Hossaini v. Western Missouri Medical Center

• Decision Date: 06 April 1998
• Docket Number: No. 97-2780.,97-2780.
• Citation: 140 F.3d 1140
• Parties: Noorusadat HOSSAINI, Appellant, v. WESTERN MISSOURI MEDICAL CENTER, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

140 F.3d 1140

Noorusadat HOSSAINI, Appellant, v. WESTERN MISSOURI MEDICAL CENTER, Appellee.

No. 97-2780.

United States Court of Appeals, Eighth Circuit.

Submitted January 12, 1998.

Decided April 6, 1998.

Gregory Mark Dennis, Kansas City, MO, argued (Richard W. Nobel, Kansas City, MO, on the brief), for Appellant.

Sally A. Howard, Kansas City, MO, argued (Thomas M. Sutherland, Kansas City, MO, on the brief), for Appellee.

Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN and HANSEN, Circuit Judges.

WOLLMAN, Circuit Judge.

Noorusadat Hossaini appeals the district court's¹ entry of summary judgment in favor of her former employer, Western Missouri Medical Center (hereinafter "WMMC" or "the hospital"), in her claim alleging unlawful termination in violation of the Employee Polygraph Protection Act (EPPA), 29 U.S.C. §§ 2001-2009. We affirm.

I.

WMMC is a county hospital located in Johnson County, Missouri, organized pursuant to Mo.Rev.Stat. §§ 205.160 — 205.379.² The hospital is managed by a board of trustees, the individual members of which are elected by the citizens of Johnson County. See Mo.Rev.Stat. § 205.170. The board of trustees has delegated the hospital's daily operational and managerial duties to WMMC's president, Greg Vinardi. Vinardi is appointed by the board of trustees and is subject to removal at their election. See Mo.Rev.Stat. § 205.190.5.

On June 19, 1992, Hossaini began working as an ultrasound technologist in WMMC's radiology department. As part of her duties at the hospital, Hossaini was expected to competently perform both general and vascular ultrasounds. During Hossaini's employment at the hospital, WMMC's management was apparently dissatisfied with her lack of proficiency in performing vascular ultrasounds. As a result, in June of 1993 Susan Black, the lead ultrasound technologist at WMMC, began compiling a list of allegedly substandard ultrasound examinations performed by Hossaini. Black did not keep a similar list for any other employee.

Shortly thereafter, WMMC discovered that each of the allegedly substandard ultrasound films identified in Black's list was missing, as was the list itself. In addition, a logbook used to document ultrasound examination information was missing. The hospital commenced an investigation of the missing items. An inventory revealed that no other films were missing. WMMC interviewed thirteen hospital employees about the missing films. Four of the employees speculated that Hossaini might have taken the missing films and logbook, while other employees offered alternative explanations. No one witnessed Hossaini take the films or logbook, and Hossaini denied ever having done so.

On October 5, 1993, WMMC sent a letter requesting that Hossaini submit to a polygraph examination pursuant to 29 U.S.C. § 2006(d). This request was repeated in a letter dated October 18. Hossaini refused to take a polygraph examination and her employment was terminated on November 1, 1993.

Hossaini thereafter commenced a civil rights action alleging employment discrimination based on national origin and unlawful retaliation in violation of 42 U.S.C. § 2000e et seq. (Title VII) and the Missouri Human Rights Act, Mo.Rev.Stat. §§ 213.055 and 213.070. See Hossaini v. Western Missouri Med. Ctr., 97 F.3d 1085, 1085-86 (8th Cir. 1996).³ WMMC moved for summary judgment, asserting two legitimate, nondiscriminatory reasons for Hossaini's dismissal: (1) WMMC reasonably believed that Hossaini had stolen the ultrasound films and logbook; and (2) Hossaini could not adequately perform vascular ultrasounds. See id. at 1087. The district court granted summary judgment for WMMC, finding that Hossaini had failed to produce evidence showing that the hospital's proffered nondiscriminatory reasons were a pretext for discriminatory animus. See id. We reversed, concluding that Hossaini had submitted sufficient evidence to raise a factual issue with regard to pretext. See id. at 1090. Upon remand, the district court submitted the case to a jury, which returned a verdict in favor of WMMC.

Hossaini thereafter initiated the present action, alleging that she had been unlawfully discharged in violation of the EPPA. WMMC moved for summary judgment, arguing that as a political subdivision of Johnson County it is exempt from the EPPA pursuant to 29 U.S.C. § 2006(a).⁴ The district court agreed and granted summary judgment for WMMC. On appeal, Hossaini contends that the district court's grant of summary judgment was erroneous for the following reasons: (1) WMMC "invoked" the EPPA in the Title VII litigation and therefore should have been judicially estopped from contending that it is exempt from the EPPA's mandates; (2) WMMC deliberately separated itself from Johnson County in the prior litigation and therefore should have been judicially estopped from contending that it is a political subdivision of Johnson County; and (3) WMMC is not a political subdivision of Johnson County and therefore is not exempt from the EPPA.

We review a grant of summary judgment de novo, applying the same standard as that applied by the district court. See Rabushka ex rel. United States v. Crane Co., 122 F.3d 559, 562 (8th Cir.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1336, 140 L.Ed.2d 498 (1998). Summary judgment is proper if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. See id.

II.

We first address Hossaini's contention regarding WMMC's prior "invocation" of the EPPA. In Hossaini's Title VII action, the hospital made the following statement in support of summary judgment: "These defendants would bring to the Court's attention 2[9] U.S.C. § 2006 et seq., which permits defendants to request an employee to submit to a polygraph examination if it is in connection with an ongoing investigation involving theft." Defendant's Motion for Summary Judgment at 19 (quoted in Appellant's Brief at 8). Hossaini argues that because this reference to the EPPA, coupled with similar references in WMMC's letters to Hossaini, is inconsistent with the hospital's current position, the hospital should be precluded by the doctrine of judicial estoppel from now contending that it is exempt from the strictures of the EPPA under the provisions of section 2006(a).

The doctrine of judicial estoppel prohibits a party from taking inconsistent positions in the same or related litigation. See Wyldes v. Hundley, 69 F.3d 247, 251 n. 5 (8th Cir.1995), cert. denied, 517 U.S. 1172, 116 S.Ct. 1578, 134 L.Ed.2d 676 (1996) (quoting Morris v. California, 966 F.2d 448, 452 (9th Cir.1991)). The underlying purpose of the doctrine is "to protect the integrity of the judicial process." Total Petroleum, Inc. v. Davis, 822 F.2d 734, 737 n. 6 (8th Cir.1987). See also Monterey Dev. Corp. v. Lawyer's Title Ins. Corp., 4 F.3d 605, 609 (8th Cir. 1993) (applying judicial estoppel in a diversity case). We have not heretofore defined with precision the elements of the doctrine. Among the circuits that have recognized judicial estoppel, the apparent majority view is that the doctrine applies only where the allegedly inconsistent prior assertion was accepted or adopted by the court in the earlier litigation. See Maharaj v. Bankamerica Corp., 128 F.3d 94, 98 (2d Cir.1997); Gens v. Resolution Trust Corp., 112 F.3d 569, 572-73 (1st Cir.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 335, 139 L.Ed.2d 260 (1997); Lowery v. Stovall, 92 F.3d 219, 224 (4th Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 954, 136 L.Ed.2d 841 (1997); Warda v. Commissioner of Internal Revenue, 15 F.3d 533, 538 (6th Cir.1994); Levinson v. United States, 969 F.2d 260, 264-65 (7th Cir.1992); United States for Use of American Bank v. C.I.T. Constr., 944 F.2d 253, 258-59 (5th Cir.1991). Under the minority approach, on the other hand, judicial estoppel applies even where no court has accepted the prior assertion if the party taking contrary positions demonstrates an intent to play "fast and loose" with the courts. See Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 361 (3d Cir.1996).

We find it unnecessary to choose between the foregoing views in the present case. Under either formulation, judicial estoppel is limited to those instances in which a party takes a position that is clearly inconsistent with its earlier position. See Linan-Faye Const. Co. v. Housing Auth. of Camden, 49 F.3d 915, 933 (3d Cir.1995). Hossaini presumes that because WMMC's positions are not explicitly duplicative, they are inherently inconsistent. However, a close examination of WMMC's positions demonstrates that this presumption is premised upon a fundamental misunderstanding of the statutory scheme set forth in the EPPA.

Section 2002 of Title 29 sets forth broad prohibitions on the use of polygraph examinations by employers. Among other things, it prohibits an employer from requesting or requiring an employee to take or submit to a polygraph examination and prohibits an employer from discharging any employee who refuses to take or submit to such an examination. See 29 U.S.C. § 2002(1), (3). These prohibitions are subject to a number of exceptions. As set forth earlier, section 2006(a) states that the EPPA does not apply to "the United States Government, any state or local government, or any political subdivision of a State or local government." Another exception is found at 29 U.S.C. § 2006(d), which states that EPPA does not prohibit an employer from requesting that an employee submit to a polygraph examination if the examination is administered in connection with an ongoing investigation and if certain other requirements are met. In Hossaini's Title VII litigation, WMMC contended that the latter exception applied. In contrast, WMMC now submits that the former exception is applicable, a position that Hossaini argues is inconsistent with the position WMMC asserted in the...