UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FRANK WILSON, JR.,
Plaintiff-Appellant,

v.                                                                  No. 94-2247

CIRCUIT CITY STORES, INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CA-93-1956-3-19BC)

Argued: January 29, 1996

Decided: April 1, 1996

Before RUSSELL, WILLIAMS, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Ernest Eugene Yarborough, YARBOROUGH & CAR-
TER, P.C., Winnsboro, South Carolina, for Appellant. Laura Eliza-
beth Zoole, NELSON, MULLINS, RILEY & SCARBOROUGH,
L.L.P., Columbia, South Carolina, for Appellee. ON BRIEF:
Henry S. Knight, Jr., NELSON, MULLINS, RILEY & SCARBOR-
OUGH, L.L.P., Columbia, South Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Frank Wilson, Jr., challenges the district court's entry of summary
judgment in favor of his former employer, Circuit City Stores, Incor-
porated. On appeal, Wilson alleges that Circuit City took disciplinary
measures against him and discharged him because of his race, in vio-
lation of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A.
§ 2000e-2(a) (West 1994), and 42 U.S.C.A.§ 1981 (West 1994), and
he contends that the district court was biased against his claims.
Because Wilson has failed to demonstrate a prima facie case of either
disparate discipline or discriminatory discharge and has failed to
show judicial bias, we affirm.

I.

Wilson, a black male, was an employee of a Circuit City store in
Columbia, South Carolina, from 1986 until his suspension and dis-
charge in May 1992. During those six years, Wilson advanced from
the position of sales counselor to sales manager of a department of the
store.

Around September 1991, Wilson's supervisors began to receive
numerous complaints about Wilson's use of vulgar and profane lan-
guage with sales associates in private and in the presence of store cus-
tomers. On at least four occasions over the course of several months,
Wilson's supervisors admonished him in writing to curtail his abusive
language.

In addition, Wilson had a documented history of poor job perfor-
mance as a sales manager. In February 1992, two of Wilson's super-
visors completed a Circuit City "Progress Conference Form" and
rated Wilson's performance in nine of twelve categories as "marginal"
or "unacceptable." (J.A. at 104-05.) Conceding his shortcomings, Wil-

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son acknowledged his substandard performance and the need to
strengthen "associate relations." (J.A. at 105.) In March and April
1992, Wilson received three written warnings that his performance
was unsatisfactory. In those warnings, Wilson's supervisors set forth
corrective measures that Wilson should take to improve his perfor-
mance.

Subsequently, Trent Barnes, a Circuit City district sales manager,
suspended Wilson with pay while Barnes investigated a complaint
that Wilson used profanity in a conversation with a sales associate.
The sales associate did not recall the specific incident, but told Barnes
that Wilson habitually used profanity on the sales floor of the store.
Based on his investigation, Barnes recommended that Circuit City ter-
minate Wilson's employment because of his "unacceptable behavior"
and overall substandard performance. (J.A. at 122.) After reviewing
Barnes's recommendation to terminate Wilson, several senior Circuit
City managers in the Human Resources Central Division approved
Wilson's discharge, and Wilson was fired on May 13, 1992.

Wilson filed this action in the district court for the District of South
Carolina, alleging that his suspension and discharge constituted
unlawful race discrimination in violation of Title VII and § 1981.
Wilson also claimed that his discharge constituted an unlawful breach
of contract and defamation of character under state law, allegations
that he does not raise on appeal. The district court entered summary
judgment for Circuit City on all claims, and Wilson timely noted
appeal of the ruling with respect to his federal claims.

II.

We review the district court's grant of summary judgment de novo.
See Hughes v. Bedsole, 48 F.3d 1376, 1382 (4th Cir.), cert. denied,
116 S. Ct. 190 (1995). In so doing, we view the facts and draw all rea-
sonable inferences in Wilson's favor. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986). We note, however, that under Rule
56(e) of the Federal Rules of Civil Procedure, Wilson could not rest
on "mere allegations or denials" of Circuit City's pleadings to defeat
its motion for summary judgment; Wilson could survive summary
judgment only by submitting affidavits or other evidence that "set
forth specific facts showing that there is a genuine issue for trial."

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Fed. R. Civ. P. 56(e); see Theard v. Glaxo, Inc. , 47 F.3d 676, 680 (4th
Cir. 1995) (noting that plaintiff must point to"specific facts" support-
ing each element of prima facie case in order to avoid summary judg-
ment). In other words, Wilson had to produce evidence from which
a rational jury could conclude that Circuit City disciplined or fired
Wilson because of his race. See Matsushita Elec. Indus. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 (1986).

Under these standards, we conclude that summary judgment was
proper because Wilson failed to set forth a prima facie case of dispa-
rate discipline or discriminatory discharge under either Title VII or
§ 1981. Both statutes require the same elements of proof. See Gairola
v. Commonwealth of Va. Dep't of Gen. Servs., 753 F.2d 1281, 1285
(4th Cir. 1985). We first turn to Wilson's disparate discipline claim
and then evaluate his discriminatory discharge claim.

A.

To state a claim based on disparate discipline, Wilson had to show
(1) that he is a member of a protected class; (2) that employees out-
side the protected class engaged in comparable misconduct; and (3)
that the disciplinary measures enforced against Wilson were more
severe than those enforced against the other employees who engaged
in comparable misconduct. See Cook v. CSX Transp. Corp., 988 F.2d
507, 511 (4th Cir. 1993). Wilson's evidence falters at the second ele-
ment of his claim; he cannot point to specific facts showing that other
Circuit City managers engaged in comparable misconduct.

Wilson does not dispute that he used profanity in conversations
with sales associates and performed below Circuit City standards.
Rather, Wilson alleges that other sales managers also used profanity
and performed poorly, but were not similarly disciplined or dis-
charged. Specifically, Wilson contends that a white sales manager at
the same Circuit City store, Jim Remole, used abusive language but
was not reprimanded. The store manager, Dennis Letts, testified in his
deposition that he heard Remole use "abusive language," but did not
counsel Remole to refrain from using the language in the future. (J.A.
at 74.)

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As the district court observed, however, Wilson produced no
records, testimony, or any other evidence showing that Circuit City
received complaints about the use of profanity by Remole or any
employee other than Wilson. Although Letts acknowledged that sev-
eral employees had used abusive language on occasion, he testified
that he had never received "any kind of written complaint" from a
sales associate about any manager other than Wilson. 1 (J.A. at 79).
Wilson produced only his own self-serving testimony to substantiate
the claim that other managers had the same poor performance record
as Wilson, but were not disciplined. Additionally, Wilson's counsel
conceded during the summary judgment hearing before the district
court that no other employee had the same record as Wilson. The sec-
ond element of Wilson's prima facie case of disparate discipline thus
stands wholly unsupported.

Wilson nevertheless suggests that the evidence gives rise to an
inference that Circuit City suspended and discharged Wilson because
of his race. No such inference arises from Wilson's unsupported alle-
gations that other managers engaged in comparable misconduct. As
we have long recognized, "mere speculation or the building of one
inference upon another" cannot create a genuine factual dispute pre-
cluding summary judgment. Beale v. Hardy, 769 F.2d 213, 214 (4th
Cir. 1985); see Carter v. Ball, 33 F.3d 450, 461-62 (4th Cir. 1994)
(noting that "general allegations do not suffice to establish an action-
able claim" of discriminatory treatment). Rather, Wilson's burden
was "to prove a set of circumstantial facts, which in the absence of
a legitimate, non-discriminatory explanation, leads one to conclude
with reasonable probability that the action taken against him was the
product of discrimination," Cook, 988 F.2d at 512, which Wilson
failed to do.2 Because Wilson lacks evidentiary support for the second
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1 In contrast, at least three sales associates submitted written complaints
about Wilson, describing his behavior towards them as demeaning, dehu-
manizing, and unprofessional, and characterizing his language as profane
and degrading. One former employee attested in an affidavit that he vol-
untarily terminated his employment with Circuit City"based entirely on"
Wilson's mistreatment of him. (J.A. at 206.)
2 Because Wilson did not prove such a set of facts, the burden never
shifted to Circuit City to rebut a presumption of discrimination that
would arise out of a prima facie case. See Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 254 (1981). Therefore, to the extent
that Wilson argues that Circuit City has not discharged its burden of
rebuttal, his argument is misplaced.

                    5
element of his claim, we agree with the district court that no rational
jury could find that race was more likely than not a motivating factor
in suspending or firing Wilson, and summary judgment on his dispa-
rate discipline claim was therefore proper.

B.

For similar reasons, summary judgment on Wilson's discriminatory
discharge claim also was proper. To establish a prima facie case that
Circuit City fired Wilson because of his race, he had to set forth spe-
cific facts showing that: "(1) [ ]he is a member of a protected class;
(2) [ ]he was qualified for his job and his job performance was satis-
factory; (3) [ ]he was fired; and (4) other employees who are not
members of the protected class were retained under apparently similar
circumstances." Hughes, 48 F.3d at 1383 (noting female plaintiff
opposing summary judgment had to "eliminate concerns that she was
fired because of her performance or qualifications").

Wilson failed to demonstrate any genuine issue of material fact
regarding the second element of this claim; he does not refute his
record of unsatisfactory job performance. As noted, Wilson's supervi-
sors evaluated him three months before his discharge and rated his
performance in nine of twelve categories as "marginal" or "unaccept-
able." (J.A. at 104-05.) In fact, Wilson acknowledged his substandard
performance on the same evaluation sheet. Furthermore, during the
two months before his discharge, Wilson received three written warn-
ings that his performance was unsatisfactory, but he failed to improve.
Evaluating this evidence, any rational trier of fact would conclude
that Wilson's job performance was deficient, a fatal flaw in his prima
facie case. Cf. Ennis v. National Ass'n of Business & Educ. Radio,
Inc., 53 F.3d 55, 62 (4th Cir. 1995) (affirming summary judgment for
employer in a case arising under the Americans with Disabilities Act,
42 U.S.C.A. § 12112 (West 1995), because plaintiff's "poor perfor-
mance was so substantial and persuasive that no reasonable jury could
find by a preponderance of the evidence that she was performing her
job adequately"). Summary judgment on Wilson's discriminatory dis-
charge claim was therefore proper.

III.

Finally, Wilson contends that the district court denied him a fair
hearing because the court was biased against his claims. To advance

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this contention, Wilson relies on Crandell v. United States, 703 F.2d
74, 78 (4th Cir. 1983), in which we held that a district judge had abdi-
cated his duty to adjudicate "dispassionately, fairly, and impartially"
because he persistently interjected opinions about the case during trial
and interrupted the testimony of witnesses.

After carefully reviewing the record, we conclude that Wilson's
challenge to the summary judgment ruling on the basis of judicial
misconduct is meritless. Wilson received the fair, if not perfect, hear-
ing to which he was entitled, see United States v. Blevins, 960 F.2d
1252, 1254 (4th Cir. 1992), and the district judge served his judicial
function commendably. The record of the summary judgment hearing
reflects the district judge's thorough familiarity with the parties'
briefs, supporting affidavits, pleadings, and depositions. Unlike the
district court in Crandell, the district court in this case afforded Wil-
son every opportunity to present all of the evidence he could muster
in support of his claims. The district judge's comments to Wilson's
counsel reflected the court's reasoned view of the merits of Wilson's
claim, not any personal bias against Wilson. See People Helpers
Found. Inc. v. City of Richmond, 12 F.3d 1321, 1325 (4th Cir. 1993)
(noting that an alleged bias must arise from a "basis other than that
learned by the judge in his or her participation in the matter").

IV.

For the foregoing reasons, we affirm the decision of the district
court granting summary judgment to Circuit City.

AFFIRMED

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