Gonzales v. National Board of Medical Examiners
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0277P (6th Cir.)
File Name: 00a0277p.06
UNITED STATES COURT OF
APPEALS
FOR THE SIXTH CIRCUIT
_________________
| Michael Gonzales, Plaintiff-Appellant, v. National Board of Medical Defendant-Appellee. | No. 99-1931 |
Appeal from the United States
District Court
for the Eastern District of
Michigan at Detroit.
No. 99-72190–Lawrence P. Zatkoff,
Chief District Judge.
Argued: January 25, 2000
Decided and Filed: August 22,
2000
Before: NELSON, SUHRHEINRICH, and
GILMAN, Circuit Judges.
_________________
COUNSEL
ARGUED: Richard J. Landau,
DYKEMA GOSSETT, Ann Arbor, Michigan, for Appellant. Roy C. Hayes, III, HAYES LAW
FIRM, Charlevoix, Michigan, for Appellee. ON BRIEF:
Richard J. Landau, DYKEMA GOSSETT, Ann Arbor, Michigan, for Appellant. Roy C.
Hayes, Roy C. Hayes, III, HAYES LAW FIRM, Charlevoix, Michigan, for
Appellee.
SUHRHEINRICH, J.,
delivered the opinion of the court, in which NELSON, J., joined. GILMAN, J. (pp.
23-32), 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
disability.(2)
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 testing(6)
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 such as the USMLE Step 1:
Any person that offers examinations .
. . related to applications, licensing, certification, or credentialing for .
. . professional, or trade 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.A. ? 12189 (West 1995). The DOJ
regulations provide that an examination covered by this section be selected and
administered to accurately reflect the individual’s aptitude or achievement
level, rather than his impairment.(10)
A covered entity
discriminates against a disabled individual when it fails to make “reasonable
accommodations to known physical or mental limitations.” 42 U.S.C. ?
12112(b)(5)(A). The regulations implementing Title III of the ADA further
clarify that such accommodations “may include changes in the length of time
permitted for completion of the examination.” 28 C.F.R. ? 36.309(b)(2)
(1999).
The NBME does not
dispute that it is a “covered entity” under Subsection III of the ADA. The NBME
also does not contest its obligation to provide reasonable accommodations,
including extra time to take the Step 1, if a person has a disability. In fact,
the NBME’s own procedures clearly contemplate the accommodation of individuals
with learning disabilities.
Thus, the only
question in this case is whether Gonzales is disabled within the meaning of the
ADA. A person is disabled within the meaning of the ADA if that individual
suffers from “a physical or mental impairment that substantially limits one or
more of the major life activities of such individual.” 42 U.S.C.A. ? 12102(2)(A)
(West 1995).
The ADA does not
define the terms “physical or mental impairment,” “substantially limits,” or
“major life activities,” and no agency has been given authority to issue
regulations implementing the generally applicable provisions of the ADA. See
42 U.S.C. ?? 12101-12102; Sutton v. United Air Lines, Inc., 527
U.S. 471, —, 119 S. Ct. 2139, 2145 (1999). However, the Department of Justice
(“DOJ”), which Congress assigned to write the regulations for Subchapter III of
the ADA, defines “physical or mental impairment” as including “specific learning
disabilities.” 28 C.F.R. ? 36.104 (1999). The NBME does not appear to dispute
that Gonzales has a mental impairment.
The DOJ’s
regulations further define “major life activities” as including “walking,
seeing, hearing, speaking, breathing, learning, and working.“
Id., ? 36.104(2) (emphasis added). The list is merely illustrative, not
exhaustive, however, cf. Cehr v. Northeast Ohio Alzheimer’s Research
Ctr., 155 F.3d 775, 780-81 (6th Cir. 1998) (Title I context); and courts
have included reading and writing as major life activities under the ADA.
See, e.g., Bartlett v. New York State Bd. of Law Examiners, 970 F.
Supp. 1094, aff’d, 156 F.3d 321 (2d Cir. 1998), vacated, 119
S. Ct. 1999 (reading and writing)(11);
see generally Bercovitch v. Baldwin Sch., Inc., 133 F.3d 141, 155 (1st
Cir. 1998) (learning). In any event, the NBME does not dispute that reading and
writing are substantial life activities.
Rather, this case
turns on the key phrase “substantially limits.” “Substantially limits” is
defined in terms of a general population. The DOJ regulation states that an
individual is substantially limited “when the individual’s important life
activities are restricted as to the condition, manner, or duration under which
they can be performed in comparison to most people.” 28 C.F.R., pt. 36, App. B;
see also 29 C.F.R. ? 1630.2(j) (EEOC definition under Title I of
“substantially limits”; defining an individual as substantially limited, for
most purposes, if he is “[u]nable to perform a major life activity that the
average person in the general population can perform” or “[s]ignificantly
restricted as to the condition, manner or duration under which an individual can
perform a particular major life activity as compared to the condition, manner,
or duration under which the average person in the general population can perform
that same major life activity”). Thus, the ADA compares the performance of an
individual who alleges a restriction in a major life activity to that of “most
people.”(12)
Gonzales claims
that his mental impairments substantially limit him in the major life activities
of reading, writing and working.
1.
Reading
On appeal Gonzales
claims that all the credible evidence established that his reading is restricted
when compared to the “average” person. Gonzales points to his own testimony
regarding his history of reading problems(13)
as well as the clinical evidence. He notes that Dr. Ulrey’s report contains
specific information detailing Gonzales’s reading and other processing deficits,
as well as his diagnosis, based on those deficits. Furthermore, Dr. Giordani,
who testified at the hearing, concluded that Gonzales met the DSM-IV criteria
for Reading Disorder after conducting a full neuropsychological evaluation of
Gonzales.
Regarding
Gonzales’s reading impairment, the district court found that
[w]hen compared to pooled norms,
plaintiff[‘]s scores are squarely in the average to superior range. Of the
more than twelve tests administered by Dr. Giordani in 1998, plaintiff scored
significantly below average in only one, the Digit Span. In the Digit Span
test administered by Dr. Giordani in 1998, plaintiff received a score of five,
which is significantly below average and borderline impaired. However,
plaintiff’s score on the 1998 Digit Span test is clearly suspect. In 1994,
plaintiff took another Digit Span test with Dr. Ulrey in which he received a
ten, well within the average range. . . . Dr. Flanagan and Dr. Litchford
testified at the hearing that because of the wide discrepancy between the two
scores, the Digit Span test is an unreliable indicator of plaintiff’s
ability.
The lower court recognized Dr. Giordani as a
“competent and accomplished” psychologist, but ultimately found the testimony of
Drs. Litchford and Flanagan “more persuasive,” and agreed with their conclusion
that based on Gonzales’s IQ scores, his performance fell within the average to
superior range when compared to most people. Given these findings, the district
court concluded that had not demonstrated that he suffered from “an ADA-defined
disability” that substantially affects a major life activity.
Upon review of the
record, we cannot say that the district court’s findings or credibility
assessments are clearly erroneous. Flanagan, Defendant’s expert witness,
testified at the evidentiary hearing that Ulrey’s report did not support a
diagnosis of Plaintiff having a reading disorder. She stated that the data she
reviewed in terms of Gonzales’s cognitive processes and reading achievement
provided absolutely no evidence of an impairment. She presented a table of
cognitive processes closely associated with reading achievement as assessed by
Ulrey and Giordani and concluded that in “all areas that were assessed, all
cognitive processes that were assessed that are found to underlie or help us
explain or understand reading achievement, he performed in the average to
superior range.”(14)
Also, she stated that in nine subtests of verbal ability, verbal expression, and
verbal comprehension that “his performance was in the average to superior range
across a variety of those tasks.” She further testified that in phonological
processing, his score was in the average range; in visual auditory learning, he
performed in the very superior range; and on an inductive reading task, he
performed in the superior range.
Flanagan also
addressed the one area, memory span, on which Gonzales scored in the impaired
range on Giordani’s evaluation. She noted that on Ulrey’s evaluation Gonzales
scored within the average range on the same test and that on another memory span
test in Giordani’s evaluation Gonzales’s performance was average. She stated
that the discrepancies in his scores suggest “a very unusual pattern of
performance but one that is explained quite simply by possibly unreliability or
a chance occurrence.” She concluded that Gonzales clearly demonstrated average
ability in memory span.(15)
Litchfield,
Defendant’s other expert witness, testified that:
the reading test scores that were
submitted were in the average to above average range on the Wide Range
Achievement Test, the Woocock [sic] Reading Mastery Test and the
Woodcock-Johnson Broad Reading.
In
addition, the Woodcock Reading Mastery Test . . . placed his reading total
reading score, reading skill score and reading comprehension score in the
average range. The scores were almost exactly equivalent to his full scale IQ.
And all of his performances on that test were at a college graduate grade
level, sixteen point nine.
Litchfield also
explained that the “age level norms” used on the Woodcock test do not
approximate the average person as well as pooled norms do. On the Woodcock
Reading Mastery, Gonzales scored in the average range even though these tests
compared his performance to that of college graduates, his age peers, which is
“a statistically driven standard of an average person at his age level.”
Litchfield explained that “pooled norms,” used on the Nelson-Denny Reading Test,
“sample from the ninth, tenth, eleventh, twelfth, freshman college, second,
third, and fourth year of college” and thus better approximate the average
person.
Finally, it should
be noted that, consistent with the NBME’s experts, Giordani reported that
Gonzales scored within the average range on reading comprehension tests, as
compared to the general population. Thus, Gonzales’s own expert undermines
Gonzales’s assertion “that despite his best efforts to work around his problem,
he is still not able to read nearly as well as the average person.” (Dissenting
Op. at 4.) In short, Gonzales’s impairment simply does not meet the DOJ’s
definition of “substantially limits,” because he can read as well as the average
person.
In Pazer v.
New York State Bd. of Law Examiners, 849 F.Supp. 284 (S.D.N.Y. 1994), the
court found “some merit to the argument that a disparity between inherent
capacity and performance on a test may, in some circumstances, permit the
inference that an individual has a learning disability, even though that
individual’s performance has met the standard of the ordinary person.”
Id. at 287. However, the Pazer court rejected the idea that
“such a disparity compels that conclusion as a matter of law,” stating “to hold
otherwise would compel the conclusion that any underachiever would by definition
be learning disabled as a matter of law.” Id. It gave credence to the
defendant’s expert who concluded that the plaintiff’s “performance level on
tests at issue was not consistent with a learning disability.”
Id.
Likewise, in the
instant case, Defendant’s expert, whom the district court credited, did not find
a disparity between Plaintiff’s ability and actual achievement. Flanagan
testified that “[o]ne of the major indicators of just about every definition of
a learning disability is a significant ability achievement discrepancy” but that
Gonzales “is achieving commensurate with what is expected given his IQ.”(16)
In other words, Gonzales’s achievements are not terribly inconsistent with his
IQ scores.
Neither does
Plaintiff fit within Congress’s vision of the disabled population. In the
introductory section to the ADA, “Findings and Purpose,” Congress describes the
disabled population it seeks to protect. It presents the disabled as isolated
and segregated individuals; as individuals who often have “no legal recourse to
redress … discrimination”; and as those who “as a group occupy an inferior
status in our society and are severely disadvantaged socially, vocationally,
economically, and educationally.” 42 U.S.C.A. ? 12101 (a).
In high school,
Plaintiff qualified for advanced placement classes and graduated with a grade
point average of 4.3/5.0. He had no formal accommodations for learning
disabilities during high school. Plaintiff scored 1050, an average score, on the
SAT. He took the test without accommodations. Plaintiff earned a grade point
average of 3.15/4.0 at Davis where he majored in physiology. He had
accommodations during his third and fourth years at UCD. He took the MCAT twice
without accommodations, improving his score on his second attempt by using
skills suggested by counselors at Davis. His second MCAT score was high enough
that the UMMS admitted him to its program. In short, Gonzales is not a member of
the severely disadvantaged group Congress envisioned when it enacted the ADA.
See Bercovitch, 133 F.3d at 155-56 (holding that the plaintiff, who was
diagnosed with ADHD, was not “disabled” under the ADA because his learning
disability did not affect his academic success, which did not fall below the
average student of his age).
Even if
self-accommodations enhanced Plaintiff’s performance to that of most people, he
is not disabled under the ADA. Recently, the Supreme Court ruled that in
determining whether individuals are disabled under the ADA they should be
examined in their corrected state. See Sutton, 119 S. Ct. at
2146; see also Murphy v. United Parcel Serv., Inc.,
527 U.S. 516, —, 119 S.Ct. 2133, 2137 (1999). In addition, in
Albertsons, the Supreme Court held that an individual whose body
developed coping mechanisms was not disabled within the framework of the ADA.
See Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, 119 S.Ct. 2162, 2169
(1999).
In short, there is
record evidence to support the district court’s conclusion that Gonzales does
not have a reading disability for purposes of the ADA.
2.
Writing
The
district court did not separately address Gonzales’s alleged writing disability.
Gonzales correctly notes that the NBME acknowledged that his “diagnosis of a
writing disorder is supported by the test data.” The NBME also stated that
“writing is not a construct that is measured by the USMLE, so that weak
performance in this area would not impact your access to the USMLE program.”
Gonzales offered no evidence to refute this. In any event, for the reasons
discussed above, Gonzales has failed to establish that he is substantially
limited by any alleged writing impairment when compared to the average
person.
3. Working
Alternatively,
Gonzales’s claim that he is disabled in the major life activity of working. He
further alleges that the district court misunderstood that he was alleging an
employment discrimination claim under Title I of the ADA, which governs
employment, when in fact he is only alleging a claim under Title III.
The district court
appears to have mistakenly analyzed Gonzales’s argument as a claim under Title
I. Notwithstanding, Gonzales’s claim, properly understood, still fails for
precisely the same reason that Plaintiff’s allegations that he has a learning
disability fails: when compared to “most people,” his impairments do not
substantially limit his ability to work. See 28 C.F.R. pt. 36, App. B
(DOJ interpretative guidelines, Title III).
To get around this
problem, Plaintiff contends that we should look to the EEOC’s definition of
“substantially limited” as it relates to the “major life activity of
working“, a definition that differs sharply from the definition
applicable in every other context:
The term substantially limits
means significantly restricted in the ability to perform either a class
of jobs or a broad range of jobs in various classes as compared to the
average person having comparable training, skills, and abilities. The
inability to perform a single, particular job does not constitute a
substantial limitation in the major life activity of working.
29 C.F.R. ? 1630.2(j)(3)(i) (1999) (emphasis
added). Gonzales claims that under this test, he must be compared with other
persons who have completed their second year of medical school; and that when he
is compared to this reference group, his difficulty with reading and writing is
unquestionably an impairment.
We decline to
transplant this definition from the Title I regulations into the Title III
regulations. Like the EEOC in Title I, the DOJ in Title III also included
“working” in its list of “major life activities,” and its definition of
“substantially limits,” is otherwise identical to the EEOC’s “general
population” definition of the same term in 29 C.F.R. ? 1630.2(j)(1) for
major life activities other than working. Thus, we must presume that if the DOJ
wanted to modify the definition of “substantially limits” regarding the “major
life activity of working” it would have expressly done so. In other words, the
DOJ’s silence is dispositive here. See Price v. National Bd. of Med.
Examin’rs, 966 F.Supp. 419, 425 (S.D. W. Va. 1997) (holding that, because
Congress authorized the DOJ to make issue regulations for Subchapter III, courts
must give their decisions controlling weight unless arbitrary or manifestly
contrary to the statute); see generally Bragdon v. Abbott, 524 U.S.
624, 642 (1998). But see Bartlett, 970 F. Supp. at 1099
(adopting EEOC test with respect to the major life activity of working),
and 2 F. Supp.2d 388, 389-91 (S.D. N.Y. 1997) (denying motion
for reconsideration; explaining that use of the major life activity of working
standard from Title I is consistent with the spirit and letter of the ADA and
DOJ “rule of interpretation” which sanctions the use of regulations from a
different title to assist in interpreting a concept that is not addressed in its
own regulations ), aff’d, 156 F.3d 321 (2d Cir. 1998),
vacated, 119 S. Ct. 2388 (1999). In any event, as previously noted,
Congress did not confer authority on the EEOC (or the DOJ for that matter) to
issue regulations regarding the proper interpretation of the term “disability.”
See Sutton, 119 S. Ct. at 2145 (declining to decide the validity of or
what deference is due the EEOC’s regulations defining “disability” under the ADA
because the parties accepted the regulations as valid).
Moreover,
Plaintiff’s claim to a disability in the major life activity of working is
itself problematic.(17)
Albeit in dictum, the Supreme Court recently questioned whether working can be
deemed a “major life activity” under the ADA:
We note . . . that there may be some
conceptual difficulty in defining “major life activities” to include work, for
it seems “to argue in a circle to say that if one is excluded, for instance,
by reason of [an impairment, from working with others]…then that exclusion
constitutes an impairment, when the question you’re asking is, whether the
exclusion itself is by reason of handicap.
Sutton, 119 S. Ct. at 2151
(quoting Tr. of Oral Arg. in School Bd. of Nassau Co. v. Arline, O.T.
1986, No. 85-1277, p. 15 (argument of Solicitor General)). It further noted that
even the EEOC has reservations about including working as a major life activity
and “has suggested that working be viewed as a residual life activity,
considered, as a last resort, only ‘[i]f an individual is not substantially
limited with respect to any other major life activity.'” Id. (quoting
29 CFR pt. 1630, App. ? 1630.2(j)).
Finally, there is
no support in the legislative history for Gonzales’s position. Rather, the
legislative history suggests simply that Congress intended “substantially
limits” to be interpreted as significantly restricted in a major life activity
in relation to the average person within the population. The Senate Report from
the Committee on Labor and Human Resources, submitted by Senator Kennedy, states
as follows:
Persons with minor, trivial
impairments, such as a simple infected finger are not impaired in a major life
activity. A person is considered an individual with a disability for purposes
of the first prong of the definition when the individual’s important life
activities are restricted as to the conditions, manner, or duration under
which they can be performed in comparison to most people.
S.Rep. 101-116, *23 (1989).(18)
Given such scant support for Gonzales’s proposed definition of substantially
limited in the major life activity of working, we decline to adopt his view.
The district court
did not err in finding that Plaintiff is not disabled in the major life activity
of working.
III.
CONCLUSION
Because we
conclude that Plaintiff has no likelihood of success on the merits, we need not
consider whether he would otherwise be entitled to a preliminary injunction.
For the foregoing
reasons, the district court’s order denying injunctive relief is
AFFIRMED.
_________________
DISSENT
_________________
RONALD LEE GILMAN,
Circuit Judge, dissenting. Gonzales testified that he has great difficulty
reading highway signs while driving, that in stores he feels compelled to sign
credit-card receipts blindly because reading them would take him so long that it
would make other customers angry, and that one of his attorneys had to read to
him line by line the complaint they prepared on his behalf in the present case
so that he could understand it. Assuming that he was telling the truth (and
there is no suggestion to the contrary), then I cannot understand why he should
not be considered “disabled” within the meaning of the ADA.
I.
A primary basis
for the district court’s conclusion that Gonzales does not have a reading
disability is that he was able to get reasonably good grades through his first
two years of college, and achieve average standardized test scores, without
formal disability accommodations. If Gonzales’s claim was that “getting
reasonably good grades in school” and “achieving average standardized test
scores” were major life activities within the meaning of the ADA, and that those
activities were the ones in which he was substantially impaired, the district
court might have had a point. But that was not his claim, and, in any event,
getting reasonably good grades in school and achieving average standardized test
scores are not recognized as “major life activities.” Instead, Gonzales claims
that he is disabled in the major life activity of reading, which the NBME does
not dispute is a major life activity under the ADA. See, e.g.,
Bartlett v. New York State Board of Law Examiners, 156 F.3d 321, 324
(2d Cir. 1998), vacated on other grounds, 119 S. Ct. 2388 (1999);
Sweet v. Electronic Data Systems, Inc., No. 95 Civ. 3987 (MBM), 1996 WL
204471, at *6 (S.D.N.Y. Apr. 26, 1996) (“[R]eading itself is a major life
activity independent of the major life activity of seeing.”); but see
Hileman v. City of Dallas, 115 F.3d 352, 355 n.4 (5th Cir. 1997)
(expressing doubt that reading is a “major life activity” for purposes of the
Rehabilitation Act).
Gonzales’s
reasonably good performance in high school and his first two years of college
does not foreclose a finding that he has a reading disability. Cf.
Andrew Weis, Jumping to Conclusions in “Jumping the Queue,” 51 Stan. L.
Rev. 183, 203 (1998) (book review) (observing that learning-disabled students
often are caught in a “Catch-22” situation in that “if we excel in some tasks,
then we must not possess a disability, but if we fail in other areas, then we
must be just lazy, careless, or inattentive.”). Indeed, Gonzales offered a
plausible explanation for how he was able to get good grades without formal
accommodations despite having a severe reading disability. He testified that he
received very significant informal accommodations in high school (e.g., his
teachers permitted him to redo unsatisfactory assignments and turn in untimed
extra-credit projects). Gonzales also testified that in college he was able to
get fairly good grades without formal accommodations simply by employing
strategies that allowed him to get by while doing the bare minimum of reading;
for example, by tape-recording lectures and having his friends read their
lecture notes to him. If getting reasonably good grades were the bottom line,
then I would agree that Gonzales is not disabled. Gonzales, after all, is
clearly not substantially worse off than the average person when it comes to
getting reasonably good grades.
But a person’s
ability to get good grades is not the bottom line. If it were, then a student’s
ability to achieve reasonably high marks (by whatever means) without formal
accommodations would, as a practical matter, foreclose a finding that he has a
reading disability–a conclusion that I believe is incorrect. No one, for
example, would argue that a blind student who is able to get good grades in
college with the help of friends and an appropriately configured personal
computer–but without any formal accommodation from the school–would not be
considered “disabled” for the purposes of the ADA. Similarly, if a student with
severe reading difficulties can get reasonably high marks in school even though
it takes him three times as long as the average person to read the required
course materials, it would make little sense to say that he does not have a
disability in reading. One might say that he is overcoming his disability as far
as getting good grades is concerned, but his method or manner of reading would
still be substantially limited as compared to the average person.
I recognize that
the Supreme Court in its 1999 trilogy of ADA cases, Murphy v. United Parcel
Service, Inc., 527 U.S. 516 (1999), Sutton v. United Air Lines,
Inc., 527 U.S. 471 (1999), and Albertson’s, Inc. v. Kirkingburg,
527 U.S. 555 (1999), broadly held that an individual’s ability to
self-accommodate or self-correct through medication or treatment must be taken
into account in ascertaining whether that person is “disabled” within the
meaning of the ADA. The Supreme Court thus held that a hypertensive mechanic
whose high blood pressure was controlled by medication was not disabled, see
Murphy, 527 U.S. at 518-19, and that severely myopic prospective airline
pilots whose eyesight with glasses was normal were also not disabled, see
Sutton, 527 U.S. at 488-89.
Notably, the
Supreme Court also held that a truckdriver with amblyopia, an uncorrectable
condition that essentially left him with sight in only one eye, might not be
“disabled” for the purposes of the ADA if his brain and body had adapted
sufficiently so that his ability to see was not substantially impaired in
comparison to the average person. See Kirkingburg, 527 U.S. at 565-66.
The majority’s analysis in the present case relies on Kirkingburg,
reasoning that Gonzales has learned to self-accommodate in a similar fashion. I
respectfully disagree.
In plain although
admittedly unscientific terms, Gonzales’s claim is that the part of his brain
responsible for decoding written language is not wired the same as, and
functions substantially worse than, that of the average person, even though in
other respects his mental faculties are significantly better than average. If,
despite this faulty “wiring,” Gonzales had been able to adapt so that his
ability to read was substantially no worse than that of the average person, then
Gonzales would not be considered to have a reading disability under
Kirkingburg‘s rationale. But that is not Gonzales’s claim. Rather,
Gonzales has asserted that despite his best efforts to work around his problem,
he is still not able to read nearly as well as the average person. I do not
believe that working around a reading impairment by pursuing strategies in
school that minimize the necessity for reading is the type of self-accommodation
the Supreme Court had in mind in Murphy, Sutton, or
Kirkingburg.
II.
In addition, the
district court’s conclusion that Gonzales had no substantial likelihood of
success on the merits is seriously flawed because it is based on the finding
that Gonzales does not have a disability within the meaning of the ADA. I do not
believe that this finding is supported by the record before us.
Of the experts who
testified or submitted reports to the district court, the only two who ever met
Gonzales were Drs. Ulrey and Giordani. They both concluded that he had a very
significant reading disability. The only expert who opined that Gonzales did not
have a disability, or at least had not satisfied her that he had a disability,
was Dr. Flanagan. Yet Dr. Flanagan never examined or even met with Gonzales,
even though under the guidelines set forth by the American Psychiatric
Institute’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) (4th
ed. 1994), which the NBME accepts as the appropriate criteria for diagnosing
learning disabilities, an interview or clinical examination is essential to
making a competent diagnosis of a learning disability. See DSM-IV, p.
xxiii (“The specific diagnostic criteria included in DSM-IV are meant to serve
as guidelines to be informed by clinical judgment and are not meant to be used
in a cookbook fashion”). In other contexts, we accord substantial deference to
the medical opinions of treating physicians. See, e.g., Walker v.
Sec’y of Health & Human Svcs., 980 F.2d 1066, 1070 (6th Cir. 1992)
(social security disability benefits case). The same should be true for the
opinion of an examining psychologist who has diagnosed a disorder that cannot be
reliably detected through test scores alone.
Dr. Flanagan
conceded that she did not diagnose Gonzales. She explained that she is an
academician, not a clinical psychologist competent to diagnose learning
disabilities in specific individuals. Instead, her opinion was based solely on
second-guessing the conclusions reached by Drs. Ulrey and Giordani, who had
examined Gonzales.
In particular, Dr.
Flanagan testified that based on her review of the data submitted to the NBME by
Drs. Ulrey and Giordani, she could find “absolutely no evidence” of an
impairment. She also testified, however, that her methodology for assessing
whether persons have learning disabilities was only a “theoretical model that
has not been subjected to rigorous empirical analysis for the purposes of
diagnosis and treatment.” This leads me to question whether her testimony would
satisfy the “gatekeeper” requirements of Kumho Tire Co. v. Carmichael,
526 U.S. 137 (1999), and Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.S. 579, 589 (1993). Furthermore, to the extent Dr. Flanagan concluded that
there was no indication that Gonzales had any learning disability, that
conclusion was not shared by Dr. Litchford, the NBME’s other expert witness. Dr.
Litchford testified that the results of the tests administered by Dr. Giordani
supported a finding of a writing disorder, although Dr. Litchford opined that he
did not believe that performance on the NBME would be affected by a writing
disability.
Dr. Flanagan also
never reviewed Gonzales’s second or third applications for testing
accommodations while those applications were actually pending before the NBME,
even though the subject of the present litigation was Gonzales’s third
application for accommodations. Rather, she reviewed them only for the purpose
of testifying on the NBME’s behalf in the present case. Gonzales’s attorney, in
fact, made a motion in limine to limit Dr. Flanagan’s testimony to the subject
of her initial report in which she criticized Dr. Ulrey’s report. The district
court denied the motion, stating that “[t]his is merely a hearing, . . . not a
trial.”
Actually, because
the “preliminary” injunctive relief that the district court denied was the
lion’s share of the relief Gonzales was seeking in this action, I believe that
the district court should have considered more carefully what evidence would
have been considered competent and admissible at trial. See 11A Charles
Alan Wright, Arthur R. Miller & Mary Kay Kane: Federal Practice and
Procedure ? 2950, p. 241 (2d Cir. 1995 & Supp. 2000) (noting that when
the district court consolidates the motion for preliminary injunctive relief
with the trial on the merits, “in general the evidentiary rules applicable to
trial should govern during a consolidated hearing” because the hearing “really
is a trial on the merits”).
Although it
appears doubtful that private plaintiffs suing under Title III of the ADA are
entitled to a jury trial, see 42 U.S.C. ? 12188 (apparently
authorizing only injunctive relief and attorney’s fees in Title III suits
brought by private plaintiffs); Abbott v. Bragdon, 882 F. Supp. 181,
182 (D. Me. 1995) (suggesting that there is no right to a trial by jury in
private plaintiffs’ suits under Title III), the district court is still required
to rely only on admissible and reliable expert testimony, even while conducting
a bench trial. This is true even though district courts conducting bench trials
have substantial flexibility in admitting proffered expert testimony at the
front end, and then deciding for themselves during the course of trial whether
the evidence meets the requirements of Kumho Tire Co. and
Daubert and deserves to be credited. See Ekotek Site PRP Committee
v. Self, 1 F. Supp. 2d 1282, 1296 n.5 (D. Utah. 1998) (concluding that
district courts presiding over bench trials can decide questions of
admissibility and reliability after the proffered evidence is presented at
trial); Bradley v. Brown, 852 F. Supp. 690, 700 (N.D. Ind.) (granting a
motion in limine to exclude unreliable expert evidence following the completion
of a bench trial), aff’d, 42 F.3d 434 (7th Cir. 1994). By failing to
conduct a Daubert analysis as to Dr. Flanagan’s testimony (the district
court’s conclusory statement that it found the testimony of Dr. Flanagan “more
persuasive” than that of Dr. Giordani does not constitute such an analysis), the
district court effectively terminated Gonzales’s case on the merits without
employing the evidentiary safeguards that district courts are required to apply
when genuine issues of material fact are in dispute–i.e., at a hearing or
trial.
In any event, Dr.
Flanagan’s exclusive reliance on the test results and reports of Drs. Ulrey and
Giordani is troublesome. She reasoned that because Gonzales performed well on
tests that measured his cognitive skills, and because individuals’ cognitive
processes are “the best predictors of reading achievement,” Gonzales’s reading
achievement “ought to be within the average or better range of ability.” I am
unable to accept this reasoning.
Correlation is the
probability that two factors, such as cognitive ability and reading ability,
will accompany each other. A strong positive correlation between cognitive
ability and reading ability would mean that, given a large enough sample of
people with strong cognitive ability, a predictably large percentage would also
have strong reading ability. But Gonzales is a person, not a sample. Dr.
Flanagan’s failure to examine or even meet with Gonzales leaves her stuck with
relying on the argument that Gonzales’s reading ability ought to be
good because most people with cognitive ability as strong as Gonzales’s also
have good reading ability. This reasoning conflicts with, and leaves
unexplained, Gonzales’s testimony (as well as that of Dr. Giordani) to the
effect that Gonzales is a member of the minority of individuals with strong
cognitive ability but with very weak reading ability.
Furthermore, Dr.
Litchford’s testimony did little to support the NBME’s claim that Gonzales does
not have a learning disability. Rather, Dr. Litchford testified that the results
of the tests administered by Dr. Giordani supported a finding of a writing
disorder–although he doubted that having a writing disorder would hinder one’s
performance on the Step 1 exam. Dr. Litchford nevertheless forthrightly conceded
that neither he nor the NBME had ever conducted any sort of empirical study to
determine whether writing disabilities have any effect on how one performs on
the NBME’s examinations.
The question of
whether a certain form of accommodation (i.e., more testing time) is required or
appropriate for a given disability is a question entirely separate from whether
the individual has a “disability” in the first place. See Shepler v.
Northwest Ohio Developmental Ctr., No. 99-3079, 2000 WL 191496, at *7 (6th
Cir. Feb. 9, 2000) (unpublished) (Gilman, J., dissenting) (observing that the
question of whether the plaintiff in an ADA case has a disability should be kept
analytically separate from other questions, such as whether certain proposed
accommodations are required by the ADA); Davidson v. Midelfort Clinic,
Ltd., 133 F.3d 499, 508 (7th Cir. 1998) (same); Matthew Diller,
Judicial Backlash, the ADA, and the Civil Rights Model, 21 Berkeley J.
Emp. & Lab. L. 19, 21-29, 49 (2000) (criticizing judicial opinions that deny
relief under the ADA after bending over backwards to find plaintiffs not covered
by the statute) (“After all, a finding that a person is protected by the ADA
only leads to the central question of whether the [defendant] has improperly
discriminated against the individual.”). In view of the concession by Dr.
Litchford (whose testimony the district court credited) that the results of the
tests administered by Dr. Giordani supported a finding of a writing disorder,
the district court’s conclusion that Gonzales did not have any disability for
the purposes of the ADA appears untenable.
There might well
have been other reasons why Gonzales was not likely to succeed on the merits.
Indeed, there might have been reasons weighing against granting injunctive
relief even if Gonzales had established a likelihood of success on the merits.
But the district court’s decision to deny injunctive relief was based on its
finding that Gonzales did not have any disability within the meaning of the ADA
(and thus had no chance of success on the merits), and that finding, on the
basis of the record before us, appears to me to have been clearly erroneous.
III.
I also disagree
with the majority’s statement that Gonzales does not “fit within Congress’s
vision of the disabled population.” Maj. Op. at 15. Although it is indisputable
that “[p]ersons with minor trivial impairments, such as a simple infected finger
are not impaired in a major life activity,” Maj. Op. at 19, I do not
understand how the reading impairment described by Gonzales and Dr. Giordani can
reasonably be compared to an infected finger.
Finally, I
disagree with the majority’s assertion that recognizing serious reading
impairments of the sort described by Gonzales as “disabilities” would stretch
the ADA well beyond its intended purpose. Congress anticipated that its
definition of “an individual with a disability” would apply to “some 43,000,000
Americans.” 42 U.S.C. ? 12101(a)(1). Forty-three million is too small a
number to include all of the people in the United States who require eyeglasses
or contact lenses to see normally, see Sutton, 527 U.S. at 487
(observing that counting persons who can see normally with corrective lenses as
“disabled” would drive the total of “disabled” persons well over one hundred
million, a far greater number than Congress intended be covered by the ADA), but
forty-three million is still a very large number–larger, I think, than the
majority is willing to recognize.
IV.
I must confess
that before delving into this case, I would have been skeptical that a person
with a reading disability as serious as the one Gonzales insists he has would be
able to survive the rigors of medical school and be capable of practicing
medicine successfully afterward. Nevertheless, Gonzales has apparently satisfied
the faculty of one of this country’s preeminent medical schools that he would
make a very good physician, and I have little doubt that the faculty of the
University of Michigan Medical School are better judges than I of who ought to
be allowed to practice medicine.
For the reasons
set forth above, I believe that the district court’s finding that Gonzales does
not have a disability within the meaning of the ADA is not supported by the
record as it presently exists. The only finding consistent with Gonzales’s
testimony and the conclusions of the two experts who have met with and examined
him is that he has a rather severe reading disability. Although the district
court was obviously not required to credit Gonzales’s testimony or that of
Dr. Giordani, the district court’s decision to credit the testimony of Drs.
Flanagan and Litchford (particularly Dr. Flanagan) seems to me
irreconcilable with the district court’s recognition of Dr. Giordani as a
“competent and accomplished psychologist.” Gonzale[s] v. Nat’l Bd. of
Medical Examiners, 60 F. Supp. 2d 703, 708 (E.D. Mich. 1999).
I would therefore
vacate the order of the district court and remand this case for further
proceedings. The district court could allow supplemental briefing or, in the
exercise of its discretion, the taking of additional evidence on the subject of
whether Gonzales is likely to succeed on the merits, and then, if necessary,
address the other factors that are relevant in determining whether injunctive
relief should be granted.
| Footnotes |
1 Ulrey is an
Associate Clinical Professor of Psychology at the UCD.
2 Ulrey wrote that the pattern of errors on Gonzales’s
tests “strongly suggests an underlying processing disorder”; that “[b]oth
Michael’s problems with the sequential processing of information visually and
auditorily as well as discrepancies between his cognitive level and his reading
rate and reading comprehension suggest an underlying learning disability related
to slowness in language processing”; and that “the pattern of cognitive skills
as well as his ability to improve his performance significantly with increasing
50% time document both his learning disability and the need for the
accommodation of increased time for tests.”
3 Ulrey reported that on the verbal test Gonzales revealed
“significant strength in verbal conceptual ability on the vocabulary,
comprehension and similarities verbal tests.” He showed “excellent judgement and
abstract reasoning on both comprehension and similarities.” On the performance
test, he exhibited “significant strength in perceptual organization as seen on
both block design and object assembly,” and he demonstrated “effective problem
solving strategies on both block design and object assembly where he was able to
solve even the most abstract designs with a high level of efficiency.” On the
achievement test, he had a “reading decoding standard score of 114, equivalent
to the 82nd percentile and a written language or spelling standard score of 102,
equivalent to the 58th percentile. Performance on the arithmetic calculation
with standard time resulted in a score of 108 equivalent to the 70th percentile
and with 50% more time improved his performance to a standard score of 138,
equivalent to the 98th percentile.”
4 Flanagan is a
member of the American Psychological Association and the National Association of
School Psychologists.
5 Giordani is an
Associate Professor of Psychology in Psychiatry, Director of the Neuropsychology
Clinic and Associate Director of the Neuropsychology Division, University of
Michigan. Giordani is not board certified in neuropsychology by the American
Psychological Association.
6 The
Neuropsychology Division administered the following assessment procedures to
Gonzales: Wechsler Adult Intelligence Scale — Third Edition (WAIS-III);
Woodcock-Johnson Tests of Achievement — Revised (WJ-R); Woodcock Reading
Mastery Tests – Revised, Form G (WRMT-R/NU); Nelson-Denny Reading Test (N-D);
Halstead-Reitan Neuropsychological Test Battery and Allied Procedures; Wechsler
Memory Scale – Revised (WMS-R); Test of Variables of Attention (TOVA);
Attentional Capacity Tests (ACT); Digit Vigilance Test; Minnesota Multiphasic
Personality Inventory – w (MMPI-2); Patient History; Interview. The tests were
administered by Lisa Provost, a Master’s Level license psychologist.
7 Giordani reported that Gonzales’s scores on the Wechsler
subtests ranged from “borderline impaired to superior.” On academic achievement
tests, Gonzales scored “within the above average to superior range” in
mathematics “when solving basic written calculations, though his performance
with word problems and related tasks fell somewhat lower and in the average to
above average ranges.” In cognitive skills, Gonzales demonstrated excellent
performance on a conceptual problem solving task requiring general mental
flexibility and efficiently [sic] in adapting one’s responses based on feedback
from the environment (Category Test).”
8 Litchford is a
clinical psychologist. He is a diplomat in clinical psychology in the State of
New York and is a certified school psychologist in the Sate of New York. Dr.
Litchford is also an approved neuropsychological examiner who performs certain
certification reviews for the Office of Disabilities at New York State. He holds
a Directorship of Psychological Services in the Psychology Department at the
State University of New York.
9 After the district court denied his request for
injunctive relief, Gonzales took the Step 1 Examination a third time without
accommodation and again failed.
10 The relevant
implementing regulation promulgated by the DOJ under Title III states
that:
[A]n examination covered by this
section must assure that (i) The examination is selected and administered so
as to best ensure that, when the examination is administered to an individual
with a disability that impairs sensory, manual, or speaking skills, the
examination results accurately reflect the individual’s aptitude or
achievement level or whatever other factor the examination purports to
measure, rather than reflecting the individual’s impaired sensory, manual, or
speaking skills (except where those skills are the factors that the
examination purports to measure)[.]
28 C.F.R. ? 36.309(b)(1)(i) (1999).
11 The Second
Circuit’s opinion in Bartlett was vacated, not reversed, and the case
was sent back for further consideration in light of the Supreme Court’s recent
decisions in Sutton v. United Air Lines, Inc., 527 U.S. 471,
119 S. Ct. 1752 (1999); Murphy v. United Parcel Serv., Inc., 527 U.S.
516, 119 S. Ct. 2133 (1999); and Albertsons, Inc. v. Kirkingburg, 527
U.S. 555, 119 S. Ct. 2162 (1999). Significantly, the Second Circuit had reversed
the district court’s holding that the plaintiff’s ability to self-accommodate
foreclosed a finding of disability. See Bartlett v. New York State Bd. of
Law Examiners, 156 F.3d 321, 327 (2d Cir. 1998), vacated, 119 S.
Ct. 2388 (1999). This holding is called into question in light of the cited
Supreme Court authority.
12 The Supreme
Court recently noted that “substantially” suggest “considerable,” “specified to
a large degree,” and “in a substantial manner” and that “substantial” means
“considerable in amount, value, or worth,” “being that specified to a large
degree or in the main,” “relating to or proceeding from the essence of a thing;
essential,” and “of ample or considerable
amount, quantity or dimensions.” Sutton, 119 S. Ct. at 2145. The
Supreme Court’s review of these definitions confirms that the ADA addresses
impairments that limit an individual, not in a trivial or even moderate manner,
but in a major way, to a considerable amount, or to a large degree. Under this
standard, Gonzales is clearly not disabled under the ADA.
13 Gonzales
testified that throughout his life he has had difficulty reading both in and out
of school. He also testified that he has trouble reading street signs and
completing consumer transactions because of his reading problems.
The dissent would
credit Gonzales’s testimony that “he feels compelled to sign credit card
receipts blindly because reading them would take him so long that it would make
other customers angry, and that one of his attorneys had to read to him line by
line the complaint they prepared on his behalf in the present case so that he
could understand it.” Although the district court did not specifically make the
finding, we think Gonzales’s verbal representation of his impairment is
inconsistent with his success on the SAT and MCAT. Both tests are timed, and
Gonzales took these exams without accommodation.
14 The dissent
criticizes Dr. Flanagan for relying on tests that measure Gonzales’s cognitive
skills, skills which predict reading ability. It should be noted that Dr.
Flanagan also took into account the results of tests that reflected Gonzales’s
actual reading achievement level.
15 The dissent
faults Dr. Flanagan because she did not examine Gonzales. The dissent also
attacks her conclusions because her methodology for assessing whether persons
have learning disabilities involved a theoretical model that had not been
empirically analyzed for purposes of treatment and diagnosis. The dissent
therefore intimates that Flanagan’s testimony might not satisfy the “gatekeeper”
requirements of Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), and Daubert
v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993).
The dissent’s
reasoning is flawed. Although as an academic psychologist, Dr. Flanagan is not
qualified to diagnose a reading disorder, she is qualified to analyze Gonzales’s
test results and express an opinion as to how his reading ability compares with
that of the average person. Dr. Flanagan focused “on whether Mr. Gonzales has a
reading disorder that rises to the level of a disability, that represents an
impairment.” The dissent goes too far in interpreting Dr. Flanagan’s testimony
as second-guessing the clinical diagnoses of Drs. Ulrey and Giordani.
Similarly, the
fact that Dr. Flanagan relied on a theoretical model that had not been
empirically analyzed for purposes of diagnosis and treatment does not preclude
her from addressing the substantial limitation question. Dr. Flanagan did not
purport to made a diagnosis or suggest treatment; she only determined whether
Gonzales’s test results were consistent with a substantial impairment in his
reading ability. This she was qualified to do under the gatekeeper requirements
of Kumho and Daubert.
16 Plaintiff urges
this Court to rely upon Doe v. NBME, Case No. C-99-3124 WHO (ND Ca
1999), an unpublished decision. Doe has a factual similarity to the
instant case in that its subject, a medical student, alleges a reading
disability and seeks double time on the Step 1 Examination. In Doe,
however, the court credited plaintiff’s expert witnesses and the
district court in the instant case credited Defendant’s witnesses.
17 The limitation
claimed by Gonzales is in reality a limitation on his ability to read, not his
ability to work – and he maintains that his impairments do not restrict his
ability to do the work of a doctor.
18 As an example,
the report states that a person who can walk ten miles continuously but
experiences pain on the eleventh mile is not substantially limited in walking
because most people are unable to walk eleven miles without suffering some
discomfort. See S. Rep. 101-116, *23 (1989).