Powell v. City of Norfolk Police Dept ( 1999 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    JAMES C. POWELL,
    Plaintiff-Appellant,
    v.
    CITY OF NORFOLK POLICE
    DEPARTMENT,                                                          No. 98-2369
    Defendant-Appellee,
    and
    H. P. HENSON, Individually,
    Defendant.
    Appeal from the United States District Court
    for the Eastern District of Virginia, at Norfolk.
    Jerome B. Friedman, District Judge.
    (CA-97-73-2)
    Submitted: May 25, 1999
    Decided: June 8, 1999
    Before MOTZ, TRAXLER, and KING, Circuit Judges.
    _________________________________________________________________
    Affirmed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    Michael D. Kmetz, Norfolk, Virginia, for Appellant. Stanley Graves
    Barr, Jr., David Neal Anthony, KAUFMAN & CANOLES, P.C., Nor-
    folk, Virginia, for Appellee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    James C. Powell appeals the district court's order granting sum-
    mary judgment in favor of the City of Norfolk Police Department in
    his action alleging that the City's decision not to reinstate him to his
    position as a police officer immediately after the dismissal of the
    criminal charge against him was based on his race. The district court
    found that Powell failed to establish a prima facie case of discrimina-
    tion because he did not show that similarly situated employees outside
    the protected class were treated differently. See McDonnell Douglas
    Corp. v. Green, 
    411 U.S. 792
    , 802 (1973).
    In this court, Powell argues that the evidence shows incidences of
    Caucasian officers receiving different treatment. These individuals are
    arguably similarly situated only with respect to Powell's earlier claim
    that his suspension from duty was racially discriminatory. However,
    because Powell did not timely challenge his suspension, see 42 U.S.C.
    § 2000e-5(e)(1) (1994), Powell's action is limited to a challenge of
    the decision not to reinstate him immediately following the dismissal
    of the criminal charge, rather than making him pursue his claim
    through the administrative appeal process. See Equal Employment
    Opportunity Comm'n v. City of Norfolk Police Dep't , 
    45 F.3d 80
    , 83-
    85 (4th Cir. 1995). Powell's claims that these officers were similarly
    situated and were disciplined differently, are irrelevant to this action
    and are barred by his failure to timely challenge his suspension.
    To the extent that Powell presented evidence of a similarly situated
    officer who was reinstated following the dismissal of criminal
    charges, we agree with the district court's determination that that offi-
    cer was not similarly situated because the misconduct was not compa-
    rable and because there were mitigating circumstances related to that
    officer's conduct. See Moore v. City of Charlotte, 
    754 F.2d 1100
    ,
    1107 (4th Cir. 1985) (relative seriousness of misconduct is significant
    in determining whether persons are similarly situated).
    2
    Because Powell failed to present evidence of different treatment
    afforded similarly situated officers who are not members of a pro-
    tected class, he failed to establish a prima facie case of discrimination.
    Accordingly, we affirm the district court's order granting summary
    judgment in favor of the City of Norfolk Police Department. We dis-
    pense with oral argument because the facts and legal contentions are
    adequately presented in the materials before the court and argument
    would not aid the decisional process.
    AFFIRMED
    3
    

Document Info

Docket Number: 98-2369

Filed Date: 6/8/1999

Precedential Status: Non-Precedential

Modified Date: 4/17/2021