Hossaini v. Western Missouri Medical Center, 95-3966
| Decision Date | 08 October 1996 |
| Docket Number | No. 95-3966,95-3966 |
| Citation | 97 F.3d 1085 |
| Parties | 72 Fair Empl.Prac.Cas. (BNA) 171, 69 Empl. Prac. Dec. P 44,419 Noorusadat S. HOSSAINI, Appellant, v. WESTERN MISSOURI MEDICAL CENTER; Doris Kirkpatrick, Chairperson; Harold Young, Trustee; Linda Gentry, Trustee; Dr. M. Letterer; Hugh Smith, Trustee, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Gregory Dennis, Kansas City, MO, for appellant.
Sally Howard, Kansas City, KS (Thomas Sutherland, on the brief), for appellee.
Before BOWMAN, BRIGHT, and JOHN R. GIBSON, Circuit Judges.
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.
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 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.
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 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.
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, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). The court cannot weigh the evidence or grant summary judgment merely because it believes the nonmoving party will lose at...
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