{ "id": 11354393, "name": "JOHNNY E. BREWER, Plaintiff v. CABARRUS PLASTICS, INC., Defendant", "name_abbreviation": "Brewer v. Cabarrus Plastics, Inc.", "decision_date": "2001-09-04", "docket_number": "No. COA00-364", "first_page": "82", "last_page": "89", "citations": [ { "type": "official", "cite": "146 N.C. App. 82" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "42 U.S.C. \u00a7 1981", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": -1 }, { "cite": "507 U.S. 604", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6235233 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "610" }, { "page": "346" } ], "opinion_index": 0, "case_paths": [ "/us/507/0604-01" ] }, { "cite": "490 U.S. 228", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 605428 ], "weight": 3, "year": 1989, "pin_cites": [ { "page": "277", "parenthetical": "plurality opinion" }, { "page": "305", "parenthetical": "plurality opinion" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/us/490/0228-01" ] }, { "cite": "203 F.3d 274", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 11483078 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "278" } ], "opinion_index": 0, "case_paths": [ "/f3d/203/0274-01" ] }, { "cite": "67 F.3d 1137", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7416163 ], "weight": 9, "year": 1995, "pin_cites": [ { "page": "1141" }, { "page": "1141" }, { "page": "1141" }, { "page": "1141" }, { "page": "1142" }, { "page": "1142", "parenthetical": "footnote omitted" }, { "page": "1144", "parenthetical": "emphasis added" }, { "page": "1144", "parenthetical": "explaining that instructions are in error if the jury could construe them to require that race be the sole decisional factor in the adverse employment decision" } ], "opinion_index": 0, "case_paths": [ "/f3d/67/1137-01" ] }, { "cite": "301 S.E.2d 78", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "82" } ], "opinion_index": 0 }, { "cite": "308 N.C. 131", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4707236 ], "year": 1983, "pin_cites": [ { "page": "136" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0131-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-422", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "547 S.E.2d 811", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 372", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135816, 135921, 135696, 135881 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0372-04", "/nc/353/0372-01", "/nc/353/0372-03", "/nc/353/0372-02" ] }, { "cite": "538 S.E.2d 601", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "607" } ], "opinion_index": 0 }, { "cite": "140 N.C. App. 606", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12133018 ], "year": 2000, "pin_cites": [ { "page": "612" } ], "opinion_index": 0, "case_paths": [ "/nc-app/140/0606-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 143-422.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1999, "opinion_index": 0 }, { "cite": "527 S.E.2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1999, "pin_cites": [ { "parenthetical": "Brewer I" } ], "opinion_index": 0 }, { "cite": "350 N.C. 91", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 132001, 131944, 132314, 132110, 132154 ], "year": 1999, "pin_cites": [ { "parenthetical": "Brewer I" } ], "opinion_index": 0, "case_paths": [ "/nc/350/0091-05", "/nc/350/0091-04", "/nc/350/0091-01", "/nc/350/0091-03", "/nc/350/0091-02" ] }, { "cite": "504 S.E.2d 580", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 5, "year": 1998, "pin_cites": [ { "page": "580" }, { "page": "583" }, { "page": "584" }, { "page": "584", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 681", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11470041 ], "weight": 5, "year": 1998, "pin_cites": [ { "page": "681" }, { "page": "686" }, { "page": "686" }, { "page": "687" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0681-01" ] }, { "cite": "42 U.S.C. \u00a7 1981", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "opinion_index": 0 }, { "cite": "853 F.2d 1130", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10547428 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "1137" }, { "page": "1137" }, { "page": "1137, 1138" } ], "opinion_index": 1, "case_paths": [ "/f2d/853/1130-01" ] }, { "cite": "450 U.S. 248", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6184064 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "253" } ], "opinion_index": 1, "case_paths": [ "/us/450/0248-01" ] }, { "cite": "509 U.S. 502", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 355912 ], "weight": 6, "year": 1993, "pin_cites": [ { "page": "511", "parenthetical": "quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207 (1981)" }, { "page": "418", "parenthetical": "quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207 (1981)" }, { "page": "511" }, { "page": "418" }, { "page": "511" }, { "page": "418" } ], "opinion_index": 1, "case_paths": [ "/us/509/0502-01" ] }, { "cite": "67 F.3d 1137", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7416163 ], "weight": 10, "year": 1995, "pin_cites": [ { "page": "1141" }, { "page": "1141", "parenthetical": "emphasis added" }, { "parenthetical": "emphasis added" }, { "parenthetical": "emphasis added" }, { "page": "1145" }, { "page": "1144" }, { "page": "1141" }, { "page": "1144" }, { "page": "1141", "parenthetical": "explaining that instruction based on statutory language, which reads in part: \"race . . . was a motivating factor for any employment practice, even though other factors also motivated the practice,\" was \"meant to apply only in mixed-motive cases, not in pretext cases\"" }, { "page": "1145" } ], "opinion_index": 1, "case_paths": [ "/f3d/67/1137-01" ] } ], "analysis": { "cardinality": 660, "char_count": 15957, "ocr_confidence": 0.756, "pagerank": { "raw": 3.937373177602755e-07, "percentile": 0.903281233770772 }, "sha256": "8ba5dc95f6807e19eb1c1cec8182dbcedab8cc22b82b173af57d0ec6fea94885", "simhash": "1:c96a522c25637c04", "word_count": 2540 }, "last_updated": "2023-07-14T17:14:58.205856+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge BIGGS concurs.", "Judge WALKER dissents." ], "parties": [ "JOHNNY E. BREWER, Plaintiff v. CABARRUS PLASTICS, INC., Defendant" ], "opinions": [ { "text": "SMITH, Judge.\nThis is the second appeal arising out of the present case. For a complete statement of the facts in this case, see this Court\u2019s previous opinion at Brewer v. Cabarrus Plastics, Inc., 130 N.C. App. 681, 504 S.E.2d 580 (1998), disc. review denied, 350 N.C. 91, 527 S.E.2d 662 (1999) (Brewer I). However, under the facts of the case sub judice, no recitation of the facts is necessary for an understanding of our opinion other than as stated herein.\nPlaintiffs action was initiated by application and order extending time to file complaint dated 16 March 1995. Plaintiff alleged that defendant discriminated against him on the basis of race and for retaliation for filing a complaint of racial discrimination, in violation of 42 U.S.C. \u00a7 1981 and the Equal Employment Practices Act, N.C. Gen. Stat. \u00a7 143-422.1 (1999). Cabarrus Plastics, Inc. (CPI) filed a motion for summary judgment, which was denied on 6 November 1995.\nThe case was first tried in May 1996. At the close of plaintiffs evidence, CPI moved for directed verdict. The motion was granted and judgment entered on 28 May 1996. Plaintiff appealed. This Court reversed and remanded the matter for a new trial. Brewer I, 130 N.C. App. at 681, 504 S.E.2d at 580.\nThe second trial was held in May 1999. On 14 May 1999, the jury returned with a verdict in favor of defendant. The trial court entered judgment on 18 May 1999. Plaintiff appeals.\nWe first consider whether the trial court erred by failing to give plaintiff\u2019s proposed jury instructions. Plaintiffs proposed instruction in part stated:\nThe plaintiff must prove by a preponderance of the evidence that race or retaliation was a determinative factor in the action taken by the Defendant. The plaintiff need not establish that race and/or retaliation was the sole factor motivating the defendant. Other factors may have motivated the Defendant as well. The Plaintiff demonstrates that race and/or retaliation was a determinative factor if he shows that \u201cbut for\u201d either or both of those factors, the discipline or the termination would not have taken place.\nInstead, the trial court instructed the jury that the burden of proof was on plaintiff to prove by the greater weight of the evidence \u201cthat the defendant terminated the plaintiff\u2019s employment on account of his race or on account of his filing discrimination charges with the equal employment opportunity commission.\u201d (Emphasis added). Plaintiff argues that the trial court\u2019s instruction does not address the issue of dual motivation, and suggested to the jury that if an employer had a separate lawful motivation for the termination, plaintiff could not prevail. Plaintiff additionally argues that the trial court should have granted its request for an instruction that if the jury found direct evidence of a discriminatory or retaliatory motive, then the burden would shift to defendant to prove \u201cby a preponderance of the evidence that it would have made the decision to discipline and/or terminate [plaintiff] irrespective of the motivation which has been shown by the direct evidence.\u201d\nAfter careful review of the record, briefs, and contentions of the parties, we reverse and remand the matter for a new trial. Plaintiff alleged in his complaint that defendant discriminated against him on the basis of race in violation of the Civil Rights Act of 1866, 42 U.S.C. \u00a7 1981. Plaintiff also alleged that defendant fired him in retaliation for filing a complaint of discrimination with the Equal Employment Opportunity Commission (EEOC). \u201cPlaintiff\u2019s retaliation claim is likewise actionable under \u00a7 1981.\u201d Brewer I, 130 N.C. App. at 686, 504 S.E.2d at 583.\nWe also note that, although plaintiff filed suit pursuant to a federal statute in state court, plaintiffs relief would be the same as though he had proceeded in federal court under \u00a7 1981. See Glenn-Robinson v. Acker, 140 N.C. App. 606, 612, 538 S.E.2d 601, 607 (2000), appeal dismissed and disc. review denied, 353 N.C. 372, 547 S.E.2d 811 (2001). Furthermore, plaintiffs state claims alleging discrimination and retaliation in violation of the Equal Employment Practices Act, N.C. Gen. Stat. \u00a7 143-422, et seq., are likewise analyzed under federal law. Dept. of Correction v. Gibson, 308 N.C. 131, 136, 301 S.E.2d 78, 82 (1983).\nIn determining claims of intentional discrimination in employment under \u00a7 1981, two categories of analysis have developed: (1) the circumstantial evidence or pretext model, and (2) the direct evidence or mixed-motive model. Brewer I, 130 N.C. App. at 686, 504 S.E.2d at 584; Fuller v. Phipps, 67 F.3d 1137, 1141 (4th Cir. 1995). The distinction between these two categories is crucial, because plaintiffs enjoy more favorable standards of liability in mixed-motive cases. Fuller, 67 F.3d at 1141.\nIn circumstantial evidence cases:\nEstablishment of a prima facie case gives rise to a presumption that \u201cthe employer unlawfully discriminated against the employee.\u201d The employer then has the \u201cburden of producing evidence to rebut the presumption of discrimination.\u201d The employer\u2019s burden of production is satisfied \u201cif he simply explains what he has done or produces evidence of legitimate non-discrin\u00fanatory reasons.\u201d\nUpon production by the employer of an \u201cexplanation . . . legally sufficient to support a judgment\u201d in its favor, \u201cthe [employee] is then given the opportunity to show that the employer\u2019s stated reasons are in fact a pretext for intentional discrimination.\u201d In doing so, the employee may rely on evidence offered to establish a prima facie case \u201cto carry his burden of proving pretext.\u201d\nBrewer I, 130 N.C. App. at 687, 504 S.E.2d at 584 (citations omitted). See also Hawkins v. Pepsico, Inc., 203 F.3d 274, 278 (4th Cir. 2000). Most discrimination cases fall within this category. Fuller, 67 F.3d at 1141. This framework applies to retaliation claims as well. Hawkins, 203 F.3d at 281 n.1.\n\u201cBy contrast, if plaintiffs can present sufficiently direct evidence of discrimination, they qualify for the more advantageous standards of liability applicable in mixed-motive cases.\u201d Fuller, 67 F.3d at 1141. \u201cTo earn a mixed-motive instruction ... a plaintiff must satisfy the evidentiary burden necessary to make out a mixed-motive case. This requires \u2018direct evidence that decisionmakers placed substantial negative reliance on an illegitimate criterion.\u2019 \u201d Id. at 1142 (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 104 L. Ed. 2d 268, 305 (1989) (plurality opinion)). Specifically, plaintiff must present \u201cevidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision.\u201d Id. (emphasis added). \u201cWhether a plaintiff has satisfied this evidentiary threshold is a decision for the [trial] court after it has reviewed the evidence.\u201d Fuller, 67 F.3d at 1142 (footnote omitted).\nIn the case at bar, plaintiff failed to present sufficient evidence to satisfy both prongs necessary to establish a mixed-motive case. While plaintiff did put on evidence of racial epithets allegedly used by plaintiffs supervisor, the alleged epithets were not directly related in any way to the contested employment decision. Id. Thus, the trial court properly denied plaintiffs request for a direct evidence or mixed-motive instruction. Accordingly, because plaintiff presented no direct evidence of discrimination, the instant case is more properly categorized as a pretext case.\nAs discussed previously, in pretext cases, the plaintiff must prove that the defendant\u2019s explanation for an adverse employment decision is really a pretext, and the contested employment decision was racially motivated. The \u201cdispositive question\u201d in a pretext case should be whether race or retaliation \u201cwas a determinative factor in the adverse employment decision.\u201d Id. at 1144 (emphasis added). By \u201cdeterminative factor,\u201d it is meant that \u201cliability depends on whether the protected trait . . . actually motivated the employer\u2019s decision.\u201d Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 123 L. Ed. 2d 338, 346 (1993). In the instant case, the trial court never instructed the jury that the standard to be applied was that if race was \u201ca determinative factor\u201d in the employment decision, they would find for plaintiff. Instead, the trial court instructed the jury that plaintiff must prove that defendant terminated plaintiff\u2019s employment on account of race or retaliation, omitting the \u201cdeterminative factor\u201d test approved and utilized in Fuller. We find that the trial court\u2019s instruction was erroneous. The term \u201con account of,\u201d without a modifier, even when read in the context of the overall charge, could have been misconstrued by the jury to require that race be the sole decisional factor in the employment decision. See Fuller, 67 F.3d at 1144 (explaining that instructions are in error if the jury could construe them to require that race be the sole decisional factor in the adverse employment decision). Accordingly, we reverse and remand the matter for a new trial.\nWe finally note that plaintiff argued at trial that the trial court should instruct the jury that race, retaliation, or a combination of both factors could be the determinative factor in the adverse employment decision. We disagree. Although claims of retaliation are determined under the same evidentiary standards as claims of discrimination, each is a separate claim and plaintiff has the burden of establishing a prima facie case to support each claim independent of the other. Thus, we believe that on retrial, the trial judge should submit issues on each claim to the jury rather than combining them.\nIn light of our disposition in this matter, we need not address the other issues raised in this appeal.\nReversed and remanded for new trial.\nJudge BIGGS concurs.\nJudge WALKER dissents.", "type": "majority", "author": "SMITH, Judge." }, { "text": "WALKER, Judge,\ndissenting:\nI respectfully dissent from the majority opinion which concludes there was reversible error in the jury instructions as given by the trial court and grants plaintiff a new trial. I agree with the majority opinion which holds that plaintiff presented no direct evidence of discrimination and the case is more properly categorized as a pretext case.\nIn a pretext case, the jury must determine whether the employer \u201c \u2018intentionally discriminated against [the employee]\u2019 because of his race.\u201d St. Mary\u2019s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 125 L. Ed. 2d 407, 418 (1993) (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207 (1981)). See also Fuller v. Phipps, 67 F.3d 1137, 1141 (4th Cir. 1995); Mullen v. Princess Anne Volunteer Fire Co., Inc., 853 F.2d 1130, 1137 (4th Cir. 1988). In Fuller, the plaintiff was alleging race discrimination. The court reviewed the jury instructions which asked the jury to determine whether \u201chis race was the determinative factor\u201d and whether \u201cbut for the fact that he is black he would have been reappointed.\u201d Fuller, 67 F.3d at 1141 (emphasis added). Further, the jury was instructed that \u201cif [the employer] chose not to hire Fuller for any other reason, then Fuller cannot recover.\u201d Id. (emphasis added). The instructions concluded with the jury having to decide whether \u201crace was a determinative factor in Fuller not being hired.\u201d Id. (emphasis added). The court held that those jury instructions, taken as a whole, did not rise to the level of reversible error. Id. at 1145. The court also specifically recognized that \u201cthe \u2018but for\u2019 instruction is an accurate one in pretext cases.\u201d Id. at 1144.\nIn the present case, the jury instructions given were similar to those in Fuller. The jury was asked to determine whether the termination of the plaintiff was \u201con account of his race or on account of his filing discrimination charges with the Equal Employment Opportunity Commission.\u201d (emphasis added). The jury was further instructed that \u201cemployers are prohibited from treating employees differently because of their race.\u201d (emphasis added). This instruction is an accurate statement of the law in pretext cases. See Hicks, 509 U.S. at 511, 125 L. Ed. 2d at 418; Fuller, 67 F.3d at 1141; Mullen, 853 F.2d at 1137. The phrase \u201cbecause of\u201d was approved by the U.S. Supreme Court in Hicks. Hicks, 509 U.S. at 511, 125 L. Ed. 2d at 418.\nThe question in the present case then becomes whether the phrase \u201con account of\u2019 is sufficiently similar to the approved language \u201cbecause of\u2019 and \u201cbut for\u201d when construing the jury instructions as a whole. Jury instructions should' be a \u201cstraightforward explanation\u201d of the law made in a \u201csimple fashion.\u201d Mullen, 853 F.2d at 1137, 1138. In the common vernacular, the phrases \u201cbut for,\u201d \u201cbecause of,\u201d and \u201con account of\u2019 are used interchangeably. Using language which is in the common vernacular and easily understood by the jury, such as \u201con account of\u2019 and \u201cbecause of,\u201d is a proper means of instructing the jury on the law it is to' apply to the facts. Just as the \u201cbut for\u201d instruction in Fuller \u201crestates in different language the court\u2019s unobjectionable \u2018a determinative factor\u2019 instruction,\u201d the \u201con account of\u201d instruction in this case restates the same unobjectionable instruction. Fuller, 67 F.3d at 1144.\nAlthough the plaintiff has cast his proposed jury instructions under the title \u201cCircumstantial Evidence \u2014 Pretext,\u201d he did not submit an accurate statement of law to be applied in pretext cases. The plaintiff tendered instructions which state in part: \u201cThe plaintiff need not establish that race and/or retaliation was the sole factor motivating the defendant. Other factors may have motivated the Defendant as well.\u201d However, this proposed instruction on the \u201csole factor\u201d and \u201cother factors\u201d is to be applied in a mixed-motive case rather than in a pretext case as here. See Fuller, 67 F.3d at 1141 (explaining that instruction based on statutory language, which reads in part: \u201crace . . . was a motivating factor for any employment practice, even though other factors also motivated the practice,\u201d was \u201cmeant to apply only in mixed-motive cases, not in pretext cases\u201d).\nBecause the plaintiff did not present sufficient evidence to make out a mixed-motive case, this case is properly categorized as a pretext case. As in Fuller, the jury instructions, when taken as a whole, \u201cplainly put before the jury the appropriate standards of liability in a pretext case.\u201d Fuller, 67 F.3d at 1145. Thus, jury instructions using the phrases \u201con account of\u2019 and \u201cbecause of\u2019 when stating the law to be applied in pretext cases do not rise to the level of reversible error.", "type": "dissent", "author": "WALKER, Judge," } ], "attorneys": [ "Julie H. Fosbinder; and Ferguson, Stein, Wallas, Adkins, Gresham & Sumter, P.A., by John W. Gresham, for plaintiff appellant.", "Robinson, Bradshaw & Hinson, P.A., by Richard A. Vinroot and Frank H. Lancaster, for defendant appellee." ], "corrections": "", "head_matter": "JOHNNY E. BREWER, Plaintiff v. CABARRUS PLASTICS, INC., Defendant\nNo. COA00-364\n(Filed 4 September 2001)\nCivil Rights\u2014 racial discrimination \u2014 Equal Employment Practices Act \u2014 race or retaliation as determinative factor\nThe trial court erred in a racial discrimination case under 42 U.S.C. \u00a7 1981 and the Equal Employment Practices Act of N.C.G.S. \u00a7 143-422.1 by failing to give plaintiff employee\u2019s proposed jury instructions that plaintiff must prove by a preponderance of the evidence that race or retaliation was a determinative factor in the action taken by defendant to terminate plaintiff\u2019s employment based on plaintiff filing discrimination charges with the Equal Employment Opportunity Commission because the instant case of intentional discrimination was in the category of a circumstantial evidence or pretext case, meaning the dispositive question should be whether race or retaliation was a determinative factor in the adverse employment decision.\nJudge Walker dissenting.\nAppeal by plaintiff from judgment entered 18 May* 1999 and orders entered 12 May and 17 July 1999 by Judge W. Erwin Spainhour in Cabarrus County Superior Court. Heard in the Court of Appeals 22 February 2001.\nJulie H. Fosbinder; and Ferguson, Stein, Wallas, Adkins, Gresham & Sumter, P.A., by John W. Gresham, for plaintiff appellant.\nRobinson, Bradshaw & Hinson, P.A., by Richard A. Vinroot and Frank H. Lancaster, for defendant appellee." }, "file_name": "0082-01", "first_page_order": 114, "last_page_order": 121 }