**UN PUBLISHED** 
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 Distric t Court for the Eastern District of North Carolina , at Raleigh
. Terrence W. Boyle , District Judge. ( 4:06

- cv - 00223

- BO )

Submitted : January 2 8 , 2010 Decided: March 10 , 2010

Before MOTZ, KING, and DUNCAN , Circuit Judges.

Affirmed by un published pe r 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Unpublished opinions are not binding precedent in this circuit.2 PER CUR IAM: Larry D. Spease , an African

- American, appeals from the district court’s grant of summary judgment, and dismissal of h is action alleging that his former employer, the Public Works Commission of the City of Fayetteville (“ PWC ”) , discriminated

a gainst h im in violation of Title VII, 42 U.S.C. § 1 981 (200 6 ) , and N.C. Gen. Stat. § 143

- 422.2 , when it terminated h is 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 (4 th Cir. 2005). 1

1 The prima fac ie 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 stat e claim under § 143

- 422.2. Hughe s v. B edsole , 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
. E ven after ad monishment by his supervisor, also an3 African

- American, Spease repeatedly failed to comply with a policy that had been instituted by P WC requiring him to be in the yard observing crew workers at all times to prevent stealing. Significantly, Spease does no t contest his insubordination. Spease’s hostile insubordination was cited repeated ly as the reason triggering his termination. 2

2 Nor do the two stray racially derogatory remarks made by another supervisor of Spease

— which occurred al most 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. S ee , 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 th is failure

w as further relied upon by the Chief Executive Office r 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 , i d. 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 4 86 (“It is . . . clear that the law in this circuit is that, as a4 general rule, Title VII plaintiffs must show that they were replaced by someone outside their protected class in order to make out a prim a 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 pr operly granted P WC’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