Throupe v. University of Denver

                                                                    FILED
                                                        United States Court of Appeals
                                                                Tenth Circuit

                                      PUBLISH               February 26, 2021
                                                           Christopher M. Wolpert
                  UNITED STATES COURT OF APPEALS               Clerk of Court

                               TENTH CIRCUIT



 RONALD L. THROUPE,

             Plaintiff - Appellant,
 v.                                                  No. 20-1069
 UNIVERSITY OF DENVER;
 BARBARA JACKSON; GLENN
 MUELLER; MARIE KLINE; and
 PAUL OLK,

             Defendants - Appellees.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                (D.C. NO. 1:17-CV-02293-MSK-NRN)


Nathaniel B. Smith, Law Office of Nathaniel B. Smith, New York, New York, for
Appellant.

Jim Goh (Renee J. Seyko with him on the brief), Constancy, Brooks, Smith &
Prophete, LLP, Denver, Colorado, for Appellees.


Before TYMKOVICH, Chief Judge, EBEL, and BACHARACH, Circuit Judges.


TYMKOVICH, Chief Judge.
       Ronald Throupe, a Professor of Real Estate at the University of Denver,

brought an employment discrimination claim under Title IX against DU as well as

several faculty and staff members. Following discovery, the defendants moved

for summary judgment. The district court granted the motion for summary

judgment, concluding Throupe had not presented a prima facie claim of

employment discrimination based on his sex.

       We affirm the district court’s grant of summary judgment. Specifically, we

conclude the district court did not err in concluding that Throupe failed to raise a

triable issue of fact as to whether he was discriminated against on the basis of his

sex.

                                 I. Background

       A. Factual Background

       Ronald Throupe came to the Burns School of Real Estate and Construction

Management within DU as an Associate Professor in 2007. Since his arrival,

Throupe’s research and teaching has focused on real estate, specifically appraisal,

investments, and real-estate software. Historically, he received positive reviews

for his teaching and research and was promoted to a tenured position in 2013.

During his time at DU, he has maintained a private real estate consulting practice.

       In 2013, Throupe was a candidate to serve as director of the Real Estate

and Construction Management department. DU ultimately hired outside of the


                                         -2-
school, bringing in Barbara Jackson to lead the department. Jackson’s scholarship

focuses on construction management. According to Throupe, upon Jackon’s

arrival, she quickly “announced her intention of significantly reducing the real

estate portion of the school.” Aplt. App. 377. Jackson made this clear in

conversations with professors, indicating she would force some of the tenured real

estate faculty members to leave.

      In May of 2014, Throupe attended a gala hosted for Burns faculty with a

former student, Mao Xue. Xue is a Chinese national who had graduated with an

MBA from DU in 2013. Both before and after the gala, Throupe maintained a

close personal and professional relationship with Xue. During her time at DU,

Xue served as a research assistant to Throupe and took much of her course work

from him. Outside of school, Xue worked for Throupe, spent extensive time with

his family, traveled with him for conferences, and was on his family’s cell phone

plan. Throupe variously described his relationship with Xue as “step-dad,”

“father-daughter,” and “sister-daughter.” Id. at 176, 193, 196. After the events

described here, he adopted her.

      Prior to the gala, Defendant Marie Kline, an administrator within Burns,

told Throupe he would need to pay for Xue’s ticket. Kline indicated to Throupe

that the gala was customarily free only for faculty, staff, and their significant

others. According to Kline, Throupe then “told me [Xue] was his significant


                                          -3-
other.” Id. at 997. Throupe acknowledges saying as much, but insists this

statement was taken out of context.

      After the gala, staff, faculty, and students within Burns began expressing

concerns to one another and Jackson about an inappropriate relationship between

Throupe and Xue. Some speculated they were having an affair. And some said

they had seen Throupe and Xue holding hands and being otherwise physically

affectionate. Throupe recalls four occasions on which these rumors made it back

to him. In the summer of 2014, one professor told Throupe that “everyone thinks

that you and Mao are together.” Id. at 175. At an academic conference in May of

2015, another professor, Defendant Glenn Mueller, told Throupe he had heard

Throupe had left his wife to be with Xue. In June of 2016, Defendant Paul Olk,

who serves as the Associate Dean of Burns, told Throupe he had been told that

Throupe had introduced Xue as his wife at the gala. And Throupe also said

another professor at some point made “a remark about hearing something about

[his relationship with Xue].” Id. at 176.

      After spending the prior year working for Throupe, Xue returned to DU as

a Master’s student in the fall of 2014. The following spring, she served as a

graduate assistant to Throupe and took all of her course work with him. During

that quarter, Xue stopped attending classes for several weeks and also failed to

report for her work as a research assistant. In late April, Throupe contacted DU’s


                                            -4-
Director of International Student Services to express his concerns about Xue’s

immigration status given her poor attendance. Throupe subsequently met with the

Director of International Student Services and the Director of Graduate Student

Services to discuss his concerns. During this meeting, Throupe described his

relationship with Xue. He said he “financially supported her, that she was very

close with his wife and kids” and “he asked her to refer to him as her step-dad,

and not her boss, because he didn’t want anyone to get the wrong idea about their

relationship.” Id. at 196–97. Because of their personal intimacy, he also said that

once Xue had stopped attending classes, he began frequenting coffee shops she

regularly went to and questioning her friends in an effort to find her.

      Based on this meeting, each Director contacted DU’s Title IX investigator

to express concerns about Xue. When administrators reached out to Xue, she told

them “I’m fine.” Id. at 229. The Directors also informed Jackson about the

meeting. Jackson then met with Throupe in early May. After this meeting, she

contacted Associate Dean Olk and the Dean of Burns. In an email to both deans,

Jackson wrote “[t]here’s a serious issue with Ron Throupe.” Id. at 1051. She said

Throupe “is fully aware of everyone’s concern about this relationship but

constantly retorts that he’s like a step-father to [Xue]. His behavior is totally out

of line and now apparently something has happened in the relationship.” Id. She

concluded, “Ron believes he has done nothing but help this girl, but his behaviors


                                          -5-
have been totally unprofessional and inappropriate, his father/daughter views

perverted, and his obsession out of control.” Id.

      The Title IX investigator and DU’s Manager of Equal Employment had a

follow-up meeting with Throupe in early June. At this meeting, Throupe again

described his relationship with Xue. He also expressed that he and Xue “don’t

feel safe in Burns anymore. We feel rumored.” Id. at 176. After the meeting, he

sent an email to the Manager of Equal Employment formally reporting a hostile

work environment. When Throupe later asked whether any actions had been

taken in response to his report, the investigator told Throupe his claim “did not

result in any formal investigation by the Office of Equal Employment.” Id.

at 234.

      In the fall of 2015, Jackson emailed Human Resources, asking whether

Throupe had been told to cease his interactions with Xue. Human Resources told

Jackson that it had not communicated with Throupe because it had not found any

policy violations warranting formal action. Jackson then reached out to Olk and

together they decided Throupe should not have any ongoing professor-student

relationship with Xue. Olk issued Throupe a written warning in November of

2015, stating “the College is unable to allow you to continue your relationship

with Ms. Xue related to her student status at this University,” and “you should not

interact with Ms. Xue or any other students in a manner that creates a conflict in


                                         -6-
your role as a faculty member at the University.” Id. at 324. The letter went on

to explain “it would be extremely difficult for you to evaluate Ms. Xue

impartially.” Id. at 323. And it ended by laying out the path forward: “any

failure to stop interacting with Ms. Xue immediately related to University

business of any kind will result in further disciplinary action, up to and including

termination of your employment.” Id. at 324.

      Throupe maintains that Jackson continued to harass him even after the

written warning. Specifically, Jackson assigned Throupe unfavorable course

schedules in both 2016 and 2017, resulting in more teaching preps and less

desirable class assignments. At the same time, she gave more favorable course

schedules to other male faculty members within the department. Throupe also

recalled a scheduling meeting in 2017 during which Jackson yelled at Throupe.

      B. Procedural Background

      In September of 2017, Throupe initiated a sex discrimination suit under

Title IX of the Education Amendments Act of 1972 against DU, Jackson, Olk,

Kline, and Mueller. 1 Throupe’s complaint also included state law claims for

defamation and intentional infliction of emotional distress. After discovery

ended, the defendants brought a motion for summary judgment, claiming Throupe



      1
        Xue initially was a party to the suit, but she filed a stipulated motion for
dismissal with prejudice prior to summary judgment.

                                         -7-
had failed to raise triable issues on all his claims. In his response, Throupe

argued “[w]hen Defendant Jackson arrived as chair, she announced her intention

of significantly reducing the real estate portion of the school” and “[f]rom that

ensued a campaign to make Throupe leave.” Id. at 377. According to Throupe,

Jackson used his relationship with Xue as a pretext for advancing her

departmental agenda.

      The district court granted summary judgment for the defendants. Although

Throupe had dedicated little space in his briefing to arguing any theory of sex

discrimination, the district court identified two theories of sex discrimination in

Throupe’s argument: that the defendants created a hostile work environment and

engaged in disparate treatment against him. But the court determined that

Throupe had failed to establish a prima facie case of sex discrimination under

either of these theories. Having dismissed Throupe’s sole federal claim, the

district court declined to consider the remaining state law claims due to lack of

subject-matter jurisdiction.

                                   II. Analysis

      A. Standard of Review

      We review a district court’s grant of summary judgment de novo, applying

the standard articulated in Federal Rule of Civil Procedure 56(a). Under

Rule 56(a), summary judgment is proper if the record shows “there is no genuine


                                          -8-
issue as to any material fact and that the moving party is entitled to judgment as a

matter of law.” Sanderson v. Wyo. Highway Patrol, 

976 F.3d 1164, 1173

 (10th

Cir. 2020) (internal quotation marks omitted). A dispute is genuine “if there is

sufficient evidence so that a rational trier of fact could resolve the issue either

way.” 

Id.

 (internal quotation marks omitted). “In determining whether a genuine

issue of material fact exists, the court must draw all reasonable inferences in

favor of the nonmoving party.” 

Id.

 (internal quotation marks omitted). Also, if

the plaintiff fails to provide sufficient evidence supporting a necessary element of

his claim, the movant is entitled to summary judgment as a matter of law. See

Celotex Corp v. Cattret, 

477 U.S. 317

, 322–23 (1984).

      B. Legal Standards

             1. Title IX

      Title IX of the Education Amendments Act of 1972 prohibits discrimination

“on the basis of sex” in educational programs or activities receiving federal

funding. 

20 U.S.C. § 1681

(a). This includes employment discrimination in

federally funded educational programs. Hiatt v. Colo. Seminary, 

858 F.3d 1307, 1315

 (10th Cir. 2017).

      Title VII of the Civil Rights Act of 1964 also prohibits an employer from

discriminating against any individual “because of such individual’s . . . sex.”

42 U.S.C. § 2000e-2(a)(1). Under Title VII, a plaintiff can prove discrimination


                                          -9-
in several different ways, including proof of a hostile work environment or

disparate treatment. Though Throupe has not brought any claims under Title VII,

“[c]ourts have generally assessed Title IX discrimination claims under the same

legal analysis as Title VII claims.” Gossett v. Okla. ex rel. Bd. of Regents for

Langston Univ., 

245 F.3d 1172

 (10th Cir. 2001). We do so here.

             2. Burden-shifting Framework

      We apply the familiar McDonnell Douglas burden-shifting framework when

assessing a motion for summary judgment on a claim of sex discrimination.

Lounds v. Lincare, Inc., 

812 F.3d 1208, 1221

 (10th Cir. 2015) (citing McDonnell

Douglas Corp. v. Green, 

411 U.S. 792

 (1972)). Under the McDonnell Douglas

framework, the plaintiff has the burden of presenting a prima facie case of

discrimination. 

Id.

 The burden then moves to the employer to articulate a

legitimate, non-discriminatory reason for its actions. 

Id.

 Summary judgment will

be granted if the plaintiff cannot prove the employer’s articulated reasons are

pretextual. Id.

             3. Hostile Work Environment

      A hostile work environment claim is “composed of a series of separate acts

that collectively constitute one unlawful employment practice.” Nat. R.R.

Passenger Corp. v. Morgan, 

531 U.S. 101

, 117 (2002). To overcome summary

judgment on this claim, the plaintiff must show (1) he was discriminated against


                                         -10-
because of his sex, and (2) that the discrimination was sufficiently severe or

pervasive such that it altered the terms or conditions of his employment.

Sanderson, 

976 F.3d at 1174

. An employer can be held liable if its employees

create a hostile work environment and “it knew or should have known about the

conduct but failed to stop it.” Bertsch v. Overstock.com, 

684 F.3d 1023, 1027

(10th Cir. 2012), abrogated on other grounds by Lincoln v. BNSF Ry. Co., 

900 F.3d 1166

 (10th Cir. 2018).

      To maintain a claim under Title VII, the plaintiff must demonstrate that he

was discriminated against because of a protected status, like sex. The plaintiff’s

sex need only be a “motivating factor” in the unlawful employment practice.

42 U.S.C. § 2000e-2(m). To show the defendant was motivated by the plaintiff’s

sex, a plaintiff may point to acts of harassment that are “facially sex based.”

Sanderson, 

976 F.3d at 1174

. Also, facially sex-neutral conduct can “support a

finding of gender animus sufficient to sustain a hostile work environment claim

when that conduct is viewed in the context of other, overtly gender-discriminatory

conduct.” 

Id.

 If a jury could reasonably infer the conduct was related to the

plaintiff’s sex, “then it is for the fact finder to decide whether such an inference

should be drawn.” 

Id.

 While it is generally the jury’s role to determine if such

acts were based on the plaintiff’s sex, 

id.,

 summary judgment is appropriate if the

plaintiff has not presented a triable issue of fact about the defendant’s motive.


                                         -11-
      A plaintiff can also state a sufficient claim if he presents evidence that the

discrimination was motivated by his “failure to conform to stereotypical gender

norms.” McBride v. Peak Wellness Ctr., Inc., 

688 F.3d 698, 711

 (10th Cir. 2012)

(internal quotation marks omitted); accord Price Waterhouse v. Hopkins, 

490 U.S. 228, 251

 (1989) (plurality opinion) (recognizing that “[r]emarks at work that are

based on sex stereotypes do not inevitably prove that gender played a part” but

“stereotyped remarks can certainly be evidence that the employer actually relied

on gender in making its decision”).

      Beyond evidence of the defendant’s motive, the plaintiff must offer

evidence that the defendant’s conduct was so severe or pervasive as to alter the

terms or conditions of employment. Proof of either severity or pervasiveness can

serve as an independent ground to sustain a hostile work environment claim.

Lounds, 

812 F.3d at 1222

. To make this determination, we look to the “totality of

the circumstances” and “consider such factors as the frequency of the

discriminatory conduct; its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it unreasonably interferes

with an employee’s work performance.” Morris v. City of Colo. Springs, 

666 F.3d 654, 664

 (10th Cir. 2012).

      We assess this element both objectively and subjectively. It is not enough

that the plaintiff perceived the conduct to be severe or pervasive. Rather, the


                                         -12-
plaintiff must “show that a rational jury could find that the workplace is

permeated with discriminatory intimidation, ridicule, and insult.” Sanderson,

976 F.3d at 1176

. So, “the run-of-the mill boorish, juvenile, or annoying behavior

that is not uncommon in American workplaces is not the stuff of a Title VII

hostile work environment claim.” Morris, 

666 F.3d at 664

. And “a few isolated

incidents” of discriminatory conduct does not make the harassment pervasive. 

Id. at 666

.

      Again, whether the conduct was severe or pervasive is typically a question

for the jury, but we can affirm a district court’s grant of summary judgment when

the plaintiff fails to make this showing. See, e.g., id.

             4. Disparate Treatment

      To overcome summary judgment on a claim of disparate treatment, the

plaintiff must provide evidence that (1) the victim belongs to a class protected by

Title VII, (2) the victim suffered an adverse employment action, and (3) the

challenged action took place under circumstances giving rise to an inference of

discrimination. EEOC v. PVNF, LLC, 

487 F.3d 790, 800

 (10th Cir. 2007).

      An adverse employment action “is a significant change in employment

status, such as hiring, firing, failing to promote, reassignment with significantly

different responsibilities, or a decision causing a significant change in benefits.”

Hiatt, 

858 F.3d at 1316

 (internal quotation marks omitted). But a “mere


                                          -13-
inconvenience or an alteration of job responsibilities does not qualify as an

adverse action.” 

Id.

 (internal quotation marks omitted).

      For the third element, a plaintiff can raise an inference of discrimination by

showing differential treatment. For example, it is sufficient to show that the

employer treated the plaintiff differently from similarly situated employees who

are not part of the plaintiff’s protected class. 

Id. at 1318

. An employee is

similarly situated if he “shares the same supervisor, is subject to the same

standards governing performance evaluation and discipline, and has similar

relevant employment circumstances, such as work history.” 

Id.

      C. Analysis

      Our analysis begins and ends at the first step in the McDonnell Douglas

framework. Summary judgment is appropriate on Throupe’s claim if he cannot

establish each of the elements for a prima facie case of either of his theories of

discrimination. Here, he has failed to raise a triable fact about whether the

defendants discriminated against him because of his sex. This failure sinks both

his hostile work environment and disparate treatment claims. Moreover, for his

hostile work environment claim, Throupe has not shown that any of the alleged

discrimination was severe or pervasive.




                                         -14-
             1. Hostile Work Environment

      Throupe identifies a handful of occurrences which he insists constitute a

hostile work environment: the spreading of rumors about his relationship with

Xue, being subjected to a Title IX investigation, receiving the written warning,

being assigned a less desirable teaching schedule, and being yelled at by Jackson

on at least one occasion. Of this conduct, only the Title IX report appears to be

facially sex-based. 2

      Throupe cites deposition testimony from Barbara Jackson to prove he was

discriminated against because of his sex. When Jackson was asked why she felt

she needed to report Throupe’s behavior to the Title IX office, she said it was


      2
          While rumors involving sexual conduct may be motivated by the
plaintiff’s sex, the mere fact that the rumors involve speculations about an affair
does not necessarily lead to this inference. See, e.g., Duncan v. Manager, Dep’t
of Safety, City and Cty. of Denver, 

397 F.3d 1300, 1312

 (10th Cir. 2005) (refusing
to regard a letter alleging the plaintiff was having an affair was based on her sex
because “the letter critiques both Ms. Duncan and Chief Michaud for the alleged
affair rather than singling out Ms. Duncan on the basis of her gender”); see also
Pasqua v. Metropolitan Life Ins. Co., 

101 F.3d 514, 517

 (7th Cir. 1996)
(concluding the plaintiff had not shown evidence of sex discrimination because
rumors about an affair involved both a female employee and male superior and
the talebearers were of both genders).

       Although at least some of the rumors here involved speculation that
Throupe and Xue were having an affair, Throupe has not provided any evidence
supporting the inference that the rumors were motivated by his sex. Rather, the
record indicates the rumors circulated because of his own characterizations of the
relationship, see, e.g., Aplt. App. 175 (calling Xue his “significant other” prior to
the gala), and actions, see, e.g., id. at 289 (spending all his time with Xue at a
conference where it was customary for faculty to bring their spouses).

                                         -15-
because “it’s a male faculty member. It’s a female student. And [the Title IX

office] to me was the place that I knew to take . . . the concerns that were being

brought to my attention.” Aplt. App. 679. Throupe says the discriminatory intent

could not be any clearer. He was reported for a Title IX violation because he is

“a male faculty member.” Id.

      Throupe cherry-picks Jackson’s statement and strips it of important context.

Jackson made her statement when describing why she felt it was appropriate to

report Throupe and Xue’s relationship to the Title IX office. The mere fact that

Jackson viewed Throupe’s conduct as reportable does not support the inference

that she discriminated against him based on his sex. Nothing in the record

indicates Jackson would have treated any differently a female professor who

maintained a deeply personal relationship with a male student. And Throupe’s

own counsel acknowledged during oral argument that it was appropriate to report

Throupe initially for a Title IX investigation based on the way he described his

relationship with Xue. See Oral Arg. at 15:00–15:30, Throupe v. University of

Denver, et al. (2021) (conceding that “DU unequivocally had an obligation to

investigate these concerns”). That Jackson described Throupe as a “male

professor” in this context does not raise a triable issue of fact about the

defendants’ motivation.




                                          -16-
      Seeing the writing on the wall, Throupe tries to re-frame his argument as a

claim of sex stereotyping. For the first time on appeal, he argues the defendants’

actions were driven by a stereotypical vision of how a male professor should

interact with his female students. First, we conclude that Throupe has forfeited

this theory of sexual stereotyping. One would search in vain for any reference to

a case supporting this theory in Throupe’s briefing before the district court. We

will not consider an argument that was not fully briefed and decided by the

district court. See Richison v. Ernest Grp., Inc., 

634 F.3d 1123, 1130

 (10th Cir.

2011) (“It is the significant but limited job of our appellate system to correct

errors made by the district court in assessing the legal theories presented to it, not

to serve as a second shot forum where secondary, back-up theories may be

mounted for the first time.”) (internal quotation marks omitted and alterations

incorporated).

      Even if Throupe did not forfeit the stereotyping argument, this theory fails.

Throupe insists “an older man was being targeted for false charges by his

superiors based on a salacious and long-standing rumor about having an affair

with a younger woman driven by stereotypical thinking about the ‘proper roles’

and conduct of men and women in the workplace.” Aplt. Br. at 26–27. But this

bald assertion does not relieve Throupe of the burden of citing evidence to

support this theory. None exists here.


                                         -17-
      Throupe maintains deposition testimony from his colleague, Professor

Mueller, supports his stereotyping theory. During his deposition, Mueller was

asked whether he believed it was inappropriate for Throupe to constantly spend

time with Xue at an academic conference. Mueller said he believed it was. But,

Mueller said, he would not have viewed Throupe and Xue’s conduct as

inappropriate had Xue been a male student.

       But Throupe, again, strips Mueller’s statement of its context. Mueller was

asked about the amount of time Throupe and Xue spent together at an academic

conference. He explained it was customary for professors to bring their spouses

to the conference. Given that background, he viewed it as inappropriate for

Throupe to be spending all his time at the conference with a female student. It

was the fact that Throupe and Xue were of opposite sexes—not that Throupe was

a man—driving Mueller’s perceptions. The only stereotyping defendants appear to

have engaged in is about how any professor should interact with his or her

students, particularly those of the opposite gender.

      Without any evidence to support his assertion that the defendants

discriminated against him because of his sex, none of the aforementioned

sex-neutral conduct raises an inference that Throupe was treated a certain way

because he is a man. The rumors were spread and Title IX investigation

performed because of his own characterization of the relationship. The written


                                        -18-
warning was premised on concerns about the professor-student dynamic at play,

not the fact that Throupe is male. And, in Throupe’s own words, he was

mistreated because of Jackson’s pedagogical vision for the department, not his

sex. See Aplt. App. 377 (“When Defendant Jackson arrived as Chair, she

announced her intention of significantly reducing the real estate portion of the

school, which would have required firing at least five real estate professors . . . .

From that ensued a campaign to make Throupe leave.”) (emphasis added).

      Though Throupe’s failure to show that any discrimination was based on his

sex would be enough to end our inquiry, we also agree with the district court that

the conduct at issue was neither severe nor pervasive. We do not doubt that the

defendants’ actions must have been personally painful for Throupe. But none of

the conduct Throupe identifies rises to the level of severity required for a hostile

work environment claim. We have found conduct sufficiently severe to overcome

summary judgment in only particularly threatening or humiliating circumstances.

See, e.g., Morris, 

666 F.3d at 667

 (describing instances where we have found the

element of severity met, including assault and the physical groping of body parts).

      The problematic conduct Throupe points us to also does not raise a triable

issue of pervasiveness. While rumors and speculations circulated from 2014

through 2016, Throupe was personally made aware of rumors about his

relationship with Xue on only four occasions. The Title IX investigation required


                                          -19-
Throupe to perform a single interview and his counsel conceded at oral argument

that this was warranted. And he received the written warning, which did nothing

to alter the terms or conditions of his employment. The warning simply informed

Throupe he needed to stop engaging with Xue in a professor-student capacity due

to concerns about the relationship compromising his impartiality as a teacher.

These isolated incidents, viewed in the aggregate, do not raise a triable issue of

pervasiveness. 3 See Sprague v. Thorn Americas, Inc., 

129 F.3d 1355, 1366

 (10th

Cir. 1997) (finding that five separate incidents of sexually-oriented, offensive

comments over a sixteen month span was not pervasive). This is far from the

“steady barrage” of discriminatory conduct necessary to establish pervasiveness.

Morris, 

666 F.3d at 666

 (internal quotation marks omitted).

             2. Disparate Treatment

      Given our analysis above, we can quickly dispatch Throupe’s disparate

treatment claim. Throupe has failed to raise any inference of discrimination. He



      3
          While we must consider the entirety of the record in making this
determination, we do not simply have to accept Throupe’s claim that all the
discriminatory conduct he identifies was part of the same hostile work
environment. “To determine whether these acts are part of the same hostile work
environment . . . [we look] at the type of these acts, the frequency of the acts, and
the perpetrator of the act.” Duncan, 

397 F.3d at 1309

. Here, Throupe has not
provided any evidence linking the scheduling conflicts to his relationship with
Xue or his sex. Furthermore, Throupe was not singled out for this unfavorable
scheduling. As Throupe himself acknowledges, such actions were part of a larger
initiative by Jackson to push real estate professors out of the department.

                                         -20-
has provided no evidence that a similarly-situated female professor would be

treated differently. Rather, the record reflects that Throupe had male colleagues

within the department who were also treated poorly in an effort to make them

leave. But he also had male colleagues who were given more favorable

assignments by Jackson. Without any evidence raising an inference of sex

discrimination, Throupe’s disparate treatment claim must fail.

                               III. Conclusion

      Not all offensive or hurtful conduct within the workplace is actionable

under Title VII or Title IX. Throupe has not provided any evidence that he was

singled out for mistreatment because of his sex. And his own theory of the case

before the district court—that he was targeted due to departmental

politics—belies this claim. Accordingly, we affirm the district court’s decision to

grant summary judgment.




                                        -21-