The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JANA JAMES, )
)
Plaintiff, )
)
v. ) No. 1:23-cv-01607-JPH-TAB
)
NATIONAL BOARD OF OSTEOPATHIC )
EXAMINERS INC., )
)
Defendant. )
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Jana James alleges that the National Board of Osteopathic Examiners,
Inc. ("NBOME") violated the Americans with Disabilities Act when it did not
grant her requested accommodations for taking the Comprehensive
Osteopathic Medical Licensing Examination ("COMLEX")-USA Level 1 exam.
NBOME has moved for summary judgment. Dkt. 75. For the reasons below,
the Court gives Ms. James notice under Federal Rule of Civil Procedure 56(f)(2)
of its intent to grant summary judgment in favor of NBOME.
I.
Facts and Background
Because NBOME has moved for summary judgment under Rule 56(a),
the Court views and recites the evidence "in the light most favorable to the non-
moving party and draw[s] all reasonable inferences in that party's favor."
Zerante v. DeLuca, 555 F.3d 582, 584 (7th Cir. 2009) (citation omitted).
Ms. James is a former medical student. See dkt. 77 at 1. She was
required to take and pass the COMLEX-USA Level 1 exam, the first level in "a
three-level, national standardized licensure examination" for osteopathic
medicine. Id. Defendant NBOME develops the COMLEX tests and decides
what accommodations, if any, students will receive when taking those tests.
See id.
On January 1, 2020, Ms. James submitted an accommodations request
for an upcoming COMLEX-USA Level 1 administration. Dkt. 76-1 at 1. She
requested an isolated testing environment, additional time to complete the
exam, and additional breaks. Id. She reiterated this request via email, dkt.
76-2 at 2, and NBOME acknowledged the request on January 20 after Ms.
James formally registered for the exam, id. at 1.
On May 1, NBOME granted Ms. James some additional break time but
denied the remainder of her requested accommodations. Id. at 3–5. Ms.
James appealed with additional documentation, and NBOME then approved
additional accommodations of more break time and a separate testing room.
Id. at 11–12. And on September 2, NBOME granted Ms. James's request to
remove her mask during the test. Id. at 14–15. Ms. James took the COMLEX-
USA Level 1 exam for the first time on September 9, but she did not pass. Dkt.
76-3 at 1.
Ms. James then registered for the exam again, and NBOME granted the
same accommodations. Dkt. 76-2 at 16–18. She took the exam for the second
time on December 1, 2020, but she did not pass. Dkt. 76-4 at 1.
Ms. James registered for the exam again and submitted additional
documentation in support of her requested accommodations. NBOME granted
her the requested accommodations for additional break time and noise-
cancelling headphones, and again denied her request for additional time to
complete the exam. Dkt. 76-2 at 20, 33, 39–40. This time, Ms. James passed
the COMLEX-USA Level 1 exam. Dkt. 76-5 at 1; see also dkt. 95 at 20.
Ms. James's operative complaint alleges that NBOME violated Title III of
the Americans with Disability Act ("ADA"), 42 U.S.C. § 12181 et seq., when it
did not provide all the accommodations requested by Ms. James each time she
took the exam. Dkt. 6 at 4–7; see dkt. 56 (clarifying that the operative
complaint is at docket number 6). As relief, Ms. James seeks compensatory
damages and reimbursement for tuition expenses, legal fees, and other costs
incurred in bringing this case. Dkt. 6 at 6. She also seeks injunctive relief in
the form of a court order requiring NBOME to "[r]emove records of exam
failures." Id.
NBOME has filed a motion for summary judgment. Dkt. 75.
II.
Summary Judgment Standard
Summary judgment shall be granted "if the movant shows that 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). The moving party must
inform the court "of the basis for its motion" and specify evidence
demonstrating "the absence of a genuine issue of material fact." Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party meets this
burden, the nonmoving party must "go beyond the pleadings" and identify
"specific facts showing that there is a genuine issue for trial." Id. at 324.
In ruling on a motion for summary judgment, the Court views the
evidence "in the light most favorable to the non-moving party and draw[s] all
reasonable inferences in that party's favor." Zerante, 555 F.3d at 584 (citation
omitted).
III.
Analysis
"Title III of the ADA prohibits discrimination [against persons with
disabilities] by a private entity offering a professional certification examination."
Soignier v. Am. Bd. of Plastic Surgery, 92 F.3d 547, 551 (7th Cir. 1996); 42
U.S.C. § 12189. Title III's enforcement provision "provides a remedy only to a
person 'who is being subjected to discrimination on the basis of disability or
who has reasonable grounds for believing that such person is about to be
subjected to discrimination." Ruffin v. Rockford Mem'l Hosp., 181 F. App'x 582,
585 (7th Cir. 2006) (quoting 42 U.S.C. § 12188(a)(1)).
Here, NBOME argues that the Court must grant its motion for summary
judgment because Ms. James does not qualify as a person with disabilities
under the ADA, and even if she did, it did not discriminate against her based
on those disabilities. Dkt. 77. Ms. James responds that her conditions qualify
as disabilities under the ADA and that NBOME's process for evaluating her
requested accommodations violated the ADA. Dkt. 95.
The parties don't address threshold issues under Title III of the ADA—
whether Ms. James is being subjected to or about to be subjected to
discrimination and the availability of the relief she seeks. The Court evaluates
these issues pursuant to its authority under Federal Rule of Civil Procedure
56(f)(2).
A. Monetary relief
Ms. James seeks monetary relief for exam refunds, legal fees paid to
challenge her medical school dismissal, and tuition expenses. Dkt. 6 at 6.
However, "damages are not available under Title III" of the ADA. Scherr v.
Marriot Intern., Inc., 703 F.3d 1069, 1075 (7th Cir. 2013); see also Ruffin, 181
F. App'x at 585 ("Money damages . . . are not available to private parties under
Title III . . . ." (citing 42 U.S.C. § 12188(a)(1) and collecting cases)); Doe v. Law
Sch. Admission Council, Inc., No. 17-cv-06656, 2022 WL 4599264, at *4 (N.D.
Ill. Sep. 30, 2022). Therefore, Ms. James's claim for money damages cannot
succeed as a matter of law.
B. Injunctive relief
Ms. James also seeks the injunctive relief of NBOME removing records of
her having failed the exam on her first two attempts. Dkt. 6 at 6. She argues
generally that she has Article III standing, dkt. 95 at 5–8, and NBOME does not
address that argument, dkts. 77, 96. However, because Article III standing is a
jurisdictional requirement, Va. House of Delegates v. Bethune-Hill, 587 U.S.
658, 662 (2019), the Court has an independent duty to evaluate whether Ms.
James has standing to sue for the prospective injunctive relief she seeks.
The "irreducible constitutional minimum" of standing consists of three
elements: the plaintiff "must have suffered (1) an injury in fact, (2) that is fairly
traceable to the challenged conduct of the defendant, and (3) is likely to be
redressed by a favorable judicial decision." Spokeo v. Robins, 578 U.S. 330,
338 (2016). Standing "must be supported . . . with the manner and degree of
evidence required at the successive stages of the litigation." Apex Digital, Inc. v.
Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009) (quoting Lujan v. Defs.
of Wildlife, 504 U.S. 555, 561 (1992)). The plaintiff has the burden of
establishing these elements and therefore must "clearly allege facts
demonstrating each element." Spokeo, 578 U.S. at 338.
Ms. James argues that she suffered an injury in fact sufficient to confer
standing because she "experienced concrete harm due to the denial of
accommodations." Dkt. 95 at 6, 8. She contends that NBOME's
accommodations denials "prevented [her] from accessing the exam on an equal
basis with non-disabled peers." Id. at 6. She argues that the "denial of
additional testing time and lack of enforcement of approved additional break
time" caused significant harm to "her professional advancement" because of
her "inability to fully demonstrate her competence in the examination setting."
Id.
"To have standing for prospective injunctive relief, a plaintiff must face a
'real and immediate' threat of future injury as opposed to a threat that is
merely 'conjectural or hypothetical.'" Simic v. City of Chicago, 851 F.3d 734,
738 (7th Cir. 2017) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102
(1983)). "Unlike with damages, a past injury is insufficient to establish
standing for purposes of prospective injunctive relief." Id. That's because
"[p]ast exposure to illegal conduct does not in itself show a present case or
controversy regarding injunctive relief . . . if unaccompanied by any continuing,
present adverse effects." Lyons, 461 U.S. at 95–96.
Here, the injuries that Ms. James claims to have suffered relate to her
failing to pass the exam on her first two attempts when NBOME did not grant
all of her requested accommodations. Dkt. 6 at 6. But past injuries are not
enough to confer standing to sue for prospective injunctive relief. Simic, 851
F.3d at 738. Instead, Ms. James must show that she faces a "'real and
immediate' threat of future injury." Id. She has not done so here.
Ms. James does not explain how she is currently being harmed or will
imminently be harmed by NBOME maintaining the results from the first and
second times she took the COMLEX-USA Level 1 test. She designates no
evidence showing that NBOME's records are publicly available or that anyone
outside of NBOME could access these results without her permission.
Ironically, it appears the only reason that the results of her first two attempts
to pass the exam are public knowledge is because Ms. James filed this suit,
thereby putting facts related to her two failed attempts to pass the exam in the
public record. Moreover, Ms. James does not explain how NBOME's
maintenance of these records are likely to affect her career prospects going
forward. In short, Ms. James has not shown that she currently suffers or is
likely to suffer imminent future injury from NBOME maintaining these records.
The harms that Ms. James alleges will flow from her two failed attempts to pass
the exam are "conjectural or hypothetical."! Id.
In sum, Ms. James has not shown that she has suffered an injury in fact
sufficient to confer standing to pursue the prospective injunctive relief she
seeks.
IV.
Conclusion
The Court gives Ms. James notice under Federal Rule of Civil Procedure
96(f)(2) of its intent to grant summary judgment in favor of NBOME. Ms.
James shall have until August 22, 2025 to respond to this notice by
explaining why her claim for monetary damages does not fail as a matter of law
and why she has standing to seek prospective injunctive relief. If Ms. James
fails to respond, the Court will issue summary judgment in favor of NBOME.
NBOME shall have until September 5, 2025 to reply to Ms. James's response.
SO ORDERED.
Date: 7/24/2025 Sjamnu Pataick Hanbor
James Patrick Hanlon
United States District Judge
Southern District of Indiana
Distribution:
JANA JAMES
200 Magnolia Blvd., Blg. 200, Apt. 203
Port Wentworth, GA 31407
All electronically registered counsel
1 Because Ms. James does not satisfy the "injury in fact" element of standing, the
Court does not address whether her claim satisfies standing's other elements.