The opinion of the court was delivered by: MICHAEL McCUSKEY, District Judge
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
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.
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
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
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
(2) whether the test is interpreted by a health care
(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
(7) whether medical equipment is used.
One factor alone may be enough to classify something as a medical ...