UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
2

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. Our review of the 

record and the district court’s opinion 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

 1 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).

 Specifically, relevant to the third prong of his 

prima facie case, the undisputed evidence established that 

Spease was not performing his job duties at a level that met his 

employer’s legitimate expectations at the time he was 

terminated. Even after admonishment by his supervisor, also an 
3

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 at all times to prevent 

stealing. Significantly, Spease does not contest his 

insubordination. Spease’s hostile insubordination was cited 

repeatedly as the reason triggering his termination.2

 2 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, 511-

12 (4th Cir. 1994).

 The record 

additionally contains evidence documented by the 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 to terminate Spease. Whether an employee is 

performing at a level that meets legitimate expectations is 

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 
4

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. 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