UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BENJAMIN N. EARLY, Plaintiff-Appellant,

v. No. 96-2830 THE AEROSPACE CORPORATION; RONALD K. SABLE; VINCENT C. BOLES, Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior District Judge. (CA-96-548-A)

Submitted: February 10, 1998

Decided: February 26, 1998

Before WIDENER, ERVIN, and HAMILTON, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Patricia Ann Smith, Alexandria, Virginia, for Appellant. Thomas Cawley, Kimberly A. Newman, HUNTON & WILLIAMS, Washing- ton, D.C.; Linda M. Lawson, Patricia A. Ellis, Brian M. Holbrook, MESERVE, MUMPER & HUGHES, Los Angeles, California, for Appellees.

_________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c).

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OPINION

PER CURIAM:

Benjamin N. Early appeals from the district court's grant of sum- mary judgment in favor of the Defendants in his employment discrim- ination action alleging racial discrimination and retaliation in violation of Title VII, and wrongful discharge in violation of Virginia public policy. Because we find no reversible error, we affirm.

We review a grant of summary judgment de novo. See Henson v. Liggett Group, Inc.,

(4th Cir. 1995). If there is no genuine issue as to any material fact, the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Early first claims that he was subject to different disciplinary standards and eventually terminated on account of his race. To establish a prima facie case for such a claim, Early must show that: (1) he is a member of a class pro- tected by Title VII; (2) the prohibited conduct in which he engaged was comparable in seriousness to misconduct of employees outside the protected class; and (3) the disciplinary measures enforced against him were more severe than those enforced against other employees. See Cook v. CSX Transp. Corp.,

(4th Cir. 1993). A plaintiff need not present comparatives with precisely the same alleged employment problems. Rather, he need only present problems of "comparable seriousness." See McDonald v. Santa Fe Trail Transp. Co.,

(1976). Although Early alleges that others engaged in similar conduct and possessed similar deficiencies and were not disciplined, he points to no other employee with a cumula- tive comparable history of employment problems. Accordingly we conclude that this claim fails.* _________________________________________________________________ *Early argues that the above prima facie case was inappropriately applied to his factual situation and asserts that the court should instead have asked: (1) whether he was a member of a protected class; (2) whether he was subject to an adverse employment action; (3) whether he

2 Early next asserts that he was terminated in retaliation for his filing a charge of discrimination with the EEOC. Even if Early established a prima facie case of retaliation in violation of Title VII, we find that he has failed to demonstrate that his employer's legitimate, nondis- criminatory reasons for its actions were pretext for actual retaliatory motives. Accordingly, we find summary judgment was properly granted on both Title VII claims.

Turning to the state wrongful discharge claim, Early argues that his claim arises under the common law of Virginia as espoused in Lockhart v. Commonwealth Education Systems Corp.,

(Va. 1994), and not under the Virginia Human Rights Act as stated by the district court. In 1995, however, the Act was amended to pro- vide for private causes of action in specifically enumerated circum- stances not present in this case. This amendment abrogated common law causes of action for wrongful discharge in violation of public pol- icy. See Doss v. Jamco, Inc.,

(Va. 1997). Accordingly, we conclude that summary judgment was properly granted.

We therefore affirm the district court's order. 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 _________________________________________________________________ was performing his job at a level that met his employer's expectations; and (4) whether his functions were assumed by someone outside the pro- tected class. We find that even if Early could establish this prima facie case, he is unable to demonstrate that his employer's proffered legiti- mate, nondiscriminatory reasons for the disputed actions are pretext for unlawful race discrimination.

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