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Maria Mahmood v. National Board of

February 14, 2013

MARIA MAHMOOD, PLAINTIFF,
v.
NATIONAL BOARD OF
MEDICAL EXAMINERS, DEFENDANT.



The opinion of the court was delivered by: Timothy R. Rice U.S. Magistrate Judge

MEMORANDUM OPINION

Defendant National Board of Medical Examiners (ANBME@) seeks summary judgment on Plaintiff Maria Mahmood=s claim that it violated the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), by failing to reasonably accommodate her visual impairment when she sat for the USMLE CK-II*fn1 test on August 8, 2011. NBME alleges the undisputed facts establish Mahmood disrupted efforts by test administrators to implement her agreed-upon accommodations when she set a fire at the test center.*fn2 I agree.

The undisputed facts establish NBME provided Mahmood with all of her requested accommodations for the August 8, 2011 test. Although technical problems with Mahmood's requested equipment may have delayed her exam by hours or a few days, undisputed testimony establishes that she was accommodated, as required by law. See Def. Ex. 12 at 6-7 (declaration of Catherine Farmer, NBME director of Disability Services and ADA Compliance Officer, Testing Programs); Def. Ex. 1, at 64-65 (Mahmood's deposition). Test administrators were attempting to remedy the technical problems when Mahmood intentionally set a fire in the test center's restroom and was arrested by police.*fn3 Mahmood's voluntary act of setting a fire at the testing center precluded NBME from successfully implementing the agreed-upon accommodations.*fn4

I. LEGAL STANDARD

Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). An issue is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986 ). A factual dispute is "material" if it "might affect the outcome of the suit under the governing law." Id.

Where there is only one reasonable conclusion from the record regarding the potential verdict under the governing law, summary judgment must be awarded to the moving party. See id. at 250. "If reasonable minds could differ as to the import of the evidence, however, a verdict should not be directed." Id. at 250-51. I must view the facts and any inferences from those facts in the light most favorable to Mahmood. See Ray v. Warren, 626 F.3d 170, 173 (3d Cir. 2010).

The ADA requires NBME to offer its exam "in a place and manner accessible to persons with disabilities or offer alternative accessible arrangements for such individuals." See 42 U.S.C. § 12189; see also Enyart v. Nat'l Conference of Bar Exam=rs, Inc., 630 F.3d 1153, 1160 (9th Cir. 2011) (Persons with disabilities should not be barred from "educational, professional, or trade opportunities because an examination . . . is conducted without an accommodation."). The associated regulations also require NBME to administer its exams "so as to best ensure . . . the exam results accurately reflect [Mahmood]'s aptitude," instead of her impaired sensory skills, by providing "appropriate auxiliary aids." See 28 C.F.R. § 36.309(b)(1, 3). Thus, to succeed on her failure-to-accommodate claim, Mahmood must prove NBME denied her the equipment necessary to take the USMLE CK-II exam.*fn5

II. FACTS

In August 2011, Mahmood was a student at the medical school at the University of Illinois at Chicago. Am. Compl. & 1 (doc. 20). To graduate, she needed to complete several licensing exams, including the USMLE CK-II. Id. & 13. She also required the following accommodations for taking these tests: double time to take the exam, use of a visual aid known as a "monocular," a large-screen computer monitor, and magnifying software known as "ZoomText." Def. Ex. 2, 3, 12; see also Def. Ex. 1, at 50-54. Mahmood did not require, or seek permission for, testing in a private area. Def. Ex. 12, at 6; Def. Ex. 1, at 133.

When Mahmood appeared at the test center on August 8, 2011, staff provided her with the requested accommodations, but mistakenly seated her in a private special accommodations ("SA") room. Def. Ex. 9, at 3 (report of Roger Meade, Prometric Security Mgr.). Problems arose after Mahmood successfully used the large-screen monitor with ZoomText to begin reviewing the exam tutorial. Def. Ex. 1, at 64-65. Test administrators interrupted Mahmood and asked her to move to a waiting area because another disabled student required use of the SA room. Id. at 64-66. While administrators attempted to move Mahmood's special monitor to the main testing area, the monitor's stand broke and Mahmood claimed it was unusable. Id. at 75-80, 130; Def. Exs. 9, at 3. Test administrators did not dispute Mahmood's claim and immediately suspended her test without time penalty. Def. Ex. 1, at 81-82.

Mahmood was moved to the waiting area while test administrators attempted to resolve the monitor problem. Id. Meanwhile, Mahmood visited the restroom and started a fire because she was depressed about the lack of adequate accommodations for the test and the looming seven-year deadline for passing the test. Id. at 83-90, 112; see also 107 (testifying to her fragile mental state and acknowledging the fire was set as a "diversion that would delay [the] exam for a time").

After Mahmood returned from the restroom, test administrators advised her they were still working to resolve the monitor problem. Id. at 104. Mahmood was then moved to a private room where she was questioned by police and arrested on arson charges. Id. at 116, 119. She remained in police custody for approximately two weeks. Id. at 123. As a result, test administrators were unable to implement their practice of replacing the damaged equipment or rescheduling the test for the next day, or as requested by the student. Def. Ex. 12, at 6-7.

III. DISCUSSION

The pivotal inquiry is whether NBME denied Mahmood the equipment necessary to accommodate her visual impairment and allow her to take the exam in a manner that accurately reflected her aptitude. See 42 U.S.C. ยง 12189; see also Doe, 199 F.3d at 156; Mucci, 2011 WL 831967, at *21. NBME does not dispute Mahmood has a disability and sought reasonable accommodations. Nor is there any dispute that when Mahmood appeared for the August 8, 2011 test, NBME ...


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