ALD-229 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-4189
___________
MAJED SUBH,
Appellant
v.
WAL-MART STORES EAST LP
____________________________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. Civil No. 07-cv-00479)
District Judge: Honorable Sue L. Robinson
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
June 24, 2010
Before: SLOVITER, AMBRO and SMITH, Circuit Judges
(Opinion filed: July 8, 2010 )
_________
OPINION
_________
PER CURIAM
Majed Subh appeals the District Court’s order granting appellees’ motion for
summary judgment. For the reasons stated below, we will summarily affirm the District
1
Court’s judgment.
The procedural history of this case and the details of Subh’s claims are well known
to the parties, set forth in the District Court’s thorough opinion, and need not be discussed
at length. Briefly, Subh alleged that during his employment at Wal-Mart as a photo
technician, he was subject to yelling, inappropriate comments, and inappropriate behavior
by coworkers, supervisors, and customers. He argued that the actions of his coworkers and
supervisors were motivated by unlawful discrimination based on gender, race, and national
origin. He also contended that the actions were in retaliation for his exercising his right to
be free of discrimination. Wal-Mart filed a motion for summary judgment which the District
Court granted. Subh filed a timely notice of appeal.1
We have jurisdiction under 28 U.S.C. § 1291. In his Report and Recommendation,
which was adopted by the District Court, the Magistrate Judge thoroughly laid out Subh’s
allegations and the factual background of the case. We have little to add to his very complete
analysis of Subh’s discrimination claims.
We agree with the District Court that Subh failed to exhaust his claim of gender
discrimination and sexual harassment. Moreover, we agree that these claims are without
merit as Wal-Mart investigated his allegations and terminated the employment of the
coworker he alleged had harassed him. As for Subh’s claims of discrimination based on his
1
After filing his complaint, Subh was represented by an attorney in the District Court.
He is proceeding pro se on appeal.
2
race and national origin, the District Court correctly concluded that he did not make a prima
facie case that the circumstances of the adverse employment actions give rise to an inference
of discrimination. Moreover, he did not submit evidence that could establish that similarly-
situated employees of other races and national origins were treated more favorably than he
was. Despite his arguments to the contrary, it was his burden as plaintiff to identify
comparable employees. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248,
258-59 (1981) (“McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)] teaches that it
is the plaintiff’s task to demonstrate that similarly situated employees were not treated
equally.”). The District Court correctly determined that Subh had not shown a hostile work
environment or that the discipline he received was in retaliation for filing charges of
discrimination. The record reflects that when Subh made complaints about alleged
mistreatment by coworkers, Wal-Mart management reasonably investigated and responded
to his concerns.
Summary action is appropriate if there is no substantial question presented in the
appeal. See Third Circuit LAR 27.4. For the above reasons, as well as those set forth by the
District Court, we will summarily affirm the District Court’s order. See Third Circuit I.O.P.
10.6.
3