The Honorable D. Brook Bartle tt, United States District Judge for the Western 1 District of Missouri. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2780

___________ Noorusadat Hossaini, * * Appellant, * * Appeal from the United States
v. * District Court for the * Western District of Missouri. Western Missouri Medical Center, * * Appellee. *

___________ Submitted: January 12, 1998

Filed: April 6, 1998

___________ Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN and HANSEN, Circui t Judges.

___________ WOLLMAN, Circuit Judge.
Noor usadat

Hossaini appeals the district court’s entry of summary judgmen t 1 in favo r of her former employer, Western Missouri Medical Center (hereinafte r “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.The text of Mo. Rev. Stat. § 205.160 reads, in pertinent part: 2
“The c ounty commissions of the several counties of this state . . . are he reby authorized, as provided in sections 205.160 to 205.340, t o es tablish, construct, equip, improve, extend, repair and maintain publi c hospital s and engage in health care activities, and may issue bond s therefor as authorized by the general law governing the incurring o f indebtedness by counties.”
-2- I.

WMMC i s a county hospital located in Johnson County, Missouri, organize d pursuant to Mo. Rev. Stat. §§ 205.160 - 205.379. The hospital is managed by a board 2 of trus tees, the individual members of which are elected by the citizens of Johnso n County. SeeMo. Rev. Stat. § 205.170. The board of trustees has delegated the hospital’s daily operational and managerial duties to WMMC’s president, Greg Vinardi. Vinard i is appointed by the board of tr ustees 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 i n WMMC’s r adiology department. As part of her duties at the hospital, Hossaini wa s expected to competently perform both general and vascular ultrasounds. Durin g Hossaini’s employment at the hospital, WMMC’s management was apparentl y 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, bega n compiling a list of allegedly substandard ultras ound examinations performed by Hossaini. Black did not keep a similar list for any other employee.
Shortly thereafter, WMMC discovered that each of the allegedly substandar d ultrasound fi lms identified in Black’s list was missing, as was the list itself. In addition, a logbook used to document ultrasound examination information was missing. TheThe facts underlying Hossa ini’s Title VII claim are set forth in greater detail in 3
our prior opinion. See Hossaini , 97 F.3d at 1086-88. The motion to incorporat e portions of the record from that appeal is granted. -3- hospital commenced an investigation of the missing items. An inventory revealed that no other films were missing. WMMC interviewed thirteen hospital employees about th e missing films. Four of the employees speculated that Hossaini might have taken th e 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 let ter dated October 18. Hossaini refused to take a polygraph examination and he r employment was terminated on November 1, 1993.

Ho ssaini thereafter commenced a civil rights action alleging employmen t discrimination based on n ational origin and unlawful retaliation in violation of 42 U.S.C. § 2000e et s eq. (Title VII) and the Missouri Human Rights Act, Mo. Rev. Stat. § § 213.055 and 213.070. See Hossaini v. Western MissouriMed. Ctr. , 97 F.3d 1085, 1085- 86 (8th Cir . 1996). WMMC moved for summary judgment, asserting two legitimate , 3 nondiscriminatory reasons for Hossaini’s dismissal: (1) WMM C reasonably believed that Hoss aini had stolen the ultrasound films and logbook; and (2) Hossaini could no t adequat ely perform vascular ultrasounds. See id. at 1087. The district court grante d
summ ary judgment for WMMC, finding that Hossaini had failed to produce evidenc e showing t hat the hospital’s proffered nondiscriminatory reasons were a pretext fo r disc riminatory animus. See id. We reversed, concluding that Hossaini had submitte d sufficient evidence to r aise 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.The text of Section 2006(a) reads: “Th is chapter shall not apply with respect to 4 the Uni ted States Government, any State or local government, or any politica l subdivision of a State or local government.”
-4- Hossai ni thereafter initiated the present action, alleging that she had bee n unlawfully discharged in violation o f the EPPA. WMMC moved for summary judgment, argu ing that as a political subdivision of Johnson County it is exempt from the EPP A pursuant to 29 U.S.C. § 2006(a). The district court agreed and granted summar y 4 ju dgment for WMMC. On appeal, Hossaini contends that the district court’s grant o f summary judgm

ent was erroneous for the following reasons: (1) WMMC “invoked” the EPPA in the Titl e VII litigation and therefore should have been judicially estopped from contend ing that it is exempt from the EPPA’s mandates; (2) WMMC deliberatel y separated itself from Johnson County in the prior litigation and ther efore 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 no t exempt from the EPPA.

W e review a grant of summary judgment de novo, applying the same standard as that a pplied by the district court. See Rabushka ex rel. United States v. Crane Co. , 122 F.3d 559, 562 (8th Cir. 1997), cert. denied , 1997 WL 799884 (1998). Summa ry judgment is prop er 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 i s 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-5-

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 curren t po sition, the hospital should be precluded by the doctrine of judicial estoppel from now contendi ng that it is exempt from the strictures of the EPPA under the provisions o f section 2006(a).
The doctrine of judicial estoppel prohibits a party from taking incons istent positions in the same or related litigation. See Wyldes v. Hundley , 69 F.3d 247, 251 n.5 (8th Cir. 1995), cert. denied , 116 S. Ct. 1578 (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 h eretofore defined with p recision the elements of the doctrine. Among the circuits that have recognize d judicial estoppel, the apparent majority view is that the doctrine applies only where the allegedly inc onsistent prior assertion was accepted or adopted by the court in the earlier l itigation. 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. denie d , 118 S. Ct. 335 (1997); Lowery v. Stovall , 92 F.3d 219, 224 (4th Cir. 1996), cert. denied , 117 S. Ct. 954 (1997); Warda v. Commissioner of Internal Revenue , 15 F.3d 533, 538 (6th Cir. 1994); Levi nson 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 th e 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).-6-

We find it unnecessary to choose betw een 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 beca use WMMC’s positions are not explicitly duplicative, they are inherentl y inconsistent. However, a close examination of WMMC’s positio ns demonstrates that this presumption is premised upon a fundamental misunderstanding of the statutory schem e set forth in the EPPA.

Section 2002 of Title 29 sets forth broad prohibitions on the use of polygrap h 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 a n 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 Uni ted States Government, any state or local government, or any politica l subd ivision 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 employe e submit to a polygraph examination if the examination is administered i n connection w ith an ongoing investigation and if certain other requirements are met. I n Hossain i’s Title VII litigation, WMMC contended that the latter exception applied. I n cont rast, WMMC now submits that the former exception is applicable, a position tha t Hossaini argues is inconsistent with the position WMMC as serted in the former litigation.

We conclude that the two positions are not truly inconsistent. WMMC’ s
un derlying assertion -- that its actions were not prohibited by the EPPA -- remain s unchanged from the position it took in the Title VII case. The hospital has merely utilized different arguments to support its position. Nonetheless , Hossaini argues that the hospital attempted in the prior litigation “to bring itself within the protection” of the-7-

EPPA and should not now be allowed to disavow that statute. Appellant’s Brief at 24. This argument misconceives the basic nature of the EPPA. The EPPA does not gran t empl oyers special protections and privileges that would not exist in the absence of th e legislation. At bo ttom, the EPPA is a prohibitive statutory scheme that identifies certain type s of conduct as unlawful and provides limited exceptions in which the genera l prohibitions are inapplicable. The hospital was not seeking refuge in the EPPA in th e Title VII case, but rather was simply asserting that the EPPA’s general prohibitions did not app ly. WMMC’s current position is therefore not irreconcilable nor inherentl y inconsis tent

with its prior assertions. Accordingly, there is no reason to estop it fro m asserting that position. See Linan-Faye , 49 F.3d at 933.

III.

We tu rn next to Hossaini’s contention that judicial estoppel should be applie d becau se of WMMC’s prior representations regarding its relationship with Johnso n County. Hossaini named WMMC, Johnson County, and the board of trustees a s de fendants in her Title VII complaint. In their responsive pleadings and motions, th e
var ious defendants, either collectively or individually, made a number of denials an d assertions regarding WMMC’s relationship with Johnson County. The defendant s asserted that Johnson County did not operate WMMC, was not involved i n the day-to-day operations of the hospital, received no rev enue or income from its operation, and was not Hossaini’s emplo yer within the meaning of Title VII. In light of the foregoing, Hossaini voluntarily dismissed Johnson County pursuant to Fed. R. Civ. P. 41(a)(1)(ii). Hossaini argues that, by advancing or approving the aforementioned assertion s, WMMC conducted
a “deliberate campaign of separating itself from Johnson County,” Appellant’s Brief at 24, and should therefore now be judicially estopped from asserting that it is a politica l subdivision of Johnson County.

Fede ral regulations implementing the EPPA define “political subdivision” in th e following manner:-8-

The term any political subdivision of a State or local government means any entity which is either: (1) Created directly by a state or local government, or (2) Administered by individuals who are responsible to publi c officials (i.e., appointed by an elected public official(s) and/or subject to removal procedures for public officials, or to the genera l electorate).

See29 C.F.R. § 801.10(c) (emphasis in original). Under this definitio n, a county need not be involved in the day-to-day operations of a hospital or derive revenue from suc h operatio ns in order for the hospital to be considered a “political subdivision” of th e county. All that is necessary is that the hospital be created by a state or local government or administered by individuals who are responsible to public officials.

Un der either of these criteria, the hospital is clearly a political subdivision o f Johnson Cou nty. WMMC was created by the county pursuant to Mo. Rev. Stat. § § 205.160 - 205.379. In addition, WMMC’s administration is appoin ted by public officials, the board of trustees. Thus, the assertions advanced by the defendants in the civil rights litigation are not inconsistent with a finding that WMMC is a political subdivision under the definition set forth at 29 C.F.R. § 801.10(c). Accordingly, there is no room for th e application of the doctrine of judicial estoppel here. See Linan-Faye , 49 F.3d at 933.

IV.
Finally, we address Hossaini’s contention that the district court erred as a matter of law in finding that WMMC is a political subdivision under 29 U.S.C. § 2006(a)

. Hossaini’s argument is premised on Stribling v. Jolley , 245 S.W.2d 885, 890 (Mo.-9-

1952) (en banc), wherein the Missouri Supreme Court held that a county hospital is not
a po litical subdivision of the state. Stribling , however, was based entirely on state la w and antedated the EPPA by some thirty-six years. “It is axiomatic that federal la w governs questions involvin g the interpretation of a federal statute.” In Re Columbia Gas Sys . Inc. , 997 F.2d 1039, 1055 (3d Cir. 1993). WMMC clearly fits within the scope of th e definition of political subdivision set forth in the relevant federal regulation. See 29 C.F .R. § 801.10(c). It is undisputed that the hospital was created pursuant to Mo. Rev. Stat. §§ 205.160 - 205. 379 and that its administration is appointed by and responsible to publicl y elected officials. Thus, the district court correctly found that the hospital fall s within the exemption created by 29 U.S.C. § 2006(a).
The judgment is affirmed.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.