found that: (1) Ramsay established
irreparable harm because she would likely be forced to
withdraw from WMed if she could not take Step 1 with
accommodations and pass, (2) the balance of equities tipped in
her favor because granting her accommodations would not
undermine the Board’s interests in fair and accurate testing,
and (3) it was in the public interest for the ADA to be followed
and to increase the number of physicians. Id. at *18-19. The
Board appeals.4
4
After the Board filed its appeal, Ramsay passed Step 1
with accommodations. This appeal, however, is not moot
because (1) the District Court’s injunction extends to Steps 2
and 3, which Ramsay has not yet taken, and (2) as to Step 1, if
we vacated the injunction, the Board could invalidate her score
or prevent her from submitting the score to residency
programs. See Chafin v. Chafin, 568 U.S. 165, 172 (2013)
8
II5
In issuing a preliminary injunction, a district court
considers four factors:
(1) the likelihood that the plaintiff will prevail on
the merits at final hearing; (2) the extent to which
the plaintiff is being irreparably harmed by the
conduct complained of; (3) the extent to which
the defendant will suffer irreparable harm if the
preliminary injunction is issued; and (4) [that]
the public interest [weighs in favor of granting
the injunction].
Greater Phila. Chamber of Commerce v. City of Philadelphia,
949 F.3d 116, 133 (3d Cir. 2020) (alterations in original)
(quoting Am. Tel. & Tel. Co. v. Winback & Conserve
Program, Inc., 42 F.3d 1421, 1427 (3d Cir. 1994)).
(explaining that a case is not moot if the parties “‘continue to
have a personal stake’ in the ultimate disposition of the
lawsuit” (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472,
478 (1990))).
5
The District Court had jurisdiction under 28 U.S.C.
§ 1331. We have jurisdiction under 28 U.S.C. § 1292(a)(1).
“We employ a tripartite standard of review for . . . preliminary
injunctions. We review the District Court’s findings of fact for
clear error. Legal conclusions are assessed de novo. The
ultimate decision to grant or deny the injunction is reviewed
for abuse of discretion.” Ass’n of N.J. Rifle & Pistol Clubs,
Inc. v. Att’y Gen. N.J., 910 F.3d 106, 114 (3d Cir. 2018)
(omission in original) (quoting K.A. ex rel. Ayers v. Pocono
Mountain Sch. Dist., 710 F.3d 99, 105 (3d Cir. 2013)).
9
A
We first address Ramsay’s likelihood of success on the
merits of her ADA claim. “On this factor, a sufficient degree
of success for a strong showing exists if there is a reasonable
chance or probability, of winning” on her ADA claim. Ass’n
of N.J. Rifle & Pistol Clubs, Inc. v. Att’y Gen. N.J., 910 F.3d
106, 115 (3d Cir. 2018) (internal quotation marks and citation
omitted). The ADA provides in relevant part:
Any person that offers examinations . . . related
to applications, licensing, certification, or
credentialing for . . . professional . . . purposes
shall offer such examinations . . . in a place and
manner accessible to persons with disabilities or
offer alternative accessible arrangements for
such individuals.
42 U.S.C. § 12189. The issue here is whether Ramsay has a
“disability” that entitles her to an accommodation. Ramsay,
2019 WL 7372508, at *8.
The ADA defines “disability” in relevant part as “a
physical or mental impairment that substantially limits one or
more major life activities of such individual.” 42 U.S.C.
§ 12102(1)(A). We construe the term “disability” broadly. Id.§ 12102(4)(A). As to the term “impairment,” the applicable
Department of Justice (“DOJ”) regulations6 provide that the
6
In 42 U.S.C. §§ 12186(b) and 12205a, the ADA
authorizes DOJ to issue regulations implementing the public
10
term “physical or mental impairment” includes ADHD and
“dyslexia and other specific learning disabilities.” 28 C.F.R.
§ 36.105(b)(2). As to “life activities,” the ADA provides that
“major life activities include . . . reading, concentrating,
thinking, communicating, and working.” 42 U.S.C.
§ 12102(2)(A). Finally, the regulations explain that “[a]n
impairment is a disability . . . if it substantially limits the
ability of an individual to perform a major life activity as
compared to most people in the general population.” 28 C.F.R.
§ 36.105(d)(1)(v). Accordingly, “‘[n]ot every impairment will
constitute a disability . . . ,’ but [an impairment] will meet the
definition [of disability] if ‘it substantially limits the ability of
an individual to perform a major life activity as compared to
most people in the general population.’” J.D. by Doherty v.
Colonial Williamsburg Found., 925 F.3d 663, 670 (4th Cir.
2019) (quoting 28 C.F.R. § 36.105(d)(1)(v)).
1
The Board argues that the District Court did not
determine that Ramsay is substantially limited in comparison
accommodations provisions of the ADA. Such regulations
have “the force and effect of law.” See PDR Network, LLC v.
Carlton & Harris Chiropractic, Inc., 139 S. Ct. 2051, 2055
(2019) (quoting Perez v. Mortg. Bankers Ass’n, 575 U.S. 92,
97 (2015)); accord Pa. Dep’t of Human Servs. v. United States,
897 F.3d 497, 505 (3d Cir. 2018). The regulations “are entitled
to substantial deference.” Helen L. v. DiDario, 46 F.3d 325,
331 (3d Cir. 1995).
11
to most people in the general population.7 We first address the
concept of “most people in the general population” in the
learning disability context. In general,
[t]he comparison to most people in the general
population . . . mean[s] a comparison to other
people in the general population, not a
comparison to those similarly situated. For
example, the ability of an individual with an
amputated limb to perform a major life activity
is compared to other people in the general
population, not to other amputees. This does not
mean that disability cannot be shown where an
impairment, such as a learning disability, is
clinically diagnosed based in part on a disparity
between an individual’s aptitude and that
individual’s actual versus expected achievement,
taking into account the person’s chronological
age, measured intelligence, and age-appropriate
7
Relatedly, the Board argues that the District Court
improperly considered Ramsay’s work ethic and study habits,
which the Board argues are improper considerations because
“working hard does not show that [Ramsay] is substantially
impaired.” Appellant’s Br. at 47. However, “[t]he
determination of whether an impairment substantially limits a
major life activity shall be made without regard to the
ameliorative effects of mitigating measures.” 28 C.F.R.
§ 36.105(d)(1)(viii). Accordingly, in deciding whether
Ramsay was disabled, the Court could appropriately consider
and discount that she compensated for her very weak reading
and writing abilities by devoting more effort to her assignments
than most students.
12
education. Individuals diagnosed with dyslexia
or other learning disabilities will typically be
substantially limited in performing activities
such as learning, reading, and thinking when
compared to most people in the general
population . . . .
Regulations to Implement the Equal Employment Provisions
of the Americans with Disabilities Act, as Amended, 76 Fed.
Reg. 16,978, 17,009 (Mar. 25, 2011) (explanation by the Equal
Employment Opportunity Commission (“EEOC”)); see
Amendment of Americans with Disabilities Act Title II and
Title III Regulations to Implement ADA Amendments Act of
2008, 81 Fed. Reg. 53,204, 53,230 (Aug. 11, 2016) (DOJ
“concur[ring] with” EEOC’s “view”).8 Thus, a clinical
diagnosis of a learning disability is typically based upon a
comparison between the individual and others in the general
population who are of similar age and have received age-
appropriate education.
Here, the District Court relied on such diagnostic
information to conclude that Ramsay had ADHD and dyslexia
8
“[T]he preamble to a regulation may be used as an aid
in determining the meaning of a regulation.” Conn. Gen. Life
Ins. Co. v. Comm’r, 177 F.3d 136, 145 (3d Cir. 1999) (quoting
Commonwealth of Pa. Dep’t of Pub. Welfare v. U.S. Dep’t of
Health & Human Servs., 101 F.3d 939, 944 n.4 (3d Cir. 1996));
see also Helen Mining Co. v. Dir. OWCP, 650 F.3d 248, 257
(3d Cir. 2011) (holding that an administrative law judge’s
“reference to the preamble to the
regulations . . . unquestionably supports the reasonableness of
his decision to assign less weight to [an expert’s] opinion”).
13
that caused her to read and write with more difficulty than most
people. For example, Dr. Smith’s and Dr. Lewandowski’s
diagnostic assessments showed that Ramsay had abnormal
functionalities in thinking, processing speed, attention, and
sequencing. Indeed, some of the reading tests Dr. Smith
administered placed Ramsay in less than the fifth percentile as
compared to individuals her age. This is exactly the type of
data DOJ contemplates as showing a learning disability that
substantially limits an individual as compared to others in the
general population. Equal Employment Provisions, 76 Fed.
Reg. at 17,009; Title II and Title III Regulations, 81 Fed. Reg.
at 53,230. Further, Ramsay explained in her personal
statement that she had struggled with reading and writing tasks
in comparison to her classmates since elementary school.
Thus, the Court’s finding that Ramsay’s ADHD and dyslexia
constituted a disability was based on evidence that these
conditions substantially limit her reading and writing in
comparison to most people. See Pryer v. C.O. 3 Slavic, 251
F.3d 448, 453 n.4 (3d Cir. 2001) (inferring the district court’s
reasoning where it was “otherwise apparent from the record”).9
Moreover, the regulations provide that the
“substantially limits” inquiry “should not demand extensive
analysis,” 28 C.F.R. § 36.105(d)(1)(ii), and that “[t]he
comparison of an individual’s performance of a major life
9
We further disagree with the Board’s contention that
the District Court never found that Ramsay was substantially
limited as compared to the general population because when
the Court concluded that Ramsay was disabled, it defined
disability as a substantial limitation as compared to most
people in the general population. Ramsay, 2019 WL 7372508,
at *7-8.
14
activity to the performance of the same major life activity by
most people in the general population usually will not require
scientific, medical, or statistical evidence,” id.§ 36.105(d)(1)(vii). Accordingly, the District Court’s reliance
on evidence that Ramsay’s reading, processing, and writing
skills were abnormally low by multiple measures provided a
sufficient comparison of her abilities to those of the general
population to support the finding of disability.10
2
Next, the Board argues that the District Court erred by
giving “considerable weight” to Ramsay’s past
accommodations when determining that she has a disability.
Appellant’s Br. at 45 (quoting 28 C.F.R. § 36.309(b)(1)(v)).
According to the Board, a court should consider past
accommodations only after finding the individual is disabled.
This argument fails.
The regulation defining disability, § 36.105, does not
bar consideration of past accommodations. Indeed,
10
The Board relies on Bibber v. National Board of
Osteopathic Medical Examiner, Inc., Civ. A. No. 15-4987,
2016 WL 1404157 (E.D. Pa. Apr. 11, 2016), but it is
distinguishable. There, the district court held that the plaintiff
was not disabled because “a mountain of evidence,” including
some of the same diagnostic assessments that Ramsay took,
“suggest[ed] that Bibber’s reading and processing abilities
[were] average when compared to the general population.” Id.
at *8. In contrast, Ramsay’s scores on the same assessments
were lower, and she explained at the hearing how she reads in
a manner that is different from the average person.
15
§ 36.309(b)(1)(v) provides that “[w]hen considering requests
for . . . accommodations . . . the [testing] entity gives
considerable weight to documentation of
past . . . accommodations.” Moreover, as the preamble to the
applicable regulations states, “a recent history of past
accommodations is critical to an understanding of the
applicant’s disability and the appropriateness of testing
accommodations.” Nondiscrimination on the Basis of
Disability by Public Accommodations and in Commercial
Facilities, 75 Fed. Reg. 56,236, 56,298 (Sept. 15, 2010) (to be
codified at 28 C.F.R. pt. 36). Thus, the District Court did not
err in considering Ramsay’s past accommodations.
3
The Board also argues that the District Court wrongly
believed that the statute and regulations compelled it to defer
to experts who met with and tested Ramsay. While the Court
viewed Ramsay’s experts more favorably and found the
Board’s experts unpersuasive, there is no indication that the
Court believed that it was compelled to defer to Ramsay’s
experts. Rather, the Court discounted the Board’s experts
because they (1) never met with Ramsay, (2) engaged in too
demanding an analysis of whether Ramsay had a disability, and
(3) focused too much on Ramsay’s academic achievements.
Ramsay, 2019 WL 7372508, at *17-18. The Court’s reasoning
was within its discretion and supported by the regulations.
First, it is within the trial judge’s discretion to credit a
physician with firsthand observations of a patient over one who
only reviewed the patient’s records. See United States v.
Olhovsky, 562 F.3d 530, 548-49 (3d Cir. 2009). Such a
professional has the benefit of seeing how the patient actually
16
acts and speaks and provides a perspective not limited to the
cold record. This principle is not unlike the deference an
appellate court gives to a trial court who physically sees a
witness. Cooper v. Harris, 137 S. Ct. 1455, 1474 (2017). This
is why we rarely second-guess a district court’s weighing of
evidence, see, e.g., United States v. Turner, 718 F.3d 226, 231
(3d Cir. 2013), and why it makes sense for the District Court
to credit the professionals who personally met with Ramsay.
Second, the regulations mandate that “[t]he
determination of whether an impairment substantially limits a
major life activity requires an individualized assessment.” 28
C.F.R. § 36.105(d)(1)(vi). Such assessments benefit from the
reports of professionals who know or have personally
examined the individual. Because such examinations allow the
professional to evaluate the individual’s behavior, effort, and
candor, DOJ understandably has stated that “[r]eports from
experts who have personal familiarity with the candidate
should take precedence over those from . . . reviewers for
testing agencies, who have never personally met the candidate
or conducted the requisite assessments for diagnosis and
treatment.” Nondiscrimination on the Basis of Disability, 75
Fed. Reg. at 56,297. As a result, DOJ has directed that testing
entities “shall generally accept” “documentation provided by a
qualified professional who has made an individualized
assessment of an applicant that supports the need for the
modification, accommodation, or aid requested . . . and
provide the accommodation.” Id. Thus, the Court’s decision
17
to weigh Ramsay’s experts more favorably than those of the
Board was consistent with DOJ regulations.11
Third, “the threshold issue of whether an impairment
substantially limits a major life activity should not demand
extensive analysis.” 28 C.F.R. § 36.105(d)(1)(ii). The Court
could reasonably have concluded that the Board’s experts were
too demanding in what they required to prove a disability, for
example, by demanding evidence of a lifetime of academic
struggles, and “substituting their own opinions” for those of
Ramsay’s healthcare providers. Ramsay, 2019 WL 7372508,
at *17. In fact, the Board’s reliance on Ramsay’s academic
achievement was contrary to the regulations that explain that
“someone with a learning disability may achieve a high level
of academic success, but may nevertheless be substantially
limited in one or more major life activities, including, but not
limited to, reading, writing, speaking, or learning because of
the additional time or effort he or she must spend to read, write,
11
The Board argues before us that a 2011 settlement
agreement between it and DOJ eliminates the preference to be
given to professionals who personally examined the individual.
The Board did not make this argument before the District
Court, so we do not fault the Court for not considering it. In
any event, the Board is wrong. First, the settlement addresses
the Board’s obligations and not a court’s considerations under
the regulations when deciding whether an individual has a
disability. Second, while the agreement states that the Board
need not defer to the conclusions of such professionals, that
does not mean it is relieved of showing in litigation why those
professionals are unworthy of credence. Third, even if the
agreement had any bearing on the regulations, which it does
not, it expired in 2014.
18
speak, or learn compared to most people.” 28 C.F.R.
§ 36.105(d)(3)(iii).12 Because Ramsay’s high academic
performance does not foreclose her from having a disability,
the Court reasonably discounted the Board’s experts’ opinions,
which focused mostly on Ramsay’s academic
accomplishments and ignored evidence of her limitations.
Ramsay, 2019 WL 7372508, at *18.
In sum, nothing in the District Court’s discussion
indicates that it held that the statute and regulations “compel”
deference to Ramsay’s experts. Rather, the Court found that
Ramsay’s experts provided facts more probative to the relevant
inquiries under the ADA, and its decision to view these
witnesses more favorably is consistent with the regulations.
Thus, we will not disturb how the Court chose to weigh
evidence.
12
When discussing this proposition, the Court quoted
29 C.F.R. § 1630.2(j)(4)(iii), promulgated by the EEOC, which
does not implement the operative ADA title here. 42 U.S.C.
§ 12116 (providing EEOC authority to implement the
employment provisions of the ADA). Nonetheless, DOJ has
issued an identical regulation. Compare 28 C.F.R.
§ 36.105(d)(3)(iii), with 29 C.F.R. § 1630.2(j)(4)(iii). Thus,
there was no legal error “infecting” the Court’s weighing of
experts. Bedrosian v. United States, 912 F.3d 144, 152 (3d Cir.
2018) (quoting U.S. Bank Nat’l Ass’n ex rel. CWCapital Asset
Mgmt., LLC v. Vill. at Lakeridge, LLC, 138 S. Ct. 960, 968
n.7 (2018)).
19
4
The additional errors the Board identifies in the Court’s
factual findings do not amount to clear error. “A finding of
fact is clearly erroneous when it is completely devoid of
minimum evidentiary support displaying some hue of
credibility or bears no rational relationship to the supportive
evidentiary data.” VICI Racing, LLC v. T-Mobile USA, Inc.,
763 F.3d 273, 283 (3d Cir. 2014) (internal quotation marks and
citation omitted). We examine the entire record to determine
whether there is evidentiary support for a finding, not just the
evidence a district court cites. See N.J. Rifle, 910 F.3d at 120
n.24.
First, the Board argues that the District Court erred in
finding that the Board’s consultants found that Dr. Smith’s
assessments were valid and credible. Contrary to the Board’s
assertion, the record supports the Court’s finding. Both of the
Board’s consultants testified that they had no reason to doubt
that the assessments were properly administered, that the
results were accurate, and that the data could be useful,
although they disagreed with Dr. Smith’s interpretation of the
results. The credibility of evidence is different from the
inferences a factfinder can draw from that evidence, so the
Court’s finding that all experts agreed the assessments were
credible was supported by the consultants’ testimony, even if
the Board’s consultants reached different conclusions from the
test results themselves.13
13
In making this finding, the District Court misquoted
one piece of evidence, a letter from the Board. The Court
stated that the Board found Ramsay’s expert assessment to be
20
Second, the Board argues that the District Court erred
in finding that Ramsay could not finish reading and had to
guess on about a third of the questions on Step 1 because the
time Ramsay spent on each question shows that “she had time
to read every question.” Appellant’s Br. at 61 (emphasis
omitted) (citing Ramsay, 2019 WL 7372508, at *3). The
record does not contradict the Court’s finding. The Board’s
evidence does not indicate how much time Ramsay spent
reading each question. Rather, it shows only that she spent, on
average, seventeen seconds more on the questions she got
incorrect. Further, Ramsay testified that she took a pass
through the questions before answering them, answered the
ones she felt she could, and repeated that strategy until she was
left with a few questions she could not answer even after
multiple reads. Her strategy provides a reasonable explanation
for why the time spent on correct versus incorrect answers was
similar. The Court was free to credit Ramsay’s testimony over
the inferences that the Board argued should be drawn from its
measurements. See Cloverland-Green Spring Dairies, Inc. v.
Pa. Milk Mktg. Bd., 462 F.3d 249, 271 (3d Cir. 2006) (“Where
there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly erroneous.”
(quoting Scully v. US WATS, Inc., 238 F.3d 497, 506 (3d Cir.
2001))).
valid. Ramsay, 2019 WL 7372508, at *4 (quoting App. 1512).
The letter, however, was referring to Ramsay’s expert
accepting the assessments as valid. Accordingly, the letter
does not support the Court’s finding because it does not
embody the Board’s view. Nonetheless, other evidence in the
record supports the finding, as explained above, so there is no
clear error. N.J. Rifle, 910 F.3d at 120 n.24.
21
Finally, the Board argues that the District Court erred in
finding that Ramsay had received informal accommodations in
her early school years. Ramsay testified about, and her mother
relayed to Dr. Smith information concerning, these informal
accommodations. While the Board asserts that there is no
written record of these informal accommodations, Ramsay’s
corroborated testimony provided “minimum evidentiary
support” for the Court’s finding, so there was no clear error.14
VICI Racing, 763 F.3d at 283 (citation omitted).
B
We next determine whether Ramsay proved irreparable
harm. “[T]o show irreparable harm a plaintiff must
demonstrate potential harm which cannot be redressed by a
legal or an equitable remedy following a trial.” Acierno v.
New Castle County, 40 F.3d 645, 653 (3d Cir. 1994) (internal
quotation marks and citation omitted). The harm must be
“likely” to occur “in the absence of an injunction.” Ferring
Pharms., Inc. v. Watson Pharms., Inc., 765 F.3d 205, 217 n.11
(3d Cir. 2014) (emphasis omitted) (quoting Winter v. Nat. Res.
Def. Council, Inc., 555 U.S. 7, 22 (2008)).
The District Court had a basis to conclude that Ramsay
would be irreparably harmed absent an injunction. The Court
could reasonably conclude that given Ramsay’s disability and
that she had previously failed Step 1, she likely would fail
14
Aside from her mother’s statements to Dr. Smith,
Ramsay’s report cards from elementary school are also
consistent with her testimony because her teachers noted she
needed “help . . . with the switching of letters,” App. 871, and
“to focus on getting her work done on time,” App. 875.
22
again and be forced to leave medical school.15 Ramsay, 2019
WL 7372508, at *18. Her termination from medical school
and its consequences could not later “be redressed by a legal or
an equitable remedy.” Acierno, 40 F.3d at 653 (citation
omitted). No damages remedy is available under the ADA. 42
U.S.C. § 12188(a)(1) (providing that the only remedies
available in an ADA action are those in § 2000a-3(a)); id.
§ 2000a-3(a) (providing for injunctive relief). Furthermore,
because WMed is not a party to this case, the Court could not
require it to reinstate her, and the Board presents no theory for
how the Board could redress the termination of Ramsay’s
medical education. Moreover, an examiner’s refusal to
provide accommodations can cause the exam-taker irreparable
harm because doing so jeopardizes her “opportunity to pursue
her chosen profession.” Enyart v. Nat’l Conf. of Bar Exam’rs,
630 F.3d 1153, 1166 (9th Cir. 2011); accord Doe v. Pa. State
Univ., 276 F. Supp. 3d 300, 313-14 (M.D. Pa. 2017) (holding
that gap in medical school education and likelihood that the
student could not gain acceptance to another school constituted
irreparable harm). Accordingly, the District Court correctly
concluded that Ramsay established she would be irreparably
harmed absent an injunction.
15
The letter from WMed provided a basis for the
District Court to conclude that she would be dismissed from
the medical school if she did not pass Step 1. The letter offered
to extend Ramsay’s leave until “March 2, 2020, with the
expectation that [she] will sit for the USMLE Step 1 exam in a
manner that allows [her] to return to” WMed. App. 1520. As
noted above, WMed students must pass Step 1 by the
beginning of their fourth year. Thus, to return to school,
Ramsay had to pass Step 1.
23
C
We next consider how the District Court “balanc[ed] the
parties’ relative harms; that is, the potential injury to the
plaintiff[] without this injunction versus the potential injury to
the defendant with it in place.” Issa v. Sch. Dist. of Lancaster,
847 F.3d 121, 143 (3d Cir. 2017). In balancing the harms, the
Court noted the Board’s “concern for the fulfillment of its
mission to provide [qualified] physicians,” Ramsay, 2019 WL
7372508, at *19, and that accommodations “can affect the
comparability of the resulting scores and scores achieved under
standard testing conditions,” id. at *4 (quoting App. 931).
Nonetheless, the Court appropriately reasoned that granting a
preliminary injunction would not undermine the Board’s
mission because the injunction would give Ramsay only “the
opportunity to move forward” in her medical career “should
she succeed in passing her examinations with appropriate
accommodations.” Id. at *19 (emphasis omitted). Moreover,
the Board’s concerns regarding impacts from undeserved
accommodations do not apply here because Ramsay has shown
a reasonable likelihood that she deserves accommodations. Cf.
Issa, 847 F.3d at 143 (holding that a defendant could not assert
an interest in continuing to violate a civil rights statute).
D
Finally, we consider the District Court’s finding that
“the public interest favors this preliminary injunction.” Id.
The Court concluded that an injunction furthers the public
interest in ADA compliance and serves to increase the number
of qualified physicians. Ramsay, 2019 WL 7372508, at *19.
We agree. “In enacting the ADA, Congress demonstrated its
view that the public has an interest in ensuring the eradication
24
of discrimination on the basis of disabilities.” Enyart, 630 F.3d
at 1167; see Issa, 847 F.3d at 143 (concluding that it was in the
public interest for covered entities to comply with a civil rights
statute). Further, the injunction allows Ramsay to continue her
medical education and therefore serves the public interest in
training more physicians. “Although it is true that the public
also has an interest in ensuring the integrity of licensing
exams,” Enyart, 630 F.3d at 1167, Ramsay has shown a
reasonable likelihood that the ADA affords her
accommodations, and there is no evidence that providing her
the requested accommodations will jeopardize the test’s
integrity. Thus, the public interest weighs in favor of an
injunction.
III
For the foregoing reasons, we will affirm the District
Court’s preliminary injunction.16
16
Given our conclusion that the District Court correctly
held that Ramsay has shown a likelihood of success on the
merits of her claim that she has a disability for which she is
entitled to accommodations, we will affirm the preliminary
injunction requiring the Board to provide the accommodations
on Step 2 CK, any written or reading portions of Step 2 CS,
and Step 3.
25