Larry Spease v. Public Works Commission of the

Filing 920100310

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-1406

LARRY D. SPEASE, Plaintiff - Appellant, v. PUBLIC WORKS COMMISSION OF THE CITY OF FAYETTEVILLE, Defendant - Appellee.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (4:06-cv-00223-BO)

Submitted:

January 28, 2010

Decided:

March 10, 2010

Before MOTZ, KING, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Angela Newell Gray, Greensboro, North Carolina, for Appellant. David L. Woodard, Susanna K. Gibbons, POYNER SPRUILL LLP, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Larry D. Spease, an African-American, appeals from the district court's grant of summary judgment, and dismissal of his action alleging that his former employer, the Public Works

Commission of the City of Fayetteville ("PWC"), discriminated against him in violation of Title VII, 42 U.S.C. § 1981 (2006), and N.C. Gen. Stat. § 143-422.2, when it terminated his

employment allegedly based upon his race. record and the district court's opinion

Our review of the discloses that this

appeal is without merit. We conclude that the district court correctly

determined that Spease failed to establish a prima facie case of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802-04 (1973); Miles v. Dell, Inc., 429 F.3d 480, 485 (4th Cir. 2005). 1 prima facie Specifically, relevant to the third prong of his case, the undisputed evidence established that

Spease was not performing his job duties at a level that met his employer's terminated.
1

legitimate

expectations

at

the

time

he

was

Even after admonishment by his supervisor, also an

The prima facie case elements are the same under Title VII and § 1981. Gairola v. Va. Dep't of Gen. Servs., 753 F.2d 1281, 1285 (4th Cir. 1985). Moreover, the North Carolina Supreme Court has explicitly adopted the Title VII evidentiary standards in evaluating a state claim under § 143-422.2. Hughes v. Bedsole, 48 F.3d 1376, 1383 (4th Cir. 1995); see N.C. Dep't of Corr. v. Gibson, 301 S.E.2d 78, 82 (N.C. 1983).

2

African-American,

Spease

repeatedly

failed

to

comply

with

a

policy that had been instituted by PWC requiring him to be in the yard observing crew workers Spease hostile at all does times not to prevent his cited

stealing.

Significantly, Spease's

contest was

insubordination.

insubordination

repeatedly as the reason triggering his termination. 2 additionally contains evidence documented by the

The record employer of

Spease's previous failure to follow procedures, and this failure was further relied upon by the Chief Executive Officer in making the decision at to a terminate level that Spease. meets Whether legitimate an employee is is

performing

expectations

based on the employer's perception, King v. Rumsfeld, 328 F.3d 145, 149 (4th Cir. 2003), and Spease's own, unsubstantiated

assertions to the contrary are insufficient to stave off summary judgment, id. at 151. Finally, Spease, who was replaced by

another African-American male, failed to make out the fourth prong of his requisite prima facie case. Miles, 429 F.3d at 486

("It is . . . clear that the law in this circuit is that, as a

Nor do the two stray racially derogatory remarks made by another supervisor of Spease -- which occurred almost two years prior to Spease's termination, which were unconnected to Spease's termination, and which Spease failed to report to the human resources department or the Chief Executive Officer responsible for his termination -- demonstrate racial animus. See, e.g., Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 51112 (4th Cir. 1994).

2

3

general

rule,

Title

VII

plaintiffs

must

show

that

they

were

replaced by someone outside their protected class in order to make out a prima facie case. However, we have recognized that

there may be exceptions to this rule in limited situations." (internal quotation marks omitted)). As Spease failed to establish a prima facie case of racial discrimination, we conclude the district court properly granted PWC's motion for summary judgment. oral argument because in the the facts and legal before We dispense with contentions the court are and

adequately

presented

materials

argument would not aid the decisional process. AFFIRMED

4