In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 04-2881

STEVEN L. KARRAKER, MICHAEL A. KARRAKER,

and CHRISTOPHER M. KARRAKER,

Plaintiffs-Appellants,

v.

RENT-A-CENTER, INC., J. ERNEST TALLY, and

ASSOCIATED PERSONNEL TECHNICIANS,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Central District of Illinois.

No. 02 C 2026—Michael P. McCuskey, Chief Judge.

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ARGUED JANUARY 4, 2005—DECIDED JUNE 14, 2005

____________

Before FLAUM, Chief Judge, and EVANS and WILLIAMS,

Circuit Judges.

EVANS, Circuit Judge. To prove their worth prior to the

annual college draft, NFL teams test aspiring professional

football players’ ability to run, catch, and throw. But that’s

not all. In addition to the physical tests, a draft prospect

also takes up to 15 personality and knowledge tests, answering questions such as:
2 No. 04-2881

Assume the first two statements are true.

The boy plays football. All football players wear helmets. The boy wears a helmet.

Is the final statement:

" True?

" False?

" Not certain

They are also asked questions like “What is the ninth

month of the year?” See Richard Hoffer, “Get Smart!”,

Sports Illustrated (Sept. 5, 1994).

This case involves a battery of nonphysical tests similar

to some of those given by NFL teams, though the employees

here applied for less glamorous, and far less well-paying,

positions. Steven, Michael, and Christopher Karraker are

brothers who worked for Rent-A-Center (RAC), a chain of

stores that offer appliances, furniture, and other household

goods on a rent-to-own basis. During the relevant time, each

RAC store had a store manager, several middle managers,

and entry-level account managers. Most new employees

start as account managers and can progress to upper-level

positions. In order to secure a promotion, however, an

employee was required to take the APT Management

Trainee-Executive Profile, which was made up of nine tests

designed to measure math and language skills as well as

interests and personality traits.

As part of the APT Test, the Karrakers and others were

asked 502 questions from the Minnesota Multiphasic

Personality Inventory (MMPI), a test RAC said it used to

measure personality traits. But the MMPI does not simply

measure such potentially relevant traits as whether someone works well in groups or is comfortable in a fast-paced

office. Instead, the MMPI considers where an applicant falls

on scales measuring traits such as depression, hypochon-
No. 04-2881 3

1 Applicants were asked whether the following statements were

true or false:

“I see things or animals or people around me that others do

not see.”

“I commonly hear voices without knowing where they are

coming from.”

“At times I have fits of laughing and crying that I cannot

control.”

“My soul sometimes leaves my body.”

“At one or more times in my life I felt that someone was

making me do things by hypnotizing me.”

“I have a habit of counting things that are not important such

as bulbs on electric signs, and so forth.”

driasis, hysteria, paranoia, and mania.1 In fact, elevated

scores on certain scales of the MMPI can be used in diagnoses of certain psychiatric disorders.

All parts of the APT Test were scored together, and any

applicant who had more than 12 “weighted deviations” was

not considered for promotion. Thus, an applicant could be

denied any chance for advancement simply because of his

or her score on the MMPI. The Karrakers, who all had more

than 12 deviations on the APT, sued on behalf of the

employees at 106 Illinois RAC stores, claiming RAC’s use of

the MMPI as part of its testing program violated the

Americans With Disabilities Act of 1990 (ADA). They also

claimed that RAC failed to protect the confidentiality of the

test results in violation of Illinois tort law.

The district court first granted RAC’s motion for partial

summary judgment on Steven Karraker’s failure to promote

claim, finding that he did not file his charge of discrimination with the EEOC within 300 days of any alleged discrimination. The court also granted the Karrakers’ motion for

class certification on the ADA and public disclosure of

private facts claims.
4 No. 04-2881

The district court later granted RAC’s motion for summary

judgment and denied the Karrakers’ motion for summary

judgment on the outstanding claims with the exception of

Steven Karraker’s wrongful termination claim. The Karrakers

stipulated to the dismissal of that claim to allow this appeal

to go forward. Here, they challenge the district court’s

decision that the use of the MMPI did not violate the ADA,

the dismissal of Steven Karraker’s failure to promote claim,

and the dismissal of the Karrakers’ claim of public disclosure of private facts. We review the district court’s grant of

summary judgment de novo. See Carreon v. Ill. Dep’t of

Human Servs., 395 F.3d 786, 790 (7th Cir. 2005).

Americans with disabilities often faced barriers to joining

and succeeding in the workforce. These barriers were not

limited to inaccessible physical structures. They also included attitudinal barriers resulting from unfounded stereotypes and prejudice. People with psychiatric disabilities

have suffered as a result of such attitudinal barriers, with

an employment rate dramatically lower than people without

disabilities and far lower than people with other types of

disabilities. See Jans, Stoddard & Kraus, Chartbook on

Mental Health and Disability in the United States, U.S.

Department of Education, National Institute on Disability

and Rehabilitation Research, 2004, figure 11,

www.infouse.com.

Congress enacted the ADA, 42 U.S.C. §§ 12101 et seq., to

“provide a clear and comprehensive national mandate for

the elimination of discrimination against individuals with

disabilities.” 42 U.S.C. § 12101(b)(1). Congress recognized

that “the Nation’s proper goals regarding individuals with

disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency

for such individuals.” 42 U.S.C. § 12101(a)(8). The ADA’s

definition of disability is not limited to physical impairments, but also includes mental impairments. 42 U.S.C.

§ 12102(2). Title I of the ADA, 42 U.S.C. § 12111, is devoted
No. 04-2881 5

to eliminating employment discrimination based on actual

or perceived disabilities.

Congress enacted three provisions in Title I which explicitly limit the ability of employers to use “medical examinations and inquiries” (42 U.S.C. § 12112(d)(1)) as a condition

of employment: a prohibition against using pre-employment

medical tests; a prohibition against the use of medical tests

that lack job-relatedness and business necessity; and a prohibition against the use of tests which screen out (or tend to

screen out) people with disabilities.

At its heart, the issue in this case is whether the MMPI

fits the ADA’s definition of a “medical examination.” In that

regard, we note the parties’ agreement that, although the

Karrakers were already employed by RAC, the tests here

were administered “pre-employment” for ADA purposes

because they were required for those seeking new positions

within RAC. This agreement means we need not determine

whether the Karrakers should be considered to be in the

pre-employment offer category. Plaintiffs have argued only

that the MMPI is a medical examination. RAC could have

argued not only that the MMPI is not a medical examination, but also that even if it is, it is “job-related and consistent with business necessity.” By prevailing on the latter,

defendants could claim that the test is permissible during

employment, even if impermissible pre-offer. By not arguing

that the test is “job-related and consistent with business

necessity,” RAC seeks a clear finding that the MMPI is not

a medical examination and thus not regulated at all by the

ADA.

The EEOC defines “medical examination” as “a procedure

or test that seeks information about an individual’s physical

or mental impairments or health.” See “ADA Enforcement

Guidance: Preemployment Disability-Related Questions and
6 No. 04-2881

2 We frequently look to EEOC guidelines for guidance in discrimination cases, which, “while not controlling upon courts by

reason of their authority, do constitute a body of experience and

informed judgment to which courts and litigants may properly resort for guidance.” Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65

(1986) (internal citations omitted); see also Hendricks-Robinson v.

Excel Corp., 154 F.3d 685, 693 n.7 (7th Cir. 1998). But see Toyota

Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 194 (2002) (“[W]e have

no occasion to decide what level of deference, if any, [applicable

EEOC regulations] are due.”).

Medical Examinations” (1995).2 According to the EEOC,

factors to consider in determining whether a particular test

is a “medical examination” include:

(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 of 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.

“[O]ne factor may be enough to determine that a procedure

or test is medical.” Psychological tests that are “designed to

identify a mental disorder or impairment” qualify as

medical examinations, but psychological tests “that measure personality traits such as honesty, preferences, and

habits” do not. Id.
No. 04-2881 7

Therefore, this case largely turns on whether the MMPI

test is designed to reveal a mental impairment. RAC argues

that, as it used the MMPI, the test only measured personality traits. For example, RAC argues in its brief that the

MMPI does not test whether an applicant is clinically depressed, only “the extent to which the test subject is experiencing the kinds of feelings of ‘depression’ that everyone

feels from time to time (e.g., when their favorite team loses

the World Series).” Although that particular example seems

odd to us (can an Illinois chain really fill its management

positions if it won’t promote disgruntled Cubs fans?), the

logic behind it doesn’t seem to add up, either. Repeating the

claim at oral argument, RAC argued that the MMPI merely

tested a “state of mood” and suggested that an applicant

might, for example, score high on the depression scale

because he lost his keys that morning. But why would RAC

care if an applicant lost his keys the morning of the MMPI

or took the test the day after another Cubs loss? Would RAC

really want to exclude an employee from consideration for

a promotion because he happened to feel sad on the wrong

day? We see two possibilities: either the MMPI was a very

poor predictor of an applicant’s potential as a manager

(which might be one reason it is no longer used by RAC), or

it actually was designed to measure more than just an

applicant’s mood on a given day.

To help us sort out which of these possibilities is more

likely, the EEOC guidelines offer three examples of tests

given pre-employment:

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
8 No. 04-2881

3 The Karrakers appealed the district court’s denial of their motions to strike declarations by Dr. Koransky and Michael Walter,

the president of APT. With our resolution in this case, that issue

loses much of its relevance. Thus, we simply will say that the

(continued...)

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 examination.

RAC’s use of the MMPI almost fits the first example in

that it is a psychological test that is designed, at least in

part, to reveal mental illness. And RAC claims it uses the

test only to measure personality traits, not to disclose

mental illness. The parallel falls apart, however, because

the test was not interpreted by a psychologist, a difference

that led the district court to conclude that it is not a medical examination. In doing so, the district court relied on the

deposition testimony of Colin Koransky, a clinical psychologist. Koransky described various scoring methods for

the MMPI, explaining that a clinical protocol could be used

for medical purposes while a vocational scoring protocol

would focus more on personality traits of potential employees. The district court found that, because RAC used the

vocational protocol to score the test, RAC used the MMPI

“solely for the purposes of discerning personality traits.”3
No. 04-2881 9

3 (...continued)

district court did not abuse its discretion. The Karrakers also argue that there is no evidence to support the district court’s conclusion that RAC used a vocational protocol to score the MMPI. As

we will describe, the MMPI is a medical examination regardless

of the scoring system, so it does not matter which scoring protocol

RAC used.

The mere fact that a psychologist did not interpret the

MMPI is not, however, dispositive. The problem with the

district court’s analysis is that the practical effect of the use

of the MMPI is similar no matter how the test is used or

scored—that is, whether or not RAC used the test to weed

out applicants with certain disorders, its use of the MMPI

likely had the effect of excluding employees with disorders

from promotions.

Dr. Koransky claims, for example, that the Pa scale “does

not diagnose or detect any psychological disorders,” but that

“an elevated score on the Pa scale is one of several symptoms which may contribute” to a diagnosis of paranoid

personality disorder. We accept Dr. Koransky’s contention

that a high score on the Pa scale does not necessarily mean

that the person has paranoid personality disorder. But it

also seems likely that a person who does, in fact, have paranoid personality disorder, and is therefore protected under

the ADA, would register a high score on the Pa scale. And

that high score could end up costing the applicant any

chance of a promotion. Because it is designed, at least in

part, to reveal mental illness and has the effect of hurting

the employment prospects of one with a mental disability,

we think the MMPI is best categorized as a medical examination. And even though the MMPI was only a part (albeit

a significant part) of a battery of tests administered to employees looking to advance, its use, we conclude, violated

the ADA.
10 No. 04-2881

In addition to his ADA claim, Steven Karraker challenges

the district court’s determination that his failure-to-promote claim was time-barred because he did not file a charge

of discrimination with the EEOC within 300 days of the

alleged unlawful employment practice. The district court

granted RAC’s motion for summary judgment on the issue,

then denied Karraker’s Rule 60 motion. Karraker challenges the denial of that Rule 60 motion, so he must show

that the district court abused its discretion in order to

prevail. See Easley v. Kirmsee, 382 F.3d 693, 697 (7th Cir.

2004).

Karraker claims that he did not bother to apply for a promotion during the 300-day period because RAC would not

have considered him. As such, he says, the district court

should have applied the futile gesture doctrine and allowed

his claims. See Int’l Bhd. of Teamsters v. United States, 431

U.S. 324, 365-66 (1977) (“When a person’s desire for a job is

not translated into a formal application solely because of his

unwillingness to engage in a futile gesture he is as much a

victim of discrimination as is he who goes through the

motions of submitting an application.”). He also argues that

his claims are not time-barred through a “continuing

violation theory,” which allows a plaintiff in certain situations “to get relief from a time-barred act by linking it with

an act within the limitations period.” Selan v. Kiley, 969

F.2d 560, 564 (7th Cir. 1992).

“Rule 60(b) relief is an extraordinary remedy and is

granted only in exceptional circumstances.” Cincinnati Ins.

Co. v. Flanders Elec. Motor Serv., Inc., 131 F.3d 625, 628

(7th Cir. 1997). Since none of Rule 60(b)’s enumerated justifications for relief apply, Karraker can only conceivably be

entitled to relief under the catch-all provision, Rule 60(b)(6),

and that provision is not an appropriate place to slip in

arguments that should have been made earlier. See Caisse

Nationale de Credit Agricole v. CBI Indus., Inc., 90 F.3d

1264, 1270 (7th Cir. 1996) (“Reconsideration is not an appro-
No. 04-2881 11

priate forum for rehashing previously rejected arguments or

arguing matters that could have been heard during the

pendency of the previous motion.”).

Although Karraker’s failure to make the arguments in a

timely fashion is enough to support the district court’s decision, his claim also is quite weak on the merits. Karraker

testified that the only promotion he wanted while he worked

at RAC was filled in March of 1999, more than 2 years

before he filed his charge of discrimination with the EEOC.

Applying for a promotion would have been futile because

there were no jobs available, not because of any discrimination. Therefore, we find no abuse of discretion.

The Karrakers also challenge the district court’s dismissal

of their tort claim based on the public disclosure of private

facts. To prevail, they must show that private facts were

made public and that the matter made public would be

highly offensive to a reasonable person. See Wynne v. Loyola

Univ. of Chicago, 741 N.E.2d 669, 676-77 (Ill. App. Ct.

2000). The publicity requirement is satisfied by disclosure

to a limited number of people if those people have a special

relationship with the plaintiff that makes the disclosure as

devastating as disclosure to the public at large. Miller v.

Motorola, Inc., 560 N.E.2d 900, 903 (Ill. App. Ct. 1990).

Disclosure to persons with a “natural and proper interest”

in the information is not actionable. Roehrborn v. Lambert,

660 N.E.2d 180, 182-83 (Ill. App. Ct. 1995).

The district court found that the Karrakers failed to produce sufficient evidence of the actual disclosure of their test

results. We agree. Much of the Karrakers’ claim centered

around RAC’s handling of the test results, which they claim

did not adequately protect their privacy. As the district

court described, the test results were kept in a filing cabinet

in personnel files, and anyone wishing to view the records

needed permission to do so from someone in the payroll

department. The filing cabinet was locked at night, and the
12 No. 04-2881

records were eventually moved into a locked room. Although

someone could have seen the test results sitting in the fax

machine or in the personnel file, that possibility is not

sufficient to support a claim. See Beverly v. Reinert, 606

N.E.2d 621, 626 (Ill. App. Ct. 1993).

The Karrakers provided only vague claims that their test

results actually became public, instead noting general discussions about the test results, mostly of other employees.

In addition, although the sharing of the full test results

likely would be highly offensive to a reasonable person, the

Karrakers did not demonstrate that the actual information

they claim was shared met that requirement.

The judgment of the district court is AFFIRMED with respect to Steven Karraker’s failure to promote claim and the

Karrakers’ public disclosure of public facts claim. The

judgment is REVERSED and REMANDED so that summary

judgment can be entered in favor of plaintiffs on their claim

that the MMPI is a medical examination under the ADA.

Costs on this appeal are awarded to the appellants.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-14-05