ALD-229                                                      NOT PRECEDENTIAL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



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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.




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