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February 5, 1996


The opinion of the court was delivered by: PLUNKETT


 The defendant Williams Electronics Games, Inc. ("Williams") is in the business of manufacturing pinball games and other coin-operated amusement devices. On April 28, 1993, Arnold Leaman, upon referral from an employment agency, interviewed for a position in the Pinball Mechanical Engineering Department of Williams (the "Department"). He was interviewed by Joseph Joos, Jr., then manager of the Department. On the basis of representations Leaman made to Joos regarding his qualifications, Joos extended Leaman an offer of employment on the condition that he pass a pre-employment physical examination and drug and alcohol tests, pursuant to company policy.

 Leaman was examined later that same day by Dr. Carlos Sanchez, M.D., an occupational health care specialist at Rush Occupational Health Services. At the end of the examination, Dr. Sanchez completed a form stating that Leaman had a history of two herniated disks, was taking medication for pain, and that Leaman should not bend or lift more than ten pounds. Later that same day, Virginia Vasquez, assistant personnel manager at Williams, reviewed the medical form that Dr. Sanchez completed relating to Leaman, then telephoned Joos to tell him that Leaman had a back problem and was restricted to lifting no more than ten pounds. Joos immediately notified the employment agency that referred Leaman that he would not be hired. Vasquez also told Robert Sedeita, Williams' Personnel Manager, that Leaman did not pass the physical examination because of his back.

 The next day, upon learning from the employment agency that Williams would not hire him, Leaman phoned Joos and tried to convince him that he could do the job. He said that Dr. Sanchez was wrong to conclude that he could lift only 10 pounds, that he had been released from physical therapy, and that he was able to lift 35 to 40 pounds. Joos responded that "the company goes strictly by what the doctor says." Leaman then phoned Sedeita and told him that he had performed the same work for a competitor of Williams and had no problems performing that work. He offered to submit his own doctor's evaluation, but Sedeita rejected the offer.


 At the outset, we note that defendant's motion is styled as a motion for partial summary judgment A summary judgment is a device whereby a court may render judgment on a "claim, counterclaim, or cross-claim," Fed. R. Civ. P. 56(b), where "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Here, the defendant does not seek judgment on any claim asserted against it. Instead, it is seeking our ruling on the admissibility, on the basis of relevance, of certain expert testimony proffered by the plaintiff. We will therefore treat defendant's motion as a motion to exclude expert testimony. See Blanton v. Pacific Mut. Life Ins. Co., 4 F.R.D. 200 ("The name attached to a motion need not be determinative of its purpose or the disposition to be made of it."); Wright & Miller, Federal Practice & Procedure § 1196.

 The EEOC contends that Leaman did not have an impairment at the time he interviewed with Williams, but rather that the defendant intentionally failed to hire him as a design engineer because of a perceived impairment and because of a history of impairment. *fn1" In establishing its case, the EEOC wishes to present expert testimony of several physicians that Dr. Sanchez's examination was inadequate, that his conclusions as to Leaman's physical capabilities were wrong, and that Leaman in fact was capable of performing the functions of the job for which he applied.

 Defendant has not asserted the inadmissibility of plaintiff's expert testimony on any grounds other than its irrelevance. Our consideration today will only be as to the relevance of this type of evidence to the plaintiff's claims and will not foreclose later rulings on the admissibility of any particular evidence offered on any grounds including relevance.

 The ADA provides:

No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.

 42 U.S.C. § 12112(a). A plaintiff may prove discrimination by either direct or circumstantial evidence. DeLuca v. Winer Indus., Inc., 53 F.3d 793, 797 (7th Cir. 1995). The plaintiff may prove discrimination indirectly by using the prima facie case and burden-shifting method originally established for Title VII cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), and refined in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981), and St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993). DeLuca, supra at 797.

 The prima facie case requires a plaintiff to prove that (1) he is a member of a protected class; (2) he was eligible and qualified for the position for which he applied; (3) he was not hired for that position; and (4) the position remained open to persons similarly qualified. See Loyd v. Phillips Bros., Inc., 25 F.3d 518, 522-23 (7th Cir. 1994). Once a plaintiff establishes all four elements, the burden shifts to the defendant to "articulate some legitimate, non-discriminatory, reason" for not hiring the plaintiff. McDonnell Douglas, 411 U.S. at 802. If the defendant fails to carry its burden, it loses. Burdine, 450 U.S. at 254. If the defendant does carry its burden, the plaintiff must then prove that the employer's stated reason is merely a pretext for discriminatory action. McDonnell Douglas, 411 U.S. at 804. See also Villa v. City of Chicago, 924 F.2d 629, ...

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