                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                  September 4, 2009
                            FOR THE TENTH CIRCUIT
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court

    MANORAMA PATEL,

                Plaintiff-Appellant,

    v.                                                  No. 09-3014
                                               (D.C. No. 2:07-CV-02290-JAR)
    UNIVERSITY OF KANSAS                                  (D. Kan.)
    HOSPITAL AUTHORITY,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before LUCERO, BALDOCK, and MURPHY, Circuit Judges.



         Manorama Patel appeals the district court’s grant of summary judgment in

favor of her former employer, the University of Kansas Hospital Authority (the

Hospital), with regard to her claims of race and national origin discrimination and

retaliation under 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964,

42 U.S.C. §§ 2000e-2, 2000e-3, 2000e-5. Identifying no evidence creating a


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
genuine issue of material fact as to whether the Hospital’s reason for discharging

Ms. Patel was pretext, we AFFIRM.

      The parties know the facts, so we do not go into great detail. Ms. Patel is

of South Asian heritage (her family is from India), and she was employed by the

Hospital as a Gastrointestinal/Endoscopy Lab Technician (GI Tech). After two

registered nurses reported seeing her sleeping during a procedure, the Hospital

terminated her employment. Ms. Patel denies that she was sleeping, and contends

that the termination was due to race and national origin discrimination and/or

retaliation for a complaint she had made about being treated rudely by an

allegedly biased doctor.

      Applying the burden-shifting scheme of McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v.

Burdine, 450 U.S. 248 (1981), to the Hospital’s motion for summary judgment,

the district court held that Ms. Patel established her prima facie case and the

Hospital proffered a legitimate, nondiscriminatory reason for the termination.

The court also held that Ms. Patel had not presented evidence establishing a

genuine issue of material fact as to whether the Hospital’s proffered reason was a

pretext for discrimination or for retaliation. Accordingly, the district court

granted summary judgment to the Hospital.

      Summary judgment is appropriate “if the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue

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as to any material fact and that the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(c). The sole issue on appeal is whether Ms. Patel can

establish a genuine issue of material fact as to pretext. “We review the district

court’s grant of summary judgment de novo, applying the same legal standard

used by the district court.” Simms v. Okla. ex rel. Dep’t of Mental Health &

Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999). “[W]e view the

evidence and draw reasonable inferences therefrom in the light most favorable to

the nonmoving party.” Id.

      Evidence of pretext “may take a variety of forms,” including evidence

tending to show “that the defendant’s stated reason for the adverse employment

action was false” and evidence tending to show that the defendant acted contrary

to a written or unwritten policy or practice. Kendrick v. Penske Transp. Servs.,

Inc., 220 F.3d 1220, 1230 (10th Cir. 2000) (quotation omitted). “The plaintiff’s

evidence can also allow for an inference that the employer’s proffered

non-discriminatory reasons were either a post hoc fabrication or otherwise did not

actually motivate the employment action.” Plotke v. White, 405 F.3d 1092,

1102-03 (10th Cir. 2005) (alteration and quotation omitted). When analyzing a

contention of pretext, we examine “the facts as they appear to the person making

the decision to terminate plaintiff.” Kendrick, 220 F.3d at 1231. “[T]he relevant

inquiry is not whether the employer’s proffered reasons were wise, fair or correct,

but whether it honestly believed those reasons and acted in good faith upon those

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beliefs.” Young v. Dillon Cos., 468 F.3d 1243, 1250 (10th Cir. 2006) (quotation

omitted). This court does not “act as a super personnel department, second

guessing employers’ honestly held (even if erroneous) business judgments.” Id.

(quotation omitted).

      On appeal, Ms. Patel proffers the same pretext arguments that she laid

before the district court. For substantially the reasons set forth in the district

court’s summary-judgment decision, we agree that Ms. Patel has not created a

genuine issue of material fact as to pretext. And even if we were to conclude that

the district court erred in some portion of its analysis, the Hospital would still be

entitled to judgment as a matter of law. As the district court concluded, at best

there could be “a weak issue of fact as to whether the employer’s reason was

untrue,” while the record contains “abundant and uncontroverted independent

evidence that no discrimination . . . occurred.” Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 148 (2000).

      The district court’s grant of summary judgment is AFFIRMED.


                                                      Entered for the Court



                                                      Bobby R. Baldock
                                                      Circuit Judge




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