IN THE SUPREME COURT OF OHIO

Mohanied Bassem Rayess,Plaintiff-Appellee,

V.

Educational Commission for ForeignMedical Graduates,

Defendant-Appellant.

Case No. 2011-1933

On Appeal from the MontgomeryCounty Court of Appeals, SecondAppellate District

Court of AppealsCase No. CA 24125

MOTION FOR SANCTIONS

Mohamed Bassem Rayess,P.O. Box 293166Kettering, Ohio 45429(937) 439-9425bassemrayessgaol.com

Pro Se, Plaintiff-Appellee

Steven G. Janik (0021934)Audrey K. Bentz (0081361) (COUNSEL OF RECORD)Janik L.L.P.9200 South Hills Blvd., Suite 300Cleveland, Ohio 44147(440) 838-7600- Phone(440) 838-7601- FaxSteven. JanikgJaniklaw. comAudrey. BentzgJaniklaw. com

Counsel For Defendant-Appellant.

^[^DFMAY 29 201f

CLERK t9F f OUR'TSUPREME 0 ®Us f 'JF uHI0

MOTION FOR SANC1'IONS

Pursuant to S.Ct. Prac. R. 14.5(A), Plairtitiff-Appellee moves the Court to issue an

Order to sanction Defendant-Appellant Educational Commission For Foreign Medical

Graduates (hereinafter "ECFMG") due to the fact that the Brief filed by ECFMG on April

18, 2012, contains numerous frivolous statements that are not reasonably well-grounded

in fact or warranted by existing law, nor are they good faith arguments for the extension,

modification, or reversal of existing law. The attached Memorandum in Support will

give this Court an excellent insight about said statements in ECFMG's Brief.

MEMORANDUM IN SUPPORT

1. Introduction:

Plaintiff-Appellee filed the current case in the Common Pleas Court of

Montgomery County to seek compensation for review courses needed to retake the

United States Medical Exams (Part 1& Part 2) (hereinafter "USMLE"), compensation

for loss of wages, compensation for NIED, IIED, and to correct his exam record. See

Trial Court Record (hereinafter T.R.), Document # 1, p. 7, ¶ 54, ¶ 57, ¶55, 1(58, and also

p. 9. This action was due to the fact that Defendant-Appellant did not administer the

USMLE part 1 properly, and did not give Plaintiff-Appellee appropriate compensation

(T.R. 1 p. 1 through 7).

Plalntlff tlppellee is a gra.dUate of the MeuiCai SC.iooi Gf Da i ascus in Syria, and

he also did 3'h years of residency in Orthopaedic surgery in France before entering this

country on February 9, 1991. In order for the Plaintiff-Appellee to do a residency in

Ohio, he must pass USMLE part 1 and USMLE part 2, and he must be certified by the

Defendant-Appellee. USMLE part 1 and part 2 are administered by the ECFMG to the

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foreign medical graduates (hereinafter "FMG's") in Ohio, the U.S. and all around the

world. ECFMG administers the USMLE part 1 and part 2 exams upon agreement with

USMLE owners. USMLE is a joint program of the Federation of State Medical Boards

of the U.S., Inc. and the National. Board of Medical Examiners. USMLE is the parent

company that puts the questions of the USMLE exams and scores the answer sheets

(files) of the examinees.

In order for the Plaintiff-Appellee to be licensed in Ohio, Plaintiff-Appellant has

to be ECFMG certified, and must have at least 24 months of graduate medical training

and must pass the USMLE part 3, which is the licensing exam in Ohio. I'he USMLE part

3 is administered by the State of Ohio, not by the ECFMG. In addition, as of March 24,

2008, a criminal records check is required.

It is not illegal to accept a FMG into a residency program in Ohio, but this is not

practically possible because there is an accrediting Company called the Accreditation

Council for Graduate Medical Education (hereinafter "ACGME") which is responsible

for the accreditation of post-MD medical training programs within the United States.

ACGME policy for all accredited residency programs in the United States is for no

acceptance of any FMG unless they have been certified by ECFMG upon the successful

passing of the USMLE part 1 and part 2.

A t.:,.:,.._. • ,:,.°•'..lJul

,- • t11° et ♦° '.Oiiiv b. "'°die ^ °^d^"' °"t orA p11

^ ,.^J1V1Q11 can gain a 11V\e in llll. ^JIaW of ^ aia^. aa ^a ♦ vaovaaavaa

reciprocity if certain requirements are met. Other states like North Dakota do not require

ECFMG certification for licensure if the FMG is a graduate of medical schools in

Canada, England, Seotland, Ireland, Australia and New Zealand. In the neighboring

3

State of Indiana, a physician can gain a licensure to practice medicine if he is licensed to

practice medicine in the province of Quebec-Canada

This current lawsuit is not intended by any means to gain the ECFMG certificate

without passing the USMLE part 1 and part 2, as alluded to by the Defendant-Appellant.

An ECFMG certificate is not worth more than the paper that is written on unless one

receives passing scores on the USMLE part 1 and Part 2, since all residency programs

will reject the ECFMG certificate that is not gained after passing USMLE part I and part

2 in compliance with ACGME standards. Otherwise, the accreditation of the concerned

program will be subject to cancellation by the ACGME, as there are no exceptions.

So even if the ECFMG offers Plaintiff-Appellee the ECFMG certificate without

passing the exams, Plaintiff-Appellee will definitely reject that offer.

2. ECFMG IN ITS BRIEF MADE SEVERAL FRIVOLUS STATEMEN7'S TO

PORTRAY THE CURRENT LAWSUIT AGAINST IT AS A THREAT TO THE

PUBLIC HEALTH AND SAFETY TO THE CITIZENS OF OHIO:

Tn its Rrief FC'.FM('r staterl nn pagg 1; "The ('.nurt nf Appeals nf (lhin fnr the

Second District's determination that an informational brochure regarding ********* sets

a dangerous precedent that places the health and safety of the citizens of Ohio in

jeopardy." Then, in the same introduction, ECFMG went on to describe the Decision of

the Second Appellate District in Ohio on the issue of the breach of written contract "To

allow anything else would permit circumvention of the licensing process and potentially

lead to cases where unqualified applicants are able to practice medicine in Ohio."

On page 3 of the same Brief, ECFMG reiterated the same argument by stating that

said decision "has serious implications upon the health and safety of the citizens of

4

Ohio". Later, on the same page, ECFMG wrote: "To protect the citizens of Ohio, there

can be no alternative methods to achieve a professional license outside of the licensure

structure established by the Ohio legislature. However, the Second District's decision

runs afoul of this notion and attempts to override the requirements set by the Ohio

legislature for licensing by providing applicants with additional rights and remedies in the

form of civil suit for breach of contract."

On page 5 of the same Brief, one can again read the same argument: "To ensure

the health and the safety of the citizens of Ohio, his only recourse was to retake and pass

Step 1 and the licensing requirements set by the State of Ohio should not be eroded by

permitting a contractual remedy for exalninees, lilce Appellee, who fail to meet the

requirements set for their profession."

The above mentioned ECFMG's statements are frivolous, and they have no

factual basis in the record or outside the record of the case and they are not supported by

Ohio law. As stated in Section 1 of this Memorandum, this case is not about obtaining an

exemption from the USMLE exams, but rather it is about obtaining the necessary

compensation for review courses to retalce said exams and compensation for other

damages as stated above. Plaintiff-Appellee vehemently rejects ECFMG's attempts to

repaint the picture in front of this Court as if this lawsuit is intended to obtain such

exe t;,...vii such1. tl.a + uiquaii^.li^Fa^.o.lv candidates could practice medi,r,ine innt'tin Wl...._llf $ttpti ui..^ ........ ttln___

license. ECFMG attempted to make this absurd argument several times in its brief, but

Plaintiff-Appellee's requests are crystal clear. See (Comp. p. 7, ¶ 54, T.R.1).

The Plaintiff-Appellee made no request for an exemption from the USMLE

exams, and the decision of the Second Appellate District on Plaintiff-Appellee's claim

5

for breach contract has nothing to do of overriding the requirement set by the legislature

for licensing physicians in Ohio. Therefore, it is beyond any doubt that ECFMG's

statements are frivolous. Plaintiff-Appellee is astounded by ECFMG's unprecedented

fabrications, surreal interpretations, and tormented literature.

Moreover, when ECFMG breached its contract with Plaintiff-Appellee and failed

to provide the appropriate time during the administration of the USMLE part t exam on

September 21, 1993, it also breached its contract with USMLE owners, the very company

that brought ECFMG into existence, since the time for each book of the said exam is

determined by the USMLE program. Plaintiff-Appellee Would like to put this Court on

notice that the combination of the complexity of the licensing process for physicians in

Ohio combined with the complexity of the structured pyramid of the medical examiners

made it impossible in Ohio for any physician to gain license without being qualified.

Contrary to what ECFMG claimed and fabricated, the decision of the Court oP

Appeals of the Second District of Ohio on Plaintiff-Appellee's claim of breach of written

contract protects the USMLE exams guidelines that were set by USMLE program, the

very company that brought ECFMG into existence, by ordering an administrator of the

exam to maintain the highest level of compliance with what the legislature and the public

in Ohio want.

3. ECFMG MADE AT LEAST TWO FRIVOLOUS STATEMENTS

CLAIMING THAT PLAINTIFF-APPELLEE DID NOT HAVE PROOF THAT

ECFMG DID NOT PROVIDE SUFFICIENT TIME TO HIM DURING THE

ADMINISTRATION OF THE USMLE PART 1 ON SEPTEMBER 21, 1993:

6

ECFMG stated in its Brief on page 2: "With no support other than his own belief,

Appellee claims he failed Part 1 of the USMLE as a result of being given insufficient

time to complete the exam. (Compl., p.2, ¶ 5, p. 24, T.R.1)". On page 4 of the same Brief,

ECFMG stated: "The present matter involves allegations by Appellee that he did not

receive sufficient time to complete the examination, and, as a result, he believes this

caused his failure of Step 1. Notably, outside of Appellee's own unsupported statements

there is no evidence that this alleged time deviation resulted in Appellee's unsuccessful

completion of Step 1."

The above two statements are frivolous, unsupported by the facts on the record

and existing Ohio law that would aid this Court in making its decision on this case. It is

clear that only in its Brief did ECFMG oppose Plaintiff-Appellee in his allegations that

ECFMG did not provide him sufficient time to complete his USMLE part 1 exam on

September 21, 1993. However, in the trial court, ECFMG filed a Motion for Judgment

on the Pleadings (T.R.# 19), which would indicate that there were no factual issues in

conflict. However, in their Brief, ECFMG identifies a conflict over the time issue.

Therefore, ECFMG's Motion for Judgment on Pleadings should be denied, and the

Decision of The Court of Appeals of Ohio of the Second District on Plaintiff-Appellee's

claim for breach of written contract should be affirmed. Brookvilde National Bank v.

Credit Bureau of Dayton, Inc., 2d Dist. No. 15804, 1980 Ohio App.LEXIS 12889 (May

21, 1980)at¶2.

Contrary to what ECFMG claims, there is a proof on the record that the ECFMG,

by its subcontractor the University of Cincinnati (which provided the place and the

proctors) did not provide sufficient time for the proscribed exam, during the first book of

7

the USMLE part 1 exam, which was administered to the Plaintiff-Appellee on September

21, 1993, and caused him to lose 70 minutes out of 3 hours allotted to complete the said

first book.

In November of 1995, Plaintiff-Appellee received a letter from Mr. Hubbard,

ECFMG's counsel, indicating that the University of Cincinnati was the subcontractor

which provided the place and the proctors when the ECFMG administered said exam to

the Plaintiff-Appellee on September 21, 1993. (Comp. p. 5, ¶ 39, T.R.1; T.R. 26, P. 18)

On August 8, 1996, Plaintiff-Appellee filed a complaint in the Federal District Court in

Cincinnati under Title VII, 42 U.S.C. § 2000e, et seq., as he was discriminated against in

the administration of USMLE part 1 exam on 21 and 22 September, 1993, based on his

national origin after submitting an application for residency in Orthopedic surgery and

being turned down. (Compl. p. 5, ¶ 40).

Later on, after Plaintiff-Appellee filed the current case in the Trial Court, he

submitted the entire filings of his case against the University of Cincinnati that was filed

in the Federal District Court as an attachment to his Memorandum in Opposition (T.R.

26), thus it became part of the record of this case. From his Federal case against the

University of Cincinnati, Plaintiff-Appellee attached his Complaint as Exhibit 1(T.R.

26). In this Complaint, Plaintiff-Appellee alleged that he was not given sufficient time to

complete Book A, or tiie lirst buUk Of thc U^iviLi, part i tiiat was admm',Stered t0 him nn

September 21, 1993. See Brief Statement of Claim, ¶ A. In Plaintiff-Appellee's Charge

No 221960388 (sworn affidavit) at III., Plaintiff-Appellee attached a certified copy of the

same said Complaint as Exhibit 2.

8

In the federal case the University of Cincinnati filed a Motion To Dismiss under

Rule (12)(B)(6) of F.R.C.P., in which the UC declared that relief cannot be granted.

However, the UC never denied the fact that Plaintiff-Appellee was not given sufficient

time to complete the first book of the said exam. See Exhibit 3(T.R. 26) and certified

copy as Exhibit 4 (T.R. 26). UC never filed an answer to Plaintiff-Appellee's complaint,

and never denied the fact that Plaintiff-Appellee was not given sufficient time during the

administration of the said exam or filed any affidavit opposing Plaintiff-Appellee's

affidavit. Later on, the Federal District Court, since it noticed that there was no factual

conflict and the basic issue was that the UC cannot offer the relief under Title VII

because it cannot exempt Plaintiff-Appellee from the ECF'MG certificate to gain access to

its residency program in compliance with the ACGME standards, it converted UC's

Motion to Dismiss under Rule 12(B)(6) to a Motion for Summary Judgment. See Exhibit

5(TR. 26) and a certifted copy of the same document as Exhibit 6.

Later, in the same ease, Plaintiff-Appellee filed a Motion for Reconsideration and

stated that he lost 70 minutes from the time allotted to the first book of the exam. The

UC in its answer never denied this fact. See Exhibit 7(T.R. 26). Moreover, after the

ruling on Motion to Reconsider, Plaintiff-Appellee filed a second appeal to the Court of

Appeals for the Sixth Circuit, and the UC never filed a notice of cross appeal to contest

the Federal District Court's conversion of its Motion to Dismiss to a Motion for

Summary Judgment. Therefore, the University of Cincinnati, aftet it accepted the

conversion of its Motion To Dismiss to a Motion for Summary Judgment, not only

agreed on Plaintiff-Appellee's version of facts including that he lost 70 minutes from the

time that was allotted for the first book of the exani, but also it carried that burden.

9

(Compi., p. 6, 142, T.R. l.). See Contmoditfes Export Company v. City of Detroit, E.D.

Mich. No, 09-CV-11060-DT, 2010 U.S. Dist. LEXIS 64097 (June 29, 2010) at 51*-55*;

Direct TV, Inc. and Echostar Satellite L.L.C, v. Mark Treesh, Commissioner For TYze

Department Of Revenue For The State Of Kentucky, 487 F.3d 471 (6"' Cir. 2007); 51

A.L.R 6m 605 (2007) at iII.

Over 200 years ago, in Federalist No. 82, Aiexander flamilton wrote that "thc

national and state [court] systems are to be regarded as "one whole", and in 1992, Chief

Justice of the United States William H. Rehnquist affirmed Hamilton's view in his

opening remarks to the Orlando conference. This Court stated in First Bank Of Martetta

v. Mascrete, Inc. et al.,; Roslovic & Partners, Inc., 79 Ohio St.3d 503, 684 N.E. 2d 38

(1997), at 12 "Furthermore, federal case law and commentary are generally in accord

with our resolution. Though federal law is not controlling with regard to interpretation of

the Ohio Rules of Civil Procedure, it can be instructive where, as here, the rules are

simiiar."

Even if one would like to interpret what happened in the Federal Court in

Plainti€f-Appellee's case according to the Ohio Civil Rules Procedure, when the

University of Cincinnati chose to file a Motion to Dismiss without filing an answer, this

issue by itself amounts to an admission of the facts in the Plaintiff-Appellee's Complaint,

including that he was not provided sufficient time to complete the first book of the

USMLE exam on September 21, 1993. Tiefel v. Gitligan, 40 Ohio App.2d 491, 321

N.E.2d 247 (10s' Dist. 1974). In addition to the foregoing, the U.S. Constitution, through

the Full Faith and Credit Clause, requires Ohio courts to give fuil faith and credit to

judgments from foreign jurisdictions. Section 1, Article IV, United States Constitution.

10

In the end, when Plaintiff-Appellee filed his Mcmorandtiuii in Opposition with its

atrtachments (including Rayess v. University of Cincinnati) (T.R. # 26), ECFMGin its

Reply (T.R. # 3,6) never opposed the Plaintiff-Appellee's allegations that he was not

provided sufficient tinle to complete the first book of the USMLE exatn on September

21, 1993.

4. ECFMG CLAIMED THAT IF T1;IIS COURT AFFIRMED THE SECOND

DISTRICT COURT OF APPEALS' DECSION ®NPLAINTIFF-APPELLEE'S

CLAIM FOR BREACH OF WRITTEN CONTRACT IT WILL OPEN THE

FLOODGATES FOR NUMEROUS FRIVOLOUSLAWSUITS:

Defendant-Appellant madethe following statement in its Brief on page 4 and 5:

"Regardless, permitting an misuccessful applicant the right to sue in contract based upon

the fact that there was a deviation of the testing eonditions set out in ai informational

bulletin, be it time, noise, other disruptive examinees, temperature of the testing facility,

etc.-no matter how minor- sets a dangerous precedent. In such situation, there can simply

be no contractual remedy for which relief can be pursued against testing entity. To

provide any other outcome would open the floodgates for suits by any number of

potential professionals- doctors, lawyers, teachers, aceountants, architects, enguneers,

social workers, psychologist, and otliers- that ai-e able to point to any potential

discrepancy, no matter how minute or insignificant, as the basis for their failure to atCain

a passing score on an examination mandated by the State of Ohio."

ECPMG statement is frivolous because the breacli of the written contract in this

case was so fundamental to the contract that it made it impossible for Plaintiff-Appellec

to perform properly, and such breach amounted to a "material breach" of the contract.

See James J. O'Brien v. The Ohio State University, 1& Dist. No. 06AP-946, 2007 Ohio

4833 at ¶ 56. Plaintiff-Appellee was denied 70 minutes from three hours allotted to

respond to the questions of the first book of the exam. He was frustrated, angered, put in

a bad mood, insulted, and lost his ability to concentrate. He lost any hope of passing that

test at that administrafion, as the incident happened during the first book of the exani, not

during the last book (the fourth book). Despite all that occurred, he decided to continue

the exam, and he achieved the score of 70%. The passing score was 75%. Based on the

time that Plaintiff-Appellee consumed in order to achieve 70ofo on the test, which is 110

ntinutes plus three hours for each of the remaining three books, if he was offered the

three hours or 180 minutes for each of the four books of the said exam, he would achieve

77.53% or above, and consequently, he will pass the exam.

Therefore, the Defendant-Appellant's statement is frivolous.

S. ECFMG f'i AiMFD THAT PLAINTIFF-APPELLEE 'II.ED HIS CASE

ACAIly5T KAPLAN BASED ON BREACH OF CONTRACT STEMMING FROM

HIS FAILURE OF PORTIONS OF 'I'HE MEDICAL LICENSING

EXAMINATION:

ECFMG stated in its Brief on page 6: "In this regard, the Second District has

previously dismissed similar claims brought by Appellee for breach of contract against

Kaplan Educational Center ("Kaplan"), stemming from Appellee's failure of portions of

the medical licensing examination. See Rayess v. Kaplan Educ. Ctr., 2d Dist, No. 08-CA-

29, 2009-Ohio-1962, 2009 WL. 1125537. Specifically, in that case, while Appellee

attached no documents to his complaint, he later introduced a U.S. Department of Justice

12

form regarding his eligibility to take educational classes and receipts showing payments

he made to Kaplan. Icl at ¶ 17-19, 2009 WL 1125537 at *3."

The above statement is frivolous because Plaintiff-Appellee filed his case against

Kaplan not because of his failure of portions of the USMLE, but because he discovered

that he was defrauded by Kaplan. In 1991, Plaintiff-Appeilee decided to take USMLE

course of study at Kaplan in order to help him pass the exam. Prior to enrolling in

Kaplan, Plaintiff-Appellee was in France. Kaplan issued to him an 1-20 to obtain an F-1

student visa to come to the United States. On the 1-20, it was written that Plaintif€

Appellee was not proficient in English and that instruction in English (courses) will be

given to him upon his arrival before he commences his medical USMLE courses at the

same institution. However, after his arrival, the manager, Larry Goodpaster, fraudulently

convinced him not to take the English course, and to directly take the medical courses,

saying that his English will improve with time. Rayess v. Kaptan Edrt. Ctr., 2009-Ohio-

1962 at 15. So, Plaintiff-Appellee took the medical courses and he never benefited from

such courses. However, most importantly, Plaintiff-Appellee never paid for the English

courses. Ict at 16.

Several years later, Plaintiff-Appellee discovered that Kaplan has a po}icy that a

minimum score on the English TOEFI, test of 530 is required from the candidates before

enrolliniz in any medical USML E courses in order to get the appropriate benefits from

said courses. So later on, Plaintiff-Appellee filed his lawsuit against Kaplan to get

reimbursed for the medical courses that he paid for without getting any benefits under

breach of written contract and fraud. He was a pro se. For the breach of written contract

claim, Plaintiff-Appellee was misled by the advise of one attorney because the case

13

should never have been claimed under Ohio law. Plaintiff-Appellee never paid for the

English course, so he never performed, and thus he forfeited his right in the contract.

That is why he could sue neither for the English course nor for USMLE medical courses

under his claim of breach of written contract even if he was fraudu}ently advised not to

take the English course. Id. at ¶ 21. Therefore, Plaintiff-Appellant's case against Kaplan

was only a fraud case. Plaintiff-Appellee alluded to this fact in his Memorandum in

Opposition (T.R. # 26, p. 7-8).

In brief, Plaintiff-Appellee decided to sue Kaplan because he was not informed by

Kaplan about the necessity of attaining the appropriate level in the English language prior

to taking USMLE courses, and, as a result, he did not benefit from the USMLE courses

because he attained the appropriate level of English by fall of 1992 when the Kaplan

courses were over, not because he failed USMLE easvns.prior to fall 1992. Plaintiff-

Appellee's Kaplan case was a pure fraud case, and Plaintiff-Appellee did not have to

attach any document to his complaint against Kaplan. Since Plaintiff-Appellee alluded to

this fact in trial court as mentioned above, and Defendant-Appellant is reiterating the

same argument that was mentioned in its Motion for Judgment on the Pleadings without

any proof, it is obvious that ECFMG's statement that Plaintiff-Appellee's case against

Kaplan is stemming from his failure of portions of the medical licensing examination and

he was sun»osed to attach documents to his complaint against Kaplan is frivolous, not

supported by any fact or law.

6. ECFMG CLAIMED THAT^ DOCUMENTS ATTACHED TO

APPELLEE'S OPPOSTTION SHOULD NOT BE CONSHIERED IN THE

EVA N OF EM C FOR BREA OF I cu CONTRACT:

14

ECFMG stated in its Brief on page 7: "As an initial matter, the documents

attached to Appellee's opposition should not be considered in evaluating the existence of

a written contract as this was a violation of Civ. R 10(D) as, despite the fact that they

were available to Appellee, he chose not to attach them to his complaint." Further, on

page 9, ECFMG stated: `Based upon the foregoing, ECFMG respectfully moves this

Honorable Court to reverse the ruling of the Second District and affirm the trial court's

dismissal of Appellee's claim for breach of written contract "

ECFMG submitted its Brief in violation of S.Ct. R. 6.2(f3)(5)(d) when it failed to

attach the Decision of trial court in this case (T.R # 44). See Exhibit 8, and the Decision,

Order and Entry of the same court (T.R. # 47), and Exhibit 9. These Exhibits are quite

relevant to the issue on this appeal, especially, as mentioned above, ECFMG is asking

this Court to affirm the trial court's dismissal of Appellee's claim for breach of written

contract without showing this Court the related two decisions. This violation was

intentional, and the reason is simple.

The trial court stated in its first decision (T.R. # 44, p. 4) that: "The proper

remedy for failure to attach, pursuant to Civ. R. 10(D), is for a defendant to request a

more definite statement. Stewart v. Forum Health, 2007-Ohio-6922, ¶31, Mahoning App.

No. 06-MA-120; see also Fletcher Y. Univ. Hops. Of Cleveland, 120 Ohio St.3d 167." So

Defendant-Appellant cannot attach the Decision, then, ask this Court to affirm it, while at

the same time asking this Court again to apply Civ. R. 10(D), when ECFMG knows that

it never filed a motion for more definite statement. What makes Defendant-Appellant's

said statements even more frivolous is that in its Motion for Judgment on the Pleadings

15

(T.R. # 19, p. 6), ECFMG stated: `Because Plaintiff has not produce, and cannot produce,

an enforceable written contract between the parties, ECFMG is entitled to judgment on

the pleadings", and ECFMG stated here "cannot produce" to admit that Civ. R i0('D) is

inapplicable as ECFMG did not file a motion for more definite statement.

T THERE NO SINGLE DOCUMENT IN THIS CA

SETS FORTH THE NECESSARI' ELEMENTS OF A WRITTEN CONTRACT•

ECFMG stated in its Brief on page 8: "Further, by Appellee's awn admissions

there is no singular document in this case that sets forth the necessary elements of a

written contract. (Compl. ¶ 50, T.R. 1)" The said paragraph of the complaint said that the

terms of the contract are explained in the 1993 Bulletin of information, however, the said

paragraph does not state that a single document could not be a contract. Based on the

above, Plaintiff-Appellee is not restricted by Civ. Rule 10(D), therefore, ECFMG's

statement is frivolous.

WHEREFOR.E, since ECFMG's Brief has numerous frivolous statements,

Plaintiff-Appellee is respectfiully asking this Honorable Court to grant this motion and,

consequently, dismiss the case.

Respectfiilly submitted,

^nQ-- ®

M. Bassem RayessPlaintiff-AppelleePro Se,Kettering, Ohio 45429

16

C.F.RTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing instrument has been served via first classU.S. mail, postage prepaid, upon Audrey K. Bentz, JANIK L.L.P., counsel of record forDefendant-Appellant, 9200 South Hills Blvd, Suite 300, Cleveland, Ohio 44147-3521,

this May 24th, 2012.

Mohamed Bassem RayessPlaintiff-Appellee, Pro Se

V t.F , Lg FOP THE VFhtN DISTRICT OF:OHIOf (`, ^TE&N DIVISION

6 1996jl. MURPHY,Clerk QU^ L ,C\erk

^TflN, OHIO RASqpm

"^^nter'above the ful na e ofte pldintifS in this action)

RuG 23 1996K^v. NNCTN NNMUoyoy Clerk

Enter above the full name o:he defendant or defendants in COMPLAINT UNDER 42this action) U.S.C. 520 0e=5(f)(1)

Parties

(In item A below, place vour name in the first blank andplace your present address in the second;blank.)

A. Name of Plaintiff Dr.M.Bassem Rayess

Address P.O.Box 293166, Ketterine. OH 45429

Under 42 U.S.C. §2000e-5(f)(1) suit may onlv be "broughtagainst the respondent named in the charge" of unlawfulemployment practice you filed with the Ohio Civil RightsCommj.ssion and/or the Equal Employment Opportunity Comsnis-sion. ATTACH A COPY OF THE CHARGE YOU FILED WSTfI THE OHIOCIVIL RIGHTS COMMISSION AND/OR THE EQUAL EMpS,OYMENTOPPORTUNITIES COMMISSION TO THIS COMPLAINT. In item B

..L<-b®iovi L

liSt c

iLn-e

_nn3 _

cas@a^a1^ _

rL

the 2 _pt^l^y6 - i

J..^n5t wn^u^iiame a ss o m a dya

you filed the charge. In item C below, list the name andaddress of any other person(s) you naiitt4d in th® charge youfiled with the Ohio Civil Rights Commission and/or the EqualEmployment Opportunities Commission.

B. Defendant (as named in the attached charqe)

IIiyIYGlcjii x OF CINCINNATI

AddreSs 234 Goodman St. Cincinnari, OH 65967_070fi.

10 .,^:-.

C. Additional defendants ( as named in the attached charge)

IZ. The Court has jurisdiction under 42 U.S.C. 52000e-5(f)(1).

A. The date the notice of right to sue was issued by theEqual Employment Opportunity Commission was ^Y i1v96

The date you received-the -natica3f--ri-ght-to sue was

MAY 3 1926

C. ATTACHA COPY OF THE.NOTICE OF RIGHT TO SUE TO THIS

COMPLAINT.

W

III. Statement of Claim.

The Faual Emplo_vment Opportunities Act provides, in

part, that(a) It shall be an unlawful employment practice

for an employer --(1) to fail or refuse to hire or to discharge

anv individual, or otherwise to discriminate againstany individual with respect to his compensation,terms, conditions, or privileges of employment,because of such individual's race, color, religion,

sex, or national origin.

42 U.S.C. 62000e-2(a)(1.). Other unlawful emplovmentprac-tices are set out in 42 U.S.C. §2000e-2(a) throuyZ= ^^^•

.State here as briefly as possible the facts of yourcase. Describe how each defendant is involve .-- Includealso the names of other persons involved, dates, and places.Do not give any legal arguments or cite any cases orstatutes. If you intend to allege a number of relatedclaims, number and set forth each claim in a separate para-

Use as much space as you neeu. extra^^^u^•• -graph. sheetif necessary.

pJaase_see . • ^ . ^

BRIEF STATEMENT OF CLAIM

I am a Syrian and I applied for an open position as a residency position withUNIVERSITY OF CINCINNATI, UNIVERSITY OF CINCINNATIMEDICAL CENTER, DEPARTMENT OF ORTHOPEDIC SURGERY inDecember 1994 with renewal of my application on August 22, 1995 for the same position(first year resideneyr{srogram-PG-Y--1,-professional.-year.1995-1996). On AuEUst-29.1995. Iwas turned down for the position.Dr. Andrew T. Filak, Jr., M.D:, Associate Chief of Staff for Graduate Medical Educationtold me that their program requires from me among many things, ECFMG certificate,performance on the USMLE examination (step I and step II) and The University ofCincinnati College of Medicine served onlv as a test site for the administration of theUSMLE step I exam on September 21 & 22,1993.I believe that I have been unlawfully discriminated against because of my NATIONALORIGIN, in that :

A. On September 21,1993,1 was not given sufficient time to complete book A of theexamination by the center manager, Dr. Richard Sleight, nor was I permitted by theUniversity of Cincinnati, which is fully responsible for the incident, to take the USMLEstep II after September of 1994.As the state of Ohio can exempt me from those exams(USMLE step I&II), the Universityof Cincinnati as a state university, in its turn can exempt me also from those exams.On October 22, 1994, before I applied, I achieved sufFacient scores on the EnglishExam(T.O:E.F.L.).During the last two weeks of August 1995, I knew that Dr. Richard Sleight is a full timeemnioved bv the University of Cincinnati Medical College and a faculty member. Beforethat time I was completely in the belief that he is onlv emnloved by the ECFMG , theadministrative company of the USMLE exam since ECFMG employees were declaring thathe was paid for his services as exam center manager by the ECFMG.On November 9,1995, I received a letter dated November 6, 1995, from Mr. Bruce A.

; Hubbard , attorney at law who represents the ECFMG, which states that the ECFMG hascontracts with the University of Cincinnati to provide proctoring for the USMLE exam onthe University of Cincinnati-Campus.

z 9,r L_^ __ __.r'l_esa..-. -.......C..-..7 .... L,....:Aodon f6o} }{,o iTnOvaPcitv nf

BQIOre NovemDer 7, 1770, l LLHu 1N YLacu Esawa oaau aw naivnac.u6.. s........+ .. .............J -

=^Cincinnati is Il responsible for the incident of September 21, 1993 which happened to mewhile I was taking my USMLE step I exam.However, as I was turned down for the position, the University of Cincinnati by behavingthis way is blocking my residency in the entire USA. Consequently it is blocking my careeras a clinician(Orthopedic Surgeon) in this country.On the other hand, any suggestion to retake the examination will be rejected because of thefollowing reasons:1-It will take from me another two to three years to prepare and to pass those exams and to

1•2

in the Matching program again. This fact will create a gap on my curriculumven to eight years since last time I practiced Orthopedic Surgery was in early

my curriculum vitae is something that will be looked at and will be considered byd it roi ht beii i gn anon agatemployer when I will appiy to a residency pos

even more than my scores on the USMLE exams, I will lose this considerabledidacv in the event of taking these exams a¢ain.

l wiu have my sociai nteearstwo to threethfi ,yerrom me anong to takeis goht to build a family and tof time I have full ridii thi'" go os perngbilized durely immo .

income. This is something cannot be tolerated because of somebody who is actingiflegal way.e fact that it is going to take two to three years to pass those exams and to participate

-andmucirharderatching program again wiil put me in new conditionstion than the actual conditions. For example, recently, the ECFMG added a thirdexam to obtain the ECFMG certificate that did not exist if I were allowed to

iue taldng my examinations in the appropriate way. Also there are many other factorsie number of candidates, new conditions, which make the obtainment of the residencyon much harder in the future.

ore, as long as the University of Cincinnati did not hire me, I have to say that thednation is CONTINUOUS.©ugh I truly believe that regardless to the USMLE exams issue, my curriculum

my recommendations and my experience in Orthopedic surgery are better thanof any one who was hired as resident-first year Orthopedic surgery in June 1995; the

versity of Cincinnati has no right to put any restrictions on my candidacy other thanverification of my credentials (Medical degree and Medical licensure) because it blockseandidacy to apply to any other hospital in the USA since all the hospitais requireing score on the USMLE exams and since none of them did participate in the incident

ethf osromgtember 21, 1993, therefore, none of them has the obiigation to exempt me

have not uledee to return to Syria after the completion of my training in the Unitedt.-v„c ae hac hpen a.ccerted._

I)- None of the candidates who were hired into PGYI Orthopedic Surgery in June,1995,NATIONAL ORIGIN andia" rtment because of thet bebjtd to this type of tresen suece

RIAN.e of them is SYAs I applied again for the same position (PGY-1, Orthopedic surgery) but for theifessional year 1996-1997, on February 22, 1996, the last day for the University of

f Cincinnati has initith th U vers y oat e n►cinnati to withdraw one of the four positionsi,r#hnradic snrgery, I called Mr. McCrate, General Council, and I told him to withdrawone position and that it may be possible if he did not do so to violate one of federal criminalU.S. codes. As Mr. McCrate admitted the guilt of the University of Cincinnati by saying`we will not go to the jail because of you". The next day, One position was reserved and

is put out of the Matching program.

i's

Equal Employment Opportunity Comtnission

DISMISSAL AND NOTICE OF RIGHTS

From:

M. Bassem Rayess EEOC, Cincinnati Area Office

P. O. BOx 293166 525 Vuie St., Suitc 810

Kettering, OH 45429 Cincinnati, OH 45202

.beha[f of a person aggrieved whose ulentity is_.CONFIDENf/AL (29 CFR § 1601.7(a)) .

EEOC Representative. Telephone No.

C. Larry Watson, Regional Attm•ney (216) 522-7455

l.tirr rhr rrdditional infortnatian attached tn this fnmr.)

IS DISMISSED FOR THE FOLLOWING REASON:

e facts you allege fail to state a claim-under-atty-af-the-tatutes=fnrccd-by the Cammi,sion ---

.espondent employs less than the required nutnber of employees.

ur charge was not timely filed with the Cotnmission, i.e., you waited tno Iong after thc date(s) of the discrimination you alleged to

:yourcharge. Because it was filed outside the time liinit prescribed by law, the Cmumiissi,,n cannot investigate your allegations,

iu failed to provide requested infortnation, failed or refused to appear or to he availablc 11+r ncccssary interviewslconferences, or

t the Commissiun has becn unahlc tu res.dvC vmir charge. You have had tnure than 30t tht t Ih ten ao e exerwise refused to coopemtys in which to respond to our final written request.

e Commission has made reasonable efforts to locate you and has heen unable tu d,^ su. Yuu havc had at least 30 days in which tn

ond to a notice sent to your last known address.

,e respondcnt has made a reasonable settletnent offer which affords l'ull rclief hor thc harm vou nlleged. At least 30 davs have

ffti etnent u cr.s settx dsince you received actual notice of th

Commission issues the following determination: Based upon the Cummission's Investi•atbm. the Commission is unable to conclude

ce with thelid i ih n comp anc rcSpnn ent sthe infonnation obtained establishes violations of thc statutcs. This does nut certify that ttI^. .I. „q .II, , t tr ut^ b = .n+ .)cen i.iu". No 6ndmg is made as to any uther tssues that tmght hc cunstrucd as havm^

brie,fly state)

ivise your right to sue is lost.ircharge in U.S. District Court. If you decide to sur, you must sue IVCI'I11N 90 IL11S 1rom your receipt of this Notice;

ion's processing of your charge. If you want to pursue yuur charge further, you havc the right to sue the respondent(s) named

- NO"1'ICE OF SUI'I' RIG117:ti -

VII and/or the Amerie.ans with Disabilities Act: This is yuur NOTICE OF RIGHT TO SUE, which tenninates the

itaina6on in Entptoyment Act: This is your NOTICE OF DISMISSAL OR TERMINATION, which terininates processing

charge. If you want to pursue your charge further, you have the right to suc the respundem(s) natned in your charge in U.S.

Gqurt.If you decide to sue, yott mnst sue WITIIIN 90 DAYS front yuur reeeipt ol' this Notice; uthenvise your right to

st.

PayAct (EPA): EPA suits must be brought within 2 years (3 years fur willlid v6dhuLms) nf the atleged EPA underpayment.

Ciae was mailed on the date set out below.

On bchall_nf the Cununissinn

/Earl Halcy, Area Dircctnr

Cne PrLvacy AeC at 1 974 ; See Prlvacy AcC SCatemenC petor•

S(nre or local Agenc% if any

ctrY, STArE ANO zIP C00E

8ox 293166 Ketterins, aF; t1a;a^l a

, cMPLOYMENT AGENCY APPFPENTICESHIP COMMLTTEE,'iT:E OR LOCAL GOVERNMENT AGENCY WHo oIscRIMINATE0 AGAINST ME(tr+ore <nen one (fse ¢elaN.J

ueEA OF E LPLOYE=S aEaBEAS rELEP

s-on [or Foreign Medical Graduates(ECFMG). _appLied fer the ftesideat Program Ln Orthopedic Surgery at theQniversity of Cincinnati E"osoitaL.. L was not seLected= £or- theprogram.

The reason given for my noa-selection was I had not compLeted allof ther°cuired testi ag ahd 7 hdt..-a no receiv d ECFe an MGcerti,: icate.

mo _ue part L oL the exam--r:ation, nor was r pernite d to ta!te 0aft art two of the °Xaminationer.Seotember of 199^. I iia^e tafter the compiet+on r no pledgo,.d to return to Syria

°- - L•-cL_n_ time to ce L -=

certificate, effectiveLeen aenied my ECFMG

y; enr ri ntaus -Lv g me of^_-¢cploy-iment ooDOr t[lIlitieS ir'1 the iY ucu1nState of Ohio. ^n September of 1993,= wzs not ^+v=n su--f-;

On January 20, 1995 : Learned that T had b

mY train-n Ln `he U1-_ dt

ests-or the ECFMG certificarei y o lnc.nnati.can exempt me from all of theStztes as hasf a-^een asserced. The oniv

- Kone of the candidates who wereired by the above mencioned 'noscital in rh ^^^e Grti;ogram have been subje ^u:o_Lycted ta t=' his tyne oc treztment because ofne i r ati0^dl Ori Ti_1 hedid9... canates that S.tere C.i-':ed into tc!e

Continued an Attached Sheet(s)

- •- ---- -•^^ ---•- ...e c., ana tne Staca a NOTA

order

L" any. C wL11 auvLSe Cne a9enetes Lf [ (wh°neeessas'Or state ana Loea1 AeQulrements)

ayuaua numaer ana c¢operatefuLLy wttt f,nem Ln tne L swoar or I[, r•y1(^,^^'CP3L ( n] 8 ea¢ Cna 20ove ¢nare ana ftt tl r 9 acn_afge Ln aeearaanee wLCn ^n t LC 1(S Cfue ( o Cne tles[ af my ^¢wletlQaaur95 LntormaLlon Sna ae^let..,

enaley ot perjury tnat Cne taregotng L> :ruuS

•^NAT

CZTY, STATE ANO ZIP COOE

cLs iiiE EMPLOYER, L,^aoR GRGAVIZATION I o io6/50

= Goodman St C ncir+natt OH u 26 -07a6 (

COUNTY

E 06i

13 Tr G f ' HONE(Ino[vee Area coae)

AooaessCincinna ti

^ Cat 2(15-7-00) (Sia) S8¢ aitgLL ( s Are ANO 7^P c0o

5EG aN (LhC^.A dp4/VOf(dCapOY/Itl/

-$fG'•^ Q COLOft q SEt-X Q AELiCION., Q NArICNAL OAIGIN.L-.JaETA1,IATION q AGE ^:0*SASILITY QOTHEA(spvu(ty) '

TICULAAS ARE (!P ealft(ane( soece ( s neeae¢ oc<s n rcr I j, '="CeL Yll:I zm f S i N

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INGaE TEIEAHONE (tree(uac arc. coaal

f 513 ) 29'^-8264 - -- -OATE OF glr

TEIEPHONE NtlaBEH(lnrtule ^ree caael

COUNTY

I

OAT, OISC0.IaINArLaN TOOK PLACEe.+FLtZJT Gp.:r

08/29/95

lJ CONTTNUING ACT'y0N

o yr an ational Gr ; c• n. atte d d° a e medical school in bothSyrLa and France. L am c urrentty arL MD/Ph. D_itnder normal conditions,inecome:employed as a Clinical Doctor, r have to bece.rti£ied. by. the^-Educat+ona^"Comm^s f

aNAN^ M, B(LSlPXK LLt]esS__7

CINCINNATISCet*,3'_8EO UD SWG9t+ TO BawEFORE ME. T^OATE103Y, ana yqaV1. 3 c^1•r^r.s.aa"^'..°'

CP initials __Z_ Chg # , Attachment Page 1

------------------------------------------------------------------------Equa1 Employment Opportunity Commission

Form 5 - Charge of Discrimination, Additional Text------------------------------------------------------------------------

PGY1 orthopedid surgery program do not have the qualificationsand experience in orthopedic surgery that I have. Inrequiringme to take the TOEFL test, the above hospital subjected me todiscrimination through culturally biased testing that othercandidates were not subjected to. The positions were filledby non-Syrians I believe I have been_discriminated-agairistbecause oP my national origin in violation of Title VII ofthe Civil Rights Act of 1964, as amended.

CYNTHIA L. GOLDEN, Notary Public,In and for lhe State of Ohio

My Commission Expires Sept. 28,2000

Z^V.a ata^ ^'s^e^^ ztZ..^ 1 `1-y¢:

IV. Relief

briefly exactly what you want the Court to do for(Stateu. Make no legal arguments. Cite no cases or statutes.t

correct.

(Signature o Plaintiff

declare under penalty of perjury that the foregoing is true and

t - AsfDa )

1 d pil rgmpeta °a]g° F^ l eq.e damagamveanAxavy

IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTFtICT OF OHIO

ER1Y DIVISION

AUGKE(yEnAJ' IJ RPhtYD Glerk T A.^vG $..`RQ,t C^eC'&

(Ent^i above the ful.j..^the plaintiff in ^^^ion)

Journal

Issli

G-) rli

c.N•^ ? s i

^c7 ^ `•

DOCketed r W t^._ c

TTI^TBFRCTTV (\R (`T1V'T1didATT

824f e .CKWITH -

(Enter above the full name ofthe defendant or defendants in COMPLAINT U1^tDER 42this action) U.S.C. 520 Oe-S( )(1)

1. Parties

^ Jud6e

Mag

(in item A below, place your name in the first blank andplace your present address in the second blank.)

A. Name of Plaintiff Dr M Bassem Bavess

Address P 0 Box 293166 Kettering . OH 45429

Under 42 U.S.C. 52000e-5(f)(1) suit may onl_v be "broughtagainst the respondent named in the charge" of unlawfulemplovment practice you filed with the Ohio Civil RightsComm}ssion and/or the Equal Employment Opportutilty Commis-sion. ATTACH A COPY OF THE CHARGE YOU FILED WS'Tit THE OHIOCIVIL RIGHTS COMMISSION AND/OR THE EQUAL EMRLOYAENTOPPORTUNITIES COMMISSION TO THIS COMPLAINT. In i-tem Bbelow list the name and address of the employe^r against whom

you filed the charge. In item C below, ].ist the nalne andaddress of any other person(s) you naiUgd in the charge youfiled with the Ohio Civil P.ights Commission and/or the Equa1Employment Opportunities Commission.

B. Defenda-nt (as named in the attached cha.rqe)

m

C. Additional defendants (as named in the attached charge)

II. The Court has jurisdiction under 42 U.S.C. §2000e-5(f)(1).

A. The date the notice of right to sue was issued by theEqual Employment Opportunity Commission was aM Y 21 1996

B. The date you received the notice of right to sue was

MAY 23 1996

C. ATTACH A COPY OF THE NOTICE OF RIGHT TO SUE TO THISCOMPLAINT.

III. Statement of Claim.

The Fqual Emplovment Opportunities Act provides; inpart, that

(a) It shall be an unlawful employment practicefor an employer =-(1) to fail or refuse to hire or to discharge

anv individual, or otherwise to discriminate againstany individual with respect to his compensation,terms, conditions, or privileges of employment,because of such individual's race, color, religion,sex, or national oriqin.

42 U.S.C. C2000e-2(a)(1). Other unlawful emplovment prac-tices are set out in 42 U.S.C. §2000e-2(a) through (d).

.State here as briefly as possible the facts of vourcase. Describe how each defendant is involved. Inciudealso the names of other persons involved, dates, and places.Do not give any legal arquments or cite any cases d'rstatutes. If you intend to allege a number of relatedclaims, number and set forth each claim in a separate para-graph. Use as much space as you need. Attach extra sheet

if necessary9

plaAse_see ..ft..,.i.,.a

r)

BRIEF STATEMENT OF CLAIM

I am a Syrian and I applied for an open position as a residency position withUNIVERSITY OF CINCINNATI, UNIVERSITY OF CINCINNATIMEDICAL CENTER, DEPARTMENT OF ORTHOPEDIC SURGERY inDecember 1994 with renewal of my application on August 22, 1995 for the same position(first year residency program PGY-1, professional year 1995-1996). On August 29, 1995, Iwas turned down for the position.Dr. Andrew T. Filak, Jr., M.D:, Associate Chief of Staff for Graduate Medical Educationtold me that their program requires from me among many things, ECFMG certificate,performance on the USMLE examination (step I and step II) and The University ofCincinnati College of Medicine served oniv as a test site for the adniinistration of theUSMLE step I exam on September 21 & 22,1993.I believe that I have been unlawfully discriminated against because of my NATIONAL

ORIGIN, in that : '

A. On September 21,1993, I was not given sufficient time to complete book A of theexamination by the center manager, Dr. Richard Sleight, nor was I permitted by theUniversity of Cincinnati, which is fully responsible for the incident, to take the USMLEstep II after September of 1994.As the state of Ohio can exempt me from those exanis(USMLE step I&Ii) , the Universityof Cincinnati as a state university, imits turn can exempt me also from those exams.On October 22, 1994, before I applied, I achieved sufficient scores on the EnglishExam(T.O.E.F.L.).During the last two weeks of August 1995, I knew that Dr. Richard Sleight is a full time

) ,T l. ah ri • •t ..f' CinCin^nafi Medical CllitP4P. And a faculty member. BeforeeLaployell uy 6uc vniv°c+o+ij va --a-

thattime I was completely in the belief thaYhe is onjy emplovedby the ECFMG, theadministrative company of the USMLE exam since ECFMG employees were declaring thathe was paid for his services as exam center manager by the ECFMG.On November 9,1995, I received a letter dated November 6,1995, from Mr. Bruce A.Hubbard, attorney at law who represents the ECFMG, which states that the ECFMG hascontracts with the University of Cincinnati to provide proctoringforthe USMLE exam onthe University of Cincinnati-Campus.Before November 9,1995,1 had no written proof and no knowledge that the University ofCincinnati is fullv responsiqle for the incident of September 21, 1993 which happened to mewhile I was taking my USMLE step I exam.However, as I was turned down for the position, the University of Cincinnati by behavingthis way is blocking my residency in the entire USA. Consequently it is blocking my careeras a clinician(Orthopedic Surgeon) in this country.On the other hand, any suggestion to retake the examination will be rejected because of thefollowing reasons:1-It will take from me another two to three years to prepare and to pass those exams and to

page 2participate in the Matching program again. This fact will create a gap on my curriculumvitae of seven to eight years since last time I practiced Orthopedic Surgery was in early1991. As my curriculum vitae is something that will be looked at and will be considered bymy future employer when I will apply to a residency position again and it might beconsidered even more than my scores on the USMLE exams, I will lose this considerablep,a*f nf mv candidacy in the event of takina these exams aQain2- As it is going to take from me another two to three years, I will have my social lifecompletely immobilized during this period of time . I have full right to build a family and tohave an income. This is something cannot be tolerated because of somebody who is actingin an illegal way.3- The fact that it is going to take two to three years to pass those exams and to participatein the Matching program again will put me in new conditions and much hardercompetition than the actual conditions. For example, recently, the ECFMG added a third

clinical exam to obtain the ECFMG certificate that did not exist if I were allowed tocontinue taking my examinations in the appropriate way. Also there are many other factorslike the number of candidates, new conditions, which make the obtainment of the residencyposition much harder in the future.Therefore, as long as the University of Cincinnati did not hire me, I have to say that the

discrimination is CONTINUOUS.B- Although I truly believe that regardless to the USMLE exams issue , my curriculumvitae, my recommendations and my experience in Orthopedic surgery are better thanthose of any one who was hired as resident-first year Orthopedic surgery in June 1995; theUniversity of Cincinnati has no right to put any restrictions on my candidacy other thanthe verification of my eredentials (Medical degree and Medical licensure) because it blocksmy candidacy to apply to any other hospital in the USA since all the hospitals require

passing score on the USMLE exams and since none of them did participate in the incident

of September 21, 1993, therefore, none of them has the obligation to exempt me from those

exams.C- I have not pledge to return to Syria after the completion of my training in the United

-•-States as has beenaa5C-r^^aad .

D- None of the candidates who were hired into PGYI Orthopedic Surgery in June,1995,

has been subjected to this type of treatment because of their NATIONAL ORIGIN and

none of them is SYRIAN.E- As I applied again for the same position (PGY-1, Orthopedic surgery) but for the

professional year 1996-1997, on February 22,1996, the last day for the University ofCincinnati to withdraw one of the four positions that the University of Cincinnati has in

._-„-A n.r_ !`n.,nril anri T tnld hir1^ to withdrawOr[hOpeQIC surgery, 1 UiReu iyar. t^aa.. na.y ^^aa...... ......•-..-•, ----- ---

one position and that it may be possible if he did not do so to violate one of federal criminalU.S. law codes. As Mr. McCrate admitted the guilt of the University of Cincinnati by saying"we will not go to the jail because of you". The next day, One position was reserved andwas put out of the Matching program.

By: to$Dr. M. Bassem Rayess

w W

U^^U

d`v^iU

--^ ,"- l

Equal Employment Opportunity Commission

DISMISSAL AND NOTICE OF RIGHTS

To: From:

M. Bassem Rayess EEOC, Cincinnati Area OfficeP.O. BOx 293166 525 Vine St., Suitc 810

Kettering, OH 45429 Cincinnati, OH 45202

[ ]On behalf of a person aggrieved whose illentity is

CONFIDEN77AL (29 CFR § 1601.7(a))

Charge No. EEOC Representative Telepltone No.

221960388 C. Larry Watson, Regional Attnrney (216) 522-7455

GSrr dre additionaf infotmatian aaached w thhis fnnn.)

YOUR CHARGE IS DISMISSED FOR THE FOLLOWING REASON:

`^_* ( ] The facts you allege fail to state a claim under any of the statutes enforced by die Commission

[ I

[

[ ]

I I

[ I

[ X

I

Respondent employs less than the required number of etnployees.

Your charge was not Umely filed with the Comtnission, i.e.; yuu waited too long alter the date(s) of the discri)nination you alleged to

file your charge. Beeause it was filedoutsidetlte tune litnit prescribed by law, the Cummission cannot investigate your atlegations.

You failed to provide requested information, failed or refused to appear or to be available for nccessary interviews/conferences, or

otherwise refusedto cooperate to the extent that tlie Conunission Itas been unable tu resnlve your charte. You have had more than 30

days in which to respond to our final wriuen request.

The Commission has made reasonable efforts to locate you and has bcen unable tu do so. Yom have had at least 30 days in which to

respond to a notice sent to your tast known address.

The respondent has made a reasonable settletncnt offer which affords full relicf tbr thc har)n ynu,alleged. At least 30 days have

expired since you received actual noticc of this settlement offer.

The Commission issues the following detertnination: Based upon the Commission's investigatinn, the Comtnission is unable to cohclude

that the information obtained establishes violationsof the stauitos. This dues nut certify that the respondent is in eotnptiance with the

statutes. No finding is made as to any otlter issues that might be construed as hnvint.^ hccn raixed by this charge.

Other (briefly stale)

- NOTICE OF SUI'1' RIGII't;S -

[ X] Title VII and/or the Atnericans with Disabilities Act: This is your NOTICE OF RIGHT TO SUE, which terminates the

Commission's processing of your charge. If you want to pursue your charge further, you have the ri^ht tosue the respondent(s) named

in your charge in U.S. District Court. If yuu decide to sue, you must sue WITIIIN 90 I)AYS from your rrceipt of this Notice;

otherwise your right to sue is lost.

[ I Age discrimination in Employment Act: This is your NOTICE OF DISIMISSAL OR TERMINATION, which terminates processing

of your charge. If you want to pursue your charge furtlier, you have the right to sue the respondent(s) named in your charge in U.S.

District Court. If you decide to sue, you must sue WITHIN 90 DAYS from your receipt of this Notice; otherwise your right to

sue is lost.I .

[ ] Equal Pay Act (EPA): EPA suits must be brought within 2 yeurs (3 years for willful violations) of the alleged EPA underpayment.

I certify that this notice was mailed on the date set out below.

ate M,Iiled Y

EnclosuresInformation SheetCopy of Charge

cc: Respondent(s)

On bchal(,nf the Commission

/I url Halcy. Area Direetor

EEUC Fonn 161 (Tm 5195)

University of Cincwmti

CtiA$GE (a )ISCRIMINATION ! - 'Tn

Fo

^ JENCYr

® ay Lne P

BCettn g-1Sr.rm

.cy Aei or 1971; Sea PrLvacYACC StaCement o.rnr. fC3 FEPA

LXJ EEac

CHAACE NUUBER

State or loeal Agency, !f y[Y

NAUE (tnatcees ,Yn. Ns.. ,Yrs./ . .

Mr. Bassem Ra ire SS ^AOUE TEIEPHONE(Oic[uee row caoalSrqEEi AOOAESS I ,. .

CITY, STAT'E ANO Z IP COOE 2 -926u-P.O. 8ox 2 aT66. Ketterin^ Oh u t29 oArEOF exATX

NAAIEO i5 iHE EMPlOYcR LASOR ORG ',

ANjZATION Q/Q 6Q, o 57ATE OR LOCALGOVERN YMENT AGE N `CY APPRMENT AGENCYa ENYjCESN?p COMA/LTTEE,WHO OrSCRjMj,VANauE EO AGAjNST ME (If+or¢ cnan pr[ e [(rc es[od JNUYBEA OF EYPIOrEES, uEM8EH5 TECEPHONE(tuutuee ^reUniv Of Cincinnat

STAEET AOOAESS 1Cat A L IQQ L 8u !L7CLTY, $TAT'e.ANOZIP COOE - _

234 Goodmaa St Cincrt,r,atiOK

COUNTYu5267

rAEET AOOflESS

-0706

CITY, STATE AN- 0 aEZlp

O.iUS O^ OaSGA u Nq ON d+aSeO ON (y-/tees aLprOpr[OCy OOS(we// ^^-

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08/29/95rXE PAATICULAAS AAE (t['aaaf[(ormi spaee (s neuaea pac,,u[[ wSCre

sbeee(s/J; ^ u CONTTNUING ACTrON

I• I am of Syrian National O ir giS n. L attended medical schooL 'yr,ia and P'ranee. I am cu^re T n bothto become:employed as.a-Clinical Doctor, RCly anMD/Ph D..Under normal.conditions,in order

^_Educationa?"Comm* L have to be- certii'ied..by. thession for Foreign Med:,caL Graduates(ECFMG), r

applled for the 8esident Program in OrthopedicSurgery at. the

^Tz=Jersity of Cincinnati EiosoitaL._ 1 was not selected: for-.thearogram.

fi• The reason given for 'my non-seLection was I had•not compieted aLl..a..n f the. r.wq.uis.sd testing ahd L had not received an ECFMGcertificate.

I=I. On January 20, 1995 i learned that. T j,^,a ..__ ,e?`Gificate, e'f?Ctivel _."" "°OU uerlied my EC:E''MG

Y, cantinuousLy deoriv;ng me oc-r_ploy-ment oooortunities ia the State of Ohio. ln Septe

mber of 1993,I was not given sufficient time to complete oart I of the. exam-na'Ton, nor was r oermitteu to take part two of the examinatior.

,it,,. Seotember ot L994. -T have not o 0after the com leti P1 dg-d to return to S^ria

P on of my traini;Ig in the United States as hasbeen asserted. The University of Cincinnati. can exempt me from all of thetests_or the ECFMG certificatehiL'°d b'y' titE abOVe . uOn? nf the ` ^ .t:,a...__

'"La wE!,..mentioeed hoSoLtal i t he G^LJ-uc^^^ ;K^ ^Program have been sub n t.-- Oreilopedic Surgery;^o Jected to this type of treatment because oinnational orit,.__;r,

Ei=i. The can didates thac were hired into the

Text Continiled on Attached Sheet(s)C.anc anls ena

?,23Coea1 rge rlla¢ wttn aotn tne EEOC ana cne SLaca a NOTA ^sgency, L7 any. [ ..[1 ^(wnajl necesiir.Qor SiaCe ana 1,oea1 Apulrements)aastie tne agenclef lr C Cnangemy q`aaarlss or aalspnone nwnoer ana cooperate

rully wt[n r.nem tn tna zvr:o'3r or ¢rp6rr^,^yiyt C nar8 aaa cne aoove cnargs ana CrtYtmy enar e'tn aacar¢ance wLtn Cnatr proce¢urez

Droeassln or

CrusCo Cne aesL af my.dp^tovrteage, Lntormacloe aatl oe'ler.•aeelara unaer penalty or perjury cnaC ane toregatng tz cruu .ana ¢orrect.

S i.,^'iFlAT NaNCf M • Bcts^e.r^t Q.^esS

HIA L. GOLDEN Nota ry Pabli^Hf'^ f6<1P'irh^Sdtli^3pohio

1^y Commission Expires Sept. 28,2000

e eaaeJ

t.; CINCINNATI^ BED FAft^ SWOHt; TO BEFORE ME. THL gf pATE

C^ B^F t, ,,ana eqrj^3 ' ^,0.^. '" .Cla^•,^

,.. I 44,_HARGTNG PARtY COPY

18

CP Initials --ZL Chg #, Attachment Page'1

--------------------------------------------------------------- ----------Equal Employment Opportunity CommissionForm 5 - Charge of Discrimination, Additional Text------------------------------------------------------------------------

PGY1 orthopedic surgery program do not have the qualificationsand.experience in orthopedic surgery that I have. In requiringme to take the TOEFL test, the above hospital subjected me todiscriminationthrough culturally biased testing that othercandidat:.es were not subjected to. The positions were filledby non-Sy=ians I believe I have been discriminated againstbecause of my national origin in violation of Title VII ofthe Civil Rights Act of 1964, as amended.

, M•a^^

-A+.^^-V^1.Cn^kre^.^^ .eti^uv'^•^-^Zo

In and torthe State of dhioMy Commission Expires Sept.28, 200D

CYNTHIA L. GOLDEN, Notary Pubiic.

IV. Relief

(State briefly exactly what You want the Court to do foryou. Make no legal arquments. Cite no cases or statutes.)

D 77 *QGQIFBNY .i F 17 r for. 77 tt. .i

(Signature o f Plaintiff)

I declare under pe-haLty of perjury that the foregoing is true andcorrect.

^pa )

^jKL!

IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

DR. MOHAMED BASSEM RAYESS,

Plaintiff,

V.

UNIVERSITY OF CINCINNATI,

Defendant.

°aC^T 17 Pl1 58CASE NO: 96-824

Judge Sandrav'Seckwith ;;';;.:;TI

DEFENDANT UNIVERSITY OFCINCINNATI'S MOTION TODISMISS

Defendant University of Cincinnati, by and through counsel,

moves for dismissal of each count in Plaintiff's Complaint

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure

because Plaintiff has failed to

can be granted, as shown by the

state a claim upon which relief

attached Memorandum in Support.

Respectfully submitted,

ert B. Craig (0004990)oseph A. Rectenwald (0063706)

Taft, Stettinius & HollisterThomas More Centre2670 Chancellor DriveSuite 400Crestview Hills, KY 41017-3491(606) 331-2838

Trial Attorneys for DefendantUniversity of Cincinnati

CERTIFICATE OF SERVICE

The undersigned does hereby certify that a true and correctcopy of Defendant's Motion to Dismiss and Memorandum in Supportwas served upon Dr. M. Bassem Rayess, Pl,^4ntiff, at P.O. Box293166, Kettering, Ohio 45429 this 17 day of October, 1996.

IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

OHAMED BASSEM RAYESS, . CASE NO: 96-824

Plaintiff,

Defendant.

Judge Sandra Beckwith

MEMORANDUM IN SUPPORT OFDEFENDANT'S MOTION TODISMISS

I. INTRODUCTION

Pro se Plaintiff Dr. Mohammed Bassem Rayess filed this

tion on August 6, 1996 against Defendant University of

ncinnati ("the University"). Plaintiff alleged that the

versity discriminated against him on the basis of his national

_gin in the administration of a medical licensing examination

nd in the consideration of his application for a residency

osition at the University.

The University moves to dismiss Plaintiff's claims because

has failed to state a claim for which relief can be granted,

ursuant to Rule 12(b)(6) of the Federal Rules of Civil

ocedure. Plaintiff's claims are time-barred by the applicable

mitations periods found in 42 U.S.C. Section 2000e-5(e)(l). In

!ddition, on the face of his Complaint Plaintiff admits that he

not qualified for a residency position at the University.

'herefore, he cannot establish a prima facie case of

scrimination under Title VII. Plaintiff also admits in his

plaint that the University refused to admit him into its

sidency program for a legitimate, non-discriminatory reason.

II. STATEMENT OF THE CASE

A. Nature of the Case.

On February 21, 1996, Plaintiff filed a charge of

discrimination with the Equal Employment opportunity Commission

("EEOC"'), alleging discrimination on the basis of national

origin._ On May 21, 1996, theEEOC_issued a Notice_of Right to

Sue, stating that it was unable to conclude that the information

obtained established any violation of statute. On August 6,

1996, Plaintiff filed a pro se Complaint in this Court against

the University.

B. Statement of the Facts.

Plaintiff has filed his Complaint pro se, and his Brief

Statement of Claim filed with the Complaint attempts to set forth

his version of the facts supporting his claims for relief.

Unfortunately, Plaintiff's rendition of the facts is, to say the

least, unclear. For purposes of this Motion only, the University

will accept as true all "facts" set forth in Plaintiff's

Statement.

Plaintiff is a Syrian who allegedly is licensed overseas as

a physician. On September 21, 1993, he took the first part of

the United States Medical Licensing Exam ("USMLE"), which is one

of the prerequisites to obtaining a certificate from the

Educational Commission for Foreign Medical Graduates ("ECFMG").

Plaintiff alleges he was not given enough time to complete the

2

exam by the proctor, Dr. Richard Sleight. Having failed to

complete Step I of the USMLE, Plaintiff was not eligible to take

Step II of the test, and he therefore did not receive ECFMG

certification. Plaintiff admits that ECFMG certification was

required of him in order to gain admission into a residency

program at the University.

Plaintiff applied for a position in a residency program at

the University in December 1994, and again in August 1995, but

was turned down both times, because of his failure to obtain

ECFMG certification resulting from his not passing the USMLE Step

I and Step II examinations. Plaintiff alleges that the State of

Ohio, and therefore the University, could have exempted him from

these examinations.

Plaintiff claims as a result of his inability to obtain

ECFMG certification, that his potential for being selected to

another residency program has been diminished, that he will be

subjected to unfair and lengthy delays in obtaining his ECFMG

certification, and that the newly expanded ECFMG examinations

will increase his burden. Plaintiff also claims that the

University should not have required ECFMG certification as a

prerequisite for its residency program, because his failure to

obtain certification defeats his candidacy at other hospitals.

3

III. ARGUMENT

A. Plaintiff's Claims are Barred By theLimitations Period of 42 U.S.C. Section2000e-5(e) (1)

The time limits for filing a charge based on national origin

discrimination are set forth in 42 U.S.C. Section 2000e-5(e)(l),

which require that:

A charge under this section shall be filed within onehundred and eighty days after the alleged unlawfulemployment practice occurred ...

Plaintiff alleges that he was not given sufficient time to

complete his USMLE Step I examination on

causing him to fail the examination, and

his being denied the opportunity to take

September 1994. Assuming, solely

these two acts resulted from some

part of the University (Plaintiff

September 21, 1993

thereafter resulting

the Step II exam in

in

for the sake of argument, that

discriminatory animus on the

does not specifically claim

that the acts resulted from such discrimination, nor does he

specify exactly what wrongful conduct the University engaged in),

it is clear that the 180 days expired long before Plaintiff filed

his EEOC discrimination charge in February 1996. It is well

settled that it is a prerequisite to bringing a cause of action

in federal court under Title VII that a plaintiff must file a

timely discrimination charge with the EEOC. Alexander v.

Gardner-Denver Co., 415 U.S. 36, 47 (1974), Kerans v. Porter

Paint Co.. Inc., 656 F.Supp. 267, 268 (S.D. Ohio 1987). Because

Plaintiff failed to timely file an EEOC charge from either the

4

September 1993 or 1994 incidents, he is barred from bringing an

action before this Court on those claims.

Plaintiff claims that he did not know until November 1995

that the University was solely responsible for the incident which

occurred on September 21, 1993. This allegation is insufficient

to toll the limitations period for filing the EEOC charge. The

limitations period begins to run from the time that Plaintiff

knew or should have known that a discriminatory act occurred.

Ivey v. Rice, 759 F.Supp., 394, 400 (S.D. Ohio 1991). Even

assuming that Plaintiff did not know the identity of the

discriminatory actor at the time, he knew that he had not

completed the Step I examination, and that knowledge would have

been enough to put him on notice of further inquiry within the

limitations period. Eagle v. Regan, 599 F.Supp. 38, 42 (N.D.

Ohio 1984).

Each and every one of the further acts which Plaintiff

alleges in his Complaint, including the University's rejection of

his application for entrance into the residency program, are

simply the later effects of his failure successfully to complete

the Step I examination in 1993. These later effects are not

independent discriminatory acts themselves, and have no

consequence as to the running of the limitations period. It is

well settled that:

limitations periods begin to run in response todiscriminatory acts themselves, not in response to thecontinuing effects of past discriminatory acts. Dixonv. Anderson, 928 F.2d 212, 216 (6th Cir. 1991) (italicsin original), citing Delaware State College v. Hicks,

5

449 U.S. 250, 258 (1980); United Airlines v. Evans, 431U.S. 553, 557.

In his Complaint Plaintiff alleges that he was unlawfully

discriminated against because he was given insufficient time to

complete the Step I examination. Plaintiff therefore knew or

should have known of the discriminatory act at that time, on

September 21, 1993. Plaintiff's limitations period began to run

asof that date, and the later effects of that alleged

discriminatory act did not toll that limitations period.

laintiff's filing of his EEOC discrimination charge in February

996 is clearly untimely, and he is barred from bringing a Title

VII action in federal court. Kerans v. Porter Paint Co., Inc.,

56 F.Supp. at 269.

Plaintiff Has Failed to Establish A PrimaFacie Case of Discrimination.

To establish a prima facie case of national origin

:TCnYi Mi na'1'i nT nltraGr Ti *l c[7TT Dl n i nt; ff mnct -l l cnc ...nA r.rnv.c_....__..._...._^.... .......^_ _^^_^ .^.., ._,.^....^^.. .......,^ ..^^^y^ ., t,a.,..

:hat he was (1) within a protected class; (2) subjected to an

adverse employment action; (3) qualified for the position; and

the position was given to someone outside the protected

:"ES. Anq V. Dro.-.t..r r. GaIuble ^+o o^^ n ^4a tjnn t6^s, n;..._ i v...V1 .i ., JJL 1'.L YV, 154V t Vll VLt•

91); Francis v. Gaylord Container Corp., 837 F.Supp. 858, 863

D. Ohio 1992), affirmed 9 F.3d 107 (6th Cir. 1993).

Assuming arguendo that Plaintiff was within a protected

ass, and that he was subjected to an adverse employment action,

clear from the face of his Complaint that he was not

6

ified for an orthopedic residency position at the University,

:use he was not ECFMG certified Plaintiff conced th. es at

sage of the USMLE was a prerequisite to obtaining an ECFMG

icate, and that he had to have an ECFMG certificate to be

tted to a residency.

Plaintiff did not comply with the requirements for

gibility to the University's residency program, and was

sefore unqualified for the position. He therefore cannot

ablish a prima facie case of national origin discrimination,

his Complaint should be dismissed.

Plaintiff Has Admitted That The UniversityHad A Legitimate Non-Discriminatory ReasonFor Its Actions.

Assuming that Plaintiff could establish a prima facie case

national origin discrimination in the University's refusal to

it Plaintiff to its residency program, such a case does not

omatically result in a favorable decision to Plaintiff.

ablishing a prima facie case only shifts the burden to the

ndant to articulate a legitimate non-discriminatory reason

the action taken. Mitchell v. Toledo Hospital, 964 F.2d 577,

2-83 (6th Cir. 1992) It is not necessary for the defendant to

suade the trier of fact that it was actually motivated by this

on. Texas Department of Community Affairs v. Burdine, 450

248, 254 (1981) Once the defendant articulates this

-timate non-discriminatory reason for its action, then the

ption of discrimination is rebutted and disappears from the

7

case. St. Marv's Honor Center v. Hicks, 509 U.S. 502, 507

(1993).

In this ease, the University's reason for not accepting

Plaintiff into its residency program is identical to the reason

Plaintiff cannot establish a prima facie discrimination claim:

Plaintiff lacked the ECFMG certification.

IV. CONCLUSION-

For the foregoing reasons the Defendant University of

Cincinnati respectfully requests this Court to enter an Order

dismissing Plaintiff's Complaint for failing to state a claim

upon which relief can be granted.

Respectfully submitted,

ert-B. Craig (0004990)oseph A. Rectenwald (0063706)

Taft, Stettinius & HollisterThomas More Centre2670 Cnancei.loi- Dr:iveSuite 400Crestview Hills, KY 41017-3491(606) 331-2838

Trial Attorneys for DefendantUniversity of Cincinnati

8

CERTIFICATE OF SERVICE

The undersigned does hereby certify that a true and correctcopy of Defendant's Motion to Dismiss and Memorandum in Supportwas served upon Dr. M. Bassem Rayess, Plaintiff, at P.O. Box293166, Kettering, Ohio 45429 this /7t^ day of October, 1996.

9

F i4_E i,:ASjtE °

^.^i ; ii .t i`'i1!^PH •`{IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION 96 0CT 1 7 Pi9 3: 58DR. MOHAMED BASSEM RAYESS,

Plaintiff,

V.

UNIVERSITY OF CINCINNATI,

Defendant.

CASE NO: 96-§24 ;vURT• SrUT i:i;.' tii ^NIO

Judge Sandra','!^erckwith ,';T;ATI

DEFENDANT UNIVERSITY OFCINCINNATI'S MOTION TODISMISS

Defendant University of Cincinnati, by and through counsel,

moves for dismissal of each count in Plaintiff's Complaint

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure

because Plaintiff has failed to state a claim upon which relief

can be granted, as shown by the attached Memorandum in Support.

Respectfully submitted,

ert B. Craig (0004990)

nf the.;Ficoied 9.rz -wy c39

'T°P^,J gl3rn^_7h .G

llATF, a

F.?#p Ci:erls

oseph A. Rectenwald (0063706)Taft, Stettinius & HollisterThomas More Centre2670 Chancellor DriveSuite 400Crestview Hills, KY 41017-3491(606) 331-2838 _,

Trial Attorneys for DefendantUniversity of Cincinnati

I, CERTIFICATE OF SERVICE

The undersigned does hereby certify that a true and correctcopy of Defendant's Motion to Dismiss and Memorandum in Supportwas served upon Dr. M. Bassem Rayess, Plaintiff, at P.O. Box293166,.Kettering, Ohio 45429 this /7 day of October, 1996.

IN THE UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

DR. MOHAMED BASSEM RAYESS,CASE NO• 96-824

Plaintiff, Judge Sandra Beckwith

V.

UNIVERSITY OF CINCINNATI . MEMORANDUM IN SUPPORT OFDEFENDANT'S MOTION TO

Defendant. . DISMISS

I. INTRODUCTION

Pro se Plaintiff Dr. Mohammed Bassem Rayess filed this

action on August 6, 1996 against Defendant University of

Cincinnati ("the University"). Plaintiff alleged that the

University discriminated against him on the basis of his national

origin in the administration of a medical licensing examination

and in the consideration of his application for a-residency

position at the University.

The University moves to dismiss Plaintiff's claims because

c.. : i , aine ilas 10.1icu t.^. state a rlaim for which relief can be granted,

pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure. Plaintiff's claims are time-barred by the applicable

limitations periods found in 42 U.S.C. Section 2000e-5(e)(1). In

addition, on the face of his Complaint Plaintiff admits that he

is not qualified for-,a residency position at the University.

Therefore, he cannot establish a prima facie case of

discrimination under Title VII. Plaintiff also admits in his

Complaint that the University refused to admit him into its

residency program for a legitimate, non-discriminatory reason.

II. STATEMENT OF THE CASE

A. Nature of the Case.

On February 21, 1996, Plaintiff filed a charge of

discrimination with the Equal Employment opportunity Commission

("EEOC"), alleging discrimination on the basis of national

origin. On May 21, 1996, the EEOC issued a Notice of Right to

Sue, stating that it was unable to conclude that the information

obtained established any violation of statute. On August 6,

1996, Plaintiff filed a pro se Complaint in this Court against

the University.

B. Statement of the Facts.

Plaintiff has filed his Complaint pro se, and his Brief

Statement of Claim filed with the Complaint attempts to set forth

his version of the facts supporting his claims for relief.

Unfortunately, Plaintiff's rendition of the facts is, to say the

least, unclear. For purposes of this Motion only, the University

will accept as true all "facts" set forth in Plaintiff's._.

Statement.

Plaintiff is a Syrian who allegedly is licensed overseas as

a physician. On September 21, 1993, he took the first part of

athe United States Medical Licensing Exam ("USMLE"), which is one

of the prerequisites to obtaining a certificate from the

Educational Commission for Foreign Medical Graduates ("ECFMG°).

Plaintiff alleges he was not given enough time to complete the

2

exam by the proctor, Dr. Richard 8leight. Having failed to

complete Step I of the USMLE, Plaintiff was not eligible to take

Step II of the test, and he therefore did not receive ECFMG

certification. Plaintiff admits that ECFMG certification was

required of him in order to gain admission into a residency

program at the University.

Plaintiff applied for a position in a residency program at

the University in December 1994, and again in August 1995, but

was turned down both times, because of his failure to obtain

ECFMG certification resulting from his not passing the USMLE Step

I and Step II examinations. Plaintiff alleges that the State of

Ohio, and therefore the University, could have exempted him from

these examinations.

Plaintiff claims as a result of his inability to obtain

ECFMG certification, that his potential for being-selected to

another residency program has been diminished, that he will be

subjected to unfair and lengthy delays in obtaining his ECFMG

that the newlv exnanded ECFMG examinations

will increasehis burden. Plaintiff also claims that the

University should not have required ECFMG certification as a

prerequisite for its residency program, because his failure to

obtain certification defeats his candidacy at other hospitals.

3

III. ARGUMENT

Plaintiff's Claims are Barred By the

Limitations Period of 42 U.S.C. Section

2000e 5(e)(1)

The time limits for filing a charge based on national origin

discrimination are setforth in 42 U.S.C. Section 2000e-5(e)(1),

which require that:

A charge under this section shall be filed within onehundred and eightydays after the alleged unlawfulemployment practice occurred ...

Plaintiff alleges that he was not given sufficient time to

complete his USMLE Step I examination on September 21, 1993

causing him to fail the examination, and thereafter resulting in

his being denied the opportunity to take the Step II exam in

September 1994. Assuming, solely for the sake of-argument, that

these two.acts resulted from some discriminatory animus on the

part of the University (Plaintiff does not specifically claim

that the ac resulted r........ ..i^ Aic^.v;in;natinn_ nc^r does hets r:uu aiv+u j^+^•• ..+.v-.^,-•••-••---- .--- ---

specify exactly what wrongful conduct the University engaged in),

it is clear that the 180 days expired long before Plaintiff filed

his EEOCdiscrimination charge in February 1996. It is well:

settled that it is a prereK.:isite to bringing a cause of action

in federal court undgr Title VII that a plaintiff must file a

timely discrimination charge with the EEOC. Alexander v.

Gardner-Denver Co., 415 U.S. 36, 47 (1974), Kerans v. Porter

Paint Co.. Inc., 656 F.Supp. 267, 268 (S.D. Ohio 1987). Because

Plaintiff failed to timely file an EEOC charge from either the

4

September 1993 or1994 incidents, he is barred from bringing an

action before this Court on those claims.

Plaintiff claims that he did not know until November 1995

that the University was solely responsible for the incident which

occurred on September 21, 1993. This allegation is insufficient

to toll the limitations period for filing the EEOC charge. The

limitations period begins to run from the time that Plaintiff

knew or should have known that a discriminatory act.occurred.

Ivey v. Rice, 759 F.Supp.., 394, 400 (S.D. Ohio 1991). Even

assuming that Plaintiff did not know the identity of the

discriminatory actor atthe time, he knew that he had not

completed the Step I examination, and that knowledge would have

been enough to put him on notice of further inquiry within the

limitations period. Eagle v. Regan, 599 F.Supp. 38, 42 (N.D.

Ohio 1984).

Each•and every one of the further acts which Plaintiff

alleges in his Complaint, including the University's rejection of

entrance into the residencv DroQram, are

simply the later effects of his failure successfully to complete

the Step I examination in 1993. These later effects are not

independent discriminatory acts themselves, and have no

consequence as to the running of the limitations period. It is

well settled that: ,

. limitations periods begin to run in response to

discriminatory acts themselves, not in response to the

continuing effects of past discriminatory acts. Dixonv. Anderson, 928 F.2d 212, 216 (6th Cir. 1991) (italicsin original), citing Delaware State College v. Hicks,

5

449 U.S. 250,258 (1980); United Airlines v. Evans, 431

U.S. 553, 557.

In his Complaint Plaintiff alleges that he was unlawfully

discriminated against because he was given insufficient time to

complete the Step I examination. Plaintiff therefore knew or

should have known of the discriminatory act at that time, on

September 21, 1993. Plaintiff's limitations period began to run

as of that date, and the later effects of that alleged

discriminatory act did nottoll that limitations period.

Plaintiff's filing of his EEOC discrimination charge in February

1996 is clearly untimely, and he is barred from bringing a Title

VII action in federal court. Kerans v. Porter Paint Co.. Inc.,

656 F.Supp. at 269.

B. Plaintiff Has Failed to Establish A PrimaFacieCase of Discrimination.

To establish a prima facie case of national origin

discrimination under Title VII, Plaintiff must allege and prove

that he was (1) within a protected class; (2) subjected to an

adverse employment action; (3) qualified for the position.:. and

(4) the position was given to someone outside the protected

class. Ang v. Proctor & Gamble Co., 932 F.2d 540, 548 (6th Cir.

1991); Francis v. Gaylord Container Corp., 837 F.Supp. 858, 863

(S.D. Ohio 1992), affirmed 9 F.3d 107 (6th Cir. 1993).

Assuming arguendo that Plaintiff was within a protected

class, and that he was subjected to an adverse employment action,

it is clear from the face of his Complaint that he was not

6

qualified for an orthopedic residency position at the Uriiversity,

because he was not ECFMG certified. Plaintiff concedes that

passage of the USMLE was a prerequisite to obtaining an ECFMG

certificate, and that he had to have an ECFMG certificate to be

admitted toa residency.

Plaintiff did not comply with the requirements for

eligibility to the University's residency program, and was

therefore unqualified for the position. He therefore cannot

establish a prima faciecaseof national origin discrimination,

and his Complaint should be.dismissed.

C. Plaintiff Has Admitted That The University

Had A Legitimate Non-Discriminatory Reason

For Its Actions.

Assuming that Plaintiff could establish a prima facie case

of national origin discrimination in the University's refusal to

admit Plaintiff to its residency program, such a case does not

automatically result in a favorable decision to Plaintiff.

! t^ 1L^ L....r.ll.-^ I}^ }Y^C

Establishing a prima facie case oniy shllG^s ^.aic +.+a!!-^+ca= .-_+ -+•`-

defendant to articulate a legitimate non-discriminatory reason

for the action taken. Mitchell v. Toledo HosAital, 964 F.2d 577,

582-83 (6th Cir. 1992) It is not necessary for the defendant to

persuade the trier of fact tnat it was actually motivated by this

reason. Texas Department of Community Affairs v. Burdine, 450

U.S. 248, 254 (1981) once the defendant articulates this

legitimate non-discriminatory reason for its action, then the

presumption of discrimination is rebutted and disappears from the

7

case. St Marv's Honor Center v. Hicks, 509 U.S. 502, 507

(1993).

In this case, the University's reason for not accepting

Plaintiff into its residency program is identical to the reason

Plaintiff cannot establish a prima facie discrimination claim:

Plaintiff lacked the ECFMG certification.

IV. CONCLUSION

For the foregoing reasons the Defendant University of

Cincinnati respectfully requests this Court to enter an Order

dismissing Plaintiff's Complaint for failing to state a claim

upon which relief can be granted.

Respectfully submitted,

e B. Craig (0004990)^ oseph A. Rectenwald (0063706)Taft, Stettinius & HollisterThomas More Centre2670 Chancellor DriveSuiteo..iL^ 400-+vv

Crestview Hills, KY 41017-3491(606) 331-2838

Trial Attorneys for DefendantUniversity of Cincinnati,

8

=CERTIFICATE OF SERVICE

The undersigned does hereby certify that a true and correctcopy of Defendant's Motion to Dismiss and Memorandum in Support

was served upon Dr.M. Bassem Rayess, Plaintaffof, aOct berBo1996.293166, Kettering, Ohio 45429 this day y .

9

'FIE

ISTE2IGT COtTR^!i'HE UNTTED $TP.'.PES 0FOR TH'E 8oII'1'fiERN . DIS'L'RIC']B QF OF3IO

WESTERN DIVISION

M62iamed Bassem Raydss,) Case No> C-1-96-824

}Plaintiff,

vs.

IIniversity of eincinnati

Defendant.

MORAi^7^t7M': a=n

)

On Jaiiuary 31; 1997 i

Order, pursuant to WhiCh the C€iu

summary `.7udgmeist, On Feb'ruarY

0

AU6 Z4 A

T

qdg

^i!

-Court issued a Memorandum and

anted Defendant's motion f©r

>398, the United States Court

irmed this Court's decision.

This action has, accordi;ngly,been- ciosed for six months:

Neverthe]ess, Plaint9.ff contaxiues to file motioiis in this action.

Plaintiff's latest fil.iieg, a iiiotion to amend the judgment and for

a more definite statement (Doc. 43); is Yieraby 3fiRICKEN, and the

Court DI1t1ECTS the Clerk to refuse any further filings from

Plaintiff in this actiota.

4.

af:Appeals for the Sixth Circuit a

Y'''> IS1V SO QP,L^`KE?.:A 1

'.::SarldYa ^::5^.^$2C}CW.3:thtJnited. States District Jusxqe.

FILEDPiMETH J. MURPI

THE UNITED STATES DISTRICT COURT V t+trniIFOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION 98AVG 24 AM11'

iCT CCUC

Mohamed Bassem Rayess,

Plaintiff,

. vs.

University of Cincinnati,

Defendant.

Case No. C-1-96-824

MEMORANDUM and ORDER

DIST OHI+tEST D IV CINCINNN

On January 31, 1997, this Court issued a Memorandum and

Order pursuant to which the Court granted Defendant's motion for

summary judgment. On February 10, 1998, the United States Court

of Appeals for the Sixth Circuit affirmed this Court's decision.

This action has, accordingly, been closed for six months.

Nevertheless, Plaintiff continues to file motions in this action.

Plaintiff's latest filing, a motion to amend the judgment and for

a more definite statement (Doc. 43), is hereby STRICKEN, and the

Court DIRECTS the Clerk to refuse any further filings from

Plaintiff in this action.

IT IS SO ORDERED.

CLERE

J9Ye.putL^ t;lerk

SarCdra 'S.'BeckwithUnited States District Judge

UNITED STATES DISTRICT COURTFOIP'I'HE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

Dr.Mohamed Bassem Rayess : Case no.C-1-96-824

Plaintiff

L E D

FEB 2 8 1997

^^NNEThd J. MURPHY, ClerkCINCINNATI, OHIO

VS. MOTION TO RECONSIDEItJudgement

UNNERSITY OF CINCINNATI Judge Sandra S. Beckwith

---Defendant(s)

TO THE HONORABLE JUDGE OF THE SAID COURT, Plaintiff timely files thisMotion to Reconsider Judgement rendered on the above captioned case on January 31,1997.Plaintiff would like to show the Court as follows:Plaintiffrealized that the dismissal decision of the United States District Court- WesternDivision at Cincinnati was based upon the assumption that Plaintiff cannot state a claimbased upon the ECFMG certificate requirement because he was not treated differentlythan similarly situated persons who are not members of his protected class.Plaintiff would like to inform the Court before he responds to show whether he can or hecannot prove a state of claim that this case should be considered as a deprivation of civil

rights before considering it as a case of discrimination.More precisely, as it is mentioned in the Memorandum and Order to dismiss1.Background, page 2-in line 14" In opposition to Defendant's motion to dismiss,Plaintiff also argues that Defendant discriniinated against him by failing to perniit him toretake the USMLE" and Plaintiff would like to add more precisely "USMLE Part IP'.Plaintiff would like to tell the Court that the true meaning of this phrase is "deprivation ofcivil rights not only discrimination".Plaintiff was given by the Immigration and Naturalization Service one year of F1-studentvisa. This legitimate right was protected by the American government before jeopardizinghis exam on September 21, 1993, by Defendant "University of Cincinnati."Then, after the incident, Plaintiff was compensated by the ECFMG to retake this exam atno charge in June 1994. Meanwhile, Plaintiff `s opportunity of remaining one year underF1-student visas after June 1994 was not given back to him as ihe situa9.ion was before ti•.e

incident of September 21, 1993.Plaintiff could obtain B2-visa that is completely different from F-1 student visa.B2- visa is not desi2ned to study USMLE exams.A very large difference between B2 visitor visa and F- 1 student visa can be noticed by

reviewing a number of Immigration Law references.Plaintiff did not know that the University of Cincinnati is the wrongdoer untilNovember 1995. However, right after the exani, when Plaintiff was believing that

1

ECFMG and USMLE are the wrongdoers, Plaintiff did ask the ECFMG twice tocompensate him and it refused through its attorney Mr.Hubbard twice to provide thePlaintiff such compensation. Then, on the 20th of April, 1994, Plaintiff asked theUSMLE for a full compensation for the first time. The USMLE denied him compensationthrough its attorney Ms. Carson claiming that the ECFMG is the party which isresponsible. During summer of 1994, Plaintiff asked also Dr. Keley Chief of theinvestigating committee in the USMLE for his case and also addressed final letter to Ms.Janet Carson in August of 1994, asking the USMLE for a full compensation and review

course. Plaintiff did not get any answer.After granting the Motion to Dismiss by the United States District Court, Plaintiff

realized the Following:^i^le^ent^fthe offense described in CH 18 USCS § 242 are present in this case:

1-Defendant's acts must have deprived someone of right secured or protected byConstitution or laws of United States. In this case, it is clear that Defendant's actsdeprived Plaintiff from one year of student visa provided and protected by the law of the

United States.Defendant did not compensate Plaintiff of one year of student visa after the opportunityto retake the exam in June 1994 or in September 1994.2-Defendant's illegal acts must have been committed under color of law. In this case,Defendant acted under the privilege of proctoring as a state contractor with the exam

conunittee since proctoring is necessary for these exams as they are prerequisite for the

state licensing exam "USMLE part III".3-Person deprived of his rights must have been inhabitant of state, territory, or district. Inthis case, Plaintiff was inhabitant of the state of Ohio since February 1991.4-Defendant must have acted willfully. Defendant acted willfully when he filed theMotion to Dismiss. Defendant admitted in his Motion to Dismiss that the facts mentionedin Plaintiff's Complaint are true. Plaintiff stated clearly in the Complaint that he did not

u r+ f0i iC" ;c the wrongdoer until November 1995.6i

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Plaintiff also mentioned that Defendant was using misleading statements to deceivePlaintiff . Plaintiff at the end discover that the "UC" is wrongdoer without the will of the

Defendant to acknowledge him.Then, despite all that, Defendant mentioned in his Motion to Dismiss that Plaintiff filed

the charge of discrimination untimely.Therefore, this way, Defendant acted willfully to deprive Plaintiff from his rights underTitle VII by hiding his identity until the time for filing a charge under Titie v'II is over.Thus, Defendant's Motion to Dismiss should be denied to avoid violation of Ch18

USCS§ 242 @ 32- Motion to Dismiss.On the other hand, if this case is a case of deprivation of civil rights, this does not mean

that it could not be a case of discrimination.Plaintiff was treated differently in this matter.In June of 1993, Plaintiff took the same exam in the same center under the same

proctoring.2

It was as an experimental trial before he became ready in September of 1993. Whathappened during this exam is the following:A new room was chosen to be the room of the exam inside the hospital. The location ofthis room inside the hospital was difficult to find for the candidates who are not studentsat the "UC". As a result of that, considerable number of candidates could not arrive intime.The chief proctor of the Foreign Medical graduates decided to delay the commencementof the exam 30 minutes "from 8:30 A.M. to 9:00 A.M.".All the candidates were present at 9:00 A.M. except one candidate who came at 8:30A.M. and asked like the rest of the candidates who came at 8:30 A.M. to wait unti19:00A.M.The chief proctor said "she is somewhere in the building and we have to wait for her."

After twenty minutes of waiting, the candidates who were under stress started to raisetheir hands for permission to go to the rest room. Plaintiff raised his hand to go to the restroom after 30 minutes of waiting. Although the chief proctor of the room gave Everyonewho raised his hand the permission without hesitation, he was very hesitant with Plaintiff.At first, he said to Plaintiff "no" then he said "OK". Plaintiff at that time started to feelthat he was discrirninated against or he was personally targeted.However,after 35 minutes of waiting, all the candidates who were in the room saw ablack lady coming late. She was the only black examinee among all candidates at thattime.On September 21, 1993, Plaintiff arrived in time with the cable of western union in hishand which states that he must show the cable with a photo identity to the ECFMG examfor permission to enter.When the chief proctor Mr. Balch did not fmd his name on the list, he asked anotherproctor to escort him to the center manager Dr. Richard Sleight.After the escort-oroctor left the exam- room with Plaintiff, Mr. Balch immediately startedto distribute "BOOK A" to the candidates without waiting to the Plainriff. Plaintiff wastold that later, after the exam was over, by several candidates who were in the room ofthe exam.In the mean time, when the escort-proctor and the Plaintiff met with Dr. Richard Sleight.Dr. Richard Sleight asked the proctor to go to certain room upstairs to call the-ECFMG.

ln the same time, Dr. Richard Sleight with a full will of discrimination created ttrisdiscriminatory rule, and ordered the chief proctor of the exam- room for the foreignmedical graduates to start the exam immediately without waiting to the Plaintiff even if

the escort- proctor verified his transfer.After going upstairs with the escort-proctor, and waiting for approximately 20 minutes ina small library, Plaintiff was told by the escort-proctor that it will be"Ok" for him to takethe exam and that his transfer was verified.While Plaintiff was on his way with the escort-proctor, the escort-proctor told plaintiff

3

that the chief proctor, Mr.Balch, may not wait for them and may start the exam for thereason that although the foreign Medical graduates and the American graduates take thisexam in separate rooms, they should start this exam in the same time.Then, Plaintiff reminded the escort-proctor of the story of the black lady and how theywaited for her the last time he took the same exam in the same center for approximatelythirty five minutes just because she arrived in time at the very beginning like Plaintiff in

this case.The escort- proctor said laughing " although the blacks are slaves but they are still. humans, now the cable of Western Union shows that your name is Mohamed Bassem like

an Arab, aren't you ?_Tlaintiff answered " I am a Syrian"

Then, the escort-proctor continued to laugh and said " Don't you know that the Arabshave a column vertebra which does not stopat the fifth coccygeal vertebra and that theircolumn vertebra has an additional three to four vertebrae after the fifth coccygeal vertebra

which creates a small tail hidden in their panties"Plaintiff at this point thought that the escort-proctor is joking.After that, when they arrive to the exam room, Plaintiff was surprised that the exam had

already started.Then, Plaintiff asked Mr. Balch that he should compensate him for all the time that helost or Plaintiff will not start the exam.After seating the Plaintiff and comforting him by saying that he will be compensated forall the time he lost, Mr. Balch handed'Plaintiff "BOOK A".After thirty minutes of waiting, Plaintiff started to raise his hand for 3-5 minutesunfortunately, no one of the proctors came to tell him to break the seal and time his exam.Plaintiff realized that if he did not start by himself , he will not be able to start "BOOKB" with them later due to the fact that the break between Book "A" and Book"B" is only

one hour.Then, Plaintiff broke the seal by himself and started the exam approximately fortyminutes after the rest of the examinees had started.Before the last half hour of "Book A"is over, Mr. Balch announced that there is half an

hour left.Plaintiff, inunediately, asked Mr. Balch to compensate him for the time that he lost as he

promised him.Mr. Balch refused to compensate Plaintiff and did tell Plaintiff that Dr.Richard Sleightgave him the order to treat him like that.Consequently, Plaintiff became very agitated to the extent that he could not be productiveduring the last thirty minutes and he did a blind guessing for seventy questions with the

answer "B".Later, Dr.Sleight admitted that he is the one who gave Mr. Balch the order to treat him asif he arrived late even if Plaintiff's transfer was verified.

/On April 20, 1994, Plaintiff verified with Ms. Janet Carson, General Council of the^

4

USMLE that such nile does not exiIt is obviously clear, that Plaintiff was treated differently than the black lady who forcedall the candidates to wait for thirty five minutesjust because she arrived in time at first.In this case, Plaintiff also arrived in time. The problem which was created by theDefendant andthe ECFMG does not legalize this type of treatment.The proctor should wait for Plaintiff or he should time Plaintiff's exam if the examalready started, the thing that Defendant (UC proctoring) never had done.It is also very clear that this decision was taken on a discriminatory basis.On the other hand, Plaintiff agrees with the Court that discrimination on the basis ofeducational background is nat illegal. Neither graduates of foreign medical school nor

--graduates of American me c sc `oo constitute a protected class.Plaintiff, further challenged Defendant thatnone of the candidates who were hired inJune of 1995, does match his previous experience in orthopedic surgery.The fact that the Plaintiff is a graduate of foreign medical school does not constitute basisto deprive him from one year o;l.beingunder F-1 student visa in order for himto takeUSMLE part II after compensating luu7 for the opportunity to retake USMLE part I.Regarding the relief, under these cireumstances, as Plaintiff is not chanllenging the examitself but more precisely the way it was administered to him in September 1993 and theway hewas deprived from orle yeai of opportunity of being under student visa when thelost opportunity to retake USMlE part 1 was given to him.Therefore, Plaintiff wil1 ask the Court''to issue either a statement of hiring and appropriatemonetary recovery or only appropriate monetary recovery for all the damages if the Courtsees that a statement of hiring is not appropriate.Plaintiff also would like to ask`the Court to reconsider his Motion and Memorandum forEstoppel and Equitable tolling.At the end, Plaintiff is asking the Court to give his case the chance of a legal

• i • • Yl. 1 'I.L._ _- _._._ .l_ a_ ^L_ n^__^a .....^ ..iL^.^ nw.^u tiwn

representation wII1Cn wul maKe iIIe issues ctearer w tuC k- V ui L auu ao uac Saw.^ u++^^..

provide faimess for the injured to have legal representation as it is possible under law.

For allthe foregoing reasons, Plaintiff is asking the Couq to grant this motion and to

deny Defendant's Motion to Dismiss.

Dr. M;Bassem Rayess

^-^-^5

CERTIFICATE OF SERVICE

I hereby certify that the foregoing was served upon Mr. Robert B. Craig,

Taft, Stettinius & Hollister, Thomas More Center, 2670 Chancellor Dr., Suite 400,

Crestview Hills, KY 41017-3491, by regular U.S. mail, postage prepaid, this

28th day of February, 1997.

Dr. Mohamed Bassem Rayess

INTIIECO

C1VIT. DIVISION

Defendant.

This matter comes before the Court on Plaintiff Mohamed Bassem Rayess' ("Raye,ss")

MOIIAIVIED BASSEM RAYESS,

Redaetedby Clerk of CourtELECTRONICALLY 6BLEDCOURT OF COMMON PLEASwednesdap, Msy ^, 2010 2r42^$ PMCASE NURIBEN: 2009 CV 0a440 Docket ID: 15112055GREGORY A BRUSHCLERK OF COURTS MONTGOMERY COUNTY OHIO

[ON PLEAS COURT OF MONTGOMERY COUNTY, OII7O

CASE NO. 2009-CV-08440

Plalntiff, . JUDGE MARY WISEMAN

DECISION, ORDER AND ENTRYEDUCATIONAL COMMISSION FOR DENYING PLAINTIFF'S MOTION TOFOREIGN MEDICAL GRADUATES, STRIKE

Motion to Strike, For the reasons that follow, Rayess' M4tion to Strike is DENIED.

1. FACTUAL AND PROCEDURAL HISTORY

For purposes of the instant Motion, a complete recitation of the facts is tuntecessary. The

pertinent facts are as follows. Rayess filed a Complaint in this case, alleging that Defendant

Educational Commission for Foreign Medical Graduates ("ECFMG") breached a contract in

conjunction with the United States Medical Licensing Exam. See geneeally, Compt. ECFMC

filed an Answer, which constituted a general denial and contained numerous afftrmative

defenses. See generally, Ans. ECFMC subsequently filed a motion for judgment on the

pleadings, arguing that Rayess could not show any set of facts that would adequately set forth a

cause of action against ECFMC.I

' As of the date of this Dccision, ECFMC's niotion for,judgment on the pleadings remains pending before the Court.1

Rayess filed the instant Motion to Strike ECFMC's motion for judgment on the

pleadings, arguing that ECFMC's motion violated Civ. R. 10(D)(1). 2 Mtn. to Strike at I.

Rayess contends that ECFMC's motion for judgment on the pleadings should have contained a

copy of Rayess' application for the United States Medical Licensing Exam, as ECFMC's motion

asserts that the application was not a contract. Id. Further, Rayess asserts that ECFMC's motion

for judgment on the pleading,s argues that dismissal is proper under the principal of res judicata.

Id. at 2. However, Rayess contends that ECFMC failed to attach any evidence of Rayess'

previous case, which Rayess asserts must be examined before this Court can rule on ECFMC's

motion for judgment on the pleadings. Id. Thus, Rayess requests that ECFMC's motion for

judgment on the pleadings be stricken.

In response, ECFMC argues that Rayess' Motion to Strika should be denied, as

ECFMC's motion for judgment on the pleadings did not violate Civ. R. 10(D). Memo. in Opp.

at 1. ECFMC contends that it was preetuded from attaching any evidence to its motion for

judgment on the pleadings, other than evidence previously attached to the Complaint and

Answer. Id.. (citing Civ. R. 12(C); Yinicky v. Pristas, 163 Ohio App.3d 508, 510, 839 N.E.2d

88). Thus, ECFMC asserts that Rayess' Motion to Strike should be denied. Id, at 2.

In reply, Rayess argues that ECFMC's motion for judgment on the pleadings violates

Civ. R. 10(D). Reply at 1. In support, Rayess cites ECFMC's motion for judgment on the

pleadings, in relation to ECFMC's argument that res judicata applies: "ECFMC is in privity with

UC based on contractual agency relationship for the proctoring of the United States Medical

' Rayessmischaracterizrs ECFMC's motion for judgmcnt on the pleadings as a motion to dismiss.2

Licensing Exam." Id.(citing ECFMC's Mtn. J. on Pleadings at 12). Rayess contends that he

had no knowledge of the agency relationship between UC and ECFMC; thus, Rayess argues that

ECFMC was required to attach proof of such relation.ship to its motion for judgment on the

pleadings. Id. Further, Rayess contends that a claim for res judicata is beyond the scope of a

motion for judgment on the pleadings, as it requires an examination of procedural history that

goes beyorid the pleadings. Id. at 2 (citing Jude v, Franklin Cty., 2004-Ohio-2528, T9, Franklin

App. No 03AI'-1053). Additionally, Rayess cites Marak v. Ohio State Unzv. for the proposition

that the issue of res judicata may not be resolved in a Civ. R. 12(C) motian on the pleadings.

Marok v. Ohio State Univ., 2008-Ohio-3170, Franklin App. No. 07AP-921.

Furthermore, Rayess asserts that ECFIVIC violated Civ. R. 10(D) by failing to attach

Rayess' application to take the United States Medical Licensing Exam. Id, at 3. Rayess argues

that this Court should examine the application prior to ruling on whether or not Rayess has a

written contract with ECF1vlC. (c#. Thus, Rayess contends that ECFMC's motion for judgment

on the pleadings should be stricken. Id.

H. LAW AND ANALYSIS

A. Civ. B. 1 @(D)

Civil Rule IO(D)(1) states "[w]hen any claim or defense is found on an account or other

written instrament, a copy of the account or written instrument must be attached to the pleading.

If the account or written instntment is not attached, the reason for the omission must be stated in

the pleading." Civ, R. 10(DKt). A eontract is a written instrument for the purposes of Civ. R.

3

10(l)). National Check Bureau v. Buerger, 2006-Ohio-6673, &12, Lorain App. No. 06 CA

008882. Accordingly, when a claim alleges a breach of contract the party asserting the claim

must attach the alleged agreements to the complaint. Keenan v. Adecco E"nrpl. Servs., 2006-

Ohio-3633, ¶8, Allen App. No. 1<06-10. The purpose of Civ. R. 10(D) is to provide the

defendant with notice of the specific insirument upon which the claim is based. Mix v. Mix,

2005-Ohio-2068, 1116, Geauga App. No. 2003-G-2552; Tillinzon v. Sayed, 2003-Ohio-3222,

Lucas App. No. I.-02-1285. The proper remedy for failure to attach, pursuant to Civ. R. I0(D),

is for a defendant to request a more definite statement. Stewart v. Forum Health, 2007-Ohio-

6922, y131, Mahoning App. No. 06-MA-120. See also Fletcher v. Univ.. Hosps. Of Clevelrand,

120 Ohio St.3d 167.

B. Jurlgtnent on the Pleadings Standard

'rhP Ohio Sunreme Court has set forth. the attendant standard:

ln order to be entitled to dismissal under Civ. R. 12{C), it must appear beyonddoubt that [Plaintiffs] can prove no set of facts warranting the requested refietafter construing all material factual allegations in the complaint and allreasonable inferences therefrom in [Plaintiffs'] favor.

State er rel. Lee v. Trurubull Countv Probate Court (1998), 83 Ohio St. 3d 369, 372; see also

Gevedon v. Hotopp, 2005-Ohio-4597, ¶39 ("In deciding the motion, the court must construe all

the allegations in the pleadings in favor of the non-moving party, and find that there is no set of

facts that would necessitate the denial of the motion."]

4

Furthermore, regarding the consideration of the factual allegations contained in the

complaint, "[a] Civ. R. 12(C) motion for judgment on the pleadings presents a strict question of

law. The common pleas court may consider only the statements in the pleadings; it may not

consider evidentiary ma.terials." Krassen v Clinaaco, Climaco, Lefkowitz & Garof'oli Co., L.P.A.,

2002-Ohio-3438 at ¶ 17; but see laavdon, 2004-Ohio-3141 at ¶127-128 (although Second District

recognized precedent that ";judgments on the pleadings are to be based on allegations of the

complaint[,]" the court did not fault the trial court's consideration of facts derived from outside

the complaint). Ohio caselaw has also recognized that consideration of the pleadings may

include consideration of any writings properly attached to the pleadings. See e_g. Ahiried v.

Sargus, 2005-Ohio-2382, ¶7 (citing Peterson v. 7'ecdosio (1973), 34 Ohio St.2d 161, 165);

S.E.A. Inc. v. Dunning-Lathrop & Assocs•. (Aug. 5, 2004), 10th Dist. Case Nos. 03AP-1051 and

03AP-1052, 2004 Ohio App. LEX1S 3734, * 1 l*12, *15.

Here, the Court finds that Rayess' argument must fail. The purpose of Civ. R. 10(D) is to

provide the defendant with notice of the specific instrument upon which the claim is based.

Rayess argues that ECFMC's motion for judgment on thc pleadings should be stricken, as

ECFMC fai1ed to comply with Civ. R. 10(D). However, a motion for judgment on the pleadings

is limited solely to the allegations in the pleadings and any writing attached to the Complaint and

is designed to test the sufficiency of the pleadings. Thus, ECFMC is not required to attach any

additional instruments to its motion for judgment on the pleadings.

Further, the Court finds that a motion to strike is not the appropriate procedural remedy to

address Rayess' argument that a motion for judgment on the pleadings is inappropriate for a

defense of res judicata; thus, Rayess' arguments regarding the validity of ECFMC's motion fbt

judgment on the pleadings will be examined in the Court's decision on ECFMC's motion for

judgment on the pleadings.

III. CONCLUSION

For the reasons stated above, Rayess' Motion to Strike is DEIVIED.

SO ORDERED:

JUDGE MARY WISEMAN

Copies of this Decision, Order and Entry were forwarded to all parties listed below by ordinaryor electronic mail this filing date.

Mohamed Bassem RayessP.O. Box 293166Kettering, OH 45429Plaintiff, Pro Se

Steven G. JanikAudrey K. BentzDavid B. Shaver9200 South Hills Blvd., Suite 300Cleveland, OH 44147-3521Attorneys for Defendant

TANDI DANKLEF, Bailiff (937) 225-4384E-mail: dankleft@monteourt.org

6

General Divison

Montgomery County Common Pleas Court

41 N. Perry Street, Dayton, Ohio 45422

Case Title: MOHAMED BASSEM RAYESS vs EDUCATION?.[.COMMISSION FOR FREIGN MEDICAL GRADUATE

Case Nixmber. 2009 CV 08440

Type: Decision

So Ordered

?I ^) +SeWt&--

v

Mary Wisernan

Electrcnically signed by mwiseman ao 2^-4a:10 page 7 ef 7

Redacted by Clerk of CourtELECTRONICALLY FILEDCOURT OF COMMON PLEASThursday, June 03, 2010 4:01:25 PMCASE NUMBER: 2009 CV 08440 Docket ID: 15136806GREGORY A BRUSHCLERK OF COURTS MONTGOMERY COUNTY OHIO

IN THE COMMON PLEAS COURT OF MONTGOMERY COUNTY, OHIO

CIVIL DIVISION

MOHAMED BASSEM RAYESS, CASE NO. 2009 CV 08440

-vs-

Plaintiff, JUDGE MARY WISEMAN

DECISION, ORDER AND ENTRYEDUCATIONAL COMMISSION FOR GRANTING PLAINTIFF'S MOTION TFOREIGN MEDICAL GRADUATES, ACCEPT LENGTH OF PLAINTIFF'S

MEMORANDUM IN OPPOSITION

Defendants.DECISION, ORDER AND ENTRYGRANTING DEFENDANTS' MOTIONFOR JUDGMENT ON THE PLEADING

ENTRY CANCELLING TELEPHONESTATUS/SCHEDULING CONFERENCSET FOR JUNE 30, 2010

FINAL APPEALABLE ORDER

This matter comes before the Court on Plaintiff Mohamed Bassem Rayess' ("Rayess")

Motion to Accept the Length of Plaintiff's Memorandum in Opposition to Defendant's Motion to

Dismiss ("Motion to Accept"). Rayess' Motion to Accept is hereby GRANTED. This matter is

further before the Court on Defendants Education Commission for Foreign Medical Graduates'

("ECFMG") Motion for Judgment on the Pleadings. For the reasons that follow, ECFMG's

Motion for Judgment on the Pleadings is GRANTED.

1

I. FACTUAL AND PROCEDURAL HISTORY

Rayess filed a Complaint in this case alleging that ECFMG breached a contract in

conjunction with the United States Medical Licensing Exam ("Exam"). See generally, Compl.

Rayess graduated from a school of medicine in Syria in 1986 and planned to take the Exam in

order to begin his residency in medicine in the United States. Compl. at¶14. In the Complaint,

Rayess alleged that ECFMG failed to provide him with exact and sufficient time to complete the

Exam on September 21, 1993. Compl. at ¶5. As a result, Rayess alleges claims for breach of

contract, tortious damages as a result of ECFMG's conduct, negligent infliction of emotional

distress ("NIED"), and intentional infliction of emotional distress ("IIED"). See generally,

Compl. ECFMG filed an Answer, which constituted a general denial and contained numerous

affirmative defenses. See generally, Ans.

ECFMG filed the instant Motion for Judgment on the Pleadings, arguing that Rayess

could not show any set of facts that would adequately set forth a cause of action against ECFMG.

See generally, Mtn. J. on Pleadings. ECFMG argues that Rayess failed to allege all of the

material elements for the claims asserted, failed to plead sufficient facts to support a finding of

liability, and failed to comply with the applicable statute of limitations. Id, at 4. Further,

ECFMG asserts that Rayess' Complaint is barred by the doctrine of res judicata. Id.

First, ECFMG argues that it is entitled to judgment on the pleadings on Rayess' claim for

breach of contract. Id. at 5. ECFMG contends that Rayess failed to prove there was an

enforceable contract between the parties. Id. ECFMG asserts that Rayess failed to attach a copy

2

of the contract between ECFMG and Rayess to the Complaint, in violation of Civ. R. 10(D). Id.

ECFMG acknowledges that Rayess attached his Exam application, two checks from Rayess to

ECFMG, two letters written and signed by Rayess, and an information bulletin issued by

ECFMG to the Complaint; however, ECFMG alleges that such information is insufficient to

demonstrate the terms of the contract. Id. at 5-6. See also, Compl. at Exs. 1-5. Thus, ECFMG

argues that Rayess failed to prove the existence of a written contract. Id, at 6. Further, ECFMG

asserts that any evidence of a verbal contract is barred by the six year statute of limitations for

verbal contracts.' Id. (citing R.C. § 2305.07). Therefore, ECFMG argues that an enforceable

contract does not exist between the parties and its Motion for Judgment on the Pleadings should

be granted with respect to Rayess' claim for breach of contract. Id.

Second, ECFMG argues that it is entitled to judgment on the pleadings for Rayess' claim

of tortious damages, as it was not brought within the four year statute of limitations. Id. (citing

R.C. § 2305.09). In support, ECFMG asserts that Rayess' cause of action arose on September

21, 1993; thus, Rayess was required to bring his claim by September 21, 1997. Id. ECFMG

contends that Rayess was aware of his alleged injury in 1993, as demonstrated by his letters to

ECFMG requesting compensation to retake the Exam, tuition fees to enroll in a review course,

and living expenses until the next administration of the Exam. Id. at 8. See also, Compl, at

¶125-26. Therefore, ECFMG contends it is entitled to judgment on the pleadings for Rayess'

claim of tortious damages, as the statue of limitations bars its assertion. Id.

t ECFMG asserts that the alleged contract was entered into on August 6, 1993 or September 14, 1993. Id. at 7.

3

Third, ECFMG asserts that it is entitled to judgment on the pleadings on Rayess' claims

of NIED and IIED as Rayess failed to prove the requirements of each claim and each claim is

barred by the statute of limitations. Id. ECFMG argues that Rayess has not suffered a physical

accident or serious emotional injury that is severe and debilitating, as required to recover for

NIED. Id. (citing Paugh v. Hanks, 6 Ohio St.3d 72, 78, 451 N.E.2d 759). Further, ECFMG

alleges that Rayess cannot recover for IIED because Rayess cannot show that extreme and

outrageous conduct of ECFMG caused him emotional injury. Id. at 9 (citations omitted).

ECFMG contends that Rayess merely alleges that the unethical, illegal, and immoral Exam

conditions caused him mental and emotional distress. Id. (citing Compl. at ¶67). Moreover,

ECFMG contends that Rayess fails to allege the conduct complained of was committed by

ECFMG; Rayess alleges that the conduct of the employees of the subcontractor during the Exam

created unethical, illegal, and immoral conditions. Id. at 10 (citing Compl. at ¶67). In addition,

^rcr,vr..,.,aw:.,, .. that u a.,P^^' -^tairo_ ^ were not brought within the four vear statute of limitations;.:.,. .... .... ...... . _, _.... ----- - - -- w -

thus, ECFMG argues that it is entitled to judgment on the pleadings on Rayess' NIED and IIED

claims. Id. (citing R.C. § 2305.09).

Last, ECFMG argues that it is entitled to judgment on the pleadings, as Rayess' claims

are barred by the doctrine of res judicata. Id. at 11. ECFMG contends that res judicata applies in

this case because 1) Rayess brought a previous action against the same defendant; 2) there was a

final judgment on the merits of the previous action; and 3) the new claim was pursued in the first

action or arose out of the same transaction that was the subject matter of the first action. Id, at

11. ECFMG asserts that Rayess sued University of Cincinnati in 1996, alleging discrimination

4

on the basis of national origin. Id. at 12 (citing Rayess v, U. of Cincinnati, 142 F.3d 435, 1998

U.S. App. LEXIS 15805 (Decision without Published Opinion); 1998 WL 69309). ECFMG

contends that ECFMG is in privity with the University of Cincinnati, based on a contractual

agency relationship of the proctoring of the Exam, Id. Also, ECFMG asserts that Rayess'

claims were dismissed for failure to state a claim and as such, a final judgment on the merits was

rendered. Id. ECFMG further contends that the claims of this action arose out of the same Exam

administered on September 21, 1993, as did Rayess' claim against the University of Cincinnati.

Id. Thus, ECFMG argues it is entitled to judgment on the pleadings on all claims. Id.

In response, Rayess argues that ECFMG's Motion for Judgment on the Pleadings should

be denied.2 Memo. in Opp. at 1. First, Rayess asserts that a written contract exists between

Rayess and ECFMG. Id. Rayess asserts the documents attached to his response form the

contract because they indicate one transaction. Id. at 2-8 (citing Sunday Creek Coal Co. v. Big

Baile Coal Co. (Jan. 1, 1922), 1922 Ohio Misc. LEXIS 293). Further, Rayess contends his

claims were timely filed within the fifteen year statute of limitations imposed by R.C. § 2305.06,

as the cause of action accrued on September 21, 1993, and Rayess originally brought this action

'Rayess' Memorandum in Opposition to ECFMG's Motion for Judgment on the Pleadings exceeds the 20 pagelimitation imposed by Loc. R. 2.05(I1)(E)(1). However, Rayess subsequently filed "Motion to Accept the Lengtb ofPlaintiff s Memorandum in Opposition to Defendant's Motion to Dismiss." See Mtn. to Accept. For good causeshown, the Court hereby grant's Rayess' Motion to Accept the Length of Plaintiff's Memorandum in Opposition toDefendant's Motion to Dismiss and accepts Rayess' Memorandum in Opposition in full.

5

on 8eptember 19, 2008.3 Id. at 2. As a result, Rayess contends that ECFMG's Motion for

Judgment on the Pleadings should be denied as to his claim for breach of contract. Id. at 9.

Rayess further argues that ECFMG is not entitled to judgment on the pleadings on

Rayess' claim for tortious damages, as the discovery rule and equitable estoppel apply. Id. at 21.

Rayess contends that while he wrote letters in 1993 requesting full compensation, he was

unaware of the total amount of lost wages he would incur. Id. Moreover, Rayess asserts that

ECFMG is not entitled to judgment on the pleadings on the claims of NIED and IIED as Rayess

contends that he satisfied the requirements of each claim and brought the claims within the

statute of limitations. Id. at 24. Rayess contends that he can establish a claim for IIED as a result

of the unethical, illegal, and immoral Exam conditions he encountered during the administration

of the Exam. Id. at 26. Rayess alleges that the proctor administering the Exam insulted the

people of his race and the conduct of ECFMG lead to his severe emotional distress which Rayess

asserts reaches the level of "outrageousness" required under the law. Id. at 30. Further, Rayess

contends thaYhis claim for NIED is sufficient to withstand ECFMG's Motion for Judgment on

the Pleadings: Id. at 31.

Rayess also argues that ECFMG is not entitled to judgment on the pleadings on the basis

of res judicata. Id. Rayess contends that in order to rule on the issue of res judicata, the Court

would be required to look to materials beyond the Complaint. Id. at 32. Rayess asserts that the

more appropriate motion is a motion for summary judgment. Id. at 33 (citing Jude v. Franklin

3 This case was originally filed on September 19, 2008, as Case 2009CV08631, but was dismissed without prejudiceon October 17, 2008.

6

Cry., 2004-Ohio-2528, ¶9 (Franklin App. No. 03AP-1053). Regardless, Rayess asserts that he

was unaware of an agency relationship between ECFMG and the University of Cincinnati. Id. at

36. Further, Rayess contends that ECFMG and the University of Cincinnati are not in privity, as

they do not have a mutuality of interest. kI at 37. Rayess also asserts that the current case and

the previous case against the University of Cincinnati do not have the same operative facts, as

the case against the University of Cincinnati involved a Title VII cause of action. Id. at 40.

Thus, while Rayess concedes that the occurrence of September 21, 1993 is common to both

cases, Rayess argues its occurrence is not dispositive to both cases. Id. at 41. Therefore, Rayess

asserts that ECFMG's Motion for Judgment on the Pleadings should be denied. Id. at 42.

In Reply, ECFMG argues: it is not responsible to the events that have transpired in

Rayess' life since September 21, 1993; there was no written, enforceable contract between

ECFMG and Rayess; Rayess' claims for tortious damages, NIED, and HED were not timely

filed; Rayess cannot establish NIED or IIED; and Rayess' claims are barred by the doctrine of

res judicata. Reply at 1-2. First, ECFMG contends that, contrary to Rayess' assertion, the

written documents attached to Rayess' Memorandum in Opposition do not comprise the written

contract on which Rayess' action is predicated. Id. at 3. Further, ECFMG asserts that even if the

documents attached to Rayess' Memorandum in Opposition did amount to a contract, Rayess

should have attached them to the Complaint as the documents are not properly before the Court.

Id. ECFMG argues, and asserts that Rayess agrees, that the terms of the contract were contained

in a separate document. Id. at 4. See also, Compl. at ¶50.

7

Next, ECFMG alleges that the statute of limitations has expired on Rayess' claims and

ECFMG is entitled to a judgment on the pleadings. Id. ECFMG argues that Rayess was aware of

his alleged injury in 1993, as evidenced by two letters requesting that ECFMG provide

compensation for Rayess to retake the Exam. Id. ECFMG contends that Rayess' argument that

the discovery rule tolls the statute of limitations is without merit. Id. at 5. As a result, ECFMG

asserts that the statute of limitations on Rayess' claim of tortious damages began to run when

Rayess was aware of the alleged injury, in 1993, and thus expired in 1997. Id. Similarly,

ECFMG argues that the statute of limitations also bars Rayess' claims for IIED and NIED. Id.

ECFMG also dismisses Rayess' argument that equitable estoppel applies in this case or that the

statute of limitations is tolled. Id. at 7-9. Therefore, ECFMG asserts that its Motion for

Judgment on the Pleadings should be granted, as the statute of limitations has expired on Rayess'

claims for tortious damages, NIED, and IIED. Id. at 9.

: ._.Additionally, ECFMG contends that the allegations in Rayess' Complaint are- -- m_

to maintain a claim for NIED and IIED. Id. ECFMG asserts that in order to recover for IIED,

Rayess must show that ECFMG's extreme and outrageous conduct caused him emotional injury.

Id. (citations omitted). ECFMG contends that Rayess' Complaint fails to implicate ECFMG on

the basis of IIED. Id. at 10: Similarly, ECFMG argues that Rayess' assertions that he suffered

from emotional distress as a result of NIED are not supported by law, as Rayess was not a

bystander to an accident and similarly did not suffer serious and foreseeable emotional injuries.

Id. Thus, ECFMG asserts that a judgment on the pleading is proper with respect to Rayess'

claims for emotional distress. Id. at 12.

8

Last, ECFMG argues that all of Rayess' claims are barred by res judicata, based on the

previous lawsuit involving Rayess and the University of Cincinnati. Id. ECFMG asserts that it

is in privity with the University of Cincinnati as the University was the subcontractor or agent of

ECFMG for administering the Exam. Id. at 13. Further, ECFMG asserts that the events of both

lawsuits stem from the events of September 21, 1993 and the previous lawsuit was adjudicated

on the merits, as a final judgment was entered in that case. Id. at 14. Thus, ECFMG argues that

its Motion for Judgment on the Pleadings should be granted. Id. at 16.

II. LAW AND ANALYSIS

A. Motion for Judgment on the Pleadings

Pursuant to Civ. R. 12(C), "[a]fter the pleadings are closed but within such time as not to

delay the trial, any party may move for judgment on the pleadings." The Second District has

stated:

Because motions for judgment on the pleadings are characterized as belatedmotions to dismiss, trial courts apply the standard used in evaluatingmotions to dismiss for failure to state a claim upon which relief can be

granted.

Ciiy of Bayton v. u ate, 201014-Ohio-3141, ¶ 27 (end citation_ omitted). The Ohio Supreme Court

has set forth the attendant standard:

In order to be entitled to dismissal under Civ. R. 12(C), it must appear beyonddoubt that [Plaintiffs] can prove no set of facts warranting the requested relief,after construing all material factual allegations in the complaint and allreasonable inferences therefrom in [Plaintiffs'] favor.

9

State ex rel. Lee v. Trumbull County Probate Court (1998), 83 Ohio St, 3d 369, 372; see also

Gevedon v. Hotopp, 2005-Ohio-4597, ¶39 ("In deciding the motion, the court must construe all

the allegations in the pleadings in favor of the non-moving party, and find that there is no set of

facts that would necessitate the denial of the motion.")

Furthermore, regarding the consideration of the factual allegations contained in the

complaint, "[a] Civ. R. 12(C) motion for judgment on the pleadings presents a strict question of

law. The common pleas court may consider only the statements in the pleadings; it may not

consider evidentiary materials." Krassen v. Climaco, Climaco, Lefkowitz & Garofoli Co., L.P.A.,

2002-Ohio-3438 at ¶ 17; but see Dayton, 2004-Ohio-3141 at ¶127-128 (although Second District

recognized precedent that "judgments on the pleadings are to be based on allegations of the

complaint[,]" the court did not fault the trial court's consideration of facts derived from outside

the complaint). Ohio caselaw has also recognized that consideration of the pleadings may

include consideration of any writings properly attached to the pleadings. See e.g. Ahmed v.

Sargus, 2005-Ohio-2382, ¶7 (citing Peterson v. Teodosio (1973), 34 Ohio St.2d 161, 165);

S.E.A. Inc. v. Dunning-Lathrop & Assocs. (Aug. 5, 2004), 1 oth Dist. Case Nos. 03AP-1051 and

03AP-1052, 2004 Ohio App. LEXIS 3734, *11-*12, *15.

The complaint "need not state with precision all elements that give rise to a legal basis for

recovery as long as fair notice of the nature of this action is provided." Zickgraf v. Zickgraf

(December 29, 2000), Montgomery App. No 18446, 2000 Ohio App. LEXIS 6176, *6 (citing

Fancher v. Fancher (1982), 8 Ohio App. 3d 79, 83, 455 N.E.2d 1344). Nevertheless, the

complaint must contain10

either direct allegations on every material point necessary to sustain a recovery on anylegal theory, even though it may not be the theory suggested or intended by the pleader,or contain allegations from which an inference fairly may be drawn that evidence on

these material points will be introduced at trial.

Id.

B. Analysis

Here, the Court finds ECFMG's Motion for Judgment on the Pleadings to be well-taken.

First, the Court finds that there is no enforceable written contract on which to base Rayess' claim

for breach of contract. Without such written contract, the Court cannot analyze the terms of the

contract to determine whether a breach occurred. Although Rayess contends that the documents

attached to the Complaint and his Memorandum in Opposition comprise the contract, the Court

finds that for the purposes of the instant Motion, the Court is unable to look beyond the intial

pleadings to determine the sufficiency of the Complaint. Thus, without the contract specifying

the terms of the agreement entered into between Rayess and ECFMG, it is impossible to

determine whether a breach of contract has occurred, Thus, Rayess can prove no set of facts in

support of his claim that would entitle him to relief.

Furthermore, the Court finds that in the event that an oral contract existed, the statute of

limitations has expired and any right to bring such action has been extinguished. A claim for

breach of an oral contract must be brought within six years after the cause of action accraed. See

R.C. § 2305.07. Normally, a cause of action accrues and the statute of limitations begins to run

at the time of the wrongful act. Norgard, et al. v. Brush Wellman, Inc., 95 Ohio St.3d 165, 167,

766 N.E.2d 977, 2002-Ohio-2007 (internal citations omitted). However, the discovery rule

delays the running of the statute of limitations until the plaintiff discovers, or should have11

discovered, through reasonable diligence, that he was injured by the wrongful conduct of the

defendant. Id. (internal citations omitted). Here, the cause of action accrued in this case on

September 21, 1993. It is apparent from the Complaint that Rayess was aware of his alleged

injury in 1993, as evidenced by his letters to ECFMG. See Compl. at ¶¶25-28. Thus, the Court

grants ECFMG's Motion for Judgment on the Pleadings with respect to Rayess' claim for breach

of contract.

Next, the Court finds that Rayess' claim for tortious damages, NIED, and IIED are also

barred by the applicable statute of limitations. As stated above, Rayess' cause of action accrued

in this case in 1993. The statute of limitations for tort action for injuries not based on contract is

four years. See R.C. § 2305.09(D). Thus, the Court grants ECFMG's Motion for Judgment on

the Pleadings with respect to Rayess' claims for tortious damages, NIED, and IIED.

Additionally, the Court finds that Rayess' claims for NIED and IIED must fail as a matter

cp 1aw, A cla;,,, for NIE.n ;s limited to instances "where the plaintiff has either witnessed or

experienced a dangerous accident or appreciated the actual physical peril." Bunger v. Lawson

Co., 82 Ohio St. 3d 463, 466, 696 N.E.2d 1029, 1998-Ohio-407 (internal citation omitted).

Serious emotional distress, such as is associated with NIED, is both severe and debilitating.

Faugh v. Hanks, 6 Ohio St.3d 72, 78, 451 N.E.2d 759. Here, the Court finds that Rayess' claim

of NIED is inapplicable to the case at hand. The Court finds that he did not witness or

experience a dangerous accident and did not suffer severe and debilitating emotional distress at

the hand of ECFMG. Thus, Rayess' claim for NIED must fail.

12

Further, to establish a claim for IIED, Rayess must prove (1) ECFMG either intended to

cause emotional distress or knew or should have known that its actions would result in serious

emotional distress; (2) ECFMG's conduct was so extreme and outrageous as to go "beyond all

possible bounds of decency"; (3) ECFMG actions were the proximate cause of Rayess' psychic

injury; and (4) the mental anguish suffered by Rayess is of a nature that "no reasonable man

could be expected to endure it." Parker v. Bank One, N.A. (March 30, 2001), 2001 Ohio App.

LEXIS 1491, *26-*27, Montgomery App. No. 18573. In support of his claim, Rayess asserts

that ECFMG "intentionally inflicted mental and emotional distress upon [him] through the

behavior of the employees of the subcontractor during the [E]xam by creating unethical, illegal

and immoral exam conditions." See Compl. at ¶67. The Court finds that Rayess failed to

establish the elements required for a finding of IIED; specifically, Rayess' claim for IIED fails to

allege any conduct of ECFMG that would rise to "extreme and outrageous." Therefore, there are

.rr ^f farrQ r„ whirh Rave.cc could nrevail on his claim for IIED.

Last, the Court finds that a Motion for Judgment on the Pleadings is an inappropriate

avenue to examine whether res judicata bars Rayess' claims, as it requires looking beyond the

pleadings in the case at hand. However, it should be noted that the Court finds it unnecessary to

exai",iine whether res judicata bars Rayess' claims, as ECFMG's Motion for Judgment on the

Pleadings has been granted on other grounds and all of Rayess' claims have been dismissed.

III. CONCLUSION

13

For the reasons stated above, ECFMG's Motion for Judgment on the Pleadings is

GRANTED. This Coun, having disposed of Rayess' claims, cancels the telephonic

status/scheduling conference scheduled to be held on Wednesday, June 30, 2010 at 4:00 pm.

THIS IS A FINAL APPEALABLE ORDER. PURUANT TO APP. R. 4, THE PARTIESSHALL FILE A NOTICE OF APPEAL WITHIN THIRTY (30) DAYS.

SO ORDERED:

JUDGE MARY WISEMAN

To the Clerk of Courts:Pursuant to Civ. R. 58(B), please serve the attorney for each party and each party notrepresented by counsel with Notice of Judgment and its date of entry upon the journal.

JUDGE MARY WISEMAN

Copies of this Decision, Order and Entry were forwarded to all parties listed below by ordinary

or electronic mail this filing date.

Mohamed Bassem RayessP.O. Box 293166Kettering, OH 45429Plaintiff, Pro Se

Steven G. JanikAudrey K. BentzDavid B. Shaver9200 South Hills Blvd., Suite 300Cleveland, OH 44147-3521Attorneys for Defendant

TANDI DANKLEF, Bailiff (937) 225-4384E-mail: dankleft@montcourt.org

14

General Divison

Montgomery County Common Pleas Court

41 N. Perry Street, Dayton, Ohio 45422

Case Title: MOHAMED BASSEM RAYESS vs EDUCATIONALCOMMISSION FOR FREIGN MEDICAL GRADUATE

Case Number: 2009 CV-08440

Type: Decision

So Ordered

Mary Wiseman

Electronically signed by mwisernan on 2^:03:20 page 15 of 15