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 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 This order and judgment is not binding precedent, except under the doctrines 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

February 13, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

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. 
3 

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.”). 
4 

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. 
5 

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)).