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KARRAKER v. RENT-A-CENTER

May 6, 2004.

STEVEN L. KARRAKER, MICHAEL A. KARRAKER, and CHRISTOPHER M. KARRAKER, Plaintiffs
v.
RENT-A-CENTER, INC., J. ERNEST TALLEY, and ASSOCIATED PERSONNEL TECHNICIANS, Defendants



The opinion of the court was delivered by: MICHAEL McCUSKEY, District Judge

OPINION

In an effort to avoid unnecessarily proceeding to trial on claims with no issues of disputed fact, both parties have filed motions for summary judgment. Defendant Rent-A-Center, Inc. (RAC) filed a motion for summary judgment (#133), memorandum in support (#134), and statement of facts (#135), asking that this court enter judgment in its favor on some of Plaintiffs' claims.*fn1 Defendant Associated Personnel Technicians (APT) joined in RAC's motion (#158).

  Plaintiffs have responded to RAC's motion (#178), and also seek partial summary judgment as to their Americans with Disabilities Act (ADA) claim. They filed a motion explaining the reasons they believe they are entitled to judgment (#153), a memorandum in support (#157), and sealed exhibits (#159). RAC responded to Plaintiffs' motion (#171) and statement of facts (#169), and it filed a memorandum in support of its response (#172).*fn2 Additionally, RAC filed a reply to Plaintiffs' response to its original motion (#182) and a reply to the facts Plaintiffs included in their response (#181). And finally, Plaintiffs filed a reply in support of their motion for summary judgment (#180).

  In amongst the disputes about the merits of the claims, the parties are also arguing about whether certain declarations are properly before this court. Specifically, Plaintiffs filed two motions to strike (#147 and #149) and the obligatory memoranda in support (#148 and #150), to which RAC responded (#163 and #165). Those motions will be addressed at the outset of this order to clarify which exhibits the court considered in deciding the summary judgment issues.

  BACKGROUND

  Only a brief recitation of the facts is needed at this point. For a period of time, RAC required all employees or outside applicants seeking management positions to submit to a battery of nine separate written tests, commonly referred to as the Management Test. One of the individual exams included in the Management Test was the Minnesota Multiphasic Personality Inventory I (MMPI).

  In the complaint, Steven Karraker alleged that the MMPI and Defendants' treatment of the results violated the ADA. Some of these claims have been dismissed while some have been incorporated into a class action. Specifically, Steven's claims of retaliation and failure-to-promote have been dismissed, his claim that the administration of the test and the maintenance of the test results violated the ADA is part of the class action proceeding, and his termination claim remains pending but is not part of the class action (#151).

  In addition to Steven's ADA claim, all three Plaintiffs raised several state law claims, and the status of those claims is as follows:
• Fair Credit Reporting Act claim — dismissed (#70)
• Illinois Mental Health and Developmental Disabilities Confidentially Act claim — still pending and part of the class action (#151)
• Illinois Clinical Psychology Licensing Act claim — still pending and part of the class action (#151)
• State law right to privacy claims — dismissed except for the public-disclosure-of-private-facts claim (#70) and part of the class action (#151)
MOTIONS TO STRIKE
  Plaintiffs have filed two motions to strike, arguing that certain declarations RAC attached as part of its motion for summary judgment are improper. Specifically, Plaintiffs assert that the declarations of Bill Nutt, Joe Kromer, Dr. Koransky, and Michael Walter should be stricken because they are not sworn or notarized, because RAC failed to disclose information contained therein, and because Walter lacks foundation to be an expert.

  Motions to strike, when used as a vehicle to delay proceedings, are generally disfavored, Heller Financial, Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989), and this court retains discretion in ruling on such motions, see Stinnett v. Iron Works Gym/Executive Health Spa, Inc., 301 F.3d 610, 613 (7th Cir. 2002). In response to Plaintiffs' assertions that the declarations must be stricken because they are unsworn, Defendants have correctly identified the portion of the United States Code that allows such declarations. Specifically, 28 U.S.C. § 1746 provides that unsworn declarations signed under penalty of perjury are acceptable, and such documents have been upheld as admissible in summary judgment proceedings, Woods v. City of Chicago, 234 F.3d 979, 987 (7th Cir. 2001).

  Plaintiffs' attacks on the declarations of Nutt and Kromer appear to be moot given this court's ruling on RAC's prior motion for summary judgment and the content of the current motion for summary judgment. After reviewing Koransky's declaration, this court does not find it to be so inconsistent with his deposition that it must be stricken. And according to RAC's representations, Walter is not an expert and indeed seems to be testifying from his own personal knowledge.

  For these reasons, Plaintiffs' motions to strike (#147 and #149) are denied.

  ADA CLAIMS*fn3 In the context of employment, the ADA prohibits discrimination against "a qualified individual with a disability . . . 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). Concerning medical examinations and inquiries, the statute sets forth the general statement that "[t]he prohibition against discrimination as referred to in subsection (a) of this section shall include medical examinations and inquiries." § 12112(d)(1). The ADA also requires that any information concerning medical condition or history collected by employers must be maintained in separate medical files and must be treated as confidential, subject to work restrictions of which supervisors would need to be aware. § 12112(d)(3)(B)(i); § 12112(d)(4)(C). RAC seeks summary judgment on Steven's*fn4 claims that it violated the ADA by administering the MMPI and by keeping the test results in a non-confidential manner. RAC argues that the MMPI is not a "medical examination" subject to the restrictions of the ADA and that Steven failed to show any injury-in-fact. RAC also asserts that Steven lacks standing to seek injunctive relief and that he failed to identify any evidence supporting his claim that his test results were improperly disclosed. Steven also requests summary judgment, arguing that the MMPI is a medical test under the ADA and that the test results were not kept in accordance with ADA requirements.

  The parties dispute whether the MMPI is a "medical examination" for purposes of the ADA, and both parties seek judgment on this issue. Steven's claims that RAC administered the MMPI and kept the results in violation of the ADA requirements are based on the premise that the MMPI is a "medical examination" to which the ADA applies. RAC argues that the MMPI does not meet the definition of a "medical examination" and so the ADA prohibition does not apply.

  The EEOC, charged with implementing the ADA, Hendricks-Robinson v. Excel Corp., 154 F.3d 685, 693 n.7 (7th Cir. 1998), defines "medical examination" as "a procedure or test that seeks information about an individual's physical or mental impairments or health."*fn5 The EEOC also provides a list of seven factors to consider in determining whether a particular test is a "medical examination":
(1) whether the test is administered by a health care professional;
(2) whether the test is interpreted by a health care professional;
(3) whether the test is designed to reveal an impairment or physical or mental health;
(4) whether the test is invasive;
(5) whether the test measures an employee's performance of a task or measures his/her physiological responses to performing the task;
(6) whether the test normally is given in a medical setting; and
(7) whether medical equipment is used.
One factor alone may be enough to classify something as a medical ...

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