                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

      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).



                                             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       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                             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


       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).



                                                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.                  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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