# Opposition Brief — Gibbs v. Morganite, Inc.

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0997%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 928

## Text

Supreme Court. U.S.
FILED
FEB 2% 2002
No. 01-979
——-~ —4
EEE ——
IN THE
Supreme Court of the United States
JAMES M. GIBBS, JR.,
Petitioner,
V.
MORGANITE INCORPORATED,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COouRT OF APPEALS FOR THE FouRTH CIRCUIT

BRIEF IN OPPOSITION

Grecory P. McGuire
HAYNSWORTH BALDWIN
JOHNSON & Greaves, LLC
P.O. Box 10035
Raleigh, NC 27605-0035
(919) 233-4600

Attorneys for Respondent

172219 ce

COUNSEL PRESS
(800) 274-3321 * (800) 359-6859

i
CORPORATE DISCLOSURE STATEMENT

Morganite Incorporated* is a wholly owned subsidiary
of Morgan Industries, Inc., which is a wholly owned
subsidiary of The Morgan Crucible Company, PLC, a publicly
traded corporation registered with the London Stock
Exchange.

* Morganite Incorporated is incorrectly identified as “Morganite,
Inc.” in the petition.

il

TABLE OF CONTENTS
Page
Corporate Disclosure Statement ................ 1
‘eee OC CIES 6c k6 i cede enkietanueeeees li
Table of Cited Authorities .......cccccsccvccers 1V
Counter Statement of Case ......ccccccccsseene l
A. ProceGurel FEOTY. ons vivesectumecavens |
B. PO oe eiiswaw eee coke eee eee 2
Reason for Denying the Writ .................. 7
I. The First Question Presented By The Petition
Was Not Addressed By The Court Of
POMONA, ods a8 8 <¢0uneepacteeus tke 7
II. The First Question Presented By The Petition
Does Not Raise A Substantial Question
Worthy Of This Court’s Review. ......... 8

III. The Court Of Appeals Did Not Impose
An Additional, Unfair Burden On Petitioner.
Rather, The Court Held That Petitioner Failed
To Produce Evidence That Called Into
Question Morganite’s Legitimate, Non-
Discriminatory Reasons For Terminating
POU, 0.8855 Na ve serine eee 10

iti

Contents

IV. The Court Of Appeals Properly Affirmed The

IV.

District Court’s Ruling That The Statutory
Privilege Under North Carolina General
Statute Section 96-4(t)(5) Precludes
The Introduction Of Testimony From
Petitioner’s Employment Security Com-
mission Hearing. ..-.-----:+++rrrttt tt

The Stricken NCESC Testimony Was
Not Inconsistent With Deposition
TeGMOMY. occ ccrccccccccesscseeseees

CRD icc cccecessecevereveucersserers

Page

14

iv

TABLE OF CITED AUTHORITIES

Page
Cases:
Adickes v. S.H. Kress & Co., 398 U.S. 144(1970) ... 8
Delta Air Lines, Inc. v. August, 450 U.S. 346 (1981)
0c cetn 6 te eben REE K See ns eee 8
EEOC vy. Illinois Dep t of Employment Sec., 995 F.2d
oso fe | ee reer or Sry re e 15
Elrod v. Sears, Roebuck & Co., 939 F.2d 1466
ROG MEE Sesdlbe ars cri sdanee ndheers ces 12, 13
Hartsell v. Duplex Products, Inc., 895 F. Supp. 100
(W.D.N.C. 1995), aff'd, 123 F.3d 766 (4th Cir.
| BEDE EE Ere Pere ee ty we nt nee ae 15,17
Hawkins v. PepsiCo, Inc., 203 F.3d 274 (4th Cir.),
cert. denied, 531 U.S. 875 (2000) ............ 12
Henson v. Liggett Group, Inc., 61 F.3d 270 (4th Cir.
SO ss 6 an ka a ORE cee eee es NO tabu 12
Holder v. City of Raleigh, 867 F.2d 823 (4th Cir.
SEE anh te dlks cad gaits Utena ko mes 12
Pollard v. Rea Magnet Wire Co., 824 F.2d 557
CPA Cains oc dels ee tess ae phases 12
United States v. Cartledge, 928 F.2d 93 (4th Cir.
SUE eb cads bred seeeracendvecers Wareaeers 15

Vv

Cited Authorities

Page
Statutes:
42 U.S.C. § 1981 2... cee eee e eee eeeeeees 1
N.C. Gen. Stat. § 96-14(1) .. 1... ee eee eens 16
N.C. Gen. Stat. § 96-14(2) ...... eee cece eens 16
N.C. Gen. Stat. § 96-14(2)(a) «2... ee eee eee eee 16
N.C. Gen. Stat. § 96-15(C) «1.0... eee erences 15, 16
N.C.GS. § 96-(4)(t)(5) .. eee eee cece errr 14, 16
Rule:

United States Supreme Court Rule 10 ......----- 8

|

COUNTER STATEMENT OF CASE

A. Procedural History.

Petitioner is a former employee of Morganite, filed this
lawsuit on May 10, 1999, in the United States District Court
for the Eastern District of North Carolina. The Complaint
attempted to state claims against Morganite, Inc. and eleven
individual employees of Morganite for (1) unlawful
discriminatory termination on the basis of race under
Title VII of the Civil Rights Act of 1964 and under 42 U.S.C.
§ 1981; (2) unlawful discrimination under the Americans with
Disabilities Act of 1990; (3) unlawful discriminatory failure
to promote on the basis of race and disability; (4) unlawful
retaliatory termination; and (5) a racially hostile work
environment. (/d.).

On June 1, 2000, Morganite filed a Motion for Summary
Judgment with supporting materials.

On July 10, 2000 Petitioner filed a response in
opposition to Morganite’s Motion for Summary Judgment.
Part of Petitioner’s opposition was the Affidavit of James
M. Gibbs, Jr., with attachments that included the transcript
of a hearing held on September 19, 1997, before an
appeals referee of the North Carolina Security Commission
(“NCESC”) regarding Petitioner’s application for
unemployment benefits. On J uly 19, 2000, Morganite filed
a motion to strike certain portions of the Affidavit and to
strike the transcript of the unemployment hearing.

On October 6, 2000, the district court entered a Judgment
and Order granting Morganite’s motion for summary
judgment and granting the motion to strike (Pet. Petition
App. pp. 4a-47a).

2

On July 30, 2001, the Court of Appeals issued an
unpublished per curiam opinion affirming the district court’s
judgment “on the reasoning of the district court” (Pet. Petition
App. pp. la-3a). Petitioner filed a petition for rehearing
with the Court of Appeals. On October 1, 2001, the petition
was denied.

B. Facts.

Morganite is a manufacturer of carbon and commutator
products located in Dunn, North Carolina. Morganite hired
Petitioner in March 1987 as a Tool and Die Maker, Grade C
(JA 212).' Petitioner sharpened dyes and other tools using a
bench grinder (JA 440). Petitioner remained a Tool and
Die Maker, Grade C, throughout the remainder of his
employment (JA 215). Petitioner has variously described his
race as “Black” and as Native American (JA 437-441).

During the ten years that he worked for the Company,
Petitioner was dissatisfied with virtually every aspect of his
employment (JA 469-527). Petitioner frequently was
belligerent, uncooperative and confrontational with his
supervisors (JA 482, 486). Petitioner also frequently refused
requests to work overtime or to work on unscheduled days
(JA 474, 484). Petitioner viewed requests from his
supervisors to work more qv. kly as “harassment” (JA 482).
Petitioner called the Company’s management “slave drivers”
(JA 481).

1. Respondent believes the Petition contains numerous
misstatements of important facts from the proceedings below.
Accordingly, Respondent has attempted to cite to the record below
in support of its factual assertions. References to the Joint Appendix
filed with the Court of Appeals are designated as “JA” followed by a
page reference. References to other materials filed with the Court of
Appeals are designated by the record docket number in the Court of
Appeals’ docket.

3

Despite Petitioner’s perceptions of unfair treatment
and his poor attitude, his job performance evaluations
remained steady and even improved near the end of his
employment (JA 444-466, 531 -532). Additionally, Petitioner
received regular pay increases throughout his employment
(JA 214-15).

Petitioner alleged that he had medical conditions related
to his back and legs that amounted to “disabilities”. He had
surgery on the varicose veins in 1978, nine years before he
became employed with Morganite (JA 168). Petitioner’s
medical records show that he never had any other significant
complaints about the problems with his legs after 1978, |

Petitioner had back Surgery for herniated disk in
May 1988. (JA 173). Petitioner’s medical records show that
he had no significant complaints of back problems again after
1988 (JA 383-435, 533, 544-83).

Despite his complaints about various aches and pains,
Petitioner admitted that he was able to perform his job.
Petitioner characterized his attendance during his last three
years of employment as “excellent” (JA 179),

Petitioner claims that he asked management officials for
reasonable accommodations for his medical conditions.
He alleged that in February 1997, he presented a letter to
Blizzard specifically requesting three accommodations
(JA 203, 436). Petitioner admitted, however, that two of the
three accommodations he requested were essentially
unnecessary since the length of his shift remained 8 hours
and because Morganite aive@dy provided rubber mats for
employees to stand on wiiile working (JA 204-207).
Petitioner claimed that Morganite refused his third requested

4

accommodation; to split his long break into 2 or 3 shorter
breaks. Petitioner admitted, however, that he had 3 daily
breaks and that he could use them to sit or “do whatever [he]
wanted to do” (JA 205).

Morganite disciplined Petitioner several times during his
employment for confrontational, and at times, threatening
behavior. The Company twice reprimanded Petitioner for
refusing to work overtime (JA 474-77). In November 1990,
Morganite reprimanded Petitioner for a confrontation with
Bert Jenkins, Tool Room Supervisor (JA 918-921, 928).

In 1995, David Cooper, General Manager, reprimanded
Petitioner for his behavior in a meeting with Roger Bone,
Production Supervisor, and Russell Lee, Tool Room
Supervisor (JA 489). In January 1996, Bone and Lee
issued Petitioner a final counseling for threatening conduct
Petitioner displayed during a meeting Bone held with
Petitioner to discuss his 1995 performance review
(JA 467, 708, 875-77). In conjunction with this counseling,
Petitioner signed a written “Terms of Continued
Employment” (JA 263-64, 468). The “Terms of Continued
Employment” provided that Petitioner would not “use or
imply any language, acts or behavior of a threatening or
intimidating nature to any employee of Morganite” and
provided that any such conduct would result in termination.
On January 17, 1996, Petitioner signed the “Terms of
Continued Employment” under protest (Jd.).

On March 4, 1997, Mon Vonkchalee, a supervisor, met
with Petitioner to give him a disciplinary counseling for being
late to work on March 3 (JA 310-12, 516-17). During the
meeting, Petitioner told Vonkchalee “I’m tired of this shit”
and “I’m not signing any damn reprimand” (JA 312, 516).

5

Petitioner walked out of Vonkchalee’s office (/d.).
A short time later, Petitioner returned to Vonkchalee’s office
(JA 314-15). During this encounter, Petitioner asked
Vonkchalee “am I the damned one, as usual?” and told him
“the commutators supervisors don’t seem to know a damn
thing about leadership and moral conduct on the job, but
they seem to know everything about the bottom line and how
to screw someone.” (JA 517). After Petitioner’s second tirade,
Vonkchalee crumpled up the written warning and threw it in
the trash can (/d.; JA 795-98). ~

Vonkchalee reported the incidents to Roger Bone.
Bone advised Vonkchalee to review the situation with
Doug Blizzard, Director of Human Resources (JA 798, 801,
808). Vonkchalee discussed the incident with Blizzard
(JA 698-700, 711).

On March 12, 1997, Vonkchalee met with Petitioner and
gave him a second level disciplinary warning for being
tardy on March 3, 1997 (JA 530). Shortly after the meeting,
Petitioner confronted Vonkchalee about the warning (JA 521,
807-810, 852-56). Vonkchalee felt threatened by the
encounter and reported it to Roger Bone and Doug Blizzard
(JA 698, 699-701, 712, 823, 834-35, 842, 852-56). Bone and
Blizzard decided to terminate Petitioner’s employment
(JA 697-700). On March 13, 1997, Morganite terminated
Petitioner’s employment for engaging in intimidating
and threatening conduct towards management employees
(JA 437). Petitioner admitted that Bone and Blizzard
told him “that [he] was discharged for displaying intimidating
and threatening behavior toward management employees”
and for “violating the terms of a 1996 document referred

to as: Regarding Terms of Continued Employment.”
(JA 438,440).

6

Shortly after his termination, Petitioner filed charges of
discrimination with the Equal Employment Opportunity
Commission (JA 437, 438). In conjunction with the charges,
Petitioner filed a sworn Affidavit (JA 439-441). In the
Affidavit, Petitioner conceded that he believed the true reason
for his termination was his “strong willed and outspoken”
personality and not discriminatory bias (/d.).

Petitioner’s theory in this lawsuit was that the alleged
mistreatment he suffered was motivated by the Company’s
disapproval of his relationship with a white woman (JA 19,
233-36, 287-89, 332-33, 346). Petitioner alleges that
sometime in May or early June 1987, David Cooper told him
that employees at the plant disapproved of his relationship
with a Caucasian woman (JA 470-71)? Petitioner claims
Cooper told him to keep a low profile on the relationship,
but that he disregarded Cooper’s request (JA 470).
The subject of Petitioner’s girlfriend was never raised again
by any Morganite official (JA 471-527). Despite this,
Petitioner believed that “everything that happened to [him]
went back to” his alleged conversation with Cooper (JA 233).

It is undisputed that David Cooper was not involved in
the decision to terminate Petitioner (JA 607). Petitioner
admitted he does not even know whether Roger Bone or Doug
Blizzard knew his girlfriend’s race, and he did not remember
ever speaking to either of them about it (JA 373-75).

2. Cooper vehemently denies that he had any such conversation
with Petitioner (JA 615).

j

REASON _FOR DENYING THE WRIT

I, THE FIRST QUESTION PRESENTED BY THE
PETITION WAS NOT ADDRESSED BY THE
COURT OF APPEALS.

Petitioner seeks review of the Court of Appeals’ decision
regarding his claims for retaliation (Pet. Petition p. 13).
He apparently has not sought review of his claims for race
and disability discrimination. Petitioner argues that the Court
of Appeals imposed an improper burden on him at the pretext
Stage of its analysis by requiring him to prove that
Morganite’s employees did not feel threatened by his conduct
(Pet. Petition p. 14). In deciding the retaliation claims,
however, the district court never reached the stage of
addressing whether Morganite’s reason for terminating
Petitioner was a pretext for unlawful retaliation (Pet. Petition
App. pp. 26a-32a). Rather, the court held that Petitioner failed
to establish a “causal link” between his alleged protected
activity and Petitioner’s discharge because: (a) Cooper’s
alleged statement occurred ten years prior to Petitioner’s
discharge, (b) Cooper was not involved in Petitioner’s
discharge, and (c) Petitioner’s threats to report Morganite to
the EEOC and NAACP started over five years prior to his
discharge (/d.). Accordingly, the district court held that
Petitioner failed to establish a prima facie case of retaliation,
and it did not address Petitioner’s evidence of pretext with
regard to the retaliation claims (Pet. Petition App. p. 32a).

Additionally, Petitioner did not make the “improper
burden” argument in the Court of Appeals with regard to his
claims of retaliation (Brief of Appellant, pp. 37a-40a). Rather,
Petitioner argued only that the district court erroneously
concluded that he failed to establish a prima facie case of

8

retaliation (/d.). Since Petitioner failed to raise an argument
regarding pretext in the Court of Appeals, and the Court of
Appeals did not consider the issue, the issue is not properly
before this Court. Youakim v. Miller, 425 U.S. 231, 234
(1976); Adickes v. S.H. Kress & Co., 398 U.S. 144,
147 n.2 (1970) (“Where issues are neither raised before nor
considered by the Court of Appeals, this Court will not
ordinarily consider them.”); Delta Air Lines, Inc. v. August,
450 U.S. 346, 362 (1981) (question presented in petition but
not in the court of appeals is not properly before us).

Il. THE FIRST QUESTION PRESENTED BY THE
PETITION DOES NOT RAISE A SUBSTANTIAL
QUESTION WORTHY OF THIS COURT’S
REVIEW.

The first question presented by the Petition in this matter
amounts to nothing more than a request for this Court to
conduct another de novo review of the district court’s
judgment. The first question does not present the type of issue
that warrants review by the United States Supreme Court.

This Court rightfully exercises its discretion to
review the matters brought before it only for compelling
reasons. Rule 10 of the Rules of the Supreme Court of the
United States provides guidance regarding the types of
questions that might warrant the granting of a writ of
certiorari. None of those types of questions are raised by the
first question in the Petition. Rather, Petitioner seeks another
review of the district court’s order granting summary
judgment. By way of example, Petitioner makes the following
assertions regarding the types of issues on which he
seeks review:

9

Mr. Gibbs forecasted sufficient evidence to
establish a prima facie case of retaliation under
Title VII and [§] 1981... (Pet. Petition p. 13).

To reach this decision, the Court of Appeals
permitted the district court to substitute its view
of the weight of the evidence for the jury’s view
and failed to draw all reasonable inferences in
Mr. Gibbs favor (Pet. Petition p. 15).

The Court did not give sufficient weight to
Mr. Gibbs’ prima facie evidence and evidence of
pretext, and it failed to draw all reasonable
inferences in Mr. Gibbs’ favor (Pet. Petition

p. 19).

These statements show the true nature of the questions
Petitioner raises in the Petition.

The district court properly stated the summary judgment
standard in its decision (Pet. Petition App. pp. 17a-20a).
Petitioner’s real argument is that the district court engaged
in fact finding and failed to view the facts in the light most
favorable to him. This was the thrust of his argument to the
Court of Appeals. His attempt to rehash that argument should
not prompt this Court’s review.

Petitioner also argues that the district court erred
“by incorporating additional subjective standards to the
Piaintiff’s burden of proof” on his retaliation claims
(Pet. Petition p. 13). As noted above, this argument is false
and misleading. The district court dismissed the retaliation
claims solely on the grounds that Petitioner failed to establish

10

a prima facie case (Pet. Petition App. pp. 26a-32a). The court
did not reach nor consider the issue of Morganite’s
non-retaliatory reasons for its actions (/d.).

Rule 10 counsels that “[a] petition for a writ of certiorari
is rarely granted when the asserted error consists of erroneous
factual findings or the misapplication of a properly stated
rule of law.” These are precisely the types of errors upon
which Petitioner seeks review in his first question in the
Petition. The Petition does not raise a substantial question
that warrants this Court’s review and should be denied.

Ill. THE COURT OF APPEALS DID NOT IMPOSE
AN ADDITIONAL, UNFAIR BURDEN ON
PETITIONER. RATHER, THE COURT
HELD THAT PETITIONER FAILED TO
PRODUCE EVIDENCE THAT CALLED INTO
QUESTION MORGANITE’S LEGITIMATE,
NON-DISCRIMINATORY REASONS FOR
TERMINATING PETITIONER.

Although not properly presented by the Petition,
Petitioner argues that the Court of Appeals by adopting the
district court’s reasoning, improperly required him to prove
that Morganite’s managers did not feel threatened by his
conduct in order to raise an issue of pretext.*? Even assuming,
however, that the issue has been presented by the Petition,
the Petitioner’s assertion is incorrect.

3. The district court engaged in the pretext analysis only in
deciding Petitioner’s claims for race discrimination. (Pet. Petition
App. pp. 21 a-26 a). The district court did not reach the pretext issue
in deciding Petitioner’s retaliation claims, which apparently is the
only portion of the district court’s order challenged in the Petition
(Pet. Petition p. 13).

1]

The district court held that Petitioner failed to raise a
genuine issue of fact regarding Morganite’s explanation that
it terminated Petitioner for engaging in threatening conduct.
It did not find as fact that Petitioner made threats nor did it
require Petitioner to prove that the employees did not feel
threatened. The district court held:

Although plaintiff may have made allegations in
the course of these proceedings, which this court
is bound to construe favorably toward him, that
the allegations regarding his threatening and
intimidating behavior were untrue, he has not
presented evidence that Morganite’s asserted
belief in those allegations was unworthy of
credence. Indeed, as evidenced by his affidavit,
plaintiff suggests that he believes that the
allegedly threatening behavior was actually the
reason for his discharge. Accordingly, plaintiff has
not begun to show that defendant’s proffered
reason for his discharge was pretextual as required
by St. Mary's and Reeves, and his discriminatory
discharge claim must fail.

(Pet. Petition App. pp. 25a-26a).
Significantly, Petitioner appears to concede that the

district court properly analyzed the pretext question, stating
in the Petition:

Mr. Gibbs may demonstrate pretext by showing
“either that a discriminatory reason more than
likely motivated the employer’s proffered
explanation or . . . that the employer’s proffered
explanation is unworthy of credence.” Hardy vy.

12

S.F. Phosphates, LC., 185 F.3d 1076 (10th Cir.
1999). The pertinent question to determine pretext
is not whether the employer was right to think the
employee engaged in misconduct, but whether that
belief was genuine or pretextual.” Jd. at 1080.

(Pet. Petition p. 22).

The district court’s analysis of the pretext question was
consistent with the existing precedent in the Fourth Circuit
and other federal circuits. In a case alleging unlawful
motivation, the critical issue is not whether Plaintiff in fact
engaged in threatening conduct, but rather whether the
decision makers had a good faith belief that he engaged in
such conduct. Hawkins v. PepsiCo, Inc., 203 F.3d 274,
280 (4th Cir.), cert. denied, 531 U.S. 875 (2000). The Fourth
Circuit Court of Appeals has held “[a] reason honestly
described but poorly founded is not a pretext, as that term is
used in the law of discrimination.” Holder v. City of Raleigh,
867 F.2d 823, 829 (4th Cir. 1989) [quoting Pollard v. Rea
Magnet Wire Co., 824 F.2d 557, 559 (7th Cir. 1987)];
see also Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470
(11th Cir. 1991). Employers retain the right to make business
decisions, even ill-advised ones, so long as they do not violate
the law. Henson v. Liggett Group, Inc., 61 F.3d 270, 277
(4th Cir. 1995).

The Eleventh Circuit Court of Appeals’ decision in Elrod
v. Sears & Roebuck, is instructive on the burden of
establishing pretext in this type of case. In Elrod, the plaintiff
was discharged for sexually harassing a female employee.
The plaintiff sued Sears alleging that he was discharged
because of his age. At trial, plaintiff attempted to prove he

13

had not harassed anyone. In addressing the correctness of
the company’s proffered reasons for the plaintiff’s discharge,
the Court of Appeals stated that:

Much of Elrod’s proof at trial centered around
whether Elrod was in fact guilty of the sexual
harassment allegations leveled at him by his
former co-workers. We can assume for purposes
of this opinion that the complaining employees
interviewed by Rives were lying through their
teeth. The inquiry of the ADEA is limited to
whether [the management official who made the
termination decision] believed that Elrod was
guilty of harassment, and if so, whether his belief
was the reason behind Elrod’s discharge.

939 F.2d at 1470 (citations and footnote omitted).

Petitioner raised no genuine issue of fact that Bone and
Blizzard did not honestly, and in good faith, rely on
Vonkchalee’s report that Petitioner had threatened
Vonkchalee in deciding to terminate Petitioner. Petitioner
admitted that Bone and Blizzard told him that he was being
terminated for threatening behavior. The notes and
documentation prepared by Vonkchalee and Blizzard at the
time of the incidents in March 1997, reflect the threatening
nature of Petitioner’s conduct and the reasons for terminating
him. Petitioner has offered no evidence that would cal] into
question the legitimacy of Morganite’s belief that Vonkchalee
felt threatened and that it terminated Petitioner based on that
belief. Accordingly, the Court of Appeals properly affirmed
the district court’s order and opinion dismissing Petitioner’s
claim for racially discriminatory termination, and the Petition
should be denied.

14

IV. THE COURT OF APPEALS PROPERLY
AFFIRMED THE DISTRICT COURT’S RULING
THAT THE STATUTORY PRIVILEGE
UNDER NORTH CAROLINA GENERAL STATUTE
SECTION 96-4(t)(5) PRECLUDES THE
INTRODUCTION OF TESTIMONY FROM
PETITIONER’S EMPLOYMENT SECURITY
COMMISSION HEARING.

In opposition to Morganite’s motion for summary
judgment, Petitioner sought to introduce testimony from an
unemployment benefits hearing held before the North
Carolina Employment Security Commission (“NCESC’”).
The district court adopted North Carolina’s statutory privilege
against the use of such testimony in any civil proceedings
and struck the NCESC testimony. The Court of Appeals
adopted the district court’s reasoning and affirmed. Petitioner
asserts that this holding was erroneous because it hampered
Petitioner’s ability to establish pretext in his Title VII claim.

Section 96-4(t)(5) of the North Carolina General Statute
provides as follows:

All letters, reports, communication, or any other
matters, either oral or written, including any
testimony at any hearing, from the employer or
employee to each other or to the Commission or
any of its agents, representatives, or employees,
which letters, reports, or other communication
shall have been written, sent, delivered, or made
in connection with the requirements of the
administration of [Chapter 96 of the North
Carolina General Statutes], shall be absolutely
privileged communication in any civil or criminal
proceedings...

15

A federal court may adopt the state privilege as federal
common law when no controlling federal law on that
issue exists. United States v. Cartledge, 928 F.2d 93, 95-96
(4th Cir. 1991). No controlling federat law exists regarding
the use of testimony from a state unemployment benefits
hearing in a subsequent civil action for discrimination.
EEOC ¥. Illinois Dep t of Employment Sec., 995 F.2d 106,
107 (7th Cir. 1993). In deciding whether to adopt North
Carolina’s statutory privilege, the district court was required
to balance the important state interests behind the privilege
against the countervailing federal interests. Cartledge,
928 F.2d at 96; Hartsell v. Duplex Products, Inc., 895 F. Supp.
100, 102-03 (W.D.N.C. 1995), aff’d, 123 F.3d 766 (4th Cir.
1997).

The Court of Appeals affirmed the district court’s ruling
that the important state interests advanced by North
Carolina’s privilege outweighed the competing federal
interests in this case. The district court correctly noted that
the privilege encourages full disclosure from claimants and
employers and prevents parties from conducting free
discovery before litigation. See Hartsell, 895 F. Supp. at 103
(“ESC hearings do not investigate Title VII allegations, and
ESC participants do not expect their testimony to appear later
in a subsequent federal Title VII proceeding”’).

Contrary to Petitioner’s assertion, the fact that Petitioner
had already initiated his Title VII proceedings by the
time the NCESC hearing was held does not change the
parties’ expectations. An NCESC hearing is held solely to
resolve the question of whether an individual’s employment
was terminated for “misconduct,” “substantial fault” or
“without good cause attributable to the employer” as those
terms are defined in North Carolina’s statute. N.C. Gen. Stat.

16

§§ 96-14(1), (2), and (2)(a). The hearings are not required
to “conform to common law or statutory rules of evidence
or technical or formal rules of procedure.” N.C. Gen. Stat.
§ 96-15(c). Issues and allegations peculiar to federal
employment discrimination laws are not investigated,
evaluated, or discussed in NCESC hearings. The witnesses
in the NCESC hearing had an expectation of privilege
precisely because of the prohibitions contained in N.C.GS.
§ 96-(4)(t)(5) against the use of that testimony in a subsequent
lawsuit. The primary purpose of the privilege is to encourage
full disclosure in a contested unemployment proceeding
without fear that something may later be used against you in
a civil or criminal action. The statutory privilege is aimed in
part at preventing the hearings from becoming full-blown
mini-trials on unrelated civil claims with the consequent
increases in time and expense to the parties and the certain
erosion of the privilege altogether.

In contrast to the important state interests advanced by
the privilege, the competing federal interest is not harmed
by the adoption of the state privilege in federal court.
The district court agreed that the federal government had an
irrefutable interest in enforcing its anti-discrimination laws
and the absence of a federal privilege comparable to the state
privilege effectively promotes the disclosure of probative
evidence in a Title VII suit. Nevertheless, the district court
properly adopted the state privilege in Petitioner’s case
because the probative value of the evidence Petitioner sought
to introduce was very limited. Petitioner deposed the
witnesses who testified at the unemployment hearing and had
access to his own deposition testimony as well. The district
court properly concluded that the NCESC testimony
Petitioner sought to rely on was duplicative of the extensive
deposition testimony taken and that there was no need to

17

abrogate the state’s statutory privilege for such a limited
purpose. As the court in Hartsell noted, “[t]he desire to
impeach witnesses does not outweigh the state interest in
protecting confidential unemployment proceedings.”
Hartsell, 895 F. Supp. at 102.

Finally, Petitioner’s due process is not compromised by
adopting the important state privilege and precluding
Petitioner from introducing the NCESC testimony. As stated
above, Petitioner deposed the witnesses who testified at the
NCESC hearing and had ample opportunity to uncover
impeachment evidence. Petitioner himself contends that
“there exists sufficient evidence in the depositions to support
each claim that is being pursued by [Petitioner]... .”
(Pet. Petition p. 29). Consequently, the district court did not
violate Petitioner’s right of due process and did not abuse its
discretion by striking the NCESC testimony.

The Court of Appeals correctly affirmed the district
court's ruling on the issue of the state privilege, and that
decision does not warrant review by this Court.

IV. THE STRICKEN NCESC TESTIMONY WAS
NOT INCONSISTENT WITH DEPOSITION
TESTIMONY.

Even if the NCESC testimony was improperly stricken
by the court, it made no difference in the result of the case.
The testimony offered by the Morganite officials at the
NCESC hearing was completely consistent both with the
reason given Petitioner for his termination and the testimony
of the same officials in their depositions. The NCESC
testimony would not have aided Petitioner in establishing
pretext.

18

Petitioner admitted that he was told he was terminated
“for violating the terms of a 1996 document” by “displaying
intimidating and threatening behavior toward management
employees” (JA 438, 440).

Blizzard and Vonkchalee testified for Morganite at the
NCESC hearing. Blizzard testified at the hearing as follows:

A: “[Gibbs] was terminated by Roger Bone, our
plant manager on March 13, 1997 for
violating that written agreement that was
signed basically the year before that . . .

Q: And again, on March 13, 1997, when he was
let go for the alleged violation of this
agreement he signed, to whom were those
comments supposedly spoken?

A: Mr. [Mon] Vonkchalee.
(JA 942, 952). This testimony was consistent with Blizzard’s
deposition testimony in this case and Blizzard’s

contemporaneous notes made in March 1997 (JA 698-99,
711, 712). Blizzard testified in his deposition as follows:

Q: Do you recall what he was terminated for?

A: For making threatening comments towards
Mon [Vonkachalee]—toward the supervisor.

(JA 698).

19

In the NCESC hearing, Vonkchalee presented a detailed
account of the threatening conduct that led to Petitioner’s
discharge (JA 956-67). Vonkchalee testified that he felt
threatened and reported the threats to Bone and Blizzard
(JA 960, 962-63, 965-66). Vonkchalee’s testimony in the
NCESC hearing was identical to his deposition testimony
and his written notes made in March 1997 (JA 794-812,
852-56).

Accordingly, even if it had not been struck by the district
court, the NCESC testimony would not have aided Plaintiff
and would not have changed the result in this case.
The Petition should be denied.

CONCLUSION

For the reasons stated herein, the Petition for Writ of
Certiorari should be denied.

Respectfully submitted,

Grecory P. McGuire
HAYNSWORTH BALDWIN
JOHNSON & GREAVES, LLC
P.O. Box 10035

Raleigh; NC 27605-0035
(919) 233-4600

Attorneys for Respondent

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_0997%3A3. Public record. Not legal advice.