UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-50187
Summary Calendar
RICHARD A. GATHERS,
Plaintiff-Appellant,
VERSUS
SHEILA E. WINDNALL, Secretary Air Force,
Department of the U.S. Air Force,
Defendant-Appellee.
Appeal from the United States District Court
For the Western District of Texas
(SA-96-CV-432)
December 1, 1998
Before DAVIS, DUHÉ and PARKER, Circuit Judges.
PER CURIAM:1
Appellant Gathers appeals the grant of summary judgment
dismissing his employment discrimination suit against his former
employer, the U. S. Air Force. He claimed racial discrimination
and retaliation were the cause of his adverse employment actions.
The Motion For Summary Judgment was referred to the magistrate
judge who submitted a lengthy and detailed recommendation to the
1
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
district court, which the court, after de novo review of the
summary judgment record, adopted.
On appeal, Gathers complains that the district court employed
the incorrect standard of review and that it failed to find that
another employee was treated differently than Appellant which
constituted discrimination. We have carefully reviewed the record,
the magistrate judge’s memorandum and the district court’s opinion
and find no error.
The fact that the Air Force may have applied an incorrect
regulation in requiring a resignation in order to grant leave
without pay does not establish discrimination because the evidence
is uncontradicted that this regulation was applied to everyone who
sought leave without pay.
Nor is there any evidence that the fact that Appellant had
filed a prior EEOC complaint played any part whatever in the
employment decisions regarding him.
Finally, the Air Force clearly established that the employee
Mello, to whom Appellant compares himself, was in fact in a very
different situation. That he was treated differently does not even
infer discriminatory motive, much less create a genuine issue of
material fact.
AFFIRMED.
2