JOHNNY E. BREWER v. CABARRUS PLASTICS, INC.

JOHNNY E. BREWER, Plaintiff-Appellant v. CABARRUS PLASTICS, INC., Defendant-Appellee No. COA00-364-2 (Filed 21 October 2003) 1. Evidence— prior testimony — unavailability of witness— sufficiency of evidence The trial court did not err by denying the admission of former trial testimony in the retrial of an employment discrimination claim. The trial court found that plaintiff presented no evidence of the unavailability of the witness other than the statements of counsel and an unverified motion to use the transcript of prior testimony. N.C.G.S. § 8C-1, Rule 804(b)(1). 2. Employer and Employee— discriminatory discipline — not submitted to jury The trial court erred in an employment discrimination claim by not submitting to the jury the claim of discriminatory discipline. Although the jury found that plaintiff’s termination was not the result of racial discrimination, the issue of discriminatory discipline was not submitted, and plaintiff was entitled to nominal damages upon a finding of discriminatory discipline even if there was no evidence of actual damages. This matter was originally heard in the Court of Appeals on 22 February 2001, on appeal by plaintiff from judgment entered 18 May 1999 and orders entered 14 May and 17 July 1999 by Judge W. Erwin Spainhour in Superior Court, Cabarrus County. An opinion by a divided panel of this Court was filed on 4 September 2001. Defendant appealed as a matter of right to the Supreme Court of North Carolina. Our Supreme Court reversed for the reasons stated in the dissenting opinion and remanded to the Court of Appeals for consideration of plaintiffs remaining issues, in a decision filed 2 May 2003. 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. McGEE, Judge. Following our Court’s decision to award plaintiff a new trial on his employment discrimination claim in Brewer v. Cabarrus Plastics, Inc., 146 N.C. App. 82, 551 S.E.2d 902 (2001) (Brewer II), defendant appealed as a matter of right to the Supreme Court of North Carolina based upon Judge Walker’s dissent. See N.C. Gen. Stat. § 7A-30(2) (2001). The Supreme Court adopted Judge Walker’s dissenting opinion per curiam in reversing this Court’s decision. In adopting Judge Walker’s dissent, the Supreme Court found that the jury instructions, when taken as a whole, presented to the jury the appropriate standards of liability in a pretext case. Id. at 89, 551 S.E.2d at 907. The Supreme Court remanded the case to our Court for consideration of plaintiff’s remaining issues not addressed in our prior opinion. A complete statement of the facts in this case is set forth in our earliest opinion in this matter in 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). I. Plaintiff argues the trial court in his second trial erred in not admitting the transcript of the testimony of a witness from the first trial of this matter. Plaintiff contends that the efforts of plaintiff’s counsel to procure the testimony of the witness fully satisfied the “unavailability” requirement of N.C. Gen. Stat. § 8C-1, Rule 804. “Admission of evidence is ‘addressed to the sound discretion of the trial court and may be disturbed on appeal only where an abuse of such discretion is clearly shown.’ ” Lane v. R.N. Rouse & Co., 135 N.C. App. 494, 498, 521 S.E.2d 137, 140 (1999) (quoting Sloan v. Miller Building Corp., 128 N.C. App. 37, 45, 493 S.E.2d 460, 465 (1997)), disc. review denied, 351 N.C. 357, 542 S.E.2d 212 (2000). Under an abuse of discretion standard, we defer to the trial court’s discretion and will reverse its decision “only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.” White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). N.C. Gen. Stat. § 8C-1, Rule 804(b)(1) (2001) states that former testimony may be admitted into evidence as an exception to the hearsay rule if the witness is unavailable and the [tjestimony [was] given as a witness at another hearing of the same or different proceeding ... if the party against whom the testimony is now offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. “ ‘Unavailability as a witness’ includes situations in which the declarant . . . [i]s absent from the hearing and the proponent of his statement has been unable to procure his attendance . . . by process or other reasonable means.” N.C. Gen. Stat. § 8C-1, Rule 804(a)(5) (2001). The proponent of the evidence bears the burden of establishing the unavailability of the witness. State v. Artis, 325 N.C. 278, 304, 384 S.E.2d 470, 484 (1989), sentence vacated and remanded on other grounds, Artis v. North Carolina, 494 U.S. 1023, 108 L. Ed. 2d 604 (1990). The trial court in the case before us specifically found that plaintiff presented no evidence of the unavailability of the witness “other than the statements of counsel and the unverified motion for permission to use the transcript of [the witness’s] prior testimony.” Plaintiff stated in his unverified Rule 804(a)(5) motion that the witness had been contacted and stated that she would be unable to testify at trial. However, the motion did not prove the matters alleged therein and did not constitute evidence of the unavailability of the witness. See Chow v. Crowell, 15 N.C. App. 733, 736, 190 S.E.2d 647, 649 (1972). Plaintiff attached to the motion the letters written to contact the witness and the letters demonstrate efforts to contact the witness, but do not prove the unavailability of the witness. The record shows that plaintiff’s counsel also stated to the trial court that the witness had been contacted and was unavailable to testify. However, plaintiffs counsel presented no evidence to the trial court of the unavailability of the witness. Additionally, in his brief, plaintiff fails to point this Court to any evidence showing that the witness was unavailable and has failed to meet his burden of proving the unavailability of the witness. The record contains a signed affidavit of plaintiff’s counsel dated 21 May 1999 stating that defense counsel had been informed prior to trial that if the witness was unwilling to appear in person to testify, plaintiff would seek to use the witness’s prior trial testimony. However, plaintiff’s Rule 804(a)(5) motion was dated 10 May 1999 and the trial court denied the motion in an order entered 14 May 1999. Since the record shows that the affidavit of plaintiffs counsel was not filed until 21 May 1999, it was not before the trial court for consideration at the time the trial court denied the Rule 804(a)(5) motion. After reviewing the record, we agree with the trial court that plaintiff failed to offer evidence establishing the unavailability of the witness. Accordingly, the trial court did not abuse its discretion in denying the admission of former trial testimony of a witness. This assignment of error is overruled. II. Plaintiff argues the trial court erred in refusing to allow the jury to consider the issue of whether defendant discriminated against plaintiff by disciplining him. Plaintiff contends that there was ample evidence from which a reasonable jury could conclude that plaintiff’s discipline was discriminatory. The trial court “must submit to the jury such issues as when answered by them will resolve all material controversies between the parties, as raised by the pleadings.” Harrison v. McLear, 49 N.C. App. 121, 123, 270 S.E.2d 577, 578 (1980). In the present case, the trial court submitted to the jury plaintiff’s employment termination discrimination claim. However, the resolution of this claim by the jury did not resolve plaintiff’s alleged discriminatory discipline claim. The jury found that plaintiff’s employment termination was not the result of racial discrimination but the issue of discriminatory discipline was never submitted to the jury. Thus, the trial court’s submission to the jury of only the termination claim did not resolve all of the claims in the case. An examination of the trial transcript shows that the trial court did not submit the issue of discriminatory discipline to the jury because it felt there was no evidence presented of actual damages suffered by plaintiff. The United States Supreme Court has determined that the denial of a constitutional right “should be actionable for nominal damages without proof of actual injury.” Carey v. Piphus, 435 U.S. 247, 266-67, 55 L. Ed. 2d 252, 267 (1978) (holding that if civil rights plaintiffs failed to prove actual damages, they would only be entitled to recover nominal damages in the amount of one dollar). The Fourth Circuit Court of Appeals has stated that a claimant is entitled to an award of nominal damages when a claimant establishes the violation of a constitutional right but cannot prove actual injury. Norwood v. Bain, 166 F.3d 243, 245 (4th Cir.) (en banc), cert. denied, 527 U.S. 1005, 144 L. Ed. 2d 239 (1999); Price v. City of Charlotte, North Carolina, 93 F.3d 1241, 1257 (4th Cir. 1996), cert. denied, 520 U.S. 1116, 137 L. Ed. 2d 328 (1997) (police officers awarded one dollar in nominal damages for unconstitutional promotion practices where there was insufficient evidence of actual damages). In order to recover more than nominal damages, actual injury must be proven by sufficient evidence. Price, 93 F.3d at 1250. In the present case, plaintiff has presented sufficient evidence to permit a jury to determine whether defendant disciplined plaintiff for discriminatory reasons. While plaintiff may not have presented sufficient evidence to obtain an award of compensatory damages, plaintiff was entitled to recover nominal damages upon a finding by the jury that defendant discriminated against plaintiff in its disciplinary actions. Accordingly, the trial court erred in failing to submit to the jury plaintiffs claim of discriminatory discipline and he is entitled to a new trial on that issue. No error in part; new trial in part as to claim for discriminatory discipline. Judges WYNN and MARTIN concur.

JOHNNY E. BREWER, Plaintiff v. CABARRUS PLASTICS, INC., Defendant No. COA00-364 (Filed 4 September 2001) Civil Rights— racial discrimination — Equal Employment Practices Act — race or retaliation as determinative factor The trial court erred in a racial discrimination case under 42 U.S.C. § 1981 and the Equal Employment Practices Act of N.C.G.S. § 143-422.1 by failing to give plaintiff employee’s 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’s 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. Judge Walker dissenting. Appeal 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. 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. SMITH, Judge. This is the second appeal arising out of the present case. For a complete statement of the facts in this case, see this Court’s 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. Plaintiffs 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. § 1981 and the Equal Employment Practices Act, N.C. Gen. Stat. § 143-422.1 (1999). Cabarrus Plastics, Inc. (CPI) filed a motion for summary judgment, which was denied on 6 November 1995. The 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. The 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. We first consider whether the trial court erred by failing to give plaintiff’s proposed jury instructions. Plaintiffs proposed instruction in part stated: The 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 “but for” either or both of those factors, the discipline or the termination would not have taken place. Instead, the trial court instructed the jury that the burden of proof was on plaintiff to prove by the greater weight of the evidence “that the defendant terminated the plaintiff’s employment on account of his race or on account of his filing discrimination charges with the equal employment opportunity commission.” (Emphasis added). Plaintiff argues that the trial court’s 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 “by 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.” After 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. § 1981. Plaintiff also alleged that defendant fired him in retaliation for filing a complaint of discrimination with the Equal Employment Opportunity Commission (EEOC). “Plaintiff’s retaliation claim is likewise actionable under § 1981.” Brewer I, 130 N.C. App. at 686, 504 S.E.2d at 583. We 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 § 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. § 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). In determining claims of intentional discrimination in employment under § 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. In circumstantial evidence cases: Establishment of a prima facie case gives rise to a presumption that “the employer unlawfully discriminated against the employee.” The employer then has the “burden of producing evidence to rebut the presumption of discrimination.” The employer’s burden of production is satisfied “if he simply explains what he has done or produces evidence of legitimate non-discrinúnatory reasons.” Upon production by the employer of an “explanation . . . legally sufficient to support a judgment” in its favor, “the [employee] is then given the opportunity to show that the employer’s stated reasons are in fact a pretext for intentional discrimination.” In doing so, the employee may rely on evidence offered to establish a prima facie case “to carry his burden of proving pretext.” Brewer 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. “By contrast, if plaintiffs can present sufficiently direct evidence of discrimination, they qualify for the more advantageous standards of liability applicable in mixed-motive cases.” Fuller, 67 F.3d at 1141. “To earn a mixed-motive instruction ... a plaintiff must satisfy the evidentiary burden necessary to make out a mixed-motive case. This requires ‘direct evidence that decisionmakers placed substantial negative reliance on an illegitimate criterion.’ ” 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 “evidence of conduct or statements that both reflect directly the alleged discriminatory attitude and that bear directly on the contested employment decision.” Id. (emphasis added). “Whether a plaintiff has satisfied this evidentiary threshold is a decision for the [trial] court after it has reviewed the evidence.” Fuller, 67 F.3d at 1142 (footnote omitted). In 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. As discussed previously, in pretext cases, the plaintiff must prove that the defendant’s explanation for an adverse employment decision is really a pretext, and the contested employment decision was racially motivated. The “dispositive question” in a pretext case should be whether race or retaliation “was a determinative factor in the adverse employment decision.” Id. at 1144 (emphasis added). By “determinative factor,” it is meant that “liability depends on whether the protected trait . . . actually motivated the employer’s decision.” 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 “a determinative factor” in the employment decision, they would find for plaintiff. Instead, the trial court instructed the jury that plaintiff must prove that defendant terminated plaintiff’s employment on account of race or retaliation, omitting the “determinative factor” test approved and utilized in Fuller. We find that the trial court’s instruction was erroneous. The term “on account of,” 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. We 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. In light of our disposition in this matter, we need not address the other issues raised in this appeal. Reversed and remanded for new trial. Judge BIGGS concurs. Judge WALKER dissents. WALKER, Judge, dissenting: I 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. In a pretext case, the jury must determine whether the employer “ ‘intentionally discriminated against [the employee]’ because of his race.” St. Mary’s 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 “his race was the determinative factor” and whether “but for the fact that he is black he would have been reappointed.” Fuller, 67 F.3d at 1141 (emphasis added). Further, the jury was instructed that “if [the employer] chose not to hire Fuller for any other reason, then Fuller cannot recover.” Id. (emphasis added). The instructions concluded with the jury having to decide whether “race was a determinative factor in Fuller not being hired.” 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 “the ‘but for’ instruction is an accurate one in pretext cases.” Id. at 1144. In 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 “on account of his race or on account of his filing discrimination charges with the Equal Employment Opportunity Commission.” (emphasis added). The jury was further instructed that “employers are prohibited from treating employees differently because of their race.” (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 “because of” was approved by the U.S. Supreme Court in Hicks. Hicks, 509 U.S. at 511, 125 L. Ed. 2d at 418. The question in the present case then becomes whether the phrase “on account of’ is sufficiently similar to the approved language “because of’ and “but for” when construing the jury instructions as a whole. Jury instructions should' be a “straightforward explanation” of the law made in a “simple fashion.” Mullen, 853 F.2d at 1137, 1138. In the common vernacular, the phrases “but for,” “because of,” and “on account of’ are used interchangeably. Using language which is in the common vernacular and easily understood by the jury, such as “on account of’ and “because of,” is a proper means of instructing the jury on the law it is to' apply to the facts. Just as the “but for” instruction in Fuller “restates in different language the court’s unobjectionable ‘a determinative factor’ instruction,” the “on account of” instruction in this case restates the same unobjectionable instruction. Fuller, 67 F.3d at 1144. Although the plaintiff has cast his proposed jury instructions under the title “Circumstantial Evidence — Pretext,” he did not submit an accurate statement of law to be applied in pretext cases. The plaintiff tendered instructions which state in part: “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.” However, this proposed instruction on the “sole factor” and “other factors” 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: “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”). Because 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, “plainly put before the jury the appropriate standards of liability in a pretext case.” Fuller, 67 F.3d at 1145. Thus, jury instructions using the phrases “on account of’ and “because of’ when stating the law to be applied in pretext cases do not rise to the level of reversible error.

JOHNNY E. BREWER, Plaintiff v. CABARRUS PLASTICS, INC., Defendant No. COA97-200 (Filed 15 September 1998) 1. Employer and Employee— racial discrimination — prima facie case — directed verdict — improper The trial court’s grant of defendant’s directed verdict motion in an employment discrimination action was improper where plaintiff had alleged racial discrimination under 42 U.S.C. § 1981 and established a prima facie case of discrimination. Bearing in mind that plaintiff’s burden in establishing a prima facie case is not an onerous one and that the trial court must examine the evidence in the light most favorable to the nonmoving party on a motion for directed verdict, plaintiff’s evidence on qualifications was sufficient. Directed verdict for defendant would have been appropriate only if defendant conclusively satisfied as a matter of law its burden of producing evidence of legitimate nondiscriminatory reasons for plaintiff’s discipline and termination; viewing the evidence in the light most favorable to plaintiff, a genuine issue of fact existed as to whether plaintiff actually accumulated three “written” warnings as defendant claimed. 2. Employer and Employee— retaliatory discharge — racial discrimination complaint — directed verdict Directed verdict was improperly granted for defendant on a retaliatory discharge claim arising from a racial discrimination complaint where defendant challenged only the third element of retaliatory discharge, causal connection, but plaintiff presented more than a scintilla of evidence. Although defendant contended that the lapse of time between the filing of the first EEOC charge and plaintiff’s termination obviated any causal connection, plaintiff’s proper reliance on evidence of the sequence of events raises a factual issue sufficient to preclude grant of a directed verdict. Appeal by plaintiff from judgment entered 28 May 1996 by Judge James C. Davis in Cabarrus County Superior Court. Heard in the Court of Appeals 8 October 1997. Ferguson, Stein, Wallas, Adkins, Gresham & Sumter, P.A., by John Gresham, and Sharpe & Fosbinder, P.A., by Julie H. Fosbinder, for plaintiff-appellant. Robinson, Bradshaw & Hinson, PA., by Richard A. Vinroot and Frank H. Lancaster, for defendant-appellee. JOHN, Judge. Plaintiff appeals the trial court’s grant of defendant’s directed verdict motion on plaintiff’s claims of racial discrimination and retaliatory discharge. Plaintiff also contends the trial court erred by (1) excluding certain portions of his testimony and that of other witnesses, (2) admitting irrelevant and highly prejudicial evidence, and (3) precluding during jury voir dire “questions reasonably designed to explore jurors’ potential racial bias and bias toward racial discrimination claims.” For the reasons set forth below, we award plaintiff a new trial. Evidence presented at trial included the following: Plaintiff, an African-American male, began work for defendant Cabarrus Plastics, Inc. (CPI) in April 1989 as a machine operator. CPI manufactures molded plastic parts. In October 1989, plaintiff transferred to the position of material handler and received an increase in pay. His duties included filling machines with plastic pellets, collecting materials from machines that had completed a particular job, cleaning machines, assembling boxes for finished parts, and substituting for other machine operators during their breaks. During plaintiff’s first one and one-half years of employment, it appeared to him that white employees were receiving overtime opportunities denied to him and that his wage increases lagged behind those of white employees. In addition, a junior white employee was promoted over plaintiff to the position of set-up technician. Plaintiff recalled that plant manager Russell Hayes said to him during this period, “Johnny Brewer, what are you doing — what the hell you think you’re doing, boy?” Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) in November 1990, alleging wrongful denial of promotion, wage increases and overtime based on his race. The first two allegations were resolved against plaintiff. The EEOC determined plaintiff “was not as qualified as the selectee” for promotion and that CPI “properly followed” its promotion and wages practice. However, the EEOC found plaintiff had been denied overtime because of his race and pursued a lawsuit on his behalf. CPI paid plaintiff $200.00 to settle the suit. According to plaintiff, a few weeks after filing his complaint with EEOC, David Brewer (Brewer), a white supervisor, called plaintiff into Brewer’s office on more than one occasion. During those discussions, Brewer attempted to dissuade plaintiff from pursuing the racial discrimination allegation. William Cook (Cook), also a supervisor at CPI, testified Brewer remarked that the plaintiff “[d]idn’t get what he wanted so he’s trying to make a little trouble.” Cook also testified Brewer used the pejorative term “n — ” in his presence, including the protestation, “I ain’t kin to no damn n — ,” when another employee jokingly suggested Brewer and plaintiff were related. Former CPI employee Trina Emrich Wright (Wright) stated that Brewer asserted on more than one occasion “it was a shame that a ‘N’ had to have the same last name as him.” Plaintiff testified a number of changes occurred in his work environment following his EEOC complaint and that his “job got harder” after he made the claim. For example, prior to the charge, plaintiff had been working five or six machines. After the charge, plaintiffs supervisor regularly scheduled him to work eight or nine machines, more than the similarly placed employee on either the preceding or succeeding shifts. Further, plaintiff’s obligation to substitute for machine operators during, their break times also increased, consuming up to three hours of his work day. Wright, plaintiff’s co-worker who was employed by CPI from 1989 through 1992, indicated that after plaintiff filed his charge of discrimination, “he had an extra workload” which “doubled the load in all aspects.” CPI, on the other hand, maintained that plaintiff’s work performance deteriorated during his final year of employment. Plaintiff received three warnings that year and as a result, was terminated pursuant to CPI’s “three strikes” procedure. CPI maintained a two-tier disciplinary policy under which certain offenses might result in immediate termination, while accumulation of three written warnings for certain other offenses also mandated termination. As CPI’s employee handbook stated: Receipt of three written warnings from either section [describing offenses], in any categories, within the same twelve month period will result in discharge. On 17 July 1991, plaintiff was warned for “not doing his job properly” after letting a press run out of material. In documenting the incident, Brewer wrote, under the heading “Action Taken,” “[a]ny other negligence in this matter will result in disciplinary action.” After plaintiff allowed another press to run out of material, a second warning was issued 4 February 1992 for “willful failure to perform work assigned.” Brewer memorialized the action taken on this occasion as a “written warning.” Finally, plaintiff received a “written warning” on 17 March 1992 for “not wearing safety glasses in designated area.” Plaintiff disputed the legitimacy of the three warnings that led to his termination. With respect to the first occurrence, plaintiff explained that the automatic feeder was broken and he was unable to ascertain that material was not being drawn up into the machine. More significantly, however, while acknowledging the warning had been placed into his record in written form, plaintiff testified it was company practice to write down verbal warnings to place in the reprimanded employee’s file. Plaintiff emphasized that the first incident was not classified as being a “written warning,” which designation had been recited in reports of the second and third occurrences. In addition, he offered into evidence other employee records containing written “verbal warnings.” Regarding the second and third warnings, plaintiff asserted they likewise were unwarranted and that he was treated differently from white employees with respect to the issuance of warnings. In any event, plaintiff was terminated the day following receipt of the third warning, and he was replaced by a white employee. Plaintiff thereafter filed a second EEOC complaint, alleging the termination was in retaliation for his first EEOC charge. The EEOC determined that: Examination of the evidence indicates [plaintiff] was discharged because he received three written disciplinary actions within a twelve month period. There was no evidence to show that [CPI] discharged [plaintiff] in retaliation for filing a previous charge of discrimination against [CPI]. Plaintiff filed the instant complaint 31 March 1995, alleging violation of 42 U.S.C. § 1981 (1994 & Supp. 1998) (§ 1981) and wrongful discharge based on the public policy expressed in the Equal Employment Practices Act, N.C.G.S. § 143-422.1 (1996). CPI’s motion for summary judgment was denied 6 November 1995. At the close of plaintiffs evidence during trial before a jury, CPI moved for directed verdict pursuant to N.C.G.S. § 1A-1, Rule 50 (Supp. 1997) (Rule 50). The motion was granted in an “Order and Judgment” entered 28 May 1996, both as to plaintiffs claim of violation of § 1981 and his wrongful discharge and discipline claim. Plaintiff filed timely notice of appeal. Our Supreme Court has written that [a] motion for directed verdict tests the sufficiency of the evidence to take the case to the jury. In making its determination of whether to grant the motion, the trial court must examine all of the evidence in a light most favorable to the nonmoving party, and the nonmoving party must be given the benefit of all reasonable inferences that may be drawn from that evidence. If, after undertaking such an analysis of the evidence, the trial judge finds that there is evidence to support each element of the nonmoving party’s cause of action, then the motion for directed verdict . . . should be denied. Abels v. Renfro Corp., 335 N.C. 209, 214-15, 436 S.E.2d 822, 825 (1993), disc. review denied, 347 N.C. 263, 493 S.E.2d 450 (1997) (citations omitted). If more than a scintilla of evidence supports each element of the non-movant’s claim, the directed verdict motion should be denied. Ace Chemical Corporation v. DSI Transports, Inc., 115 N.C. App. 237, 242, 446 S.E.2d 100, 103 (1994). Finally, a directed verdict should not be granted when conflicting evidence has been presented on contested issues of fact. Id. Plaintiff alleged CPI violated § 1981 because it “discriminated against [him] on the basis of race and retaliation for filing a complaint of discrimination.” In pertinent part, § 1981 provides all persons .... [shall have the] same right in every State and Territory to make or enforce contracts . . . and to the full and equal benefits of all laws and proceedings for the security of persons and property as is enjoyed by white citizens .... The Civil Rights Act of 1991, 42 U.S.C. § 1981 (1994 & Supp. 1998) broadened the scope of § 1981 “to include essentially all forms of racial discrimination in employment.” Percell v. International Business Machines, Inc., 785 F. Supp. 1229, 1231 (E.D.N.C. 1992), aff’d, 23 F.3d 402 (4th Cir. 1994). Therefore, § 1981 encompasses plaintiff’s claims for wrongful termination and wrongful discipline. See Williams v. Carrier Corp., 889 F. Supp. 1528, 1530-31 (M.D. Ga. 1995), aff’d, 130 F.3d 444 (11th Cir. 1997) (plaintiff may establish prima facie case of racially biased discipline under § 1981 by showing he or she did not violate work rule or that he or she engaged in conduct similar to individual outside protected group who was disciplined less severely). Plaintiffs retaliation claim is likewise actionable under § 1981. See Skeeter v. City of Norfolk, 681 F. Supp. 1149, 1154 (E.D. Va. 1987), aff’d 898 F.2d 147 (4th. Cir. 1990), cert. denied, 498 U.S. 838, 112 L. Ed. 2d 81 (1990) (retaliatory discharge actionable under § 1981). The models and standards developed in jurisprudence under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1994 & Supp. 1997) (Title VII) also apply to claims under § 1981. Patterson v. McLean Credit Union, 491 U.S. 164, 181-82, 105 L. Ed. 2d 132, 153 (1989), aff’d 39 F.3d 515 (4th Cir. 1994). The ultimate purpose of both Title VII and G.S. § 143-422.2 is to eliminate “discriminatory practices in employment.” North Carolina Department of Correction v. Gibson, 308 N.C. 131, 141, 301 S.E.2d 78, 85 (1983). In analyzing state claims, our Supreme Court has adopted the evidentiary standards and principles developed under Title VII. Id. Two primary models have developed: (1) the circumstantial evidence model, see McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 677-78 (1973), aff’d 528 F.2d 1102 (8th Cir. 1976) (under circumstantial evidence model as applied to discriminatory discharge claim, plaintiff must establish prima facie case by showing a) he was member of protected class, b) was terminated, c) was qualified to perform assigned job duties, and d) was replaced by a member of non-protected class or treated more harshly than similarly situated non-protected employees), and (2) the direct evidence model, see McCarthy v. Kemper Life Insurance Company, 924 F.2d 683, 686 (7th Cir. 1991) (direct evidence, such as racially derogatory comments, is proof of discriminatory motive on part of employer). In a racial discrimination case, our Supreme Court has set forth the standards as follows: (1) The claimant carries the initial burden of establishing a prima facie case of discrimination. (2) The burden shifts to the employer to articulate some legitimate nondiscriminatory reason for the applicant’s rejection. (3) If a legitimate nondiscriminatory reason for rejection has been articulated, the claimant has the opportunity to show that the stated reason for rejection was, in fact, a pretext for discrimination. Gibson, 308 N.C. at 137, 301 S.E.2d at 82. “The burden of establishing & prima facie case of discrimination is not onerous,” and may be accomplished by a variety of means, id. at 137, 301 S.E.2d at 83, including showing (1) a claimant is a member of a minority group, (2) he was qualified for the position, (3) he was discharged, and (4) the employer replaced him with a person who was not a member of a minority group. Id. Alternatively, a claimant may show discharge of a black employee and retention of a white employee under apparently similar circumstances. Id. Establishment of a prima facie case gives rise to a presumption that “the employer unlawfully discriminated against the employee.” Id. at 138, 301 S.E.2d at 83. The employer then has the “burden of producing evidence to rebut the presumption of discrimination.” Id. The employer’s burden of production is satisfied “if he simply explains what he has done or produces evidence of legitimate nondiscriminatory reasons.” Id. Upon production by the employer of an “explanation . . . legally sufficient to support a judgment” in its favor, “the [employee] is then given the opportunity to show that the employer’s stated reasons are in fact a pretext for intentional discrimination.” Id. at 139, 301 S.E.2d at 83-84. In doing so, the employee may rely on evidence offered to establish a prima facie case “to carry his burden of proving pretext.” Id. In the case sub judice, we believe plaintiff met his burden of establishing aprima facie case of discrimination, thereby precluding the grant of defendant’s directed verdict motion on grounds he failed to do so. See Ace Chemical Corporation, 115 N.C. App. at 242, 446 S.E.2d at 103 (if more than scintilla of evidence supports each element of non-movant’s claim, motion should be denied). Defendant does not dispute that plaintiff presented evidence satisfying three of the four elements recited in Gibson: plaintiff was an African-American discharged from his position at CPI and replaced by a white worker. See Gibson, 308 N.C. at 137, 301 S.E.2d at 82-83. CPI contends, however, that plaintiff failed to present prima facie evidence of his qualification for the position. See Hughes v. Bedsole, 48 F.3d 1376, 1383 (4th Cir. 1995), cert. denied, 516 U.S. 870, 133 L. Ed. 2d 126 (1995) (“[plaintiff] must. . . eliminate concerns that she was fired because of her performance or qualifications, two of the most common nondiscriminatory reasons for any adverse employment decision”). Bearing in mind that plaintiffs burden in establishing a prima facie case was “not an onerous one,” see Gibson, 308 N.C. at 137, 301 S.E.2d at 82, and that on a motion for directed verdict the trial court must examine the evidence in the light most favorable to the nonmoving party, Abels, 335 N.C. at 214-15, 436 S.E.2d at 825, we conclude plaintiffs evidence on the qualifications prong of Gibson was sufficient to withstand defendant’s motion. Plaintiff presented evidence he was hired 3 April 1989 at a pay rate of $6.50 per hour and terminated 17 March 1992 when he was receiving $8 per hour. He received merit pay increases while employed at CPI. See Gomez v. Trustees of Harvard University, 677 F. Supp. 23, 25 (D.D.C. 1988) (plaintiff’s burden in making out prima facie case is “de minimis,” and salary increases are indicative of qualification). Plaintiffs evidence also included positive performance evaluations and a relative lack of disciplinary actions prior to filing the EEOC complaint. Finally, plaintiff performed additional duties following his initial EEOC complaint. We believe this evidence, viewed in the light most favorable to plaintiff, is sufficient to indicate plaintiff’s qualifications for the job. At a minimum, plaintiff presented the necessary “scintilla of evidence” supporting the element of qualification for his position. See Ace Chemical Corporation, 115 N.C. App. at 242, 446 S.E.2d at 103. In response, CPI points to the three warnings received by plaintiff, insisting they reveal inadequate work performance and consequent lack of qualification for promotion. We cannot say this evidence overcame plaintiff’s prima facie case as a matter of law so as to justify verdict being directed in favor of CPI. See Abels, 335 N.C. at 214-15, 436 S.E.2d at 825 (nonmoving party must be given benefit of all reasonable inferences that may be drawn). CPI cites Karpel v. Inova Health System Services, 134 F.3d 1222 (4th Cir. 1998) as supporting its contention plaintiff failed to present sufficient evidence of satisfactory job performance. We disagree. In affirming summary judgment for the defendant-employer, the Fourth Circuit in Karpel noted the record therein “clearly demonstrate^] that [plaintiff’s] job performance was unsatisfactory.” Karpel, 134 F.3d at 1128. The plaintiff-employee had been repeatedly tardy, accumulated multiple inadequate performance reviews, and failed to complete required monthly summaries. Id. By contrast, the record in the case sub judice does not “clearly” demonstrate plaintiffs lack of qualifications for the job. For example, we note plaintiff disputed the warnings, testified they resulted in part from his increased workload, and asserted the first warning was “verbal” as opposed to “written.” Wright corroborated the testimony regarding plaintiffs increased workload. A directed verdict is not proper when there is conflicting evidence on contested issues of fact. Ace Chemical Corporation, 115 N.C. App. at 244, 446 S.E.2d at 104. CPI also relies on McCarthy, 924 F.2d 683. CPI accurately relates that plaintiff in McCarthy, like plaintiff herein, filed suit against his employer alleging racial discrimination and retaliation in violation of Title VII and § 1981. Id. at 685. McCarthy had filed an EEOC charge and was subsequently discharge