___________ No. 95-3966

___________ 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 forme r employer, Western Missouri Medical Center (WMMC) and the WMMC Board o f Trustee s (the Board), alleging employment discrimination based on he r national origin and u nlawful 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 summar y judgmen t in favor of WMMC because Hossaini failed to produce evidenc e showing that WMMC's p roffered reasons for terminating her employment were pretext for unlawful discrimination. Hossaini appeals. After a ful l review of the record, we reverse and remand.I. BACKGROUND

Hossaini , an Iranian lawfully residing in the United States, is a n ultrasound technologist. She worked at WMMC, a county hospital, from June 19, 1992, until her termination on November 1, 1993. Hossaini worked unde r the immediate supervi sion of Randy Whitcomb, the Director of Radiology at WMMC. She also worke d with Susan Black, another ultrasound technologist.

When Hossaini applied for the ultrasound technologist position a t WMMC she indicated that she had training in general and vascular ultrasoun d techniques. Although her resume stated that she was certified in general and vascular ultrasound, she claims she informed Whitcomb that she receive d little hands-on train ing in vascular ultrasound techniques. According to Hoss aini, Whitcomb told her that WMMC hired an outside contractor t o perform all the vascular ultrasound exams.
In September 1992, Whitcomb approved Hossaini's request to atte nd the Am erican Registry of Diagnostic Medical Sonographers registry revie w course. Hossaini attended the course, but did n ot pass the examination to become a registered ultrasound technologist.

Hos saini received the first of two performance evaluations fro m Whitcom b in September 1992, and was rated on thirty-one different jo b responsibilities. Ho ssaini received scores indicating that she "need[ed] improv ement" on six of the responsibilities. Hossaini received score s indicating that she met WMMC's requirements on the remaining twenty-five resp onsibilities. Whitcomb did not find that she failed to meet th e mini mumrequirements of any responsibility, nor did he find that sh e exceeded the requirements of any responsibility.

### -3- In Febr uary 1993, WMMC decided to begin performing vascula r 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

. Whit comb refused her request and became angry. Hossaini claims tha t Whitcomb yelled at her, "why [is] everything so different with you dam n foreigners," and criticized her for not taking v acation time like American employees. Whitcomb admits raising his voice at Hossaini, but denies usin g derogatory language.

Hossa ini then went to Dennis Long, Director of Human Resources a t WMMC, and requested leave to go to Iran. Hossai ni told Long that Whitcomb denied her request and became angry. Hossaini claims she also told Long abo ut Whitcomb's derogatory remarks. According to Hossaini, Lon g acknowledged that Whi tcomb's conduct was improper and approved Hossaini's leave.
According to Hossaini, when she returned from Iran, other employees told her that Whitcom b 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 lett ers. She alleges that the male caller knew her name, street address and post office box number, and told her to leave tow n. Hossaini claims she had an unlisted phone number known only to her family and WMMC. The letters ordered her to "[r]esign
an d move out or you will get hurt" and "[l]eave town or I [will] ge t someone to hurt you." The letters bore a "Colum bia GMF" postmark and were allegedly mailed from Sedalia, Missouri. Whitcomb resided in Sedalia.

On April 22, 1993, Susan Black, Hossaini's co-worker, became th e "lead" ultrasound technologist. Hossaini claims that

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throughout her employment Black made fun of Hoss aini's accent and imitated it. Hossaini also claims that Black repeatedly made derogatory comments about foreigners, specifically complaining about foreigners taking job s away from Americans.
Hossaini received her second perform ance review from Whitcomb on May 14, 1993. In this review, Whitcomb gave Hossaini similar scores as th e first revi ew, but he noted that Hossaini had not become proficient a t performing vascular u ltrasounds. 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. Sh e refused, allegedly because she believed she needed more practice. Instead , Hossaini requested an independent evaluation of her vascular ultrasoun d skills

. The evaluator concluded that Hossaini's "anatomy and scannin g ski lls are good," but recommended that Hossaini receive three months o f daily practice to become proficient. Hossaini t hen 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 t o Whitcomb, such training would be costly and he preferred that Hossain i learn the procedure on WMMC's equipment. Neither party offered evidence regarding whether the other hospitals used the same equipment as WMMC.

On May 1 8, 1993, Hossaini met with Gregory Vinardi, WMMC's C.E.O. , and co mplained that she was being harassed and discriminated agains t because o f her national origin and that she believed it was against th e law. On June 15, 199 3, Hossaini sent a follow-up letter to Vinardi about the harassment and discrimination.

### -5- In June 1993, Black began keeping a list of substandard ultrasoun d exams performed by Ho ssaini. 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 Empl oyment Oppo rtunityCommission (EEOC) and the Missouri Human Rights Commissio n alleging discrimination on the basis of national origin.
On July 30, 1993, WMMC began investigating the disappearance of seven ultras ound films and a logbook used to document ultrasound exa m info rmation. The missing films allegedly documented substandard exam s performed by Hossaini and corresponded with Black's list. WMMC performed
a ran dom inventory of the ultrasound films and concluded that no othe r films were missing. As part of the investigation, WMMC interviewe d thirte en employees about the missing items and four speculated tha t Hossaini may have tak en the films and logbook. Several employees offered alter native explanations for the items' absence. These alternativ e explanations ranged from naming other employees with access to the films and logbook, to specu lating 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 additi on, Black claims she no longer has the note cards or th e list of Hossaini's substandard exams. She claim s she either lost or threw away the note cards and the list.

On Oct ober 5, 1993, Vinardi asked Hossaini to take a polygrap h 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 terminatio n resulted from her refusal to take the polygraph exam.

On December 29, 1993, Hossaini commenced this action claimin g dis criminatorytreatment and retaliation. WMMC and the Board moved fo r
sum maryjudgment contending that WMMC terminated Hossaini for tw o legitimate, nondiscri minatory reasons: (1) because it believed she stole the ultrasound films and logbook, and (2) becaus e she could not adequately perform vascular ultrasounds. The district cour t granted summary judgment because Hossaini failed to generate a genuine issue of material fact on th e issu e of pretext. In addition, the Board moved for summary judgmen t claiming that it was not an "employer" under Title VII or the MHRA

. Becaus e the district court granted summary judgment, it decided tha t whether the Board qualified as an "employer" und er Title VII was moot and, therefore, refused to rule on the matter. Hossaini appeals.

II. DISCUSSION

A.

We re view 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 movin g party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c)

. "The evide nce of the nonmovant is to be believed, and all justifiabl e inference s are to be drawn in [her] favor." Anderson v. Liberty Lobby , Inc. , 4 77 U.S. 242, 255 (1986). The court cannot weigh the evidence o r grant summary judgment merely because it believe s the nonmoving party will lose at trial. See i d. 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 claim s under the "burden shifting" analysis established in McDonnell Douglas Corp

. v. Green , 411 U.S. 792 (1973). The McDonnell Douglas analysis also applie s to claims under the M HRA. McLaughlin v. Esselte Pendaflex Corp. , 50 F.3d 507, 510 (8th Cir. 1995) (citing Midstate Oil Co. v. Missouri Comm'n o n Huma n Rights , 679 S.W.2d 842, 845-46 (Mo. banc 1984)). Accordingly , Hossaini must establish a prima facie case of discrimination, then th e burde n of production shifts to WMMC to provide a legitimate, non

discriminatoryexplanation for her discharge. See Roxas v. Presentation College , 90 F.3d 310, 316 (8th Cir. 1996) (citation omitted). If WMM C offers a legitimate, nondiscriminatory explanation, the burden o f production shifts bac k to Hossaini to demonstrate that WMMC's reason is a pretext for discrimin ation. Roxas , 90 F.3d at 316. "Finally, [Hossaini] at all times carries the burden of persuasion to show that the advers e 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 el ements of a pr ima facie case and that WMMC articulated two nondiscriminator y
reasons for terminating her. First, WMMC claimed it fired Hossaini becaus e it reasonably believed she stole the ultrasound films and logbook. Second , WMMC stated that Hossaini could not adequately perform vascula r ultrasounds.

Because WMMC offered legitimate, nondiscriminatory reasons fo r term inating her, the burden of production shifts back to Hossaini t o 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 faci e
case to demonstrate discriminatory motive. Roxas , 90 F.3d at 316 n.3 ; Rot hmeier v. Investment Advisors, Inc. , 85 F.3d 1328, 1336-37 (8th Cir

. 199 6). The standard for Hossaini "to survive summary judgment require d onlythat [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 it s actions." Davenport v. Riverview Gardens Sch. D ist. , 30 F.3d 940, 945 n.8 (8th Cir. 1994).

Vi ewing the evidence in the light most favorable to Hossaini, w e believe she offered s ufficient 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 Hossain i because it believed she stole the ultrasound films and logbook wa s pretextual.

The distr ict court relied on Gill v. Reorganized Sch. Dist. R- 6 Festus, M o. , 32 F.3d 376 (8th Cir. 1994), in which a superintenden t terminated the plaintiff based on a supervisor's report indicating that th e plain tiff engaged in misconduct. Id. at 379. The plaintiff, however , merely alleged that she never participated in su ch misconduct and the only eviden ce the plaintiff offered to show discriminatory motive was th e superintendent's awareness of her race. Id. ; see also Roxas , 90 F.3d at 31 7-18 (stating that plaintiff's reliance on other employees' biase d statements to demonst rate pretext failed because evidence lacked a causal nexus between employe es' statements and employer's decision). This court affirmed summary judg ment because the plaintiff's mere assertion that she
never participated in the misconduct fell short of an affirmativ e allegation that discriminatory animus motivated the superintendent' s decision or the supervisor's report. Gill , 32 F.3d at 379.

### -9- In this case, Hossaini offered evidence that WMMC launched it s inv estigation into the missing films and logbook less than three month s after she complained to Vinardi about discrimina tion, less than two months after she reduced those complaints to writing, and less than one mont h after she filed her complaint with the EEOC. Unlike the situation in Gill , Hossai ni claimed several people at WMMC, including Long, Vinardi an d Whitcomb, knew she made allegations of discrimination and harassment befor e WMMC began investigating the alleged misconduct. A reasonable person coul d 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 o rigin, but made derogatory comments about her nationality and threatened to get even with her. See McLaug hlin , 50 F.3d at 512 (stating that in certain circumstance s "di scriminatorystatements made by supervisors may be evidence o f discriminatory intent"). She also offered evidence from which a reasonabl e juror mi ght infer that Whitcomb participated in the mailing of th e threat ening letters. This evidence could support the conclusion tha t Whitcom b capitalized on the disappearance of the films and logbook t o 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 film s origina ted with Black, who allegedly made derogatory statements abou t foreigners and ridiculed Hossaini's accent. Black claimed she lost o r 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 relatin g to the mis sing films and logbook. Such evidence, therefore, bears o n pretext.

Second, Hossaini offered evidence from which a reasonable perso n could infer that WMMC's assertion that she could not perform

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vascular ultrasounds a dequately, 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 Mi nn. , 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 hospita l did not rely on her lack of proficiency at per forming 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 infe r that WMMC claimed it fired Hossaini because she could no t perform vascular ultrasounds, after she brought suit, in an effort t o strengthen its case and avoid liability.

In additi on, in Davis v. Fleming Companies, Inc. , 55 F.3d 1369 (8th Cir. 1 995), the employer relied on a supervisor's notes purportedl y documenting the employee's deteriorating job performance to support th e decis ion to fire the employee. Id. at 1373. This court found that th e supervisor's notes showed a pattern of deteriora ting performance, but they did not preclude a reasonable inference of a ret aliatory intent or pretext from other evidence. Id. For example, the plaintiff offered evidence tha t his pe rformance ratings continued to reflect satisfactory work. Id

. Furthermore, a genuine issue of material fact ex isted because the employer contested the plainti ff's characterization of the supervisor's motivation for writing the memos. Id. at 1373-74.

As in Dav is , Hossaini never received performance reviews indicating substa ndard work. She also offered evidence that performing vascula r ultrasoun ds was not part of the job requirements at the time WMMC hire d her. In addition she offered evidence that she tried to receive training in vascular ultrasoun ds at other hospitals. Although Whitcomb criticized her altern ative as costly and less beneficial to WMMC, at the summar y judgment stage we must give Hossaini the benefit of inferring the cost

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effectiveness of such training. Furthermore, the district court recognize d 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 tha t allegedly document Ho ssaini's substandard performance. WMMC's "arguments may well keep [Hossaini] from persuading a jury that [WMMC] terminate d [her] i n retaliation . . . rather than because of deficient jo b performance," but at the summary judgment stage we cannot weigh th e evi dence. 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 , "espe ciallybecause this . . . case is based largely on circumstantia l evidence and the relative merit of each party's case depends significantly on credibility." Has e 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 al l the evidence points favorably only to the employer. Instead, afte r review ing the whole record, some of the evidence permits reasonabl e inferences that can favor Hossaini.

B.

Hossaini also asks us to direct the district court to find that the Boa rd falls within Title VII's and the MHRA's definition of "employer. " The Board moved for summary judgment arguing tha t it was not an "employer" for purposes of Title VII or the MHRA. The district court decided that th e issue became moot after it determined that Hossaini could not recover on her claims.

### -12- To rule on this issue requires not only interpreting the statutor y langu age of Title VII, but also analyzing the factual setting an d characteristics of the Board's relationship to WMMC and Hossaini. Th e district court is better suited to undertake such a fact specific exercise

. Therefore , we decline to rule on whether the Board falls within th e 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.