N.C.P.I.—Civil 640.27

NOTE WELL: This instruction is designed for what is

known as a “pretext” case. See 42 U.S.C.A. § 1981.1 In

a pretext case, the plaintiff seeks to prove that the

reason given by the defendant for an adverse

employment decision was, in reality, a pretext for a

discriminatory decision. If, on the other hand, the

plaintiff can present sufficiently direct evidence of

discrimination, the plaintiff will qualify for the more

favorable standards of liability applicable in “mixed-motive” cases. See Fuller v. Phipps, 67 F.3d 1137, 1141

(4th Cir. 1995), abrogated on other grounds, Desert

Palace, Inc. v. Costa, 539 U.S. 90 (2003).

If there are multiple claims of discriminatory acts, a

separate issue should be submitted to the jury for each

claim (one issue for race discrimination, one for sex

discrimination, etc.).2

The (state number) issue reads:

“Did the defendant intentionally discriminate against the plaintiff

[because of his [race] [sex] [age]] [as retaliation for his filing a

complaint for discrimination] when the defendant [failed to hire] [fired]

[disciplined] [failed to promote] [state other discriminatory act] the

plaintiff?”

On this issue the burden of proof is on the plaintiff. This means

that the plaintiff must prove, by the greater weight of the evidence, that

the defendant intentionally3 discriminated against him because of his

[race] [sex] [age] [having filed a complaint for discrimination].4

The plaintiff must prove that he was [not hired] [fired] [disciplined]

[not promoted] [state other discriminatory act] because of his [race]

[sex] [age] [having filed a complaint for discrimination].5 I instruct you

that employers are prohibited from treating employees differently

because of their [race] [sex] [age] [having filed a complaint for

discrimination].

Finally, as to this issue on which the plaintiff has the burden of

proof, if you find, by the greater weight of the evidence, that the

defendant intentionally discriminated against the plaintiff [because of his

[race] [sex] [age]][as retaliation for his having filed a complaint for

discrimination] when the defendant [failed to hire] [fired] [disciplined]

[failed to promote] [state other discriminatory act] the plaintiff then it

would be your duty to answer this issue “Yes” in favor of the plaintiff.

If, on the other hand, you fail to so find, then it would be your duty

to answer this issue “No” in favor of the defendant.