The full case caption appears at the
end of this opinion. HARLINGTON WOOD, JR., Circuit Judge. Plaintiff-appellant, Debra A. Murphy, as an employee ofdefendant ITT Technical Institute (“Institute”),failed to receive a hoped-for promotion to adifferent type of job at the Institute. This suitfollowed, alleging the denial of her promotionwas motivated by sexual and disabilitydiscrimination in violation of Title VII of theCivil Rights Act of 1964, as amended by the CivilRights Act of 1991, 28 U.S.C. sec. 2000e and 28U.S.C. sec. 1331, and the Americans WithDisabilities Act of 1990 (“ADA”), 42 U.S.C. sec.12101 et seq. The district court by a MemorandumDecision and Order on September 9, 1998, enteredsummary judgment for the Institute on all issues.Plaintiff appeals. The parties in general acceptthe district court’s outline of pertinent facts. Our review is de novo to determine whether ornot there may be a genuine issue of materialfact, and whether or not the Institute wasentitled to judgment as a matter of law.Chiaramonte v. Fashion Bed Group, Inc., 129 F.3d391, 395 (7th Cir. 1997). All facts are to beconstrued in the light most favorable toplaintiff and all reasonable and justifiableinferences are to be drawn in favor of plaintiff.Id. Plaintiff was hired by the Institute in June of1994 as a telemarketer to work three days a weekfor a total of seventeen hours each week.Plaintiff had the responsibility of callingpotential students who had requested informationabout the Institute so that appointments could bescheduled for an Institute sales representativeto meet individually with the students. Salesrepresentatives would then follow up by meetingpersonally with the potential students at theappointed time, often in the students’ homes, inorder to supply the desired school information. Plaintiff was hired on a part-time temporarybasis. Telemarketers ordinarily worked twentyhours per week, but plaintiff worked onlyseventeen hours a week so as not to exceed SocialSecurity Administration limits on her earnedincome which would put her Social Securitybenefits in jeopardy. She therefore worked onlyon Tuesdays, Wednesdays, and Thursdays, but hadno set work schedule on those days as she wasfree to determine her own work hours. Her workhours were very flexible because the telephonecalls she had to make to student prospects werenot scheduled by prior appointments. Plaintiff, however, conceded that many weeks shedid not work the full seventeen hours which wererequired. In fact, during her forty weeks as anInstitute telemarketer, she failed to work herrequired hours at least one-third of the time.She explained these absences were the result ofattending her grandmother’s funeral, taking herdaughter to doctor’s appointments, and periodicillnesses, etc. There were no complaints by theInstitute about the plaintiff’s work hours as atelemarketer. No dissatisfaction with her work asa telemarketer was expressed to plaintiff and herexcuses for her absences were always accepted. Plaintiff had a disability which plaintiff sayseveryone at the Institute knew about. It is knownas “carpel tunnel syndrome,” a repetitive motioncondition. However, plaintiff’s disability,diagnosed in 1986, did not affect her work as atelemarketer. Her disability required noaccommodation and she requested none. We must review the factual record and allowreasonable inferences which can be drawn from therecord in a light most favorable to the non-moving party. Sarsha v. Sears, Roebuck & Co., 3F.3d 1035, 1038 (7th Cir. 1993). While employedas a telemarketer, plaintiff discussed with TobyHayes, the highest ranking employee in theInstitute’s marketing department, the possibilityof her becoming an Institute salesrepresentative, a promotion. Plaintiff had,however, already submitted a letter ofresignation to accept what she considered to bea better position with another company. Hayestold her that he had heard about her recentletter of resignation and wanted to talk to herbefore her resignation became effective. Hethought, he said, she would make a good salesrepresentative for the Institute. Plaintiff didnot anticipate that her disability would affecther new duties as a sales representative. During this time, Hayes told plaintiff that anInstitute sales position had become available ina nearby area. Applying for this position,plaintiff underwent testing, was interviewed bythe Institute Manager of Recruitment, LutherMcDonald, and was also interviewed by Hayes.Since that Institute promotion possibility lookedfavorable for plaintiff, she did not resign butremained at the Institute as a telemarketer. There was a final interview for plaintiffscheduled with Jack Cozad, a long-time Instituteemployee who, as director of the Institute, heldthe highest Institute position in the Fort Waynearea where plaintiff was employed. Cozad had notbeen involved in plaintiff’s original hiring asa telemarketer. McDonald worked directly underHayes and Hayes reported directly to Cozad. Before his interview with the plaintiff, Cozadconsulted the Corporate Human Resources Office.As he explained in his deposition, Cozad wasseeking interview guidance because he understoodplaintiff had a disability. He was concernedabout conducting the interview with plaintiffproperly in the event any issue was raised abouther disability. The ADA was fairly new at thattime, and Cozad had never interviewed anyone witha disability since the Act had been in force. There is not agreement among the parties as toany reasonable inferences to be drawn inplaintiff’s favor from those facts. However, anycircumstance subject to any disagreement betweenthe parties does not qualify, in our view, as agenuine issue of material fact so as to defeatsummary judgment. See Fed.R.Civ.Proc. 56(e) (“anadverse party may not rest upon the mereallegations or denials of the adverse party’spleading”); Adusumilli v. City of Chicago, 164F.3d 353, 361 (7th Cir. 1998) (“party needs morethan scintilla of evidence . . . to defeatsummary judgment”). The district court found, in the absence of anyevidence to the contrary, that Cozad was thehighest Institute executive at the Fort Waynepremises and he had the sole responsibility forthe Institute decision not to promote plaintiffto the sales representative position. In hisdeposition, Cozad made it clear that it was hisdecision alone, and that it was made without anyother “human input” whatsoever. The only “humaninput” exception was that he did examine theInstitute’s employee time records as regardedplaintiff’s telemarketer attendance. The district court further noted that, based ontheir depositions, neither Hayes nor McDonald hadany part whatsoever in Cozad’s final decisionabout not promoting plaintiff. Neither Hayes norMcDonald had any discussions with Cozad aboutCozad’s decision. McDonald testified he had norelevant discussion with either Hayes or Cozad.He only made his favorable recommendation ofplaintiff and sent that recommendation first toHayes and then up the executive chain to Cozad.Cozad, Hayes, and McDonald all agreed that Cozadalone made the ultimate decision. That isimportant as relates to the actions of Hayes andMcDonald. The district court noted that it was notunmindful of plaintiff’s argument that the salesrepresentative decision by Cozad had at leastbeen a “collective” decision in which bothMcDonald and Hayes had input. The court, however,could find no evidence whatsoever to suggest thatthe “final decision” was anything but Cozad’s,nor do we from our own examination of the record. There is no evidentiary basis for plaintiff’s”collective decision” claim. See Matsushita Elec.Industrial Co. v. Zenith Radio Corp., 475 U.S.574, 587 (1986) (finding that nonmoving party maynot rely on conclusory allegations, unsupportedby the record, in order to defeat summaryjudgment). This claim appears to be nothing morethan an unsubstantiated effort on plaintiff’spart to avoid the fact that Cozad alone made thedecision. There is no evidence to suggest thatCozad’s decision was based on anything except hisown business judgment. Plaintiff’s attendancehabits, Cozad decided, did not justify promotion;her erratic attendance record could not be riskedin the new and more demanding position requiringdefinite appointments to be kept. Plaintiff claims that Hayes suggested sheforward a letter to Cozad explaining herdisability. Her understanding was that the lettermight be helpful in allaying any concern abouther disability affecting her performance in thesales representative position. That letter wasintended to obviate the “concern” aboutplaintiff’s disability which it is said Cozad hadexpressed to Hayes. That “concern” of Cozad,however, when examined in context, was notconcern about plaintiff’s disability itselfpossibly affecting her work, but was Cozad’s”concern” about conducting a proper interviewunder the new ADA so as to avoid some inadvertentviolation of the new Act. Nothing shows that herdisability was a factor in Cozad’s promotiondecision. Plaintiff claims, however, that Hayes told herlater that she was not promoted because of herdisability. Hayes denies that statementattributed to him, but for purposes of summaryjudgment, plaintiff’s claim about the Hayes’conversation is accepted. Plaintiff also alleges that McDonald told hershe failed to get the sales representativepromotion because the Institute wanted a male asa sales representative in that particular area.It was found during this period that theInstitute hired seven outside salesrepresentatives to conduct the in-personinterviews at appointed times arranged bytelemarketers. Of those new hires, four weremales and three were females. This cannot beviewed as evidence of gender bias. As to thevacancy which plaintiff had sought in aparticular area, a female was hired for thatposition. There is nothing in the record tosuggest that the Institute harbored or acted uponany gender or disability motivations which ittried to hide with pretextual excuses. The trial judge labeled those claimed statementsof Hayes and McDonald about disability andgender, when viewed in context, as being nothingmore than the speculation of Cozad’s subordinatesas to Cozad’s motivation for his denial of thepromotion. Citing to Chiaramonte, 97 F.3d at 397,where we held that statements by non-decision-makers amounting to speculation as to thethoughts of the decision-maker are irrelevant,the district judge noted there was no evidencethat what plaintiff claims Hayes had told her(that she was not promoted due to her disability)was intended as any expression of Cozad’smotivation for his employment decision. Theindefinite comments and speculations of McDonaldand Hayes, non-decision-makers, upon whichplaintiff attempts to rely, provide no basis forcharging Cozad or the Institute with any form ofdiscrimination. See id. Furthermore, both McDonald and Hayes denied anyknowledge of Cozad’s motivation for not promotingplaintiff. They had only their own speculations,but even those, as mentioned above, were notconsistent. Those speculations do not provide anevidentiary foundation to support any ofplaintiff’s claims or her attempt to draw anyfavorable, reasonable inferences from thatevidence. Whether plaintiff attempts to prove her claimsof disability or sex discrimination by eitherdirect or circumstantial evidence, or whether sheattempts the indirect burden-shifting method ofproof under Title VII as was first set forth inMcDonnell Douglas Corp. v. Green, 411 U.S. 792(1973), plaintiff can offer only argument andbaseless inferences. The Institute explained itsreasonable legitimate business rationale for itsdecision. That explanation must prevail overplaintiff’s arguments and speculation which aremerely substitutes for the lack of evidence.There was no proof of pretext. Cozad was aware of plaintiff’s disability, butthere is no evidence that her disability or hergender had the slightest influence on Cozad’sdecision. When what plaintiff relies on asevidence to the contrary is examined, it is seento be no more than irrelevant and unsupportedsupposition and argument. See Matsushita, 475U.S. at 587. Nor does any of plaintiff’s evidencesupport any reasonable inferences which mightsupport plaintiff’s claims. Id. Plaintiff’s disability was of no concern to hersupervisors or to Cozad beyond his concern aboutconducting a proper interview. A company seekingguidance about how to properly comply with thenew ADA would otherwise be in the untenableposition of being charged with fault no matterwhat it did. In addition, this court does notpretend to be able to run the Institute betterthan the Institute can run itself in the makingof personnel decisions according to its businessjudgment, and should not try. The personneldecisions of the company may not be good ones,sometimes even harsh, but unless they violatesome aspect of federal law, for instance, age,race, or gender discrimination, those businessdecisions are no business of this court. Dale v.Chicago Tribune Co., 797 F.2d 458, 464 (7th Cir.1986). It appears that the non-decision-makers may haveencouraged plaintiff to delay her resignation forthe prospect of being given the promotion shewanted, but there is no showing thatencouragement was done in bad faith. Whenplaintiff finally did resign, it is not deniedthat she left for a better job with higher payand benefits. In the district court, plaintifffirst claimed her resignation had been aconstructive discharge, but after that claim wasalso ruled on adversely to plaintiff by thedistrict court, she has not pursued it here. In our recent case of Waggoner v. Olin, 169F.3d 481, 485 (7th Cir. 1999), this courtaffirmed summary judgment in behalf of thecompany defending an ADA employment claim whichhad resulted from the discharge of thatplaintiff. In that case, the plaintiff also hada disability, but her termination had nothing todo with her visual disability as plaintiff hadclaimed. The discharge was found justified as amatter of law “due to her excessive erraticabsences . . .” and being “tardy.” Id. at 482.Plaintiff in the present case was not dischargedor even disciplined for her telemarketingattendance record because of its built-inflexibility. Her excuses were always accepted byher superiors. However, Cozad, in assessing plaintiff’sattendance record, could and did reasonablydecide as a matter of good business judgment,even considering plaintiff to be otherwisequalified, that plaintiff’s attendance habitsmight not sufficiently adjust to the strictrequirements of the outside sales representativeposition, and, in any event, did not merit thepromotion. The Institute did not need toknowingly assume the risk of getting itself intoa similar “erratic absences” situation like thatfrom which the employer escaped in Waggoner. The district court gave all plaintiff’s claimscareful consideration before granting theInstitute summary judgment. A genuine issue ofmaterial fact requires more than a showing of”some metaphysical doubt as to the materialfacts.” Matsushita, 475 U.S. at 586 (citationsomitted). It cannot be said in the circumstancesof this case that the record taken as a wholecould possibly lead a rational trier of fact tofind some genuine factual issue for trial. Seeid. at 587 (citation omitted). We find no faultwith the district court’s entry of summaryjudgment for the Institute in declining tosubstitute its business judgment for thenondiscriminatory business judgment of theInstitute. AFFIRMED. RIPPLE, Circuit Judge, dissenting. It is true thatCozad, Hayes and McDonald all agreed that JackCozad, Director of ITT, was the ultimatedecisionmaker. Ms. Murphy does not challenge thatpoint on appeal. Because Cozad had soleresponsibility for the decision not to hire Ms.Murphy as an outside sales representative, “anydirect evidence supporting the discrimination claimmust relate to [Cozad's] motivation for the[decision].” Chiaramonte v. Fashion Bed Group,Inc., 129 F.3d 391, 396 (7th Cir. 1997), cert.denied, 118 S. Ct. 1795 (1998). Ms. Murphy offers evidence that I believe issufficient to create a genuine issue of materialfact concerning Cozad’s motivation for refusingto hire her for the position. First, Cozad’swritten statement clearly reflects his initialconcern about Ms. Murphy’s disability. Evenbefore interviewing Ms. Murphy for the positionas outside sales representative, he sought theadvice of his human resources manager about whathe could or could not ask Ms. Murphy about herdisability.
[FOOTNOTE 1] Although he attested in hisaffidavit that he had no reason to believe thatMs. Murphy’s disability would affect her abilityto perform the duties of a sales representative,he did ask why she worked only 17 hours a week inher telemarketing position. In addition, Cozadstated unequivocally in his deposition that Ms.Murphy was qualified for the position;nevertheless, his focus seemed to be on herdisability. Cozad’s after-the-fact explanationfor his concern–that he was not familiar withthe ADA and did not want to make a fundamentalmistake when questioning her about herdisability–does not comport with his assertionthat he knew the disability would not be afactor.
[FOOTNOTE 2] Cozad also admitted that he had expressed hisconcern about Ms. Murphy’s disability to Hayes.That admission leads to the second significantpiece of evidence, Hayes’ memo. Hayes stated inthat memo that Cozad had discussed with him “hisconcern about the disability issue”:
Jack [Cozad] did discuss with me of his concernabout the disability issue. He was advised . . .about how to address this question. I did tellDebra [Murphy] that a letter explaining herdisability situation might help explain that shewas not a risk for hire.
R.26, Ex. VII. Indeed, on the basis of hisconversation with Cozad, Hayes suggested to Ms.Murphy that she write a letter explaining herdisability to show she wasn’t a “risk for hire.” The majority dismisses Hayes’ memo and otherstatements from his deposition as the “indefinitecomments” of a non-decisionmaker, the merespeculation of Cozad’s subordinate concerningCozad’s thoughts and motivations. However, themajority has mischaracterized Hayes’ comments;Hayes clearly and definitively reported that hehad had a conversation with Cozad (verified byCozad) and that Cozad was concerned about Ms.Murphy’s disability. He apparently addressed hissuperior’s concern by asking Ms. Murphy to writea letter explaining her disability. Ms. Murphydid write that letter, assuring the company that”the job you describe I am physically capable ofperforming.” R.26, Ex. VIII. There is no disputeabout these occurrences. Hayes’ memo and actionsare relevant evidence of Cozad’s intent. This case is very different from Chiaramonte,upon which the majority relies. In Chiaramonte,the non-decisionmakers denied making thestatements that Chiaramonte claimed were evidenceof the decisionmaker’s motivation. See 129 F.3dat 397. In this case, however, Hayes reiteratedthe memo statements in his depositions; moreimportantly, Cozad himself admitted discussinghis concern about Ms. Murphy’s disability withHayes. Of course, Cozad later reported that hisreason for the concern was that he wanted toavoid inadvertently violating the ADA. Cozad’sasserted justification for his conversation withHayes simply raises a genuine issue of materialfact as to the real motivation for his not hiringMs. Murphy. When we construe the evidence in thelight most favorable to the plaintiff, Ms.Murphy, and draw all reasonable and justifiableinferences in her favor, as we are required todo, it seems clear that Hayes’ statements,corroborating the decisionmaker’s depositiontestimony but reflecting a different motivation,are extremely relevant to our inquiry becausethey “relate to the motivation of thedecisionmaker.” Id. at 396 (quoting Cheek v.Peabody Coal Co., 97 F.3d 200, 203 (7th Cir.1996)). The majority also holds that Ms. Murphy failedto establish discrimination under the indirectburden-shifting method because ITT’s reason fornot hiring or promoting Ms. Murphy, herabsenteeism, was a valid nondiscriminatorybusiness judgment. Again I respectfully mustdisagree. It is undisputed that the attendancepolicy for telemarketers was flexible, that Ms.Murphy met all expectations of her superiorsunder that policy, and that her record containedno criticism whatsoever of her attendance on thatjob. [FOOTNOTE 3] This certainly is not a case of repeatedabsenteeism that is tantamount to the”unsatisfactory job performance” that we found inOates v. Discovery Zone, 116 F.3d 1161, 1171 (7thCir. 1997). Moreover, Ms. Murphy handled thetelemarketer’s job with no accommodation to herdisability and told ITT that her disability wouldhave no impact on her ability to do the outsidesales representative position. Yet Cozad focusedon her disability, all the while denying such aconcern, and never told her that her attendanceperformance as a telemarketer was the reason shewas not hired as a sales rep. There is a genuineissue of material fact whether Cozad’s decisionwas based on her attendance record, in light ofhis knowledge of the difference in attendanceexpectations between the two jobs, or on herdisability. Had the majority construed all factsin the light most favorable to Ms. Murphy, thenon-moving party, it would have concluded thatMs. Murphy has provided sufficient evidence thather disability was a “determining factor”motivating Cozad’s decision. I therefore wouldallow a jury to determine whether Cozad’s expressreason for not hiring Ms. Murphy as a salesrepresentative, her attendance record in thetelemarketing position, was pretextual andunworthy of credence. I respectfully dissent. :::FOOTNOTES::: FN1 Cozad’s written statement stated, in part:
Before I interviewed Debra for the position ofrepresentative, I talked with you [Lisa Cardona,manager of personnel] concerning what I could askher in the interview. I knew at that time thatshe was on disability from her former job. Peryour recommendation, I asked her why she was onlyable to work 17 hours and she explained to me hersituation. She stated that it was no longer aproblem.
R.26, Ex. IX. FN2 It is noteworthy, as well, that ITT hired 7 othersales reps, none of whom had a disability, butdid not hire Ms. Murphy. FN3 Although the majority noted that her attendancerecords indicate that she worked less than 17hours about one-third of the time, Ms. Murphypoints out that she worked more than 17 hoursmany weeks and that, over her entire work period,she averaged more than 17 hours per week.
Murphy v. ITT Educational Services Debra A. Murphy, Plaintiff-Appellant v. ITT Educational Services, Incorporated,Technical Institute Division, doingbusiness as ITT Technical Institute, Defendant-Appellee. No. 98-3580 United States Court of Appeals for the Seventh Circuit Appeal from the United States District Courtfor the Northern District of Indiana. No. 97 C 315–William C. Lee, Chief Judge. ARGUED FEBRUARY 25, 1999–DECIDED APRIL 30, 1999 Before BAUER, HARLINGTON WOOD, JR., and RIPPLE,Circuit Judges.
