                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-1439



JONATHAN MCCRAY,

                                               Plaintiff - Appellant,

           and


RAY E. GARDNER,

                                                            Plaintiff,

           versus


PEE DEE REGIONAL TRANSPORTATION AUTHORITY;
GEORGE   SIMMONS;   ELAINE   BARKLEY;   EDWARD
ROBINSON; ANDY IMGRAM; BILL BOYD; THEODORE
BURNS; JAMES B. KNIGHT; LARRY FOSTER; STEVEN
RAST; ALPHONSO CAMPBELL; HAROLD KORNBLUT;
NANCY FINKLEA, in their official capacities as
Board Members and individually; BEN KNIGHT, As
Executive Director,

                                              Defendants - Appellees.


Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:04-cv-01948-TLW)


Argued:   December 7, 2007                 Decided:   February 6, 2008


Before WILLIAMS, Chief Judge, and MOTZ and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.
Chalmers Carey Johnson, Mt. Pleasant, South Carolina, for
Appellant. Robert Thomas King, WILLCOX, BUYCK & WILLIAMS, P.A.,
Florence, South Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                              - 2 -
PER CURIAM:

     Jonathan McCray, an African-American man, appeals from the

district court’s grant of summary judgment in favor of the Pee Dee

Regional Transportation Authority (“PDRTA”) and certain members of

its Board of Directors (collectively, “Appellees”) on his civil

rights claims.1   McCray seeks relief pursuant to 42 U.S.C.A.

§§ 1981 and 1983 (West 2003 & Supp. 2006), claiming that the PDRTA

terminated his employment on the basis of his race and that

Appellees violated his rights under the Equal Protection Clause.2

For the following reasons, we affirm the district court’s grant of

summary judgment to Appellees.



                                  I.

     Because the district court granted summary judgment in favor

of Appellees, we construe the facts in the light most favorable to

McCray, the non-moving party.     Henson v. Liggett Group, Inc., 61

F.3d 270, 274 (4th Cir. 1995).           The PDRTA Board of Directors

elected McCray as Executive Director in 1994, in a vote that split


     1
      McCray was joined in his complaint by co-plaintiff Ray E.
Gardner, a former Chairman of the PDRTA Board of Directors;
Gardner, however, has not pursued an appeal in this case.
     2
      McCray’s complaint also alleges that Appellees violated his
First Amendment rights, but McCray’s opening brief does not address
the district court’s dismissal of his First Amendment claim against
Appellees. He has therefore waived appellate review of that claim.
In re Apex Express Corp., 190 F.3d 624, 630 n.5 (4th Cir. 1999)
(noting that issues not argued in appellant’s brief are deemed
waived on appeal).

                                 - 3 -
8 to 7 along racial lines.           McCray contends that, after his

election, Steve Rast, a Caucasian man, joined the Board and “began

to work for the return of white control of the PDRTA, and the

termination of [] McCray as its Executive Director.” (J.A. at 16.)

McCray claims that Rast, along with two other Caucasian Board

members, Elaine Barkley and Andy Ingram, attempted to undermine

McCray’s   position    with    the    PDRTA   through    allegations     of

mismanagement and wrongdoing.        McCray further contends that Board

member Edward Robinson, who is African-American, became aligned

with McCray’s opponents due to disagreements between Robinson and

McCray over the use of PDRTA buses.

     During a meeting on June 21, 2001, after the Board removed Ray

Gardner, a Caucasian man, from his position as Chairman of the

Board and forced Gardner to leave the Board meeting, the members

were able to garner enough votes to terminate McCray.         On July 13,

2001, a majority of the Board called another meeting to vote on the

possible reinstatement of McCray and Gardner.           The meeting was

scheduled for July 16, 2001, but before McCray could attend, he was

arrested based on a warrant sworn out by Robinson.           According to

McCray, while under arrest he was unable to “organize and rally his

supporters,”   (J.A.   at   17),   and   Appellees   later   succeeded   in

cancelling the scheduled meeting by preventing a quorum of the

members from attending.




                                   - 4 -
                                        II.

       We review de novo a district court’s order granting summary

judgment, drawing reasonable inferences in the light most favorable

to the non-moving party.         Henson, 61 F.3d at 274.     Summary judgment

is     proper     “if   the      pleadings,      depositions,    answers    to

interrogatories, and admissions on file, together with affidavits,

if any, show that there is no genuine issue as to any material fact

and that the moving party is entitled to a judgment as a matter of

law.”    Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986).          Credibility determinations are improper on

summary judgment; where resolution of an issue of fact depends upon

such a determination, summary judgment is inappropriate.              Gray v.

Spillman, 925 F.2d 90, 95 (4th Cir. 1991).

       The district court held that McCray’s federal suit was barred

by res judicata principles because McCray had filed an earlier

civil lawsuit in South Carolina state court that was dismissed in

Appellees’ favor.        The doctrine of res judicata precludes the

assertion of a claim after a judgment on the merits in a prior suit

by parties or their privies based on the same cause of action.

Meekins v. United Transp. Union, 946 F.2d 1054, 1057-58 (4th Cir.

1991); Aliff v. Joy Mfg. Co., 914 F.2d 39, 42 (4th Cir. 1990).              It

extends to those claims that “existed at the time of the [prior]

suit    and     might   have    been   offered    in   the   same   cause   of

action. . . .”      Aliff, 914 F.2d at 43-44 (internal quotation marks


                                       - 5 -
and citation omitted).   For the doctrine of res judicata to apply,

“‘there must be: (1) a final judgment on the merits in a prior

suit; (2) an identity of the cause of action in both the earlier

and the later suit; and (3) an identity of parties or their privies

in the two suits.’”   Martin v. Am. Bancorporation Ret. Plan, 407

F.3d 643, 650 (4th Cir. 2005) (quoting Pueschel v. United States,

369 F.3d 345, 354-55 (4th Cir. 2004)).

     In the prior state action on which the district court based

its application of res judicata principles, McCray asserted claims

of malicious prosecution, defamation, and civil conspiracy against

a number of PDRTA Board members and the PDRTA.   These claims arose

from McCray’s arrest in July 2001, which stemmed from his use of a

PDRTA credit card to pay for a hotel room on the night that he was

terminated by the Board.3   McCray filed his state action in late

2001, and in July 2003, the state court held two hearings on the

defendants’ motion to dismiss and motion for summary judgment. The

state court granted the motion to dismiss, holding that service of


     3
      McCray claimed that it was customary for him to rent a hotel
room following board meetings, as he lived quite a distance from
the meetings and would stay at a hotel to make it easier for him to
arrive at work the next morning.     However, when members of the
Board discovered this particular charge, some believed it to be
unauthorized and contacted the local sheriff’s office. One of the
Board members, Robinson, later signed an arrest warrant accusing
McCray of obtaining goods by false pretenses. When McCray arrived
for   the  July   16,   2001,  meeting   regarding   his   possible
reinstatement, he was placed under arrest in front of members of
the local media.     In August 2001, the charges were dismissed
because Robinson, the prosecuting witness, had not suffered any
loss.

                               - 6 -
process   was   insufficient    and    that    the   court   lacked   personal

jurisdiction over the defendants. The court added that even if the

defendants had been properly served, they would still be entitled

to summary judgment, as McCray had failed to come forward with

sufficient evidence to support his claims.

     McCray contends that the district court erred in concluding

that this state-court decision was “final and on the merits.”

(J.A. at 1428.)     We agree.    Under Rule 41(b) of both the Federal

and South Carolina Rules of Civil Procedure, a dismissal for lack

of personal jurisdiction does not operate as an adjudication on the

merits.   Fed. R. Civ. P. 41(b); S.C. R. Civ. P. 41(b).            Because the

state court dismissed McCray’s previous case for lack of personal

jurisdiction over the defendants, its ruling was not on the merits

of the case.     Moreover, when a case is dismissed on alternative

grounds, one procedural and one substantive, that ruling has no res

judicata effect as to substantially identical claims.                 Pizlo v.

Bethlehem   Steel   Corp.,     884    F.2d    116,   119   (4th   Cir.   1989).

Therefore, the state-court decision cannot have preclusive effect

with respect to the federal claims in this case.

     Hoping to avoid this conclusion, Appellees contend that our

decision in Stebbins v. Nationwide Mut. Ins. Co., 528 F.2d 934 (4th

Cir. 1975) (per curiam), permitted the district court to give

preclusive effect to the procedural dismissal of the prior lawsuit.

In Stebbins, although we noted that res judicata traditionally


                                     - 7 -
applies only to those cases that have been fully litigated on their

merits, we made use of an exception to the traditional res judicata

rule that bars a plaintiff from litigating his claims if “the

circumstances are such that it would be manifestly unfair to

subject the defendant to such an action.”               Stebbins, 528 F.2d at

937 (internal quotation marks and citation omitted).                 Id. at 937.

Stebbins involved a serial litigant who had made a “career” out of

suing     insurance   companies     and     had   previously       exhibited     an

“intentional, wilful, and contemptuous disregard of both Court and

statutory    rules    and   requirements.”        Id.   at   937    n.4   (citing

Stebbins v. Nationwide Mut. Ins. Co., 469 F.2d 268, 270 (4th Cir.

1972)).     The “unfairness” to Nationwide from a new trial was

“substantial and manifest,” given that Nationwide had been prepared

to   litigate   the   merits   of   the     first   suit     and   had    in   fact

participated in a “full-blown trial” as to the substance of the

plaintiff’s claims. Id. at 938.           Because the first action had been

dismissed due to the plaintiff’s “intentional disregard of the

statutory precondition,” we held that Nationwide should not be

burdened with a second trial.        Id.

      Although Appellees claim that the rationale in Stebbins is

applicable to McCray’s current lawsuit, we find that the factors

that compelled the result in Stebbins are not applicable here.                   In

the present case, Appellees claim that they were prejudiced as a

result of the nearly two years of litigation that resulted from


                                    - 8 -
McCray’s first lawsuit, and they assert that McCray should be held

accountable for “fully litigat[ing] the claims without curing the

service defect.”     (Appellee’s Br. at 14.)           There is, however, no

indication in the record that McCray’s failure to effect proper

service of process was the result of an “intentional disregard of

the   statutory    precondition.”          Stebbins,    528      F.2d   at   938.

Additionally, while the state court held two separate hearings,

those hearings were dedicated to resolving the motion to dismiss

and motion for summary judgment, as well as “related matters.”

Although the state court made a series of findings in granting the

defendants’ motion for summary judgment, it is clear that, in

contrast to Stebbins, McCray’s claims were never subject to an

actual trial on the merits.

      In sum, we conclude that the state-court judgment did not

constitute   a    final   judgment    on    the   merits   for    res   judicata

purposes, and Appellees have not demonstrated that it would be

manifestly unfair to subject them to a trial on the merits.                   We

therefore hold that res judicata principles do not bar McCray from

pursuing his present action.



                                     III.

      The district court made an alternative finding that, even if

McCray’s claims were not barred by principles of res judicata, they




                                     - 9 -
would still fail on the merits.   In this regard, we agree with the

district court.4

     McCray’s    complaint   listed,    inter   alia,   a   claim   for

discrimination under 42 U.S.C.A. § 1981 and a § 1983 claim pursuant

to the Equal Protection Clause of the Fourteenth Amendment.         The

elements of a claim under § 1981 or § 1983 mirror those of Title

VII: A plaintiff must provide direct evidence of discriminatory

treatment or proceed under the framework set forth in McDonnell-

Douglas Corp. v. Green, 411 U.S. 792 (1973), to establish a prima

facie case.     See Gairola v. Va. Dep’t of Gen. Servs., 753 F.2d

1281, 1285-86 (4th Cir. 1985).         If a plaintiff has presented

“direct or circumstantial evidence that raises a genuine issue of

material fact as to whether an impermissible factor such as race

motivated the employer’s adverse employment decision,” he is under

no obligation to make out a prima facie case.     Diamond v. Colonial

Life & Acc. Ins. Co., 416 F.3d 310, 318 & n.4 (4th Cir. 2005).       In

establishing evidence of discrimination, derogatory remarks may

constitute direct evidence, as long as the remarks were related to

the employment decision in question and were not stray or isolated.

Brinkley v. Harbour Recreation Club, 180 F.3d 598, 608 (4th Cir.

1999), abrogated on other grounds by Desert Palace, Inc. v. Costa,



     4
      We note that because “we review judgments, not opinions,”
Catawba Indian Tribe of South Carolina v. City of Rock Hill, 501
F.3d 368, 372 (4th Cir. 2007) (per curiam), we may affirm the
district court on any ground supported by the record.

                               - 10 -
539 U.S. 90 (2003).         McCray’s evidence must clearly indicate a

discriminatory motive and illustrate a nexus between that motive

and the adverse employment action.            Id.

      The district court concluded that (1) there was no direct

evidence of discrimination and (2) that McCray had not made out a

prima facie case under the McDonnell-Douglas framework. We address

these conclusions in turn.

                                       A.

      In this case, the district court determined that McCray failed

to   produce    direct    evidence   that     his   termination    was   due    to

discrimination.      In reaching this conclusion, the court focused on

two statements proffered by McCray in support of his case: one from

McCray’s own affidavit and another from an affidavit submitted by

Benjy Rogers, a Caucasian man who served on the PDRTA Board from

1989 until 2004.     In McCray’s affidavit, he recalled a terse phone

conversation that he had with Rast in January 1999, during which

Rast,   apparently       believing   that   McCray    had   hung   up    on   him,

allegedly stated, “I can’t stand that black son of a b--ch.”                  (J.A.

at 1225.) In Rogers’ affidavit, Rogers recounted a discussion that

he had with Barkley regarding why McCray was being scrutinized and

criticized far more than his predecessor, during which Barkley

“accosted” Rogers, who is Caucasian, and said that “[t]he only

difference between you and that black S.O.B. is you’re white and he

is black.      The first chance we get we are going to run his ass out


                                     - 11 -
of town, no matter how good you think he is.”         (J.A. at 1151.)

There is no indication in the record as to when this conversation

took place.     In evaluating this evidence, the district court

concluded that these statements did not constitute direct evidence

and that even if they were evaluated as direct evidence, the

court’s decision would be the same.5

     While isolated statements can constitute direct evidence of

discrimination, the statements must be contemporaneous to the

adverse employment action.     See Birkbeck v. Marvel Lighting Corp.,

30 F.3d 507, 511-12 (4th Cir. 1994) (statement made over two years

before discharge was too remote in time to serve as evidence of age

discrimination); see also Hemsworth v. Quotesmith.com, Inc., 476

F.3d 487, 491 (7th Cir. 2007) (particular remark can provide

inference of discrimination if made around the time of adverse

decision); Sheehan v. Donlen Corp., 173 F.3d 1039, 1044 (7th Cir.

1999)    (isolated   comment   can   constitute   direct   evidence   if



     5
      On appeal, McCray identifies more than a dozen alleged
statements that he contends are direct evidence of discrimination.
Many of these statements, however, are not substantiated by the
affidavits and deposition testimony submitted by McCray and
Gardner: some of the statements cannot be relied on because they
are inconsistent with the evidence on record; and some of the
alleged remarks are simply not direct evidence of discrimination.
Finally, a large number of the statements put forth by McCray are
based upon inadmissible hearsay, as McCray relies entirely on
information relayed to him by third parties who are not party-
opponents and who have not themselves provided affidavits or
deposition testimony. See Evans v. Techs. Applications & Serv.
Co., 80 F.3d 954, 962 (4th Cir. 1996) (summary judgment affidavits
cannot be conclusory or based on hearsay).

                                 - 12 -
contemporaneous with the discharge or causally related to discharge

decision-making process).      In this case, McCray has failed to

demonstrate that either of the alleged statements were reasonably

contemporaneous   with   the   Board’s    decision   to   terminate   his

employment. Therefore, we find that the district court did not err

in holding that McCray failed to provide sufficient direct evidence

to raise a genuine issue of material fact as to whether the Board’s

decision to terminate him was based upon his race.

                                     B.

     While McCray has failed to provide sufficient direct evidence

to support his claims, he may also avoid summary judgment by

proceeding under the McDonnell-Douglas framework.         To demonstrate

a prima facie case of discrimination, a plaintiff must show that:

(1) he belongs to a protected class; (2) he suffered an adverse

employment action; (3) at the time of the adverse action, he was

performing his job duties at a level that met his employer’s

legitimate expectations; and (4) the position remained open or was

filled by similarly qualified applicants outside the protected

class.   Holland v. Washington Homes, Inc., 487 F.3d 208, 214 (4th

Cir. 2007).   If a prima facie case is established, the burden then

shifts to the employer to provide a legitimate reason for the

adverse employment action.     Id.    If the employer meets its burden

of production, the presumption of discrimination drops from the




                                - 13 -
case and the plaintiff once again bears the burden to prove that he

was the victim of discrimination.       Id.

      In this case, the district court held that McCray failed to

demonstrate that he was performing his job at a level that met his

employer’s   expectations.      The   district   court   listed   several

problems with McCray’s performance, including his obtaining loans

and lines of credit without the Board’s authorization, negative

reviews by the Federal Transit Administration that uncovered nearly

$900,000 in federal funds that the PDRTA had to return, and a

number of other issues relating to McCray’s contributions to the

PDRTA’s financial instability.        Although it was “not prepared to

conclude that all [the] problems of the PDRTA were the fault of

plaintiff McCray,” (J.A. at 1435), the district court concluded

that the evidence was sufficient to demonstrate that McCray was

fired because of his job performance and not because of his race.

      McCray makes a series of allegations in an attempt to defend

his performance, but he has presented no substantive evidence

demonstrating that he was performing his job at a level that met

his   employer’s   legitimate   expectations.     Appellees   submitted

numerous audits and documents establishing that the PDRTA suffered

from severe financial problems, and as the district court noted,

while McCray may not deserve all of the blame for the PDRTA’s

extensive fiscal shortcomings, he has clearly failed to demonstrate




                                 - 14 -
that his performance as Executive Director was satisfactory.6

Therefore, based on the reasoning provided by the district court,

we find that McCray has failed to establish a prima facie case of

discrimination.7



                               IV.

     For the foregoing reasons, the district court’s dismissal of

McCray’s discrimination claims is

                                                         AFFIRMED.




     6
      McCray repeatedly asserts that Appellees relied on post hoc
reasoning that was fabricated after his termination, and that their
proffered reasons for his termination were mere pretext for their
racially motivated actions.     McCray relies on an excerpt from
Barkley’s deposition transcript that he asserts proves that the
Board had no legitimate reason to fire him. At her deposition,
Barkley was asked about a comment she made to Ben Knight, the new
Executive Director, at a 2002 Board meeting, in which she wanted
him to “dig” for information on McCray. (J.A. at 240.) McCray
claims that Barkley’s response proves that she was completely
unaware of any malfeasance on his part at the time she voted to
fire him.     The questions asked during this portion of the
deposition, however, are somewhat vague and indirect, as Barkley’s
answers indicate that she merely wanted further investigation into
whether McCray was engaged in additional malfeasance of which she
or the Board was still unaware. In any event, Barkley’s isolated
comments regarding efforts to “dig” up information on McCray are
not inconsistent with any prior statements and do not provide
sufficient evidence of a pretextual reasoning for McCray’s
termination.
     7
      McCray also alleges that Appellees were guilty of abuse of
process.   We have considered this argument and find it to be
without merit.

                              - 15 -
