Larry D. Spease v. Public Works Commission of the City of Fayetteville

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

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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

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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

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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

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