Jessica Ramsay v. National Board of Medical Exam

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 20-1058

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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

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Argued July 1, 2020

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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