Civil Action No. 06-CV-3333.
March 9, 2007.
Charles Weiner, Law Office of Charles Weiner, Doylestown, PA, Joanne Simon, Law Office of Joanne Simon, Brooklyn, NY, Jennifer Weiser, Lisa Margaret Burger, Sid Wolinsky, Berkeley, CA, for Jonathan Love.
Jane E. Leopold-Leventhal, Grace M. Deon, Eastburn & Gray PC, Doylestown, PA, for Law School Admission Council, Inc.
*1 On July 7, 2006, Plaintiff Jonathan Love filed a Complaint against Defendant, the Law School Admissions Council (“ LSAC” ), alleging that his rights under Title III of the American With Disabilities Act (“ ADA” ), 42 U.S.C. § 12189,FN1 had been violated because he had been denied an accommodation on the Law School Admissions Test (“ LSAT” ). (Doc. No. 1.) Initially, Plaintiff sought a preliminary injunction ordering LSAC to provide him with time-and-a-half on the LSAT. (Doc. No. 9.) This would have provided Plaintiff with a total of 52.5 minutes on each section of the test instead of the standard thirty-five minutes per section. (Doc. No. 20 at 5.) Prior to the injunction hearing, Plaintiff's counsel withdrew the request for a preliminary injunction and advised that he would proceed to trial on the merits. (Doc. No. 18.)
FN1. 42 U.S.C. § 12189 states in pertinent 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.
A bench trial was held from December 18, 2006 through December 22, 2006. Based upon the evidence and testimony presented at trial, we make the following Findings of Fact and Conclusions of Law.
I. Findings of Fact
Jonathan Love is a twenty-five year-old student presently enrolled in the Master of Business Administration (“ MBA” ) program at the University of Notre Dame. Plaintiff intends to apply for admission to law school for the 2007-2008 academic year. (Doc. No. 1.) Defendant LSAC is a private non-profit entity that administers the LSAT, an exam that is required for admission to all accredited law schools in the United States. (Id.) The LSAT is administered four times a year, in February, June, September or October, and December. (Id. at 4.)
The LSAT is comprised of six sections that test reading comprehension, critical reasoning, and inferential reasoning. (Tr. 3 at 293 (Dempsey).) FN2 Specifically, the LSAT sections consist of one reading comprehension section, two logical reasoning sections, one analytical reasoning section, one writing sample, and one “ experimental section” (which can be reading comprehension, analytical or logical reasoning).FN3 (Id. at 296.)
FN2. We will refer to the trial transcripts by numbers 1 through 5 as follows with the last name of the witness in parentheses following the citation:
Tr. 1-Dec. 18, 2006 (Doc. No. 57)
Tr. 2-Dec. 19, 2006 (Doc. No. 65)
Tr. 3-Dec. 20, 2006 (Doc. No. 62)
Tr. 4-Dec. 21, 2006 (Doc. No. 63)
Tr. 5-Dec. 22, 2006 (Doc. No. 64)
FN3. The unscored section is typically used to analyze questions for future exams and varies for different administrations of the test. (Doc. No. 17 at 6.) The 35-minute writing sample is not scored, but sent to all the law schools to which the candidate applies. (Id.)
Plaintiff alleges that he suffers from Attention Deficit Hyperactivity Disorder (“ ADHD” ) Combined Type. He alleges that he also suffers from a learning disability affecting academic fluency and processing speed. (Tr. 1 at 155 (Runyan); Tr. Ex. P-13 ¶ 3 (J. Love Decl.).) Plaintiff first took the LSAT without accommodation in October 2003. (Tr. 1 at 247 (J. Love).) He received a score of 150 (out of a possible 180), a score that fell within the national average range. (Tr. 3 at 260 (Dempsey); Tr. Ex. P-62.) After learning that LSAC offered accommodations on the LSAT, Plaintiff submitted a timely request in October 2003 for an accommodation of extra time on the December 2004 LSAT. (Tr. 1 at 302 (J. Love); Tr. Ex. P-13 ¶ 10 (J. Love Decl.).) Plaintiff's original application requesting accommodations on the LSAT consisted of: (1) a psychological report by Dr. Micheal Davenport, Ph.D., dated July 15, 2000; (2) a neuropsychological/psychoeducational evaluation by Dr. Alice Anne Brunn, Ph.D., dated October 8, 2004; (3) Plaintiff's standardized test score history, including his SAT, ACT and GMAT scores; (4) Plaintiff's Baylor University transcript; and (5) letters from Plaintiff's academic advisor and professors. (Tr. Ex. P-13 ¶ 10 (J. Love Decl.).) On November 3, 2004, Plaintiff received a letter from LSAC denying his request because the documentation provided by Plaintiff did not “ demonstrate a substantial limitation related to taking the LSAT.” (Doc. No. 20 at 7; Tr. Ex. P-5.) After a series of requests that were subsequently denied, Plaintiff commenced this litigation.
A. Experts Who Testified at Trial
*2 Dr. M. Kay Runyan, Ph.D. and Dr. Alice Anne Brunn, Ph.D. testified as experts for Plaintiff during the trial.
Dr. Runyan was qualified as an expert in the assessment of learning disabilities and ADHD and the providing of accommodations based on learning disabilities and ADHD. (Tr. 1 at 61 (Runyan).) Dr. Runyan has thirty years of experience in diagnosing and evaluating individuals for learning disabilities and ADHD in school settings. (Tr. 1 at 64-67 (Runyan); Tr. Ex. P-36 (Runyan Curriculum Vitae); Tr. Ex. P-37 ¶ 1 (Runyan Decl.).) She has a Ph.D. in Special Education from the University of California at Berkeley with a focus in learning disabilities and Attention Deficit Disorder (“ ADD” ), and the assessment and diagnosis of those disorders. (Tr. 1 at 49-50 (Runyan); Tr. Ex. P-36.) Dr. Runyan also has a Master of Arts in Special Education with a focus on learning disabilities and ADD from California State University at Sacramento, and she obtained a Bachelor of Arts in Psychology from California State University at Sacramento. (Tr. 1 at 49-50 (Runyan); Tr. Ex. P-36.) She has worked as a consultant for a number of testing entities and law schools, most notably for Defendant LSAC. (Tr. 1 at 49-50 (Runyan); Tr. Ex. P-36.) Dr. Runyan did not personally evaluate Plaintiff. (Tr. 1 at 128 (Runyan).) She reviewed Plaintiff's documentation for the purpose of determining whether Plaintiff demonstrated the existence of a disability and the need for accommodations. (Tr. 1 at 104-105 (Runyan); Tr. Ex. P-37 ¶ 7 (Runyan Decl.).)
Dr. Brunn is a licensed clinical psychologist in Waco, Texas and was qualified as an expert in the assessment of individuals with disabilities. (Tr. 2 at 255-57 (Brunn); Tr. Ex. P-17 (Brunn Curriculum Vitae).) She has a Masters in General Experimental Psychology and a Ph.D. in Personality Psychology with a minor focus in Educational Psychology from Baylor University. (Tr. 2 at 203-04 (Brunn); Tr. Ex. P-17.) In addition, Dr. Brunn is licensed as a health service provider and as a specialist in school psychology in Texas. (Tr. 2 at 203-04 (Brunn); Tr. Ex. P-17.) Dr. Brunn personally evaluated Plaintiff and administered a battery of tests to him in 2004. (Tr. 2 at 218 (Brunn); Tr. Ex. P-19 (Brunn Evaluation Report).) She diagnosed Plaintiff as having ADHD and a learning disability. (Tr. 2 at 255-57 (Brunn); Tr. Ex. P-19 (Brunn Evaluation Report).)
Dr. Hugh Van Auken did not testify at trial, but he did personally evaluate Plaintiff. (Tr. Ex. P-31 (Van Auken Evaluation Report).) Dr. Van Auken was retained by Plaintiff, but his deposition was offered at trial by Defendant. (Doc. No. 44.) Dr. Van Auken has a Bachelor of Arts in Psychology from Notre Dame University, a Master of Science in Clinical Psychology from Mississippi State University, and a Ph.D. in Clinical Psychology from St. Louis University. (Tr. Ex. P-28 (Van Auken Curriculum Vitae).) He is licensed in Indiana as a health service provider in psychology. (Id.) He has been in private practice since 1989 and has had over fifteen years of experience diagnosing and assessing individuals for learning disabilities and ADHD. (Id.)
*3 Dr. Davenport did not testify at trial, but his report was admitted at trial. (Tr. Ex. P-15 (Davenport Evaluation Report).) Dr. Davenport is a licensed psychologist in Shreveport, Louisiana. He is the psychologist who initially diagnosed Plaintiff in 2000 as having ADHD. (Tr. 2 at 140 (M.Love).) He also concluded that Plaintiff did not have a learning disability. (Tr. Ex. P-15 (Davenport Evaluation Report).)
Dr. Kim Dempsey, Dr. Charles Golden, and Dr. Michael Gordon testified at the trial on behalf of LSAC.
Dr. Dempsey has been employed by Defendant LSAC for eleven years and serves as the Disabilities Specialist and Manager of Accommodated Testing. (Tr. 3 at 274-75 (Dempsey); Tr. Ex. P-60 ¶ 1-2 (Dempsey Decl.); Tr. Ex. D-50 (Dempsey Curriculum Vitae).) She has a Bachelor of Science in Psychology, a Masters in Neuro-Psychology from Drexel University and a Ph.D. in Clinical Psychology from LaSalle University. (Tr. 3 at 274-75 (Dempsey); Tr. Ex. P-60 ¶ 1-2 (Dempsey Decl.); Tr. Ex. D-50 (Dempsey Curriculum Vitae).) Her dissertation involved evaluating the LSAT performance of individuals, including those who were denied accommodations and those who received an accommodation, and the effect any additional time had on their performance. (Tr. 3 at 274-75 (Dempsey); Tr. Ex. P-60 ¶ 1-2 (Dempsey Decl.); Tr. Ex. D-50 (Dempsey Curriculum Vitae).) She was qualified as an expert in assessing learning disabilities and ADHD, and determining reasonable accommodations for individuals with learning disabilities and ADHD. (Tr. 3 at 184 (Dempsey).) Within LSAC, Dr. Dempsey is solely responsible for making the decision as to whether an individual qualifies for an accommodation.FN4 She is not a licensed psychologist. (Tr. 3 at 274-75 (Dempsey); Tr. Ex. P-60 ¶ 1-2 (Dempsey Decl.); Tr. Ex. D-50 (Dempsey Curriculum Vitae).)
FN4. The absence of a formal appeals process at LSAC is a matter of concern. Although Dr. Dempsey consults with other individuals when a question involving an application for accommodation arises, there is no formal mechanism for an applicant to appeal her findings.
Dr. Golden is a clinical psychologist and professor of psychology at the Nova Southeastern University in Florida and serves as a consultant to LSAC. (Tr. 4 at 211 (Golden); Tr. Ex. D-51 (Golden Curriculum Vitae).) He was qualified at trial as an expert in psychological assessment, clinical neuropsychology, clinical psychology, and psychometrics. (Tr. 4 at 210 (Golden); Tr. Ex. P-67 ¶¶ 2, 3, 5 (Golden Decl.).) Dr. Golden has a Bachelor of Arts in Psychology from Pomona College and Masters and Doctoral degrees in Clinical Psychology from the University of Hawaii in Honolulu. (Tr. 4 at 161-62 (Golden); Tr. Ex. P-67 ¶¶ 2, 3, 5 (Golden Decl.); Tr. Ex. D-51 (Golden Curriculum Vitae).) Dr. Golden is a licenced psychologist in Alabama and Florida and is board certified in clinical psychology, clinical neuropsychology, and psychological assessment. (Tr. 4 at 161-62 (Golden); Tr. Ex. P-67 ¶¶ 2, 3, 5 (Golden Decl.); Tr. Ex. D-51 (Golden Curriculum Vitae).) He has been the recipient of awards from the National Academy of Neuropsychology and served as president of that organization. (Tr. 4 at 161-62 (Golden); Tr. Ex. P-67 ¶¶ 2, 3, 5 (Golden Decl.); Tr. Ex. D-51 (Golden Curriculum Vitae).) Dr. Golden is an independent consultant for LSAC and reviewed Plaintiff's request for accommodations in May 2006 after Dr. Dempsey sent him Plaintiff's file. (Tr. 3 at 236-37 (Dempsey).)
*4 Dr. Gordon is currently the Director of the ADHD program at Upstate Medical University in Syracuse, New York, and a professor in the Department of Psychiatry. (Tr. 5 at 61 (Gordon); Tr. Ex. D-53 (Gordon Curriculum Vitae).) At Upstate Medical University, Dr. Gordon serves as the chief child psychologist, director of the ADHD program, and director of the child clinical internship program. (Tr. 5 at 61 (Gordon); Tr. Ex. D-53 (Gordon Curriculum Vitae).) He has a Bachelor of Arts from Amherst College and a Masters and Ph.D. in Clinical Psychology from Ohio State University. (Tr. 5 at 61 (Gordon); Tr. Ex. D-53 (Gordon Curriculum Vitae).) He completed a clinical internship at Upstate Medical University. (Tr. 5 at 61 (Gordon); Tr. Ex. D-53 (Gordon Curriculum Vitae).) Dr. Gordon also serves as a consultant for LSAC and was also asked by Dr. Dempsey to review Plaintiff's file after this litigation commenced. (Tr. 5 at 61 (Gordon); Tr. Ex. D-53 (Gordon Curriculum Vitae); Tr. Ex. D-54 (Gordon Consulting Agreement with LSAC).) Dr. Gordon was qualified as an expert in the area of ADHD, and to the extent that there is a co-morbidity with learning disabilities, he was qualified as an expert in learning disabilities. (Tr. 5 at 75 (Gordon).)
The psychologists who testified at trial were all advocates for their client's position in this litigation.
B. Attention Deficit Hyperactivity Disorder
The criteria for diagnosing ADHD are found in the Diagnostic and Statistical Manual of Mental Health Disorders, Fourth Edition (“ DSM-IV” ). The DSM-IV lists the following diagnostic criteria for Attention Deficit/Hyperactivity Disorder:
Six or more of the following symptoms of inattention have been present for at least 6 months to a point that is disruptive and inappropriate for developmental level:
1. Often does not give close attention to details or makes careless mistakes in schoolwork, work, or other activities.
2. Often has trouble keeping attention on tasks or play activities.
3. Often does not seem to listen when spoken to directly.
4. Often does not follow instructions and fails to finish schoolwork, chores, or duties in the workplace (not due to oppositional behavior or failure to understand instructions).
5. Often has trouble organizing activities.
6. Often avoids, dislikes, or doesn't want to do things that take a lot of mental effort for a long period of time (such as schoolwork or homework).
7. Often loses things needed for tasks and activities (e.g. toys, school assignments, pencils, books, or tools).
8. Is often easily distracted.
9. Is often forgetful in daily activities.
Six or more of the following symptoms of hyperactivity-impulsivity have been present for at least 6 months to an extent that is disruptive and inappropriate for developmental level:
1. Often fidgets with hands or feet or squirms in seat.
2. Often gets up from seat when remaining in seat is expected.
*5 3. Often runs about or climbs when and where it is not appropriate (adolescents or adults may feel very restless).
4. Often has trouble playing or enjoying leisure activities quietly.
5. Is often “ on the go” or often acts as if “ driven by a motor.”
6. Often talks excessively.
1. Often blurts out answers before questions have been finished.
2. Often has trouble waiting one's turn.
3. Often interrupts or intrudes on others (e.g., butts into conversations or games).
Some hyperactive-impulsive or inattentive symptoms that caused impairment were present before age 7 years.
Some impairment from the symptoms is present in two or more settings (e.g., at school [or work] and at home).
There must be clear evidence of clinically significant impairment in social, academic or occupational functioning.
(Tr. Ex. D-62; Tr. 1 at 90 (Runyan).) ADHD is a behavioral manifestation of a chemical imbalance in the frontal lobe of the brain created by a decreased blood flow. (Tr. 1 at 87 (Runyan).) As a result, an individual is unable to filter out extraneous distractions, and in many cases, internal distractions as well. (Id.) Symptoms of ADHD include a pattern of inattention and impulsivity that is more frequent and more severe than is typically observed in comparable individuals at a similar level of development. (Tr. 1 at 90 (Runyan); Tr. 2 at 252 (Brunn).)
ADHD behavioral symptoms can vary in both extent and type depending on the individual's DSM-IV subtype which include “ inattentive type,” “ hyperactive-impulsive type” and “ combined type” (which implicates the symptoms of both subtypes). ADHD is classified as either mild, moderate or severe. (Tr. 2 at 285 (Brunn); Tr. Ex. D-62.) Regardless of the type, however, an individual must demonstrate that the evidence of impairment is clinically significant and that the impairment from the symptoms span two or more settings. (Tr. 2 at 285 (Brunn); Tr. Ex. D-62.) A complete diagnosis requires that a clinician develop a full clinical picture of an individual, which includes following the DSM-IV guidelines, evaluating the candidate's behavior in academic, professional, and social settings, identifying any hereditary patterns in an individual's family, and administering a battery of tests including the Test of Variables of Attention (“ TOVA” ). (Tr. 1 at 73-75 (Runyan); Tr. Ex. D-36 (Runyan Decl.).) FN5 In addition to these mechanisms of diagnosis, a clinician must conduct a “ differential diagnosis” to rule out other sources of inattentive or impulsive behavior. (Tr. 5 at 94-96 (Gordon).) Clinicians often misdiagnose ADHD because they fail to deduce or personally observe “ clear evidence of clinically significant impairment in social, academic or occupational functioning.” (Id.)
FN5. The TOVA is a computer generated test that is designed to identify and quantify inattention and omission. (Id.) Other tests that are administered to determine an attention deficit disorder can include the Wechsler Adult Intelligence Scale III (“ WAIS-III” ). (Id.)
The effect of ADHD on an individual can be profound. In addition to the significant disruption it can cause to normal childhood development, the educational discrepancy between individuals who have ADHD and those who do not is significant. In the 2003 Census, 25% to 30% of the general population had four-year degrees from undergraduate institutions. (Doc. No. 44-4 at 116-17.) Only 15% to 20% of the population who suffer from ADHD had four-year undergraduate degrees. (Id.)
*6 Plaintiff was diagnosed under the DSM-IV guidelines as having ADHD Combined Type. (Tr. Ex. P-13 ¶ 3 (J. Love Decl.); Tr. 2 at 255 (Brunn).) With Combined Type ADHD, one must demonstrate symptoms of both inattention and impulsive hyperactive behavior. (Tr. Ex. D-62; Tr. 1 at 90 (Runyan).) FN6
FN6. Dr. Runyan characterized Plaintiff's ADHD as severe.
C. Plaintiff's Background
Plaintiff was born and raised in Shreveport, Louisiana. (Tr. 1 at 261 (J. Love); Tr. Ex. P-14 ¶ 3 (M. Love Decl.).) His mother and his father divorced when Plaintiff was three years-old and Plaintiff has had little contact with his father since then. (Tr. 1 at 261 (J. Love); Tr. Ex. P-14 ¶ 3 (M. Love Decl.).) Plaintiff has lived with his mother, Margaret Love, and his older sister for most of his life. (Tr. 1 at 261 (J. Love); Tr. Ex. P-14 ¶ 3 (M. Love Decl.).)
Plaintiff's mother, who testified at trial (Tr. 2 at 101 (M.Love)), owns an art gallery in Shreveport along with her brother. (Tr. Ex. P-14 ¶ 3 (M. Love Decl.).) The gallery is called Nader's Gallery. (Tr. 2 at 104 (M.Love).)
1. Plaintiff's Elementary and Secondary Schooling
Plaintiff attended a small private elementary school in Shreveport called St. Joseph's Catholic School. (Tr. 2 at 123 (M.Love); Tr. Ex. P-14; Tr. Ex. D-2.) He attended high school at Loyola College Prep, in Shreveport. (Tr. 2 at 123 (J. Love); Tr. Ex. P-41; Tr. Ex. D-3.)
Plaintiff's kindergarten teacher recommended that he repeat the school year based on her assessment that Plaintiff was “ not recognizing letters and numbers like the other students and was not ready to begin reading in first grade.” (Tr. 2 at 121-22 (M.Love); Tr. Ex. P-44 (Apple Letter).) However, she also found that he “ was never a behavior problem.” (Tr. Ex. P-44 (Apple Letter).) Plaintiff was enrolled in kindergarten for five year-olds when he was four. (Tr. Ex. P-14 ¶ 7 (M. Love Decl.).) Because he was “ small for his class and slow to learn compared to the other students,” it was recommended that he repeat the grade. (Id.)
Plaintiff's records from St. Joseph's and two letters from his teachers reference some difficulty with attention, self-control, and reading in the classroom. (Tr. Ex. P-41 (St. Joseph's Progress Report), P-42 (Bergeret Letter), P-43 (Agent Letter).) During one marking period in kindergarten, Plaintiff's self-control, listening skills, and letter recognition skills were rated as “ Not Satisfactory.” (Tr. Ex. P-41 (St. Joseph's Progress Report).) In the other marking periods, these skills improved and were rated “ Satisfactory” or “ Outstanding.” (Id.) His teachers wrote in the “ Comments” section of his kindergarten report card that Plaintiff “ needs practice with number and alphabet flash cards. We are working on listening and follow[ing] 2 or 3 part instructions.” (Id.) They also wrote that Plaintiff is “ a sweet and caring boy.” (Id.) Several of Plaintiff's teachers during elementary school provided Plaintiff with informal “ accommodations” that involved leniency in allowing him to take extra time on assignments and exams. (Tr. 1 at 268-69 (J. Love); Tr. Ex. P-45 (Colbert Letter); Tr. Ex. P-76 (Rambin Letter); Tr. Ex. P-75 (Buck Letter).) Alvina Buck, Plaintiff's first grade teacher, recalled in a letter to Dr. Brunn that Plaintiff had difficulty adjusting to first grade and required additional time in order to steadily progress throughout the transition of a new teacher and a new routine. (Tr. Ex. P-75 (Buck Letter).) She also recalled that Plaintiff's reading comprehension skills developed only after he “ read[ ] the material several times.” (Id.) Buck provided Plaintiff with preferential seating in order to “ keep him focused and to allow me to keep an eye on his development of reading and writing from left to right.” (Id.) She specifically sought to maintain an environment with minimal distractions in order to help Plaintiff focus at any given task that was before him. (Id.) Nevertheless, Plaintiff's report cards from the first grade through the fourth grade list Plaintiff as a student who “ Listens Attentively,” “ Completes Work In A Reasonable Time,” and “ Understands And Follows Directions.” (Tr. Ex. D-82-84 (St. Joseph's Report Cards).) Plaintiff consistently received “ As” and Bs” throughout the first and second grades, and his performance throughout elementary school as reflected in the Progress Reports was equally satisfactory. (Tr. Ex. P-41; Tr. Ex. D-2.)
*7 Informal “ accommodations” were also available to Plaintiff in high school. There were occasions when teachers at Loyola Prep would allow students to remain in the classroom even when the class had ended or permit them to come back later in the day to complete an exam. (Tr. 1 at 13-14 (J. Love); Tr. Ex. P-77 (LeBlanc Letter).) Plaintiff's religion teacher, Sister Sharon Rambin, taught Plaintiff in the ninth grade and identified him as a “ daydreamer.” (Tr. Ex. P-76.) She described him as someone who “ frequently had difficulty focusing in class and was easily distracted.” (Id.) Sister Rambin suggested in her letter to Dr. Brunn that it was her personal policy to allow all students extra time on exams. (Id.) Plaintiff did very well in his religion classes, achieving mostly “ As” with two “ Bs” over the course of his entire high school career. (Tr. Ex. D-4.) Loyola Prep's Vice Principal, John LeBlanc, advised that, “ the general practice of most of the teachers in the school, including myself, was to allow students to take as long as they needed on exams.” (Tr. Ex. P-77.) Plaintiff, however, did not take advantage of every opportunity to receive an accommodation for his exams in high school. (Doc. No. 46 at 11-13.) Mr. Brantley Anderson, Plaintiff's criminal and constitutional law teacher in twelfth grade, testified that although he allowed students extra time to complete exams, Plaintiff did not request additional time to complete any of his exams in that class. (Id.) Plaintiff received an “ A” in Anderson's class. (Tr. Ex. D-3.) LeBlanc also indicated that there were teachers who were strict about the timing of their exams. (Id.) For example, in Plaintiff's English class during the first semester of his senior year, he was asked to read several classics including, The Iliad, Macbeth, portions of The Canterbury Tales, Beowulf, Hamlet and poems from Tennyson and Keats. (Tr. 2 at 69 (J. Love).) Plaintiff's English teacher did not allow Plaintiff to take additional time on any of the twelve to fifteen tests that she gave throughout the course of the year. (Id.) Plaintiff received a “ B” in this English course without any accommodation. (Tr. 2 at 56 (J. Love); Doc. No. 45 at 12-13.)