United States District Court, C.D. Illinois
May 6, 2004.
STEVEN L. KARRAKER, MICHAEL A. KARRAKER, and CHRISTOPHER M. KARRAKER, Plaintiffs
RENT-A-CENTER, INC., J. ERNEST TALLEY, and ASSOCIATED PERSONNEL TECHNICIANS, Defendants
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 exam,
although generally a combination of the factors will be relevant to the
analysis. It appears that only one of the seven factors is really at
issue in this case whether the test is designed to reveal mental
According to the EEOC, medical examinations include such things as
vision tests conducted by an eye doctor, blood and urine tests, blood
pressure screening, and x-rays. The EEOC also identified certain
procedures that are not considered medical examinations, including
physical fitness tests, tests to determine illegal drug use, polygraph
examinations, and psychological tests that measure personality traits.
It would seem that the MMPI fits directly into this last example
a psychological test designed to measure personality traits. But
the EEOC also notes that psychological examinations that provide evidence
that would lead to identifying a mental disorder or impairment should be classified as medical examinations. The EEOC
guidelines give several examples that are instructive in analyzing the
Example: A psychological test is designed to reveal
mental illness, but a particular employer says it does
not give the test to disclose mental illness (for
example, the employer says it uses the test to
disclose just tastes and habits). But, the test also
is interpreted by a psychologist, and is routinely
used in a clinical setting to provide evidence that
would lead to a diagnosis of a mental disorder or
impairment (for example, whether an applicant has
paranoid tendencies, or is depressed). Under these
facts, this test is a medical examination.
Example: An employer gives applicants the RUOK Test
(hypothetical), an examination which reflects whether
applicants have characteristics that lead to
identifying whether the individual has excessive
anxiety, depression, and certain compulsive disorders
(DSM-listed conditions). This test is medical.
Example: An employer gives the IFIB Personality Test
(hypothetical), an examination designed and used to
reflect only whether an applicant is likely to lie.
This test, as used by the employer, is not a medical
Given these parameters for defining a "medical examination,"
understanding the purpose and use of the MMPI in this case is vital. In
discussing precisely how to characterize the MMPI, the parties and this
court look to the deposition and declaration of Colin G. Koransky.
Koransky has a PhD in clinical psychology and is a licenced Clinical
Psychologist and Diplomate of the American Academy of Forensic
Examiners. He described the MMPI as a series of 566 true/false questions
(only 502 of which were used in the tests given by RAC) designed to
measure personality traits and characteristics.
Plaintiffs argue that the MMPI is a medical examination because it is a
clinical test for use by medical/psychological professionals. In support
of this argument, Plaintiffs identify the eight scores measured by the
MMPI: hypochondriasis, depression, hysteria, psychopathic deviate, paranoia, psychasthenia, schizoid tendencies, and mania.
Plaintiffs also provide several examples from case law where the MMPI was
used to help diagnose mental disorders. Given that the MMPI purports to
measure pathological functioning, Plaintiffs argue that it is a medical
RAC does not dispute that the MMPI can be used by medical professionals
to aid in mental treatment. RAC argues, however, that the MMPI on its
face is not a medical exam because the eight scores are not psychological
diagnoses or disorders, but instead they are personality traits found to
some extent in almost everyone. For example, Koransky described that the
depression scale measures the extent to which a subject has feelings of
depression unhappiness, pessimism, fatigue, and worry. That score
does not refer to any psychological disorder or diagnose a person as
being clinically depressed. Koransky discussed each of the eight scores
in a similar manner, reiterating that they measure the extent to which a
subject has specific personality traits, not whether that person is
suffering from a mental disorder.
Additionally, Koransky discussed the various scoring methods for the
MMPI and explained that different scoring protocols results in different
outcomes for the test. For example, a clinical protocol would be used in
clinical practice to develop impressions of clinically relevant behaviors
and symptoms. A personnel or "vocational" scoring protocol would look
primarily at personality traits that a company would want to know about
potential employees. This vocational protocol, used by RAC, does not
provide indications that a particular score is high enough to be a
possible symptom of a psychiatric illness. Although it is true that the MMPI can be used in a clinical setting, it
is clear from the evidence in the record that RAC used it solely for the
purposes of discerning personality traits of its employees and
applicants. Unlike the first example from the EEOC guidelines, this test
was not interpreted by psychologists with the intent of diagnosing
impairments. Accordingly, it does not qualify as a "medical examination"
for purposes of the ADA. RAC is therefore entitled to summary judgment on
Steven's claims that it administered the test and kept the test results
in violation of the ADA.
CLINICAL PSYCHOLOGIST LICENSING ACT
Plaintiffs assert that RAC's use of the MMPI constituted malpractice
and practicing psychology without a license in violation of the Illinois
Clinical Psychologist Licensing Act (CPLA), 225 Ill. Comp. Stat.
15/1-29. The CPLA prohibits engaging in the practice of psychology
without a license, § 15/3(a), and it defines "clinical psychology" as
"the independent evaluation, classification and treatment of mental,
emotional, behavioral or nervous disorders or conditions, developmental
disabilities, alcoholism and substance abuse, disorders of habit or
conduct, the psychological aspects of physical illness," § 15/2(5). The
statute further defines practicing clinical psychology to include
"psychoeducational evaluation, therapy, remediation and consultation, the
use of psychological and neuropsychological testing, assessment,
psychotherapy, psychoanalysis, hypnosis, biofeedback, and behavioral
modification" when those practices are used "for the purpose of
preventing or eliminating psychopathology, or for the amelioration of
psychological disorders of individuals or groups." § 15/2(5).
Plaintiffs' main argument in support of this claim is that the MMPI is
the most widely used test in regard to adult psychopathologies. It does
not appear that RAC disagrees with this contention, but as this court has discussed, the scoring protocol
utilized by RAC merely identified personality traits and did not indicate
anything in regard to mental disorders. It is clear based on the
statutory definitions of clinical psychology that the CPLA was not
intended to govern personality tests such as the MMPI as used by RAC.
Accordingly, RAC is entitled to summary judgment on this count.
MENTAL HEALTH & DEVELOPMENTAL DISABILITIES
Plaintiffs also raise a claim under the Illinois Mental Health and
Developmental Disabilities Confidentiality Act (MHDDCA), 740 Ill. Comp.
Stat. 110/1-17, arguing that RAC violated the statutory mandate that
"[a]ll records and communications shall be confidential and shall not be
disclosed except as provided in this Act." § 110/3(a). The MHDDCA defines
"record" as "any record kept by a therapist or by an agency in the course
of providing mental health or developmental disabilities service to a
recipient concerning the recipient and the services provided." § 110/2.
The statute further defines "mental health or developmental disabilities
services" to include such things as "examination, diagnosis, evaluation,
treatment, training, pharmaceuticals, aftercare, habilitation or
rehabilitation." § 110/2.
The Plaintiffs again support this claim with the assertion that the
MMPI is the most widely used test to determine adult psychopathologies.
They argue that the narratives and recommendations accompanying the test
scores are therapeutic in nature and so the MHDDCA should apply to RAC's
But again, after reading the statutory language, including the
definitions, it becomes clear that the MHDDCA was not intended to cover
mere personality tests. The MMPI as used here had nothing to do with
providing mental health services as defined by the MHDDCA. Instead, the focus was on job-related personality characteristics. RAC is
entitled to summary judgment on this claim.
PUBLIC DISCLOSURE OF PRIVATE FACTS
Plaintiffs maintain that the manner in which RAC kept the MMPI test
results violated their right to privacy. To state a claim for public
disclosure of private facts, the only privacy tort applicable to this
case, Plaintiffs must allege (1) publicity was given to the disclosure of
private facts; (2) the facts were private and not public facts; and (3)
the matter made public would be highly offensive to a reasonable person.
Wynne v. Loyola Univ. of Chicago, 741 N.E.2d 669, 676-77 (Ill. App. Ct.
The publicity element requires that the matter is "made public, by
communicating it to the public at large, or to so many persons that the
matter must be regarded as substantially certain to become one of public
knowledge." Restatement (Second) of Torts, § 652D, cmt. a; Roehrborn v.
Lambert, 660 N.E.2d 180, 182 (Ill.App. Ct. 1995). The requirement may be
satisfied, however, by disclosure to a limited number of people with whom
the Plaintiffs have a special relationship because the circumstances of
that relationship may make the disclosure just as devastating as
disclosure to the public at large. Miller v. Motorola, Inc.,
560 N.E.2d 900, 903 (Ill.App. Ct. 1990). Moreover, disclosure to persons
with a "natural and proper interest" in the information is not
actionable. Roehrborn, 660 N.E.2d at 182-83.
RAC argues that Plaintiffs cannot meet the publicity element because
they have no actual evidence of improper disclosure of their testing
results. RAC asserts that any supervisors properly had access to the MMPI
test results for making personnel decisions and that Plaintiffs have not identified any evidence to support their claim that the
results were disclosed to other employees at RAC.
Several RAC employees testified about how the test results were
maintained. It appears undisputed that APT mailed the test results to RAC
corporate headquarters where they were received by someone in the payroll
department. An employee from the payroll department would enter the test
results into a computer, and someone would also photocopy the results.
The original results were kept at RAC headquarters in employees'
personnel files, which were maintained in a filing cabinet. This filing
cabinet was located in a cubicle in the payroll department, and persons
wishing to view the personnel files (including the MMPI test results)
would typically need permission from someone in the payroll department.
The filing cabinet remained unlocked during the day but was locked at
night. At some point during the relevant time period, RAC headquarters
relocated, and at the new building, all personnel records were kept in a
The photocopy of each employee's test results was placed in a bin
designated for the market manager who supervised the store where that
particular employee worked. A staff personnel at headquarters would then
take all documents in the bin, including any test results, and prepare a
package to be sent via UPS. The market managers kept the test results in
their office, which was usually an off-site location. Occasionally store
managers would request copies of the test results, and those copies would
be kept in a file at the store.
Plaintiffs claim that, because of these copying/storing/mailing
procedures, the test results were not confidential and were therefore
being publicly disclosed. But they have no legal authority to support the
notion that the possibility of such incidental disclosure satisfies the publicity requirement for an invasion of privacy tort claim. The Illinois
Appellate Court addressed a similar claim, finding that the mere
possibility that someone might have seen the communication at issue is
insufficient as a matter of law to sustain this claim. Beverly v.
Reinert, 606 N.E.2d 621, 626 (Ill.App. Ct. 1993). "Such possible
interception by nobody in particular constitutes neither disclosure to
the public (as the Restatement requires) nor disclosure to a limited
`public' with whom the defendant might have a special relationship." Id.
And indeed a rule that held otherwise would make many forms of
confidential communication impossible because any person who sent a fax
or opened the mail or placed something in a file or even carried a
particular document would be invading someone's privacy.
Plaintiffs do raise a few other factual issues in support of their
privacy claim. Steven testified that he discussed test results of other
employees with someone from APT over the telephone. He specifically
stated that this employee of APT revealed some of the answers a
particular person gave on the MMPI concerning, among other things, sexual
preferences, hypochondriac tendencies, an urge to steal. Michael testified
that the market manager covering his store called him to discuss test
results for various employees in that store and, at one point, made a
comment about a particular employee worshiping the devil. Chris testified
that his store manager discussed in front of a group of employees how
everyone did on the tests. Chris stated that this manager made specific
comments about him being high strung, drinking less coffee, smoking fewer
cigarettes, and drinking more water.
Discussions Steven and Michael had regarding the test results of other
employees have no bearing on their claims for invasion of privacy. Chris
seems to be the only Plaintiff to have identified evidence in the record
that information about his test results was conveyed to other employees. But Chris's claim faces yet another problem-the disclosures
about which he is complaining are not of a kind to be highly offensive to
a reasonable person. The disclosures his store manager made in front of
other employees were merely innocuous suggestions regarding general
health practices; they were not exceedingly personal problems Chris was
facing as revealed by the MMPI. The other plaintiffs mentioned, for
example, discussions about sexual practices, devil worshiping, and urges
to steal-very different in nature from the standard recommendations to
drink more water and cut down on caffeine and nicotine.
The Restatement cautions that "[e]ven minor and moderate annoyance . .
. is not sufficient to give [someone] a cause of action." Restatement
(Second) of Torts, § 652D, cmt. c. That comment to the Restatement
provides an example of a public disclosure of a clumsy fall and a broken
ankle. The comments made concerning Chris's test results are most
analogous to the example given in the Restatement and do not rise to the
level of "highly offensive to the reasonable person."
Accordingly, RAC is entitled to summary judgment on all of the
Plaintiffs' right-to-privacy claims.
Given this court's rulings, the only remaining claim in this proceeding
is Steven Karraker's claim that RAC terminated him in violation of the
ADA. This was not a claim on which class certification was granted, and
so this case is no longer a class action proceeding. Additionally, this is not a claim relevant to APT and so APT will
be terminated as a party in this case.
IT IS THEREFORE ORDERED:
(1) Document #170 is STRICKEN as a duplicative
(2) The Motions to Strike (#147 and #149) are
(3) RAC's Motion for Summary Judgment (#133) is
GRANTED. Judgment will be entered in favor of RAC
and against Plaintiffs on all claims except Steven
Karraker's termination claim.
(4) APT's Motion for Summary Judgment (#158) is
GRANTED. Judgment will be entered in favor of
APT and against Plaintiffs on all claims. APT
is terminated from this proceeding.
(5) Plaintiffs' Motion for Summary Judgment (#153) is
(6) A telephone status conference is scheduled for
9:30 a.m., Friday, May 21, 2004, in order to set a
date for trial on the remaining claim.