Debra A. Murphy v. Itt Educational Services, Incorporated, Technical Institute Division, Doing Business as Itt Technical Institute

176 F.3d 934, 9 Am. Disabilities Cas. (BNA) 590, 1999 U.S. App. LEXIS 8237, 75 Empl. Prac. Dec. (CCH) 45,858, 79 Fair Empl. Prac. Cas. (BNA) 1240, 1999 WL 254448
CourtCourt of Appeals for the Seventh Circuit
DecidedApril 30, 1999
Docket98-3580
StatusPublished
Cited by28 cases

This text of 176 F.3d 934 (Debra A. Murphy v. Itt Educational Services, Incorporated, Technical Institute Division, Doing Business as Itt Technical Institute) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Debra A. Murphy v. Itt Educational Services, Incorporated, Technical Institute Division, Doing Business as Itt Technical Institute, 176 F.3d 934, 9 Am. Disabilities Cas. (BNA) 590, 1999 U.S. App. LEXIS 8237, 75 Empl. Prac. Dec. (CCH) 45,858, 79 Fair Empl. Prac. Cas. (BNA) 1240, 1999 WL 254448 (7th Cir. 1999).

Opinions

HARLINGTON WOOD, JR., Circuit Judge.

Plaintiff-appellant, Debra A. Murphy, as an employee of defendant ITT Technical Institute (“Institute”), failed to receive a hoped-for promotion to a different type of job at the Institute. This suit followed, alleging the denial of her promotion was motivated by sexual and disability discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e and 28 U.S.C. § 1331, and the Americans With Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq. The district court by a Memorandum Decision and Order on September 9,1998, entered summary judgment for the Institute on all issues. Plaintiff appeals. The parties in general accept the district court’s outline of pertinent facts.

Our review is de novo to determine whether or not there may be a genuine issue of material fact, and whether or not the Institute was entitled to judgment as a matter of law. Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d 391, 395 (7th Cir.1997). All facts are to be construed in the light most favorable to plaintiff and all reasonable and justifiable inferences are to be drawn in favor of plaintiff. Id.

Plaintiff was hired by the Institute in June of 1994 as a telemarketer to work three days a week for a total of seventeen hours each week. Plaintiff had the responsibility of calling potential students who had requested information about the Institute so that appointments could be scheduled for an Institute sales representative to meet individually with the students. Sales representatives would then follow up by meeting personally with the potential students at the appointed time, often in the students’ homes, in order to supply the desired school information.

Plaintiff was hired on a part-time temporary basis. Telemarketers ordinarily worked twenty hours per week, but plaintiff worked only seventeen hours a week so as not to exceed Social Security Administration limits on her earned income which would put her Social Security benefits in jeopardy. She therefore worked only on Tuesdays, Wednesdays, and Thursdays, but had no set work schedule on those days as she was free to determine her own work hours. Her work hours were very flexible because the telephone calls she had to make to student prospects were not scheduled by prior appointments.

Plaintiff, however, conceded that many weeks she did not work the full seventeen hours which were required. In fact, during her forty weeks as an Institute tele[936]*936marketer, she failed to work her required hours at least one-third of the time. She explained these absences were the result of attending her grandmother’s funeral, taking her daughter to doctor’s appointments, and periodic illnesses, etc. There were no complaints by the Institute about the plaintiffs work hours as a telemarketer. No dissatisfaction with her work as a telemarketer was expressed to plaintiff and her excuses for her absences were always accepted.

Plaintiff had a disability which plaintiff says everyone at the Institute knew about. It is known as “carpal tunnel syndrome,” a repetitive motion condition. However, plaintiffs disability, diagnosed in 1986, did not affect her work as a telemarketer. Her disability required no accommodation and she requested none.

We must review the factual record and allow reasonable inferences which can be drawn from the record in a light most favorable to the nonmoving party. Sar-sha v. Sears, Roebuck & Co., 3 F.3d 1035, 1038 (7th Cir.1993). While employed as a telemarketer, plaintiff discussed with Toby Hayes, the highest ranking employee in the Institute’s marketing department, the possibility of her becoming an Institute sales representative, a promotion. Plaintiff had, however, already submitted a letter of resignation to accept what she considered to be a better position with another company. Hayes told her that he had heard about her recent letter of resignation and wanted to talk to her before her resignation became effective. He thought, he said, she would make a good sales representative for the Institute. Plaintiff did not anticipate that her disability would affect her new duties as a sales representative.

During this time, Hayes told plaintiff that an Institute sales position had become available in a nearby area. Applying for this position, plaintiff underwent testing, was interviewed by the Institute Manager of Recruitment, Luther McDonald, and was also interviewed by Hayes. Since that Institute promotion possibility looked favorable for plaintiff, she did not resign but remained at the Institute as a telemarketer.

There was a final interview for plaintiff scheduled with Jack Cozad, a long-time Institute employee who, as director of the Institute, held the highest Institute position in the Fort Wayne area where plaintiff was employed. Cozad had not been involved in plaintiffs original hiring as a telemarketer. McDonald worked directly under Hayes and Hayes reported directly to Cozad.

Before his interview with the plaintiff, Cozad consulted the Corporate Human Resources Office. As he explained in his deposition, Cozad was seeking interview guidance because he understood plaintiff had a disability. He was concerned about conducting the interview with plaintiff properly in the event any issue was raised about her disability. The ADA was fairly new at that time, and Cozad had never interviewed anyone with a disability since the Act had been in force.

There is not agreement among the parties as to any reasonable inferences to be drawn in plaintiffs favor from those facts. However, any circumstance subject to any disagreement between the parties does not qualify, in our view, as a genuine issue of material fact so as to defeat summary judgment. See Fed.R.Civ.Proc. 56(e) (“an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading”); Adusumilli v. City of Chicago, 164 F.3d 353, 361 (7th Cir.1998) (“party needs more than scintilla of evidence ... to defeat summary judgment”).

The district court found, in the absence of any evidence to the contrary, that Cozad was the highest Institute executive at the Fort Wayne premises and he had the sole responsibility for the Institute decision not to promote plaintiff to the sales representative position. In his deposition, Cozad made it clear that it was his decision alone, and that it was made without any other [937]*937“human input” whatsoever. The only “human input” exception was that he did examine the Institute’s employee time records as regarded plaintiffs telemarketer attendance.

The district court further noted that, based on their depositions, neither Hayes nor McDonald had any part whatsoever in Cozad’s final decision about not promoting plaintiff. Neither Hayes nor McDonald had any discussions with Cozad about Co-zad’s decision.

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176 F.3d 934, 9 Am. Disabilities Cas. (BNA) 590, 1999 U.S. App. LEXIS 8237, 75 Empl. Prac. Dec. (CCH) 45,858, 79 Fair Empl. Prac. Cas. (BNA) 1240, 1999 WL 254448, Counsel Stack Legal Research, https://law.counselstack.com/opinion/debra-a-murphy-v-itt-educational-services-incorporated-technical-ca7-1999.