Brewer v. Cabarrus Plastics, Inc.

• Court: North Carolina Court of Appeals
• Writing for the Court: JOHN.
• Citation: Brewer v. Cabarrus Plastics, Inc., 504 S.E.2d 580, 130 N.C.App. 681 (N.C. App. 1998)
• Decision Date: 15 September 1998
• Docket Number: No. COA97-200.,COA97-200.
• Parties: Johnny E. BREWER, Plaintiff, v. CABARRUS PLASTICS, INC., Defendant.

504 S.E.2d 580

130 NC App. 681

Johnny E. BREWER, Plaintiff, v. CABARRUS PLASTICS, INC., Defendant.

No. COA97-200.

Court of Appeals of North Carolina.

September 15, 1998.

Ferguson, Stein, Wallas, Adkins, Gresham & Sumter, P.A. by John Gresham, and Sharpe & Fosbinder, P.A. by Julie H. Fosbinder, Charlotte, for plaintiff-appellant.

Robinson, Bradshaw & Hinson, P.A. by Richard A. Vinroot and Frank H. Lancaster, Charlotte, 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 (the 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, plaintiff's 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 plaintiff's 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 plaintiff's 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 sh...