UNPUBLISHED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Affirmed by unpublished per curiam opinion.

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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Unpublished opinions are not binding precedent in this circuit.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).

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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

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