UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

LEONARD AUSTEN, 

Plaintiff-Appellant,

v.  No. 00-2359 HCA HEALTH SERVICES OF VIRGINIA,

INCORPORATED, t/a Reston Hospital

Center,

Defendant-Appellee. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., Senior District Judge.

(CA-00-303-A)

Submitted: February 9, 2001

Decided: March 12, 2001

Before WIDENER, LUTTIG, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Annette Kay Rubin, Christopher M. Dove, Leesburg, Virginia, for

Appellant. John J. Michaels, Jr., Ronda L. Brown, MCGUIRE

WOODS, L.L.P., McLean Virginia; Mark E. Edwards, Jeanne

Casstevens Thomas, Nashville, Tennessee, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Leonard Austen was terminated from employment at Reston Hospital Center ("Hospital") after twelve years of service. He claims his

discharge was discriminatory based on gender, that he suffered sexual

harassment due to a hostile work environment, and that his discharge

was retaliatory and a breach of contract. The Hospital counters Austen was discharged for making repeated crude, sexual, and racial comments at the workplace. The district court granted Defendants’ motion

for summary judgment as to the sexual discrimination, harassment,

and retaliation claims. The court dismissed the breach of contract

claim without prejudice, electing not to exercise pendent jurisdiction,

and Austen appealed. We review grants of summary judgment de

novo. Higgins v. E.I. DuPont de Nemours & Co., 863 F.2d 1162,

1167 (4th Cir. 1988). Because we find no reversible error, we affirm.

Austen was warned that use of crude, sexual, and racial comments

were not appropriate for the workplace. Despite the warnings, Austen

participated in a party for a departing co-worker at the hospital during

which "gag" gifts of a sexual nature were given. Upon learning of this

event, Austen’s supervisor summarily fired him. The female employees involved in the incident were not terminated. 

To establish a prima facie case of discrimination under Title VII,

Austen must prove: (1) he is a member of a protected class; (2) he

was performing satisfactorily; (3) he suffered an adverse employment

action; and (4) similarly situated employees received more favorable

treatment. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-10

(1993); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973); Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994). 

Austen claims he was discriminated against in his termination

because he was male, when the female employees attending the same

2 AUSTEN v. HCA HEALTH SERVICES OF VIRGINIA
party and bearing more significant responsibility for the gifts were not

terminated. Austen, however, was not similarly situated to these

female employees. He had both more supervisory authority than the

female employees and a record of disciplinary warnings. In addition,

Austen may not bring a claim for sexual harassment because it was

not included in his EEOC charge. See Evans v. Technologies Applications & Serv. Co., 80 F.3d 954, 962-63 (4th Cir. 1996); see also Taylor v. Virginia Union Univ., 193 F.3d 219, 228, 239 (4th Cir. 1999),

cert. denied, ___ U.S. ___, 120 S. Ct. 1243, 68 U.S.L.W. 3433 (U.S.

Feb. 28, 2000). Additionally, although Austen’s breach of contract

claim is appealable as a final order, see Domino Sugar Corp. v. Sugar

Workers’ Local Union 392, 10 F.3d 1064, 1066-67 (4th Cir. 1993),

the district court did not abuse its discretion in dismissing the claim.

We therefore affirm summary judgment in favor of the hospital on the

reasoning of the district court. See Austen v. HCA Health Servs., No.

CA-00-303-A (E.D. Va. Sept. 19, 2000). We dispense 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

AUSTEN v. HCA HEALTH SERVICES OF VIRGINIA 3