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Grant v. National Board of Medical Examiners

May 22, 2009


The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge



On September 19, 2007, Plaintiff C. Earl Grant ("Plaintiff") brought the instant action against the National Board of Medical Examiners ("NBME") and the Federation of States Medical Board ("FSMB"). Plaintiff alleges that Defendants NBME and FSMB breached their internal policies and settlement agreement with Plaintiff by scoring his United States Medical Licensing Examinations ("USMLE") in a discriminatory manner. Plaintiff further contends that Defendants engaged in discriminatory scoring which caused his USMLE certification to be delayed, thereby preventing Plaintiff's career advancement and causing Plaintiff to suffer financial loss.

On November 19, 2008, Plaintiff moved to amend his Complaint to include claims under: (1) the Americans with Disability Act ("ADA"); (2) the Minnesota Human Rights Act ("MHRA"); and (3) the Civil Rights Act of 1964. Plaintiff also seeks to add as defendants five individuals who were employed in a representative capacity for either NBME or FSMB. On December 5, 2008, Defendants submitted a Motion in Opposition to Plaintiff's Motion to Amend and a Cross Motion for Summary Judgment on all of Plaintiff's claims. On February 12, 2009 Plaintiff filed a Supplemental Response to Defendant's Motion for Summary Judgment in which he addressed Defendants' assertion that many of Plaintiff's claims are time barred. On March 27, 2009, Plaintiff sought to add portions of the Judge Advocate General's Service Members Civil Relief Act as an exhibit in support of this Supplemental Response. On March 27, 2009, Defendants submitted a letter requesting that the Court reject Plaintiff's Supplemental Response and the supporting exhibit as untimely or, in the alternative, that the Court allow Defendants the opportunity to respond to Plaintiff's supplemental response. The Court has reviewed Plaintiff supplemental response and supporting exhibit. For the reasons set forth below, Defendants Motion for Summary Judgment is GRANTED and Plaintiff's claims are DISMISSED in their entirety.


The United States Medical Licensing Exam (USMLE) is a three-part exam that all state medical boards require allopathic physicians (M.D.s) to pass prior to obtaining a medical license. The USMLE is comprised of three separate "Steps": Step 1, Step 2, and Step 3. Together, the NBME and FSMB are responsible for the application, administration and scoring process for the USMLE. The NBME administers Steps 1 and 2, scores all three Steps, and is responsible for reporting exam scores and performing score rechecks. The FSMB administers the Step 3 exam and receives requests for rechecks of Step 3 scores, which it then forwards to NBME for re-grading.

Plaintiff is an allopathic candidate who first took Step 1 of the USMLE in June 1994. Between June 1994 and June 1996, Plaintiff took Step 1 six times. On his sixth attempt, Plaintiff passed Step 1. In April 1996, Plaintiff and another medical student sued the NBME for its alleged failure to provide them with reasonable testing accommodations in violation of the Americans with Disabilities Act ("ADA"). While the lawsuit was pending, Plaintiff twice took and failed Step 2 of the USMLE.

In June 1998, Plaintiff and the NBME entered into a Settlement Agreement. In exchange for certain testing accommodations, Plaintiff released the NBME from "any claim which he had or may have had against NBME for its refusal to accommodate him in connection with any test administered by the NBME." Specifically, the Settlement Agreement released the NBME from:

(A) all claims of discrimination (including disability, sex and age discrimination pursuant to the MHRA or the ADA), breach of contract, promissory estoppel, defamation, negligent or intentional infliction of emotional distress, harassment, impairment of economic opportunity, fraud, misrepresentation, or any other theory of liability. . . .

Settlement Agreement at ¶ 21. With respect to future Step 2 exams, the NBME agreed to, inter alia, reasonably accommodate Plaintiff for the remainder of his Step 2 exams and preserve and recheck his Step 2 exam results upon request. A procedure by which Plaintiff could preserve and re-check his future Step 2 exam results was set forth in the Settlement Agreement. The Settlement Agreement states that if Plaintiff wishes to preserve his Step 2 exam results, he must make a request to NBME's general counsel no later than 30 days prior to the date of the exam. Id. at p. 5.

Additionally, as a part of the Settlement Agreement, Defendant NBME agreed: not to retaliate against [Plaintiff] in any manner in connection with the testing or scoring of any future examination taken by [Plaintiff] and administered or scored by the NMBE, or in connection with the exercise of [Plaintiff's] rights under this Agreement.

The FSMB was not a party to the June 1998 Settlement Agreement. Additionally, the Settlement Agreement advises Plaintiff that the NMBE does not determine requests for accommodations for Step 3 of the USMLE. Id. at p. 1. Although the Settlement Agreement includes a general assurance of fair and objective scoring by Defendant NBME with respect to any examination administered or scored by it, the Agreement does not set out a score preservation or re-check process for Step 3 in a manner similar to that established for Step 2.

In August 1998, after the effective date of the Settlement Agreement, Plaintiff took and failed the Step 2 examination. On December 5, 1998, Plaintiff requested that his 2 exam score be re-checked. NBME rechecked the score and, on December 18, 1998, notified Plaintiff that the score re-check confirmed his initial score. Dillion Aff. at p. 11. On March 2, 1999, Plaintiff took and passed Step 2.

Between July 2003 and November 2006, Plaintiff took Step 3 of the USMLE five times. As noted, Step 3 is administered by FSMB and scored by NBME. The Step 3 examination is delivered in two parts: a multiple choice portion and a computer-based case simulation ("CCS"). Dillion Aff. at p. 3. In the computer-based simulation, a "computer presents a simulated patient to the examinee, who decides which diagnostic information to obtain and how to treat and monitor patient progress in computer-simulated time." Id. Together, an examinee's response to both portions of the Step 3 exam combine to create his "Response Record." After a Step 3 exam ends, the test delivery vendor, Prometric, "electronically bundles the examinee's Response Record and other Response Records from that testing center, encrypts the data and transmits it over secure lines to Prometric's data center." The Response Records are stored at Prometic's data center until the NBME decrypts and scores the records using a computerized scoring program. Id at p. 5. The computerized scoring program is completely automated and computers perform "all the substantive tasks necessary to produce a final score." Id at p. 6. For each Response Record, the computerized scoring program produces a multiple choice raw score and a CCS raw score. The multiple choice raw score reflects the number of items answered correctly and the CCS raw score reflects the number of points obtained in managing the simulated patient. An examinee's final score is derived from these two scores.

If an examinee wishes to have his exam re-checked, he must do so in accordance with the policy laid out in the USMLE Bulletin of Information ("Bulletin"). The Bulletin describes the USMLE application process, test regulations, rules of conduct, and the process of scoring and score reporting. As part of the application process for each Step, a prospective examinee must certify that he has read the Bulletin and agrees to comply with the policies and procedures set forth therein. Dillon Aff. at p. 8. Pertinent to Plaintiff's claim, the USMLE Bulletin requires that an examinee request a score re-check within 90 days of the score report release date.

Between July 2003 and November 2006, Plaintiff took the Step 3 exam five times. In August 2004, Plaintiff timely requested a score re-check for his July 2004 examination. In October 2004, Plaintiff received his requested score re-check, confirming the accuracy of his previously reported score. Plaintiff's four other requests for score re-checks were returned by the USMLE as untimely. Johnson Aff. at p. 4.

Plaintiff then commenced the instant action. The crux of Plaintiff's claims revolve around a perceived bias towards him. Plaintiff claims that Defendants subjectively graded his examinations in an unfair manner. With respect to the August 1998 and March 2, 1999 Step 2 examinations, Plaintiff asserts that Defendants breached the terms of the Settlement Agreement by not objectively re-grading his exam. Plaintiff claims that only one of the re-graded exams "was partially hand-scored. . . and each of the other exam documents had no markings indicative of an attempt to objectively re-grade the test." Plaintiff contends that NBME "lied" about scoring Plaintiff's examinations using standard procedures and in the same manner that it scored all other examinations taken at that time. Plaintiff further contends that Defendants' standard grading procedures are not objective and fair. Plaintiff also asserts that Defendants NBME and FSMB "falsified" his exam results. With respect to the USMLE Step 3 examination, Plaintiff asserts that Defendants failed to provide him with the permit required to take the Step 3 examination and "intentionally cancelled plaintiff's application in March 2003, without notice to plaintiff." Am. Compl. at par. 29.

Presently before the Court is Plaintiff's motion to amend pursuant to Fed. R. Civ. P. 15 and Defendants' cross-motion for summary judgment pursuant to Fed. R. Civ. P. 56.


It is well settled that on a motion for summary judgment, the Court must construe the evidence in a light most favorable to the non-moving party, see Tenebaum v. Williams, 193 F. 3d 581, 593 (2d Cir. 1999), and may grant summary judgment only where "there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is genuine if the relevant evidence is such that a reasonable jury could return a verdict for the non moving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S. Ct 2505 (1986).

A party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving party believes demonstrate the absence of a genuine issue of material fact as to a dispositive issue. Celotox Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986). If the movant is able to establish a prima facie basis for summary judgment, the burden of production shifts to the party opposing summary judgment who must produce evidence establishing the existence of a factual dispute that a reasonable jury could resolve in his favor. Matsushita Elec. Indus. Co. v.Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348 (1986). A party opposing a properly supported motion for summary judgment may not rest upon "mere allegations or denials" asserted in his pleadings, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir.1994), or on conclusory allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998).

Also pending before the Court is Plaintiff's motion for leave to amend his Complaint. Leave to amend shall be freely granted, Fed. R. Civ. P. 15, but such leave may be denied as futile when the evidence in support of the plaintiff's proposed new claim creates no triable issue of fact and the defendant would be entitled to judgment as a matter of ...

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