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[Unpublished]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 court granted summary judgment to 1

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

The Honorable Patrick J. Schiltz, United States District Judge for the District 1

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 thatsome 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. He also claimed to have overheard 2

another employee say "[y]ou should be rounded up in one place and nuke[d]."

Varholsuspended Abdel-Ghani fromwork in mid December and fired himfive

days later because of his issues with Liebhard, Targetstaff, 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 complaintwhich 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

We assume that Abdel-Ghani's later description of these comments as having 2

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 ofsummary 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 issufficiently 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 ofthe 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. Abdel-Ghani has failed to 3

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 burdenshifting 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. 

Abdel-Ghani asserts that he also pled a claim of race discrimination. He did

3

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 asto 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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