UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

PERVAIZ KAISER, Plaintiff-Appellant,

v. COLORADO DEPARTMENT OF CORRECTIONS, Defendant-Appellee. No. 12-1128 (D.C. No. 1:10-CV-01837-RBJ-CBS) (D. Colo.)

ORDER AND JUDGMENT *

Before GORSUCH , ANDERSON , and EBEL , Circuit Judges.

Pervaiz Kaiser wanted to become a parole officer. Already working as a corrections officer, Mr. Kaiser saw the move as a chance for advan cement. He put in his application and, soon enough, he was pi cked to join the inco ming class of parole officer trainees.

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 5, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - Then the trouble began. On the first da y of training, Mr. Kaiser didn’t return to his assignment after a midday doctor’s appointment even though his supervisor, Melissa Gallardo, expected him. Over the next couple of days, Mr. Kaiser was allegedly late to morning briefings and was slow to return from breaks. He disappeared a few times without telling an yone. He was on his cell phone more often than Ms. Gallardo would have liked. A nd he may have made an inappropriate comment during the Executive Director’s opening remarks to the class. Tim Hand, Mr. Kaiser’s a ppointing authority, was none too pleased with what Ms. Gallardo (and others) had to report. Especially in light of Mr. Kaiser’s personnel file, which revealed a similar pattern of behavior during the year when Mr. Kaiser served as a corrections offi cer. Only a week into Mr. Kaiser’s training, Mr. Hand dismissed Mr. Kaiser from the program. Mr. Kaiser saw things differently. He thought the real reas on for his discharge was discrimination, owing to the fact that he is a Muslim fro m Pakistan. Pursuing this theory, Mr. Kaiser brought suit in fe deral district court under Title VII. See 42 U.S.C. § 2000e-2(a)(1). Ultimately, however, the district court granted the Department of Corrections’ motion for su mmary judgment. The court held that Mr. Kaiser had failed to pr oduce any evidence that the De partment’s stated reason for the firing — his poor performance during paro le officer training — was pretextual. Now on appeal, Mr. Kaiser says the district court was too quick to dismiss his case. He says all he needed to do to show pretext at summary judgment was to- 3 - testify as to his version of events. And, according to Mr. Kaiser, he had permission to go home after his doctor’s appointment, he wasn’t late to any of the training sessions, and he never us ed his cell phone while at the training academy. The difficulty is that none of Mr. Ka iser’s evidence, how ever charitably viewed, calls into question Mr. Hand’s go od faith belief that he had a troublesome trainee on his hands. When it comes to s howing pretext, the re levant inquiry is whether the evidence suggests an employer’s stated neutral reasons for a dismissal are “so incoherent, weak, inconsistent or co ntradictory that a ra tional factfinder could conclude the reason[] [is] unworthy of belief.” Young v. Dillon Cos. , 468 F.3d 1243, 1250 (10th Cir. 2006). The question we ask “is not whether the employer’s proffered reasons were wise, fair or correct, but whet her [the employer] honestly believed those reasons and acted in good fa ith upon those beliefs.” Id. (quotation marks omitted). “The reason for this rule is plain: our ro le is to prevent inte ntional discriminatory hiring practices, not to act as a ‘super personnel de partment,’ second guessing employers’ honestly held (even if erroneous) business judgments.” Id. In this case, none of Mr. Kaiser’s evidence offers any reason to doubt that Mr. Hand was dissatisfied with Mr. Kaiser’s performance, or that he ha d heard from several sources Mr. Kaiser wasn’t living up to expectati ons and wasn’t taking the training program seriously. Maybe Mr. Hand received err oneous reports as Mr . Kaiser says, but there’s no reason to doubt Mr. Hand did r eceive many poor repor ts on Mr. Kaiser’s conduct or that he believed t hose reports in good faith.- 4 - Seeking to establish pretext in a differe nt way, Mr. Kaiser reminds us of his contention that Ms. Gallardo uttered “so you are the guy” when she found out about his religion and national origin . This, Mr. Kaiser insists, is evidence that the real reason for his discharge was his religion and national or igin. But Mr. Hand, not Ms. Gallardo, was the decision-maker in th is case. We know that Mr. Hand learned from several sources about Mr . Kaiser’s allegedly poor performance. Meanwhile, there is no evidence in this record that Mr. Hand knew of Mr. Kaiser’s national origin and religion, let alone that he was influenc ed by those facts in any way. In these circumstances, there is, once again, no reason to doubt Mr. Hand in good faith believed the stated reasons fo r his discharge decision. See Minshall v. McGraw Hill Broad. Co. , 323 F.3d 1273, 1281 (10t h Cir. 2003) (“isolated comments, unrelated to the challenged action, are insu fficient to show discriminato ry animus in termination decisions” (alteration omitted)). Seeking still other grounds for pret ext, Mr. Kaiser offers a number of arguments that boil down to a contention that Mr. Hand’s decision ju st wasn’t fair. Mr. Kaiser says that Mr. Hand should have given him more time, that Mr. Hand shouldn’t have taken his record of infractio ns as a corrections officer into account, and that Mr. Hand never had any intention of letting Mr. Kaiser e xplain himself. But again none of these arguments suggests Mr. Hand’s proffered reason for letting Mr. Kaiser go was pretextual. As we have explained, it is not our function under the federal discrimination laws to tell employers how best to go about their jobs, but to- 5 - ask whether the employer’s pr offered reasons for firing an employee were held in good faith or, instead, subterfuge for possible discrimination. Young , 468 F.3d at 1250. Maybe others would have gone about the job differently than Mr. Hand did. But he bore the responsibility of assembling a class of competen t, responsible, and respectful trainees capabl e of serving Colorado as pa role officers. None of Mr. Kaiser’s arguments undermines Mr. Ha nd’s claim that he sincerely believed Mr. Kaiser wasn’t cut out for the job. The judgment of the dist rict court is affirmed.

Entered for the Court

Neil M. Gorsuch Circuit Judge