                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 12-6123


GLENN ARRINGTON,

                Plaintiff – Appellant,

          v.

E.R. WILLIAMS, INC.; E. RANDY WILLIAMS, JR.,

                Defendants – Appellees.


Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:11-cv-00535-JCC-TCB)


Submitted:   May 17, 2012                 Decided:   August 1, 2012


Before AGEE, DAVIS, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David Ludwig, DUNLAP, GRUBB & WEAVER, PC, Leesburg, Virginia;
Henri T. Hammond, Washington, D.C., for Appellant. Teresa Burke
Wright, Amanda Vaccaro, JACKSON LEWIS, LLP, Reston, Virginia,
for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Glenn Arrington sued E.R. Williams, Inc. (“ERW”) and

its CEO, E. Randy Williams, Jr., alleging that they terminated

his employment on account of race, in contravention of federal

law.     The district court entered summary judgment in favor of

ERW    and       Williams      (“Appellees”),              and        Arrington      appealed.

Agreeing with the district court that Arrington has failed to

establish a prima facie case of discrimination, we affirm.



                                               I.

                                               A.

             A    federal      contractor,           ERW     provides         financial      and

administrative         services     and    support          to        government     agencies.

Arrington, an African American, joined ERW’s Virginia office as

an    employee,      becoming     the     program         manager       for   the    company’s

contract to staff the TRICARE Management Activity and Health

Affairs      Front     Offices.           In       this    capacity,          Arrington      was

responsible        for       fostering         client       relationships,            managing

employees, and developing business.

             After receiving reports that Kelli Anthony, a former

ERW    employee,       had     accused     Arrington             of    sexual      harassment,

Williams,         an     African         American,           placed           Arrington       on

administrative         leave   in   April       2010.        Williams         then   hired    an



                                               2
outside     contractor    to     investigate      Anthony’s       allegations       and

other evidence of Arrington’s misconduct in the workplace.

             The   ensuing     investigative      report       cataloged      accounts

from four subordinates of Arrington at ERW, all of whom accused

him of improprieties.           Cheryl Thomas stated that Arrington made

false promises about the position that she filled, assuring her

that it would involve research analysis when it was actually

purely    administrative.            According   to     Thomas,      Arrington      also

promised that he would ensure that she received additional pay

for overtime hours, but he failed to keep that promise.                       Anthony

repeated her assertions that Arrington sexually harassed her,

making unwanted sexual advances toward her, asking her out on

dates    several   times,      and    calling    her    “at    all    hours    of    the

night.”     J.A. 146.     Nneka Pray stated that Arrington approached

attractive women to encourage them to work for ERW and then

changed his favored candidates’ résumés to meet qualifications.

A   final   employee,    Jennifer        Sheppard,      alleged      that    Arrington

induced her to leave her prior employment to join ERW in a

position for which he knew that she was not qualified.                        Although

Arrington    repeatedly        assured    her    that    she    could      handle    the

duties,     Sheppard     was     ultimately      discharged          for    inadequate

performance.

             At the same time that the investigation was taking

place, ERW executives received complaints about Arrington from

                                          3
three    separate    clients.        All        three   clients      informed    the

executives that they did not want Arrington to continue to do

any work in their offices.

            Initially    hesitant     to       discharge    Arrington,      Williams

sought counsel from his attorney and two ERW executives, all of

whom recommended terminating Arrington’s employment.                        Williams

agreed     that   Arrington     could      not     continue     in    his    current

position, a decision that he characterized as grounded in “what

[he] thought was right and what was at risk for [his] company.”

Id. 600.     Based on the results of the investigation, Williams

concluded that Arrington “was a liability to the company” and

that his continued employment would “create unrest within the

employees . . . [and] with the clients.”                   Id. 643.       At bottom,

Williams thought that the numerous complaints from employees and

clients alike revealed Arrington’s ineffective leadership.

            But rather than discharge Arrington outright, Williams

offered to transfer him to ERW’s Huntsville, Alabama office.                      In

a May 27 email, ERW gave Arrington a little over a week to

either accept the transfer offer or face termination from the

company.     On June 15, ERW reiterated to Arrington that he would

be terminated if he declined to accept the Alabama position.

After he refused the new position, ERW officially discharged

Arrington    on   June   17   for   his       “inability   to   be   an     effective

manager and leader.”      Id. 198.

                                          4
                                         B.

            Arrington responded to his discharge by filing suit in

the U.S. District Court for the Eastern District of Virginia.

He alleged that ERW and Williams discharged him on account of

his race, in violation of 42 U.S.C. § 1981. 1

            Appellees moved for summary judgment.                     Holding that

Arrington    had   failed     to   establish          a    prima    facie    case   of

employment   discrimination,       the    district         court   entered    summary

judgment in favor of Appellees.                Arrington timely noted this

appeal.



                                       II.

            Arrington    first     challenges              the   district     court’s

consideration of several pieces of evidence.                       Ascertaining no

abuse of discretion in the district court’s evidentiary rulings,

see King v. McMillan, 594 F.3d 301, 310 (4th Cir. 2010), we

reject Arrington’s claims.

            Arrington argues principally that much of the evidence

relied on by the district court was                       hearsay that should not

have been considered.         This contention, however, flows from a

misunderstanding    of      hearsay.          Under       the    Federal    Rules   of


     1
      Arrington’s initial complaint included a count alleging
defamation, but he struck that claim from his amended complaint.



                                         5
Evidence, “hearsay” is, in critical part, a statement that “a

party     offers      in    evidence    to   prove       the   truth    of    the   matter

asserted in the statement.”               Fed. R. Evid. 801(c).              It follows,

then, that a statement is not hearsay where the proponent offers

it not to prove the truth of the matter asserted but rather for

another purpose.             Here, as the district court properly ruled,

evidence    of     employee     and     client     complaints        about   Arrington’s

performance           was    considered          because       ERW     and    Williams’s

“decisionmaking was under challenge, and [they] explained it on

the   basis      of    the    information        [they]     received,”       Crockett   v.

Abraham, 284 F.3d 131, 134 (D.C. Cir. 2002).                           Where, as here,

“third-party statements concerning the plaintiff’s performance

are offered not for the truth of the matters asserted therein,

but   as   an    explanation       of    why      [the     employer]     believed     that

terminating the plaintiff’s employment . . . was necessary and

appropriate,” evidentiary rules governing the consideration of

hearsay are not implicated.              See Royall v. Nat’l Ass’n of Letter

Carriers, 507 F. Supp. 2d 93, 98 n.10 (D.D.C. 2007). 2




      2
      Arrington also maintains that the evidence of employee and
client complaints was not relevant.     Alternatively, he claims
that the district court should have refused to consider the
evidence because the danger of unfair prejudice substantially
outweighed the probative value of the evidence.        Arrington,
however, did not raise these grounds for objection before the
district court and thus has waived them on appeal.



                                             6
                                         III.

            Arrington next contends that the district court erred

in granting summary judgment to Appellees.                           We review de novo

the   district     court’s     grant    of       summary      judgment,         viewing    the

facts in the light most favorable to the nonmoving party.                                 EEOC

v. Xerxes Corp., 639 F.3d 658, 668 (4th Cir. 2011).                                    Summary

judgment is appropriate if the moving party “shows that there is

no genuine dispute as to any material fact” and that it is

“entitled to judgment as a matter of law.”                                Fed R. Civ. P.

56(a).      “The    mere     existence      of     a    scintilla         of    evidence       in

support of the plaintiff’s position will be insufficient; there

must be evidence on which the jury could reasonably find for the

plaintiff.”       Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252

(1986).       A    nonmoving    party       cannot          resist    summary       judgment

“‘through mere speculation or the building of one inference upon

another.’ ”       Othentec Ltd. v. Phelan, 526 F.3d 135, 140 (4th Cir.

2008) (citation       omitted);       see    also       Francis      v.    Booz,       Allen    &

Hamilton,     Inc.,    452     F.3d    299,       308       (4th   Cir.        2006)    (“Mere

unsupported speculation is not sufficient to defeat a summary

judgment motion if the undisputed evidence indicates that the

other party should win as a matter of law.”).

            Arrington      maintains        that       he    has   met     his    burden       of

proving a prima facie case of employment discrimination.                                       We



                                             7
find   Arrington’s        contentions      meritless       and    accordingly       affirm

the district court’s grant of summary judgment.

              A    plaintiff      alleging       discriminatory         discharge       must

establish a prima facie case.                  King v. Rumsfeld, 328 F.3d 145,

149    (4th       Cir.   2003).      A     prima     facie       case    of   employment

discrimination comprises four elements:                         (1) membership in a

protected class; (2) adverse employment action; (3) performance

at a level meeting the employer’s legitimate expectations at the

time of the adverse employment action; and (4) more favorable

treatment     given      similarly       situated    employees          outside   of     the

protected class.          See Gerner v. Cnty. of Chesterfield, 674 F.3d

264, 266 (4th Cir. 2012); King, 328 F.3d at 149.                          In evaluating

whether a plaintiff has met his burden of demonstrating a prima

facie case of employment discrimination, our focus is on the

perception of the decision maker.                  Evans v. Techs. Applications

& Serv. Co., 80 F.3d 954, 960–61 (4th Cir. 1996).

              Because     Arrington      has     failed    to    show     that    his    job

performance at ERW met ERW’s legitimate expectations at the time

of his discharge, we hold that he has not satisfied his burden

of establishing a prima facie case of employment discrimination.

During    the       approximately     six        weeks    that    Arrington       was    on

administrative leave, Williams and other ERW executives received

a wealth of evidence detailing Arrington’s misconduct in the

workplace.         Four of Arrington’s subordinates lodged complaints

                                             8
about    Arrington’s       job     performance,      including      one      employee’s

allegations      that    Arrington       sexually    harassed    her.         Moreover,

three     of     ERW’s      clients       expressed      dissatisfaction             with

Arrington’s      work,    directing      ERW    to   remove   him     from    any    work

involving them.          Reviewing these complaints, Williams and other

ERW supervisors felt that Arrington was unfit to continue work

in his position at the Virginia office.                    Arrington has simply

proffered no evidence that he was meeting ERW’s expectations at

the time of his discharge or that ERW and Williams harbored any

nefarious motives in terminating his employment.                        Arrington is

thus unable to resist summary judgment. 3



                                          IV.

               For the foregoing reasons, we affirm the judgment of

the district court.             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




     3
      Because  we   conclude   that  Arrington   has failed to
demonstrate adequate job performance, we need not address his
other challenges to the district court’s decision.



                                           9
