                          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.
                       ____________
     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, an-
swering questions such as:
2                                               No. 04-2881

    Assume the first two statements are true.
    The boy plays football. All football players wear hel-
    mets. 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 some-
one 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

driasis, hysteria, paranoia, and mania.1 In fact, elevated
scores on certain scales of the MMPI can be used in diag-
noses 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 discrimina-
tion with the EEOC within 300 days of any alleged discrimi-
nation. The court also granted the Karrakers’ motion for
class certification on the ADA and public disclosure of
private facts claims.


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.”
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 disclo-
sure 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 in-
cluded attitudinal barriers resulting from unfounded ster-
eotypes 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 parti-
cipation, 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 impair-
ments, 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 ex-
plicitly limit the ability of employers to use “medical exami-
nations 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 pro-
hibition 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 examina-
tion, but also that even if it is, it is “job-related and consis-
tent 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

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 impair-
        ment of physical or mental health;
    (4) whether the test is invasive;
    (5) whether the test measures an employee’s perfor-
        mance 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 mea-
sure personality traits such as honesty, preferences, and
habits” do not. Id.


2
  We frequently look to EEOC guidelines for guidance in dis-
crimination 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 re-
sort 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.”).
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 personal-
ity traits. For example, RAC argues in its brief that the
MMPI does not test whether an applicant is clinically de-
pressed, only “the extent to which the test subject is exper-
iencing 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 men-
    tal 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 psycholo-
    gist, 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

    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 condi-
    tions). 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 examina-
    tion.
  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 med-
ical examination. In doing so, the district court relied on the
deposition testimony of Colin Koransky, a clinical psy-
chologist. 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 employ-
ees. 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


3
   The Karrakers appealed the district court’s denial of their mo-
tions 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...)
No. 04-2881                                                      9

  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 symp-
toms 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 para-
noid 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 exami-
nation. And even though the MMPI was only a part (albeit
a significant part) of a battery of tests administered to em-
ployees looking to advance, its use, we conclude, violated
the ADA.



3
   (...continued)
district court did not abuse its discretion. The Karrakers also ar-
gue that there is no evidence to support the district court’s con-
clusion 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.
10                                                No. 04-2881

  In addition to his ADA claim, Steven Karraker challenges
the district court’s determination that his failure-to-pro-
mote 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 chal-
lenges 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 pro-
motion 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 situa-
tions “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 jus-
tifications 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 deci-
sion, 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 discrimina-
tion. 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 pro-
duce 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 dis-
cussions 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 re-
spect 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
