United States Court of Appeals
For the Eighth Circuit
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No. 16-2395
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Mazen Abdel-Ghani
lllllllllllllllllllll Plaintiff - Appellant
v.
Target Corporation
lllllllllllllllllllll Defendant - Appellee
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No. 16-2397
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Mazen Abdel-Ghani
lllllllllllllllllllll Plaintiff - Appellant
v.
MarketSource, Inc.
lllllllllllllllllllll Defendant - Appellee
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Appeals from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: March 8, 2017
Filed: May 5, 2017
[Unpublished]
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Before BENTON, BEAM, and MURPHY, Circuit Judges.
PER CURIAM.
Mazen Abdel-Ghani worked at a Target Mobile kiosk for a few months and
then was discharged. He brought this action against Target Corporation and
MarketSource, Inc., alleging that he had been discriminated against on the basis of
various protected characteristics. The district court1 granted summary judgment to
the defendants, and we affirm.
I.
In 2013 Target partnered with MarketSource, Inc. and Brightstar U.S., Inc. as
independent contractors to implement the Target Mobile program. Through that
program customers could purchase mobile phone services at select Target stores.
Abdel-Ghani, a Palestinian immigrant, was hired by MarketSource in August 2013
to work for the program. He began working at a Target Mobile kiosk in the
Bloomington Target store in October 2013.
Abdel-Ghani had negative interactions with employees for both MarketSource
and Target. Abdel-Ghani believed that the MarketSource sales manager at the
Bloomington Target, Courtney Liebhard, was regularly under the influence of drugs
or alcohol when she came to work. He reported this to the MarketSource human
resources department. Liebhard believed that Abdel-Ghani was harassing her and
acting inappropriately toward customers. Near the Thanksgiving holiday, the two got
1
The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota, adopting the report and recommendations of the Honorable Jeffrey J.
Keyes, United States Magistrate Judge for the District of Minnesota.
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into an argument about scheduling. Liebhard allegedly told Abdel-Ghani to "go back
home, go to your country." Liebhard eventually complained about his conduct to the
MarketSource district manager, Steve Varhol. Varhol instructed Liebhard to collect
any complaints about Abdel-Ghani from Target employees and report them to him.
Abdel-Ghani alleged that some of the Target employees called him names like camel
jockey, Muslim, Arab, terrorist, and sand nigger, often from behind shelves in the
employee backroom. He claims he heard such comments at least ten times during his
two months working at the Bloomington Target.2 He also claimed to have overheard
another employee say "[y]ou should be rounded up in one place and nuke[d]."
Varhol suspended Abdel-Ghani from work in mid December and fired him five
days later because of his issues with Liebhard, Target staff, and guests. Abdel-Ghani
filed a charge of discrimination with the EEOC and later sued Target and
MarketSource in state court, from which the cases were removed to federal court and
consolidated. Abdel-Ghani then filed a second amended complaint which alleged that
Target and MarketSource had violated Title VII of the Civil Rights Act, the Age
Discrimination in Employment Act, and the Minnesota Human Rights Act.
Following discovery, Magistrate Judge Jeffrey J. Keyes issued a report
recommending that the district court grant defendants' motions for summary
judgment. He concluded that Target had neither employed nor jointly employed
Abdel-Ghani, and that Abdel-Ghani had failed to establish a hostile work
environment or that his discharge was retaliatory or because of his age or national
origin. The district court adopted the recommendations over Abdel-Ghani's
2
We assume that Abdel-Ghani's later description of these comments as having
been "continuous" is consistent with his prior statement that he heard them at least
ten times over some two months. To the extent it may have differed, a plaintiff
cannot create an issue of fact blocking summary judgment by contradicting his own
prior statements. See Wilson v. Westinghouse Elec. Corp., 838 F.2d 286, 289 (8th
Cir. 1988).
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objections. Abdel-Ghani then appealed the district court's grant of summary
judgment on his hostile work environment and national origin discrimination claims.
II.
We review the district court's grant of summary judgment de novo. Al-Zubaidy
v. TEK Indus. Inc., 406 F.3d 1030, 1036 (8th Cir. 2005). Summary judgment is
proper if, viewing the evidence in the light most favorable to the nonmoving party,
"there are no genuine issues of material fact" and the moving party is "entitled to
judgment as a matter of law." Id. Abdel-Ghani first argues that the district court
erred by concluding that he had not been employed or jointly employed by Target.
We need not discuss this further because even if Target had been Abdel-Ghani's
employer, both his hostile work environment claim and his discrimination claim fail
as a matter of law, as discussed below.
A.
Abdel-Ghani argues that the district court erred in determining that he failed
to establish a hostile work environment under either Title VII or the Minnesota
Human Rights Act. To establish a hostile work environment under either statute,
Abdel-Ghani must show that he was subject to unwanted harassment that affected a
term, condition, or privilege of his employment. Pye v. Nu Aire, Inc., 641 F.3d 1011,
1015 n.3, 1018 (8th Cir. 2011). This is a demanding standard—"conduct must be
extreme to amount to a change in the terms and conditions of employment." Faragher
v. City of Boca Raton, 524 U.S. 775, 788 (1998). When determining "whether an
environment is sufficiently hostile," courts consider the totality of the circumstances,
"including 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.'" Id. at 787–88
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).
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Here, Abdel-Ghani has not alleged facts which show he was subjected to a
hostile work environment by Target or MarketSource. Some of the approximately ten
comments Abdel-Ghani heard in Target's backroom may have been "morally
repulsive," but they were not physically threatening. Cf. Singletary v. Mo. Dep't of
Corr., 423 F.3d 886, 892–93 (8th Cir. 2005) (concluding occasional use of racial
epithets had not created a hostile work environment). The one physically threatening
comment he overheard (referencing being nuked) was not said directly to him. See
id. Furthermore, Abdel-Ghani has not shown that any of these comments interfered
with his work performance. See Arraleh v. Cty. of Ramsey, 461 F.3d 967, 979 (8th
Cir. 2006). We conclude that the record does not show he was subjected to a hostile
work environment.
B.
Abdel-Ghani also argues that the district court erred by granting summary
judgment on his claims of national origin discrimination.3 Abdel-Ghani has failed to
provide direct evidence that Varhol's decision to fire him was based on his national
origin. See Schaffhauser v. United Parcel Serv., Inc., 794 F.3d 899, 902 (8th Cir.
2015). His discrimination claim must therefore be "analyzed under the burden-
shifting analysis [used] in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)."
Schierhoff v. GlaxoSmithKline Consumer Healthcare, L.P., 444 F.3d 961, 964 (8th
Cir. 2006). Under this burden shifting framework, a plaintiff must first produce a
prima facie case by showing facts giving "rise to an inference of discrimination."
Takele v. Mayo Clinic, 576 F.3d 834, 838 (8th Cir. 2009). The burden then shifts to
the employer to produce a legitimate, nondiscriminatory reason for the employment
decision. Id.
3
Abdel-Ghani asserts that he also pled a claim of race discrimination. He did
not argue below, however, that he had sufficiently pled such a claim. We therefore
decline to consider his racial discrimination claim on appeal. See Ridenour v.
Boehringer Ingelheim Pharm., Inc., 679 F.3d 1062, 1066–67 (8th Cir. 2012).
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Abdel-Ghani has failed to establish a prima facie case of discrimination
"because the record does not show that [his] termination occurred under
circumstances that would permit an inference of discrimination." See Price v. S-B
Power Tool, 75 F.3d 362, 365 (8th Cir. 1996). There is no evidence that Varhol made
any remarks about Abdel-Ghani's national origin at any time. Abdel-Ghani alleges
that Liebhard was also involved in the termination decision. Even if that were true,
however, the one statement she made about how Abdel-Ghani should go back home
was "facially neutral as to national origin" and therefore did not "demonstrate animus
on [her] part." See Guimaraes v. SuperValu, Inc., 674 F.3d 962, 974 (8th Cir. 2012).
Abdel-Ghani has therefore failed to show that he was discriminated against on the
basis of his national origin.
III.
Accordingly, the judgment of the district court is affirmed.
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