UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ DR. MARTIN WOESLER, Plaintiff - Appellant,

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

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , BACHARACH , and MORITZ , Circuit Judges.

________________ _________________ Martin Woesler appeals the grant of su mmary judgment in favor of defendants Utah Valley University (“UVU”) and the St ate 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 sel ected for a one-year tenure-track position as coordinator of UVU’ s Chinese Studies program. During his employment, Woesler experienced strained rela tionships with some of his colleagues. One incident involved a professor of Ch inese Language named Alex Guofang Yuan,

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court2 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 inharmoniou s interactions surrounding promotion of Woesler’s classes followe d. 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 di scrimination, gender discrimination, 1 and retaliation. The parties consented to have a magistrate judge conduct all pr oceedings. Woesler timely appeals the magistrate judge’s gr ant 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 Ci r. 2015). Summary judgmen t is appropriate only if “there is no genuine i ssue as to any material fact and [] the moving part y is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Unde r this standard, we “examine the factual record and reasonable inferences therefrom in the light most favorable to the party opposi ng summary judgment.” App lied Genetics Int’l Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). Ho wever, “[a] mere scintilla of evidence supporting the nonm oving party’s theory does not create a

1 Woesler has abandoned his gender discrimination claim on appeal.3 genuine dispute of material fact.” A nderson v. Coors Brewing Co., 181 F.3d 1171, 1175 (10th Cir. 1999).
III We conclude that Woesler did not o ffer sufficient eviden ce 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 nati onal origin. Bolden v. PRC Inc., 43 F.3d 545, 551 (10th Cir. 1994) (quo tation omitted). The single remark made by Yuan and the single objection to Woes ler’s poster do not suggest his workplace was “permeated with discrimi natory intimidation, ridicu le, and insult, that [are] sufficiently severe or perv asive 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 s upervisor . . . the employer is vicariously liable whenever the harassmen t culminates in a tangible employment action.” Vance v. Ball State Univ., 133 S. Ct. 2434, 2456 (2 013) (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 n ecessarily fails. See Ellerth, 524 U.S. at 765 (“An employer is subject to vicarious liability to a victimized employee for an actionable hostile environm ent created by a supervisor with immediate (or successively higher) authority over the employee.”).4 Woesler’s disparate treatme nt claim was also prope rly rejected. Woesler argues that he and Yuan were “similarly situated employees ,” Carney v. City & Cty. of Denver, 534 F.3d 1269, 12 73 (10th Cir. 2008), because they were both untenured and governed by the same policies and re gulations. 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 dispar ate treatment was related to UVU’s decision to deny Woesler tenure. As a result, any claim of dispar ate 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 whethe r the plaintiff has demonstrated that the adverse employm ent action occurred under circumstances which give rise to an inference of unl awful discrimination.” (quotation omitted)). 2 Finally, we affirm as to Woesler’s re taliation claim. To prevail on such a claim, a plaintif f must show “that a causal connec tion existed between the protected activity and the materially adve rse action.” Estate of Bassa tt v. Sch. Dist. No. 1, 775 F.3d 1233, 1238 (10th Cir. 2014). Specifica lly, a Title VII retaliation claim requires

2 We need not explicitly address Woesle r’s argument that the magistrate judge erred in the final prong of the test establ ished in McDonnell Do uglas Corp. v. Green, 487 F.3d 792, 802 (1973). Be cause Woesler has not shown that “similarly situated [] employees . . . were treated differently” based on race or na tional origin, E.E.O.C. v. Flasher Co., Inc., 986 F.2d 1312, 1316 (10t h Cir. 1992) (quotation omitted), it follows that he has failed to adduce evidence that hi s denial of tenure “took place under circumstances giving rise to an in ference of discrimination,” E.E.O.C. v. PVNF, LLC, 487 F.3d 790, 800 (10th Cir. 20 07), as required under the third prong of the test established in McD onnell Douglas, 487 F.3d at 802.5 proof that the defendant’s desi re to retaliate was the “but -for” cause of the challenged employment action. Univ. of Tex. Sw. Me d. Ctr. v. Nassar, 133 S. Ct. 2517, 2533 (2013). Woesler fails on the causation re quirement because he did not present evidence sufficient to prove that UVU’s stat ed 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 showi ng that “a biased subordinate, who lacks decisionmaking power, use[d] the formal decisionmaker as a dupe in a deliberate scheme to trigger a discrimi natory 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 Wo esler’s argument that the ma gistrate judge erred in applying the same-actor and same-class in ferences. Even assu ming 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 pr etextual. See Antonio v. Sygma Network, Inc., 458 F.3d 1177, 1183 (10t h Cir. 2006) (noting that, ev en when the same-actor inference is applied, “the pl aintiff still has the opportun ity to present countervailing evidence of pretext” (quota tion and brackets omitted)).