                                                                                 FILED
                                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                         Tenth Circuit

                             FOR THE TENTH CIRCUIT                         February 13, 2018
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
DR. MARTIN WOESLER,

      Plaintiff - Appellant,

v.                                                         No. 16-4190
                                                  (D.C. No. 2:13-CV-01023-DBP)
UTAH VALLEY UNIVERSITY; STATE                                (D. Utah)
OF UTAH,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, BACHARACH, and MORITZ, Circuit Judges.
                  _________________________________

      Martin Woesler appeals the grant of summary judgment in favor of defendants

Utah Valley University (“UVU”) and the State of Utah on his Title VII claims.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

                                           I

      Woesler, a Caucasian male of German descent, was selected for a one-year

tenure-track position as coordinator of UVU’s Chinese Studies program. During his

employment, Woesler experienced strained relationships with some of his colleagues.

One incident involved a professor of Chinese Language named Alex Guofang Yuan,


      *
         This order and judgment is not binding precedent, except under the doctrines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.
who remarked to Woesler that “a white guy like you should better not teach Chinese”

and “[w]e have natives that can do that.” Another incident involved Woesler’s

decision to hang a student-created poster of a couple that consisted of a Caucasian

man and an Asian woman. An assistant professor named Leo Chan objected, calling

the poster racist and sexist. A series of inharmonious interactions surrounding

promotion of Woesler’s classes followed. After Woesler was denied tenure, he sued

UVU and the State of Utah, alleging four causes of action under Title VII: race

discrimination, national origin discrimination, gender discrimination,1 and retaliation.

The parties consented to have a magistrate judge conduct all proceedings. Woesler

timely appeals the magistrate judge’s grant of summary judgment in favor of

defendants.

                                           II

      We review a grant of summary judgment de novo. Lounds v. Lincare, Inc.,

812 F.3d 1208, 1220 (10th Cir. 2015). Summary judgment is appropriate only if

“there is no genuine issue as to any material fact and [] the moving party is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). Under this standard, we

“examine the factual record and reasonable inferences therefrom in the light most

favorable to the party opposing summary judgment.” Applied Genetics Int’l Inc. v.

First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). However, “[a] mere

scintilla of evidence supporting the nonmoving party’s theory does not create a



      1
          Woesler has abandoned his gender discrimination claim on appeal.
                                           2
genuine dispute of material fact.” Anderson v. Coors Brewing Co., 181 F.3d 1171,

1175 (10th Cir. 1999).

                                           III

       We conclude that Woesler did not offer sufficient evidence of a hostile work

environment. Proving a hostile work environment requires “more than a few isolated

incidents” of enmity based on a plaintiff’s race or national origin. Bolden v. PRC

Inc., 43 F.3d 545, 551 (10th Cir. 1994) (quotation omitted). The single remark made

by Yuan and the single objection to Woesler’s poster do not suggest his workplace

was “permeated with discriminatory intimidation, ridicule, and insult, that [are]

sufficiently severe or pervasive to alter the conditions of [Woesler’s] employment

and create an abusive working environment.” Davis v. U.S. Postal Serv., 142 F.3d

1334, 1341 (10th Cir. 1998) (quotations omitted).

      We also reject Woesler’s Faragher-Ellerth theory of liability. Under this

doctrine, “[i]f the harassing employee is a supervisor . . . the employer is vicariously

liable whenever the harassment culminates in a tangible employment action.” Vance

v. Ball State Univ., 133 S. Ct. 2434, 2456 (2013) (citing Faragher v. City of Boca

Raton, 524 U.S. 775, 807-08 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,

764-65 (1998)). Because Woesler was not subjected to a hostile environment based

on his race or national origin, this theory necessarily fails. See Ellerth, 524 U.S. at

765 (“An employer is subject to vicarious liability to a victimized employee for an

actionable hostile environment created by a supervisor with immediate (or

successively higher) authority over the employee.”).

                                            3
       Woesler’s disparate treatment claim was also properly rejected. Woesler

argues that he and Yuan were “similarly situated employees,” Carney v. City & Cty.

of Denver, 534 F.3d 1269, 1273 (10th Cir. 2008), because they were both untenured

and governed by the same policies and regulations. Assuming Yuan was similarly

situated, Woesler provides no evidence that Department of Languages Chair

Baldomero Lago or any other supervisor treated Yuan differently based on race or

national origin, or that the alleged disparate treatment was related to UVU’s decision

to deny Woesler tenure. As a result, any claim of disparate treatment fails. See

Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1227 (10th Cir. 2000) (“The

critical prima facie inquiry in all [Title VII] cases is whether the plaintiff has

demonstrated that the adverse employment action occurred under circumstances

which give rise to an inference of unlawful discrimination.” (quotation omitted)).2

       Finally, we affirm as to Woesler’s retaliation claim. To prevail on such a

claim, a plaintiff must show “that a causal connection existed between the protected

activity and the materially adverse action.” Estate of Bassatt v. Sch. Dist. No. 1, 775

F.3d 1233, 1238 (10th Cir. 2014). Specifically, a Title VII retaliation claim requires


       2
         We need not explicitly address Woesler’s argument that the magistrate judge
erred in the final prong of the test established in McDonnell Douglas Corp. v. Green,
487 F.3d 792, 802 (1973). Because Woesler has not shown that “similarly situated []
employees . . . were treated differently” based on race or national origin, E.E.O.C. v.
Flasher Co., Inc., 986 F.2d 1312, 1316 (10th Cir. 1992) (quotation omitted), it
follows that he has failed to adduce evidence that his denial of tenure “took place
under circumstances giving rise to an inference of discrimination,” E.E.O.C. v.
PVNF, LLC, 487 F.3d 790, 800 (10th Cir. 2007), as required under the third prong of
the test established in McDonnell Douglas, 487 F.3d at 802.

                                             4
proof that the defendant’s desire to retaliate was the “but-for” cause of the challenged

employment action. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2533

(2013). Woesler fails on the causation requirement because he did not present

evidence sufficient to prove that UVU’s stated reasons for denying him tenure were

pretextual.3 We also reject Woesler’s theory of subordinate bias, under which a Title

VII plaintiff may establish pretext by showing that “a biased subordinate, who lacks

decisionmaking power, use[d] the formal decisionmaker as a dupe in a deliberate

scheme to trigger a discriminatory employment action.” E.E.O.C. v. BCI Coca-Cola

Bottling Co. of L.A., 450 F.3d 476, 484 (10th Cir. 2006). Woesler failed “to

demonstrate a causal relationship between [Yuan’s] actions and the employment

decision.” Id. at 488.

                                          IV

      AFFIRMED.


                                            Entered for the Court


                                            Carlos F. Lucero
                                            Circuit Judge



      3
         We decline to address Woesler’s argument that the magistrate judge erred in
applying the same-actor and same-class inferences. Even assuming the magistrate
judge did so err, Woesler’s race discrimination, national origin discrimination, and
retaliation claims would nevertheless fail because he has not shown that UVU’s
stated reasons for the tenure denial were pretextual. See Antonio v. Sygma Network,
Inc., 458 F.3d 1177, 1183 (10th Cir. 2006) (noting that, even when the same-actor
inference is applied, “the plaintiff still has the opportunity to present countervailing
evidence of pretext” (quotation and brackets omitted)).
                                           5
