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No. 95-3966
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Noorusadat S. Hossaini, *
*
Appellant, *
*
v. *
*
Western Missouri Medical * Appeal from the United States
Center; Doris Kirkpatrick, * District Court for the Western
Chairperson; Harold Young, * District of Missouri.
Trustee; Linda Gentry, *
Trustee; Dr. M. Letterer; *
Hugh Smith, Trustee, *
*
Appellees. *
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Submitted: September 11, 1996
Filed: October 8, 1996
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Before BOWMAN, BRIGHT, and JOHN R. GIBSON, Circuit Judges.
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BRIGHT, Circuit Judge.
Noorusadat S. Hossaini brought this action against her former
employer, Western Missouri Medical Center (WMMC) and the WMMC Board of
Trustees (the Board), alleging employment discrimination based on her
national origin and unlawful retaliatory action in violation of 42 U.S.C.
§ 2000e, et seq. (Title VII) and the Missouri Human Rights Act (MHRA), Mo.
Rev. Stat. §§ 213.055 and 213.070. The district court granted summary
judgment in favor of WMMC because Hossaini failed to produce evidence
showing that WMMC's proffered reasons for terminating her employment were
pretext for unlawful discrimination. Hossaini appeals. After a full
review of the record, we reverse and remand.
I. BACKGROUND
Hossaini, an Iranian lawfully residing in the United States, is an
ultrasound technologist. She worked at WMMC, a county hospital, from June
19, 1992, until her termination on November 1, 1993. Hossaini worked under
the immediate supervision of Randy Whitcomb, the Director of Radiology at
WMMC. She also worked with Susan Black, another ultrasound technologist.
When Hossaini applied for the ultrasound technologist position at
WMMC she indicated that she had training in general and vascular ultrasound
techniques. Although her resume stated that she was certified in general
and vascular ultrasound, she claims she informed Whitcomb that she received
little hands-on training in vascular ultrasound techniques. According to
Hossaini, Whitcomb told her that WMMC hired an outside contractor to
perform all the vascular ultrasound exams.
In September 1992, Whitcomb approved Hossaini's request to attend the
American Registry of Diagnostic Medical Sonographers registry review
course. Hossaini attended the course, but did not pass the examination to
become a registered ultrasound technologist.
Hossaini received the first of two performance evaluations from
Whitcomb in September 1992, and was rated on thirty-one different job
responsibilities. Hossaini received scores indicating that she "need[ed]
improvement" on six of the responsibilities. Hossaini received scores
indicating that she met WMMC's requirements on the remaining twenty-five
responsibilities. Whitcomb did not find that she failed to meet the
minimum requirements of any responsibility, nor did he find that she
exceeded the requirements of any responsibility.
In February 1993, WMMC decided to begin performing vascular
ultrasounds in its own Ultrasound Department by May 1993, instead of using
the outside contractor.
Later in February, Hossaini asked Whitcomb for leave without pay so
she could travel to Iran to arrange medical treatment for her father.
Whitcomb refused her request and became angry. Hossaini claims that
Whitcomb yelled at her, "why [is] everything so different with you damn
foreigners," and criticized her for not taking vacation time like American
employees. Whitcomb admits raising his voice at Hossaini, but denies using
derogatory language.
Hossaini then went to Dennis Long, Director of Human Resources at
WMMC, and requested leave to go to Iran. Hossaini told Long that Whitcomb
denied her request and became angry. Hossaini claims she also told Long
about Whitcomb's derogatory remarks. According to Hossaini, Long
acknowledged that Whitcomb's conduct was improper and approved Hossaini's
leave.
According to Hossaini, when she returned from Iran, other employees
told her that Whitcomb said he was going to "get even" with her for going
behind his back by seeking leave time from Long. Hossaini also claims she
began receiving threatening phone calls and letters. She alleges that the
male caller knew her name, street address and post office box number, and
told her to leave town. Hossaini claims she had an unlisted phone number
known only to her family and WMMC. The letters ordered her to "[r]esign
and move out or you will get hurt" and "[l]eave town or I [will] get
someone to hurt you." The letters bore a "Columbia GMF" postmark and were
allegedly mailed from Sedalia, Missouri. Whitcomb resided in Sedalia.
On April 22, 1993, Susan Black, Hossaini's co-worker, became the
"lead" ultrasound technologist. Hossaini claims that
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throughout her employment Black made fun of Hossaini's accent and imitated
it. Hossaini also claims that Black repeatedly made derogatory comments
about foreigners, specifically complaining about foreigners taking jobs
away from Americans.
Hossaini received her second performance review from Whitcomb on May
14, 1993. In this review, Whitcomb gave Hossaini similar scores as the
first review, but he noted that Hossaini had not become proficient at
performing vascular ultrasounds. He told Hossaini she had thirty days to
become proficient at this procedure.
Whitcomb subsequently extended this deadline and offered to provide
Hossaini with thirty-five volunteers to practice vascular ultrasounds. She
refused, allegedly because she believed she needed more practice. Instead,
Hossaini requested an independent evaluation of her vascular ultrasound
skills. The evaluator concluded that Hossaini's "anatomy and scanning
skills are good," but recommended that Hossaini receive three months of
daily practice to become proficient. Hossaini then located five hospitals
that would allow her to train in their facilities. She asked Whitcomb to
allow her to train at other hospitals, but he refused. According to
Whitcomb, such training would be costly and he preferred that Hossaini
learn the procedure on WMMC's equipment. Neither party offered evidence
regarding whether the other hospitals used the same equipment as WMMC.
On May 18, 1993, Hossaini met with Gregory Vinardi, WMMC's C.E.O.,
and complained that she was being harassed and discriminated against
because of her national origin and that she believed it was against the
law. On June 15, 1993, Hossaini sent a follow-up letter to Vinardi about
the harassment and discrimination.
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In June 1993, Black began keeping a list of substandard ultrasound
exams performed by Hossaini. Black recorded the exam information on note
cards she kept at her home and then developed her list from the note cards.
Black did not keep a similar list for any other employee.
On July 7, 1993, Hossaini filed a complaint with the Equal Employment
Opportunity Commission (EEOC) and the Missouri Human Rights Commission
alleging discrimination on the basis of national origin.
On July 30, 1993, WMMC began investigating the disappearance of seven
ultrasound films and a logbook used to document ultrasound exam
information. The missing films allegedly documented substandard exams
performed by Hossaini and corresponded with Black's list. WMMC performed
a random inventory of the ultrasound films and concluded that no other
films were missing. As part of the investigation, WMMC interviewed
thirteen employees about the missing items and four speculated that
Hossaini may have taken the films and logbook. Several employees offered
alternative explanations for the items' absence. These alternative
explanations ranged from naming other employees with access to the films
and logbook, to speculating whether someone misfiled the films. Hossaini
denies taking the films and logbook. No one witnessed Hossaini take the
films or logbook, nor did anyone find the items in her possession.
In addition, Black claims she no longer has the note cards or the
list of Hossaini's substandard exams. She claims she either lost or threw
away the note cards and the list.
On October 5, 1993, Vinardi asked Hossaini to take a polygraph
examination in connection with WMMC's investigation. Hossaini refused.
On November 1, 1993, WMMC notified Hossaini that she was
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terminated as of November 2, 1993. WMMC told her that the termination
resulted from her refusal to take the polygraph exam.
On December 29, 1993, Hossaini commenced this action claiming
discriminatory treatment and retaliation. WMMC and the Board moved for
summary judgment contending that WMMC terminated Hossaini for two
legitimate, nondiscriminatory reasons: (1) because it believed she stole
the ultrasound films and logbook, and (2) because she could not adequately
perform vascular ultrasounds. The district court granted summary judgment
because Hossaini failed to generate a genuine issue of material fact on the
issue of pretext. In addition, the Board moved for summary judgment
claiming that it was not an "employer" under Title VII or the MHRA.
Because the district court granted summary judgment, it decided that
whether the Board qualified as an "employer" under Title VII was moot and,
therefore, refused to rule on the matter. Hossaini appeals.
II. DISCUSSION
A.
We review the district court's grant of summary judgment de novo,
applying the same standards as the district court. Garner v. Arvin Indus.,
Inc., 77 F.3d 255, 257 (8th Cir. 1996). Summary judgment is appropriate
when the record, viewed in the light most favorable to the nonmoving party,
reveals that there is no genuine issue of material fact and that the moving
party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c).
"The evidence of the nonmovant is to be believed, and all justifiable
inferences are to be drawn in [her] favor." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). The court cannot weigh the evidence or
grant summary judgment merely because it believes the nonmoving party will
lose at trial. See id. at 249. In addition, we recognize the difficulty
of disposing of issues of discriminatory
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or retaliatory intent at the summary judgment stage, particularly after a
plaintiff establishes a prima facie case. Davis v. Fleming Companies,
Inc., 55 F.3d 1369, 1371 (8th Cir. 1995); Gill v. Reorganized Sch. Dist.
R-6 Festus, Mo., 32 F.3d 376, 378 (8th Cir. 1994).
The district court properly analyzed Hossaini's Title VII claims
under the "burden shifting" analysis established in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). The McDonnell Douglas analysis also applies
to claims under the MHRA. McLaughlin v. Esselte Pendaflex Corp., 50 F.3d
507, 510 (8th Cir. 1995) (citing Midstate Oil Co. v. Missouri Comm'n on
Human Rights, 679 S.W.2d 842, 845-46 (Mo. banc 1984)). Accordingly,
Hossaini must establish a prima facie case of discrimination, then the
burden of production shifts to WMMC to provide a legitimate, non-
discriminatory explanation for her discharge. See Roxas v. Presentation
College, 90 F.3d 310, 316 (8th Cir. 1996) (citation omitted). If WMMC
offers a legitimate, nondiscriminatory explanation, the burden of
production shifts back to Hossaini to demonstrate that WMMC's reason is a
pretext for discrimination. Roxas, 90 F.3d at 316. "Finally, [Hossaini]
at all times carries the burden of persuasion to show that the adverse
employment action was motivated by intentional discrimination." Garner,
77 F.3d at 257 (citations omitted).
We agree with the district court that Hossaini satisfied the elements
of a prima facie case and that WMMC articulated two nondiscriminatory
reasons for terminating her. First, WMMC claimed it fired Hossaini because
it reasonably believed she stole the ultrasound films and logbook. Second,
WMMC stated that Hossaini could not adequately perform vascular
ultrasounds.
Because WMMC offered legitimate, nondiscriminatory reasons for
terminating her, the burden of production shifts back to Hossaini to
demonstrate the existence of a factual issue that these
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proffered reasons were a pretext for discrimination. See Roxas, 90 F.3d
at 316. Hossaini can rely on evidence offered to establish her prima facie
case to demonstrate discriminatory motive. Roxas, 90 F.3d at 316 n.3;
Rothmeier v. Investment Advisors, Inc., 85 F.3d 1328, 1336-37 (8th Cir.
1996). The standard for Hossaini "to survive summary judgment required
only that [she] adduce enough admissible evidence to raise genuine doubt
as to the legitimacy of the defendant's motive, even if that evidence did
not directly contradict or disprove defendant's articulated reasons for its
actions." Davenport v. Riverview Gardens Sch. Dist., 30 F.3d 940, 945 n.8
(8th Cir. 1994).
Viewing the evidence in the light most favorable to Hossaini, we
believe she offered sufficient evidence demonstrating a dispute regarding
issues of material fact. First, Hossaini offered evidence from which a
reasonable person could infer that WMMC's suggestion that it fired Hossaini
because it believed she stole the ultrasound films and logbook was
pretextual.
The district court relied on Gill v. Reorganized Sch. Dist. R-6
Festus, Mo., 32 F.3d 376 (8th Cir. 1994), in which a superintendent
terminated the plaintiff based on a supervisor's report indicating that the
plaintiff engaged in misconduct. Id. at 379. The plaintiff, however,
merely alleged that she never participated in such misconduct and the only
evidence the plaintiff offered to show discriminatory motive was the
superintendent's awareness of her race. Id.; see also Roxas, 90 F.3d at
317-18 (stating that plaintiff's reliance on other employees' biased
statements to demonstrate pretext failed because evidence lacked a causal
nexus between employees' statements and employer's decision). This court
affirmed summary judgment because the plaintiff's mere assertion that she
never participated in the misconduct fell short of an affirmative
allegation that discriminatory animus motivated the superintendent's
decision or the supervisor's report. Gill, 32 F.3d at 379.
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In this case, Hossaini offered evidence that WMMC launched its
investigation into the missing films and logbook less than three months
after she complained to Vinardi about discrimination, less than two months
after she reduced those complaints to writing, and less than one month
after she filed her complaint with the EEOC. Unlike the situation in Gill,
Hossaini claimed several people at WMMC, including Long, Vinardi and
Whitcomb, knew she made allegations of discrimination and harassment before
WMMC began investigating the alleged misconduct. A reasonable person could
infer a discriminatory motive from the timing of the investigation.
In addition, unlike the plaintiff in Gill, Hossaini offered evidence
that Whitcomb not only knew about her national origin, but made derogatory
comments about her nationality and threatened to get even with her. See
McLaughlin, 50 F.3d at 512 (stating that in certain circumstances
"discriminatory statements made by supervisors may be evidence of
discriminatory intent"). She also offered evidence from which a reasonable
juror might infer that Whitcomb participated in the mailing of the
threatening letters. This evidence could support the conclusion that
Whitcomb capitalized on the disappearance of the films and logbook to
retaliate against Hossaini for her complaints to Long and Vinardi, or to
ensure her termination out of discriminatory animus.
Hossaini also offered evidence that the list of missing films
originated with Black, who allegedly made derogatory statements about
foreigners and ridiculed Hossaini's accent. Black claimed she lost or
discarded the list and note cards. Black never kept similar lists about
other employees. This evidence could create an inference that Black's
animus against Hossaini's nationality played a role in the charges relating
to the missing films and logbook. Such evidence, therefore, bears on
pretext.
Second, Hossaini offered evidence from which a reasonable person
could infer that WMMC's assertion that she could not perform
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vascular ultrasounds adequately, also served as a pretext for
discrimination. This court stated that "[s]ubstantial changes over time
in the employer's proffered reason for its employment decision support a
finding of pretext." Kobrin v. University of Minn., 34 F.3d 698, 703 (8th
Cir. 1994). In Hossaini's case, WMMC initially terminated her because she
refused to take the polygraph exam. The hospital did not rely on her lack
of proficiency at performing vascular ultrasounds for its decision. Only
later, presumably after Hossaini filed suit, did WMMC proffer its second
reason for terminating her. Based on this evidence, a reasonable person
could infer that WMMC claimed it fired Hossaini because she could not
perform vascular ultrasounds, after she brought suit, in an effort to
strengthen its case and avoid liability.
In addition, in Davis v. Fleming Companies, Inc., 55 F.3d 1369 (8th
Cir. 1995), the employer relied on a supervisor's notes purportedly
documenting the employee's deteriorating job performance to support the
decision to fire the employee. Id. at 1373. This court found that the
supervisor's notes showed a pattern of deteriorating performance, but they
did not preclude a reasonable inference of a retaliatory intent or pretext
from other evidence. Id. For example, the plaintiff offered evidence that
his performance ratings continued to reflect satisfactory work. Id.
Furthermore, a genuine issue of material fact existed because the employer
contested the plaintiff's characterization of the supervisor's motivation
for writing the memos. Id. at 1373-74.
As in Davis, Hossaini never received performance reviews indicating
substandard work. She also offered evidence that performing vascular
ultrasounds was not part of the job requirements at the time WMMC hired
her. In addition she offered evidence that she tried to receive training
in vascular ultrasounds at other hospitals. Although Whitcomb criticized
her alternative as costly and less beneficial to WMMC, at the summary
judgment stage we must give Hossaini the benefit of inferring the cost
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effectiveness of such training. Furthermore, the district court recognized
that Hossaini alleged sufficient facts demonstrating a genuine issue for
trial about whether she was qualified for the position.
The district court and WMMC rely on notes Whitcomb kept that
allegedly document Hossaini's substandard performance. WMMC's "arguments
may well keep [Hossaini] from persuading a jury that [WMMC] terminated
[her] in retaliation . . . rather than because of deficient job
performance," but at the summary judgment stage we cannot weigh the
evidence. Davis, 55 F.3d at 1374. Looking at the entire record,
therefore, one finds some evidence capable of supporting Hossaini's claim
of pretext.
To grant summary judgment on this record would be inappropriate,
"especially because this . . . case is based largely on circumstantial
evidence and the relative merit of each party's case depends significantly
on credibility." Hase v. Missouri Div. of Employment Sec., 972 F.2d 893,
897 (8th Cir. 1992), cert. denied, 508 U.S. 906 (1993). Without weighing
or judging the credibility of the evidence offered, one cannot say that all
the evidence points favorably only to the employer. Instead, after
reviewing the whole record, some of the evidence permits reasonable
inferences that can favor Hossaini.
B.
Hossaini also asks us to direct the district court to find that the
Board falls within Title VII's and the MHRA's definition of "employer."
The Board moved for summary judgment arguing that it was not an "employer"
for purposes of Title VII or the MHRA. The district court decided that the
issue became moot after it determined that Hossaini could not recover on
her claims.
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To rule on this issue requires not only interpreting the statutory
language of Title VII, but also analyzing the factual setting and
characteristics of the Board's relationship to WMMC and Hossaini. The
district court is better suited to undertake such a fact specific exercise.
Therefore, we decline to rule on whether the Board falls within the
definition of "employer," but remand that issue to the district court.
III. CONCLUSION
Accordingly, we reverse the judgment of the district court and remand
the case for further proceedings consistent with this opinion.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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