Discrimination Cases

Matthew Adamczyk vs. Augat, Inc. (and a companion case). Nos. 99-P-329 & 99-P-1000. Barnstable. February 27, 2001. October 3, 2001. Present: Greenberg, Beck, & Rapoza, JJ. Anti-Discrimination Law, Age, Termination of employment. Practice, Civil, Summary judgment. Limitations, Statute of. On motions for summary judgment at the trials of civil complaints alleging age discrimination by a corporation when it closed a plant, claims brought more than nine months after the corporation’s written notice to the plant workers establishing the date of the closure and the employees’ release dates were time-barred, because the notice was sufficiently clear, and additional information in the notice raising the possibility of continued employment through employee transfers to another facility did not toll the statute of limitations. [720-724] Plaintiffs in age discrimination in employment cases failed to demonstrate that the applicable statute of limitations was equitably tolled by the actions of their employer. [724] Civil actions commenced in the Superior Court Department on July 11, 1997, and April 6, 1998, respectively. The cases were heard by Gerald F. O’Neill, Jr., J., on motions for summary judgment. Denise A. Chicoine for the plaintiffs. Mary Jo Johnson {Lisa Stephanian Burton with her) for the defendant. Dorothy O’Brien & Matthew P. Bunnell vs. Augat, Inc. Greenberg, J. By a memorandum dated December 20, 1995, the defendant, Augat, Inc. (Augat), notified all employees, including the plaintiffs in these two consolidated appeals, that “[a] target date of September 30, 1996 has been established as the closure date for the Mashpee plant.” In separate Superior Court actions, the plaintiffs complained that Augat selected the Mashpee facility for closure because its work force consisted of a significant number of older workers. The same Superior Court judge granted summary judgment in favor of Augat in each case, and the plaintiffs appeal. 1. The procedural history. The plaintiffs Matthew P. Bunnell and Dorothy O’Brien filed individual age discrimination charges with the Massachusetts Commission Against Discrimination (MCAD) six days apart: Bunnell on September 24, 1996, and O’Brien on September 30, 1996. The plaintiff Matthew Adam-czyk’s complaint to the MCAD followed on October 11, 1996. Approximately 124 other employees filed similar charges with the MCAD around the same time, claiming that the decision to close the facility was made in violation of G. L. c. 151B, § 4(1B). On February 12, 1997, the MCAD notified Adamczyk, O’Brien, and other employees over the age of forty that it was transferring the investigation of all charges to the Federal Equal Employment Opportunity Commission (EEOC). The MCAD retained jurisdiction of the charges brought by Bunnell and other employees who were under forty years of age. On May 22, 1997, plaintiffs’ counsel requested withdrawal of charges pending before both the MCAD and the EEOC. However, on July 31, 1997, the EEOC issued a dismissal and notice of suit rights to all of the Augat employees with pending complaints, including the plaintiffs Adamczyk and O’Brien. Upon investigation, the EEOC determined that “it is unlikely further investigation of this charge would result in a finding that there is a reasonable cause to believe that [the statute] was violated.” EEOC’s preliminary investigation report concluded that Augat presented “legitimate, non-discriminating reasons for deciding which facility to close.” On Adamczyk’s complaint to the Superior Court, a judge ruled that his claim was time-barred under G. L. c. 151B, § 4(1B), because he did not file a timely discrimination charge with the MCAD. Shortly thereafter, the same judge dismissed the O’Brien and Bunnell complaint for the same reason. As to Bunnell, the judge also ruled that he could not make a prima facie case of age discrimination under G. L. c. 15 IB because he was under the age of forty. 2. The facts. The facts are, to a large extent, not in dispute. On December 20, 1995, Augat announced its decision to close the Mashpee facility at a plant-wide meeting attended by its employees. At that meeting, all employees of the Mashpee facility, including the three plaintiffs, were informed that, as of September 30, 1996, the Mashpee facility would officially close; two of its product lines would be sold to another company, and remaining operations would be consolidated with Augat’s Sanford, Maine, and Lugano, Switzerland, operations. That same day, Sam Smookler, then vice-president and general manager of Augat’s interconnection products division, distributed a memorandum and a letter to all employees explaining why Augat had decided to close the Mashpee facility. Augat had formed a task force in March of 1995 to study different options to improve profitability and, after several months of study, the task force had concluded the Mashpee facility should be closed. The memorandum noted that the Mashpee facility produced the two product lines scheduled to be sold and stated that a significant portion of the Mashpee facility’s remaining production capabilities were duplicative of production capabilities at other Augat plants. The memorandum stated, in pertinent part: “A target date of September 30, 1996 has been established as the closure date for the Mashpee plant. . . . [Djetailed plans for the transition will be reviewed with each affected employee. Employees at the Mashpee plant are being notified today of our decision to close the plant. . . . [W]e will make every effort to provide job transfer opportunities to other [Augat] facilities for those interested.” The accompanying letter also stated in pertinent part: “As your release date approaches you will be contacted by Human Resources for a detailed review of your benefits and the continuation options that exist as well as outplacement assistance . . . .” On February 1, 1996, in light of the pending plant closure, Augat sent additional letters that were individually addressed to each employee at the Mashpee facility. These February 1, 1996, letters reaffirmed that the plant was closing and that their employment with Augat would end. Adamczyk and O’Brien, like most Augat employees, received a notice stating that their “release dates” from Augat were to occur by September 30, 1996. Bunnell, who worked in the small systems and test department, received notice confirming that his department either would be discontinued by Augat or sold to a new owner — either way, his employment with Augat was scheduled to end. Bunnell’s, O’Brien’s, and Adamczyk’s last dates of employment were September 9, September 30, and October 11, 1996, respectively. 3. Analysis. We commonly apply Federal law construing Federal antidiscrimination statutes in interpreting G. L. c. 15IB. See, e.g., School Comm. of Brockton v. Massachusetts Commn. Against Discrimination, 423 Mass. 7, 11 n.8 (1996). Some Federal courts have held that a limitations period for a discrimination claim starts to run once the facts that support the claim “are apparent or should be apparent to a person with a reasonably prudent regard for his rights.” Sturniolo v. Sheaffer, Eaton, Inc., 15 F.3d 1023, 1025 (11th Cir. 1994). See Morris v. Government Dev. Bank of Puerto Rico, 27 F.3d 746, 748-749 (1st Cir. 1994). Failure to comply with the six-month limitations period results in barring the claimant from proceeding with a civil employment discrimination claim. See Charland v. Muzi Motors, Inc., 417 Mass. 580, 583 (1994). See also Williams v. Raytheon, 220 F.3d 16, 20 (1st Cir. 2000). The plaintiffs’ argument is that the December 20, 1995, memorandum and accompanying letter contained equivocal language regarding the prospective date of termination. They characterize Augat’s representations as “misleading” and contend that their claims were filed within six months of September 30, 1996, the official date of the Mashpee plant’s closing or, in the alternative, within six months of the dates of their respective terminations (“release dates”). From the material submitted by Augat in support of its summary judgment motions, a different picture emerges. Augat points out that the December 20, 1995, memorandum and the accompanying cover letter state with certainty that the Mashpee plant will close on September 30, 1996, and that the plaintiffs received specific release dates. The question is whether the additional information in the memorandum raising the possibility of employee transfers to another facility tolled the statute of limitations. We conclude that, under these circumstances, Augat’s notice to the plaintiffs of the plant closure was sufficiently clear and that the prospect of continued employment did not toll the statute of limitations. Because we affirm the dismissal of the plaintiffs’ claims based on their untimeliness, we need not reach plaintiff Burnell’s additional appeal of the judge’s ruling that age discrimination claims could not be brought by plaintiffs under forty years of age. “[T]he proper focus [for determining when a statute of limitations period commences] is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful.” School Comm. of Brockton v. Massachusetts Commn. Against Discrimination, 423 Mass. at 11 n.8 (emphasis in original), quoting from Delaware State College v. Ricks, 449 U.S. 250, 258 (1980). In the Ricks case, a professor alleged national origin discrimination under Title VII and 42 U.S.C. § 1981, arising from the college’s decision to deny him tenure. When the college notified him that tenure had been denied, it gave him a final, one-year terminal contract. At issue was whether the statute of limitations began to run when the college notified him of the tenure decision or, as he argued, one year later, on the actual date of his termination. The Supreme Court held: “In sum, the only alleged discrimination occurred — and the filing limitations periods therefore commenced — at the time the tenure decision was made and communicated to Ricks. That is so even though one of the effects of the denial of tenure — the eventual loss of a teaching position — did not occur until later.” Id. at 258. (Emphasis in original.) “Mere continuity of employment, without more, is insufficient to prolong the life of a cause of action for employment discrimination.” Id. at 257. Here, the plaintiffs allege that Augat selected its Mashpee facility for closure because it determined that the Mashpee work force consisted of a significant number of older workers. Like the tenure decision in Delaware State College v. Ricks, supra, the alleged discriminatory act was the selection and announcement of the Mashpee facility for closure, not the plaintiffs’ termination dates. In opposition to the defendant’s motions for summary judgment, the plaintiffs furnished the documents that they received on December 20, 1995. Although these materials contain Augat’s statements holding out the possibility of jobs in other plants, when read in context, they do not create the uncertainty the plaintiffs profess. For example, the plaintiffs note that Augat’s letter informed them that “continuation options . . . exist.” This quoted fragment, however, is part of a full paragraph that, far from leading employees to believe that they might be retained, reinforces the impending closure of the plant. The subject of the letter was the benefits that each employee would receive due to the closing. For its part, Augat’s statement that it would attempt to provide job opportunities cannot be construed as an equivocal termination notice. Contrast Wheatley v. American Tel. & Tel. Co., 418 Mass. 394, 399 (1994). In Wheatley, an employee who had been “declared surplus” by management claimed age discrimination under G. L. c. 151B. Id. at 396 n.6. The notice consisted of a single conversation and a letter stating that he would be terminated “if he were unable to secure another position within AT&T [after ninety days].” Id. at 396. The plaintiff argued that, in granting AT&T summary judgment, the judge erred because it was a question of fact whether the termination notice was sufficiently “unequivocal” to trigger the statute of limitations. The Wheatley court agreed and held that the plaintiff reasonably refrained from filing an age discrimination charge during the ninety-day “transition period” because “[t]he filing of such a charge may prejudice any pending reconsideration of the [termination] decision.” Id. at 399 n.8, quoting from Ricks, 449 U.S. at 266 n.2 (Stevens, J., dissenting). By contrast, in the instant case, all of the employees received more than one letter affirming the pending termination of the entire plant’s work force. There was no analogous transition period. The situation is, therefore, distinguishable. An employee in this situation could not reasonably expect that reassignment assistance meant that the employer might change the decision regarding the closure. (See Simmons vs. Allsteel, Inc., U.S. Dist. Ct., No. 95-C-3049 [N.D. Ill. Nov. 12, 1999], where the alleged discriminatory act was the employer’s decision permanently to close a particular facility. A delay in the implementation of the closure decision was held not to toll the running of the statute of limitations. Instead, the period began to run as soon as the plaintiffs were notified of the allegedly discriminatory decision.) In the instant cases, there is no genuine issue as to the date of the alleged discriminatory act or as to the plaintiffs’ cognizance of their prospective termination dates. See Ching v. Mitre Corp., 921 F.2d. 11, 14-15 (1st Cir. 1990) (statute triggered when employee notified of decision to terminate); Watson v. Eastman Kodak Co., 235 F.3d 851, 857 (3rd Cir. 2000) (statute triggered by receipt of letter of pending termination despite implementation delay and expressed possibility that plaintiff could transfer to another division); Simmons vs. Allsteel, supra at 11 (statute triggered by announcement of decision to close plant and not tolled until plaintiffs were actually released). See also Cooper v. Saint Cloud State Univ., 226 F.3d 964, 967 (8th Cir. 2000) (statute triggered by notice of decision to terminate despite conditional nature of termination). Finally, we note that in Wheatley, there was a genuine issue of material fact about the expiration of the limitations period, because the employee’s summary judgment materials demonstrated that he became aware of the employer’s alleged discriminatory act by a memorandum issued ten days after his actual termination indicating, for the first time, that work formerly performed by the plaintiff had been transferred to younger employees. Here, no such dispute exists. There is nothing to the plaintiffs’ argument that the statute of limitations should be “equitably tolled.” The plaintiffs have failed to demonstrate that Augat made affirmatively misleading statements to lull them into not asserting their claims. Courts apply the principle of equitable tolling sparingly in employment discrimination cases. See Jensen v. Frank, 912 F.2d 517, 521 (1st Cir. 1990); Andrews v. Arkwright Mut. Ins. Co., 423 Mass. 1021, 1022 (1996); Shafnacker v. Raymond James & Assocs., 425 Mass. 724, 728 (1997). See also Morris v. Government Dev. Bank of Puerto Rico., 27 F.3d at 750. So far as it appears from the record appendix, there is no probative evidence that Augat affirmatively misled the plaintiffs with respect to the plant closure or that the plaintiffs were unaware of the alleged age discrimination. See Kale v. Combined Ins. Co., 861 F.2d 746, 752 (1st Cir. 1988); Price v. Litton Bus. Sys., Inc., 694 F.2d 963, 965 (4th Cir. 1982); Unterreiner v. Volkswagen of America, Inc., 8 F.3d 1206, 1212-1213 (7th Cir. 1993). See also Wilson v. Westinghouse Elec. Corp., 838 F.2d 286, 288 (8th Cir. 1988); Wagner v. Sperry Univac, 458 F. Supp. 505, 512 (E.D. Pa. 1978), aff’d, 624 F.2d 1092 (3d Cir. 1980), to the same effect. Judgments affirmed. The plaintiffs sought class action certification pursuant to Mass.R.Civ.P. 23(a), 365 Mass. 767 (1974). However, a Superior Court judge ruled that they failed to satisfy the prerequisites and denied the requested certification. The MCAD also issued a finding. On December 29, 1998, the MCAD addressed the complaints of the thirty-seven former employees under forty years of age who originally filed charges of discrimination, including Bunnell. The MCAD’s December 29, 1998, notice to Bunnell concluded that he presented no claim under G. L. c. 15 IB for age discrimination because (hose protections do not extend to persons under forty: “an individual must be forty years of age or older at the time of an alleged discriminatory employment action to be covered” under the age discrimination provisions of chapter 151B. . The plaintiffs also contend that the judge erred in ruling that their breach of good faith and fair dealing claims were preempted by G. L. c. 151B. We agree with the Superior Court judge’s determination that in this instance, the claims for the breach of the covenant of good faith and fair dealing are preempted by G. L. c. 151B. See, e.g., Green v. Wyman-Gordon Co., 422 Mass. 551, 555, 558 (1996). The entire sentence reads as follows: “As your release date approaches you will be contacted by Human Resources for a detailed review of your benefits and the continuation options that exist as well as outplacement assistance.” Even if we construe the December 20, 1995, notice as equivocal, additional notices were given on February 1, 1996. These notices informed the plaintiffs of the Mashpee plant closure and made no mention of the possibility of other employment within the company. Timely charges with the MCAD would then have required filing by the plaintiffs no later than August 1, 1996, which did not occur.

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.