IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CHICAGO REGIONAL COUNCIL )

OF CARPENTERS, UNITED )

BROTHERHOOD OF CARPENTERS )

AND JOINERS OF AMERICA and ) No. 12 C 3604

EDWARD CASPER, )

)

Plaintiffs, ) Judge Ronald A. Guzmán

)

v. )

)

BERGLUND CONSTRUCTION CO., )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

On September 13, 2013, the Court granted defendant’s motion for summary judgment and

denied plaintiffs’ motion on Casper’s ADEA claim and the Union’s claim that defendant violated

§ 12112(d) of the ADA. (See Mem. Op. & Order (Sept. 13, 2013).) Plaintiffs do not take issue with

the ruling on the ADEA claim but contend that the Court wrongly construed the ADA claim and ask

the Court to reconsider its ruling on that claim. The Court agrees, and thus revisits the ADA claim

in Count II.

Facts

Viewed favorably to plaintiffs, the record shows that Casper worked for Berglund from 2007

until November 2009, when he was laid off for lack of work. (Pls.’ LR 56.1(b)(3)(B) Stmt. ¶ 34.)

In April 2008, Berglund implemented a policy that states “all persons applying for

employment in Illinois for field positions will be required to successfully complete a functional

employment test.” (Def.’s LR 56.1(a) Stmt., Ex. 7, Policy Regarding Post Offer Pre-Hire Tests.) 
 The policy does not define “field positions” or “persons applying for employment.” (See id.)

However, defendant states that anyone who has not “be[en] a Berglund employee” for sixty days,

is subject to the policy. (Def.’s LR 56.1(a) Stmt. Ex. 3, Geshwender Dep. at 18-19.) 

In June 2010, Daniel Nyblom, who was managing a Berglund job at the Dirksen Courthouse,

asked another Berglund manager, Dave Kordeck, for more carpenters and specifically requested that

plaintiff Casper be hired. (Def.’s LR 56.1(a) Stmt., Ex. 2, Nyblom Decl. ¶¶ 2-9.) Kordeck called

Casper and told him to go to Accelerated Rehabilitation Center (“Accelerated”)1

 for an evaluation

and then “report to Berglund’s offices immediately after . . . for orientation and to begin work.” (Id.,

Ex. 1, Kordeck Decl. ¶¶ 9-11; see Def.’s LR 56.1(a) Stmt., Ex. 9, Casper Dep. at 34-35 (testifying

that Kordeck told him, “[Y]ou got to take this test, . . . . [a]nd after you’re done, come to the office

for an orientation and we’ll get you going.”).) Nyblom and Kordeck say they “intended for Casper

to begin work immediately at the Dirksen job if he successfully completed” the Accelerated

evaluation. (Def.’s LR 56.1(a) Stmt., Ex. 1, Kordeck Decl. ¶ 12; id., Ex. 2, Nyblom Decl. ¶ 10.) 

On June 28, 2010, Casper went to Accelerated, filled out some paperwork and was given a

drug test. (Pls.’ LR 56.1(a) Stmt. ¶¶ 5-6.) He was then examined by Paul Sullivan, a physical

therapist, and Brian Conroy, an athletic trainer, who tested, among others things, Casper’s lifting

ability. (Id. ¶¶ 7, 10-13.) To “pass” the lifting portion of the test, Casper had to lift 94 pounds

safely. (See Def.’s LR 56.1(a) Stmt., Ex. 8, Carpenter Job Specific Task List.) Though plaintiffs

disagree with his conclusion, there is no dispute that Sullivan believed Casper could not safely lift

over 68 pounds. (Def.’s LR 56.1(a) Stmt., Ex. 4, Sullivan Dep. Feb. 25, 2013 at 120; Pls.’ LR

56.1(a) Stmt., Sullivan Dep. Mar. 21, 2013 at 188-89.) 

1

At the time, Accelerated was known as OccuSport. 

2
After Casper left Accelerated, he went directly to Berglund’s main office with his hard hat

and safety glasses. (Def.’s LR 56.1(a), Ex. 9, Casper Dep. at 72-73) He assumed he would fill out

some paperwork, learn about the Dirksen job and immediately start work. (Id. at 72.) When he

arrived, however, Kordeck’s assistant told plaintiff he had not passed the Acceleration test. (Id. at

73-75.) Casper asked Kordeck what part of the test he had failed and what he had to do to pass it. 

(Id. at 76-77.) Kordeck said Accelerated did not break the test results down but simply told

Berglund it whether someone had passed or failed. (Id. at 77.) He also told Casper that he would

have to wait sixty days to be retested. (Id.) 

Sixty days later, when Casper called about retesting, Kordeck said Berglund was no longer

hiring. (Id. at 84.) 

Discussion

The Union alleges that Berglund’s use of the Accelerated test is a pre-offer medical test

prohibited by the ADA.2 See 42 U.S.C. § 12112(d)(2) (barring an employer from “conduct[ing] a

medical examination or mak[ing] inquiries of a job applicant as to whether [he] is an individual with

a disability”). However, an employer may, after offering an applicant a job, require him to take a

medical exam and make the job offer contingent on his passing it, as long as the employer requires

all entering employees in the same job category to do so as well. See 42 U.S.C. § 12112(d)(2), (3);

29 C.F.R. § 1630.14(b). Plaintiffs contend that Berglund had not made a “real” job offer to Casper

before sending him to Accelerated, and thus the post-job offer exception does not apply.

2

As the Court noted in the September 13, 2013 order, the Union has standing to assert

this claim. (See Mem. Op. & Order (Sept. 13, 2013) at 2 n.1.)

3
“For purposes of § 12112(d)(3), a job offer is real if the employer has evaluated all relevant

non-medical information that it reasonably could have obtained and analyzed prior to giving the

offer.” O’Neal v. City of New Albany, 293 F.3d 998, 1008 (7th Cir. 2002) (quotations omitted). 

“Accordingly, if a job offer is conditioned not only on the applicant successfully passing a medical

examination but also a myriad of non-medical screening tests, the offer is not real.” Id. Viewed

favorably to plaintiffs, there is no evidence that suggests Berglund’s offer was not real. On the

contrary, it is undisputed that Nyblom, Kordeck and Casper, who took his safety equipment with him

when he reported to Berglund after the Accelerated test, all believed that Casper would be put to

work immediately. Plaintiffs have not, therefore, created a triable fact issue as to the authenticity

of Berglund’s pre-testing job offer to Casper.

Even if the job offer was real, the Union argues that the exception still does not apply

because Berglund did not require all entering employees to take the Accelerated test. Plaintiffs

contend that Berglund hired 68 Union members who had one or more breaks in service of 60+ days

without requiring them to undergo testing, as demonstrated by plaintiffs’ summary of hiring and test

dates. (See Pls.’ LR 56.1(a) Stmt., Summ. Hire & Test Dates.) However, plaintiffs’ summary does

not show any service breaks for eight of the people listed (Richard Anderson, Tyler Anderson,

Michael Buchholz, Tom Higgins, Ewald Leschkles, Richard Stephens, Larry Vick and Kyle

Whisker) and defendant offers uncontradicted evidence that seven others (Ronald Ammons, James

Ballard, Stephanie Berglund, Martin Burba, Eric Green, Richard Micklow and Jay Patz) did not

work as carpenters, and thus were not subject to the testing policy. (See id.; Def.’s LR 56.1(b)(3)(C)

Stmt., Ex. 5, Table of Hires; id., Ex. 7, Geshwender Decl. ¶¶ 7-12.) As to the 53 remaining

carpenters that plaintiffs contend should have been tested, defendant offers uncontradicted evidence

4
that: (1) many of them had one or more service breaks of 60 days or less;3

 (2) others had service

breaks that occurred before the testing policy went into effect;4

 (3) some of the 60+ day service

breaks reflect retroactive pay adjustments;5 and (4) many of the employees with 60+ day service

breaks were, in fact, tested by Accelerated.6

 That leaves twenty-two carpenters who had one or

3

(See Def.’s LR 56.1(b)(3)(C) Stmt., Ex. 5, Table of Hires (Brian Anderson (57-day

break from 2/8/09 to 4/5/07 and 58-day break from 8/17/10 to 10/14/10), Daniel Barton (45-day

break from 1/31/10 to 3/16/10), James Brazelton (59-day break from 2/22/09 to 4/23/09 and 58-

day break from 5/3/09 to 6/29/09), Michael Bremer (60-day break from 2/8/09 to 4/8/09),

Gonzalo Cazares (57-day break from 8/24/08 to 11/2/08), Thomas Chambers (44-day break

12/12/20 to 2/13/11), Tom Duncan, (57-day break from 6/29/08 to 8/24/08), Ismael Estrada (57-

day break from 3/30/08 to 5/25/08), William Fritz (53-day break from 5/10/09 to 7/1/09),

Kenneth Gales (60-day break from 4/13/08 to 6/11/08 and 57-day break from 8/24/08 to

10/19/08), Sergio Garcia (36-day break from 6/27/10 to 8/1/10), Jason Jendreas (57-day break

from 1/10/10 to 3/7/10), Robert Kurek (57-day break from 2/15/09 to 4/12/09), Joshua Michaels

(60-day break from 2/15/09 to 4/15/09), Edgaldo Nieves (60-day break from 2/15/09 to 4/15/09),

Derek O’Brien (57-day break from 2/8/09 to 4/5/09), Jerry Rhodes (57-day break from 4/6/08 to

6/1/08 and 51-day break from 10/13/09 to 12/20/09) and James Tuman (57-day break from

9/7/08 to 11/2/08).) 

4

(See id. (Vincente Carbajal (break from 7/8/07 to 10/7/07), Ismael Estrada (break from

12/16/07 to 2/17/08), Sam Goff (break from 11/13/07 to 2/17/08), Kevin McKinley (break from

9/9/07 to 3/24/08), Derek O’Brien (break from 9/16/07 to 2/3/08 ), Norge Roi (break from

1/21/07 to 4/29/07) and James Tuman (break from 9/16/07 to 3/9/08).)

5

(See id. (Brian Anderson (break from 10/11/09 to 1/17/10), Peter Brands (break from

10/8/09 to 1/14/10), Michael Bremer (break from 10/11/09 to 1/14/10), Vincente Carbajal (break

from 11/15/09 to 1/17/10), Sam Goff (break from 11/10/09 to 1/14/10), Robert Kurek (break

from 10/11/09 to1/14/10) and Shiloh Rhodes (break from 10/18/09 to 1/14/10); id., Ex. 7,

Geshwender Decl. ¶ 6).)

6

(See Def.’s LR 56.1(b)(3)(C) Stmt., Ex. 5, Table of Hires (Brian Anderson (break from

2/3/10 to 7/4/10), James Ball (breaks from 12/20/09 to 4/11/10, 12/5/10 to 3/27/11 and 12/18/11

to 7/29/12), Daniel Barton (breaks from 12/12/10 to 3/6/11 and 1/15/12 to 6/17/12), James

Brazleton (break from 1/17/10 to 7/25/10), Peter Brands (break from 1/31/10 to 8/8/10), Dean

Campbell (break from 10/31/10 to 5/1/11), Jim Costello (break from 12/13/10 to 3/27/11),

Howard Doty, (break from 12/12/10 to 3/20/11), Sergio Garcia (breaks from 12/13/09 to 5/26/10

and 12/5/10 to 4/1/11), Jason Hinjosa (breaks from 1/31/10 to 7/18/10 and 11/28/10 to 4/10/11),

John Kennedy (break from 4/11/10 to 6/20/10), Cesar Lagunas (breaks from 12/14/10 to 4/3/11

and 12/27/11 to 8/19/12), Jason Myers (break from 2/3/10 to 7/4/10), Derek O’Brien (break from

10/20/09 to 8/8/10), Randall Rapcheck (break from 10/23/11 to 8/26/12), Christopher Rassbach

5
more bona fide 60+ day service breaks7

 that Berglund rehired without testing.8, 9 Because the record

suggests that Berglund did not apply the testing policy to all incoming carpenters, there is a genuine

(break from 9/25/11 to 4/8/12), Jerry Rhodes (break from 12/12/10 to 3/6/11), Shiloh Rhodes

(break from 12/12/10 to 3/27/11), Norge Roi (break from 1/10/10 to 4/11/10), John Sandula

(break from 10/6/10 to 8/5/12), James Slagel (break from 12/12/10 to 5/8/11), Carlos Vasquez

(break from 12/19/10 to 7/1/12), Mike Wallenda (break from 4/6/08 to 11/22/09), William

Walzak (break from 10/24/10 to 3/27/11), Carter Ware (break from 11/7/10 to 7/20/11) and

Wayne Werner (break from 4/14/09 to 3/14/10); id., Ex. 2, Carson Decl. ¶ 10.)

7

Berglund says some of these 60+ breaks were, in fact, shorter because it uses the date on

which the company decides to call a carpenter back to work as the “end of break date” not the

date he or she actually begins working. (See Def.’s LR 56.1(b)(3)(C) Stmt., Ex. 7, Geshwender

Decl. ¶ 5.) Berglund does not, however, identify the 60+ breaks that are artifacts of its

accounting methods. Thus, the Court has not excluded any 60+ break on this basis. 

8

(See Defs,’ LR 56.1(b)(3)(C) Stmt., Ex. 5, Table of Hires, Brian Anderson (63-day break

from 3/31/08 to 6/1/08), Mike Cantrell (83-day break from 9/9/08 to 11/30/08 and 99-day break

from 2/15/09 to 5/24/09), Vincente Carbajal (78-day break from 4/6/08 to 6/22/08), Jim Costello

(66-day break from 2/8/08 to 4/16/09 and 78-day break from 1/10/10 to 3/28/10), James Crocker

(77-day break from 1/4/11 to 3/21/11), Bobby Davis (224-day break from 1/6/08 to 8/17/08 and

97-day break from 8/26/08 to 11/30/08), Tom Duncan (67-day break from 2/1/09 to 4/10/09),

Ismael Estrada (92-day break from 2/22/09 to 5/24/09), Kenneth Fowler (65-day break from

2/8/09 to 4/15/09),William Fritz (62-day break from 2/8/09 to 4/12/09), John Kennedy (71-day

break from 1/24/10 to 4/4/10), Stephan Mann (75-day break from 2/8/09 to 4/23/09 and 70-day

break from 5/3/09 to 7/15/09), Dennis Miller (69-day break from 4/3/12 to 6/10/12), John Mosca

(239-day break from 9/23/07 to 5/18/08), Jason Myers (62-day break from 4/6/08 to 6/6/08),

Scott Pitrowski (85-day break from 3/1/09 to 5/24/09), Shiloh Rhodes (113-day break from

4/13/08 to 8/3/08, 92-day break from 8/24/08 to 11/23/08, 78-day break from 1/18/09 to 4/5/09

and 166-day break from 2/3/10 to 7/18/10), Norge Roi (102-day break from 1/18/09 to 4/19/09),

Jeffrey Roth (101-day break from 3/28/08 to 7/6/08), Rog Slawomir (274-day break from

2/22/09 to 11/22/09),William Walzak (69-day break from 5/24/11 to 7/31/11) and Alexander

Wilcox (78-day break from 9/14/08 to 11/30/08).)

9

The vast majority of these alleged testing lapses occurred more than 300 days before the

Union filed its EEOC Charge, i.e., before January 8, 2010. (See Def.’s LR 56.1(b)(3)(C) Stmt.,

Ex. 5, Table of Hires; id., Ex. 4, EEOC Charge.) These alleged lapses are actionable, however,

under a continuing violation theory. See Tinner v. United Ins. Co. of Am., 308 F.3d 697, 707

(7th Cir. 2002) (stating that a continuing violation exists when “discrete acts of discrimination

are part of an ongoing pattern” and all of the acts are actionable if “at least one of [them]

occurred within the relevant limitations period”).

6
issue of fact as to whether its test policy falls into the ADA’s post-offer testing exception. See 42

U.S.C. § 12112(b). 

Nonetheless, Berglund can still prevail on this claim if there is no dispute that the contested

medical exam is “job-related and consistent with business necessity.” 29 C.F.R. § 1630.15(b). It

is undisputed that in 2007, “as part of its efforts to maintain a safe workplace,” Berglund hired

Accelerated to analyze jobs performed by Berglund employees, including carpenters, and prepare

a post-offer evaluation process to determine whether candidates for those jobs were capable of

performing them safely. (Pls.’ LR 56.1(b)(3)(B) Stmt. ¶¶ 5-6.) After observing Berglund employees

at work, Accelerated concluded, among other things, that carpenters were required to lift: (1)

objects weighing 70 pounds from the floor to thirty inches above it and those weighing 88 pounds

from the floor to their waists frequently, i.e., 33-66% of a work day; and (2) objects weighing 84 and 

92 pounds, respectively, from the floor to over their heads frequently to constantly, i.e., 67-100% 

of a work day. (Id. ¶ 7; see Def.’s LR 56.1(a) Stmt., Ex. 5, On Site Job Analysis.)10 Thereafter,

Acceleration designed an evaluation for the carpenter position consisting of five tasks: (1)

repeatedly climbing a ladder wearing a 15-pound tool belt without exceeding 85% of maximum

heart rate; (2) repeatedly picking up 3/4 inch 4x8 plywood from the ground, carrying it 15 feet and

placing it on the ground while wearing a 15-pound tool belt; (3) repeatedly lifting a 75-pound box

from the ground and carrying it 15 feet; (4) repeatedly walking across 4-inch hollow risers without

losing balance; and (5) repeatedly disassembling and reassembling a Bennet Tool Box from the

10Plaintiffs object to this exhibit as inadmissible hearsay. (See Pls.’ LR 56.1(b)(3)(B)

Stmt. ¶ 7.) However, evidence in support of a summary judgment motion must be admissible in

substance, not form. See Winskunas v. Birnbaum, 23 F.3d 1264, 1267-68 (7th Cir. 1994). 

Because the author of the analysis could testify about the observations and conclusions that are

in it, the Court can consider them on this motion in their hearsay form. 

7
ground position. (See Def.’s LR 56.1(a) Stmt., Ex. 8, Job Specific Tasks.) Plaintiffs admit that these

tasks are representative of those performed by Berglund carpenters. (Pls.’ LR 56.1(b)(3)(B) Stmt.

¶¶ 4, 13, 15, 19.) 

After Accelerated designed the evaluation, Berglund adopted its post-offer testing policy,

which states that an employment offer is “contingent upon the [candidate’s] successful completion”

of the evaluation and will be withdrawn if a candidate fails the test, unless he has a documented

disability and with a reasonable accommodation can perform the essential functions of the job. (See

Def.’s LR 56.1(a) Stmt., Ex. 7, Policy.) Plaintiffs do not identify any union member who requested,

let alone was refused, an accommodation from Berglund. Moreover, plaintiffs do not dispute that

since Berglund enacted the policy, its rate of Occupational Health and Safety Administration

reportable incidents per 200,000 man hours fell from 2.27 to 0.87. (Pls.’ LR 56.1(b)(3)(B) Stmt. ¶

28.)

In short, the undisputed evidence shows that the Accelerated evaluation is “job-related and

consistent with business necessity.” Thus, defendant is entitled to judgment as a matter of law on

plaintiffs’ Count II claim. 

8
Conclusion

For the reasons set forth above, the Court grants plaintiffs’ motion to reconsider the

September 13, 2013 ruling on the parties’ motions for summary judgment with respect to the ADA

claim in Count II [77] and vacates the portion of the September 13, 2013 order and judgment [75

& 76] pertaining to that claim. Having reconsidered the claim, the Court concludes that there is no

genuine issue of material fact as to whether Berglund violated the ADA, and thus denies plaintiffs’

motion for summary judgment on that claim, grants defendant’s motion for summary judgment on

that claim and enters judgment in defendant’s favor on it. This case is terminated. 

SO ORDERED. ENTERED: December 11, 2013

__________________________________

HON. RONALD A. GUZMAN

United States District Judge

9