___________

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. *

___________

 Submitted: September 11, 1996

 Filed: October 8, 1996

___________

Before BOWMAN, BRIGHT, and JOHN R. GIBSON, Circuit Judges.

___________

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.
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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, nondiscriminatory 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.