NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0668n.06
No. 08-3799
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
THOMAS M. GAFFNEY, ) Sep 30, 2009
) LEONARD GREEN, Clerk
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
JOHN E. POTTER, POSTMASTER GENERAL, ) THE NORTHERN DISTRICT OF
U.S. POSTAL SERVICE, ) OHIO
)
Defendant-Appellee. )
)
)
Before: MARTIN, COLE, and KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. Thomas Gaffney appeals the district court’s grant of
summary judgment in favor of the United States Postal Service (USPS) on Gaffney’s claims of age
and race discrimination. We affirm.
I.
USPS hired Gaffney as a mail carrier on a probationary basis on October 16, 2004. Gaffney
is white, and was then 58 years old. USPS’s agreement with the National Association of Letter
Carriers gives it the right to “separate from its employ any probationary employee at any time”
during the employee’s 90-day probationary period.
On November 15, 2004, approximately 30 days into his employment, Gaffney was rated
“unsatisfactory” for his work quantity, quality, dependability, and personal conduct. USPS gave
No. 08-3799
Gaffney v. Potter
Gaffney additional training after the review, hoping to improve his performance. But USPS says,
and Gaffney does not seriously dispute, that it did not improve; and on December 2, 2004, Gaffney
was terminated for “failure to accomplish tasks in a timely manner.” He had then worked at USPS
for 47 days.
Anthony Gibson, who is African-American, overlapped with Gaffney at USPS. Gibson was
43 years old then. He too was hired as a mail carrier on a probationary basis, on October 30, 2004.
Like Gaffney, Gibson received an evaluation after his first 30 days of employment, but Gibson was
rated as unsatisfactory in only three areas rather than four. Like Gaffney, Gibson received some
extra training; but his performance ratings likewise did not improve, and he too was terminated, on
January 22, 2005, after having worked at USPS for 84 days.
Gaffney thereafter filed this lawsuit, alleging that he was fired due to race discrimination, in
violation of Title VII, 42 U.S.C. § 2000e-16(a), and age discrimination, in violation of the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. § 633a(a). USPS moved for summary
judgment on both claims, which the district court granted. This appeal followed.
II.
We review de novo a district court’s grant of summary judgment, viewing the evidence in
the light most favorable to the nonmoving party. Upshaw v. Ford Motor Co., 576 F.3d 576,584 (6th
Cir. 2009). Summary judgment is appropriate when “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).
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No. 08-3799
Gaffney v. Potter
There are many problems with Gaffney’s case, but we need focus on only one of them to
dispose of his appeal. A common element of Gaffney’s race- and age-discrimination claims is that
a similarly-situated employee “was treated better” than he was. Mitchell v. Toledo Hosp., 964 F.2d
577, 582 (6th Cir. 1992). The employee to whom Gaffney points is Gibson, an ironic choice given
that he too was fired during his probationary period; but Gaffney complains that Gibson lasted 37
days longer than he did in the position. And that difference, Gaffney says, was on account of
Gaffney’s race and age.
The district court correctly held that these claims do not present a genuine issue of material
fact. As a initial matter, Gaffney’s assertion that the difference between his treatment and Gibson’s
was “significant” enough to power up the machinery of federal anti-discrimination law seems to us
very dubious. See Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1988). That one probationary
employee lasted a few weeks longer than another, when both were eventually terminated, is not the
stuff of a compelling discrimination claim. And that nearly de minimis difference does not support
a claim at all, as a matter of law, when Gibson received somewhat better ratings than Gaffney did.
The difference in ratings is roughly commensurate with the difference in treatment. Gibson therefore
was not similarly situated to Gaffney for purposes of the latter’s claims; and that means the claims
fail.
The district court’s judgment is affirmed.
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