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.

Plaintiff's 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 ofrace 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 plaintiff's 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. Plaintiff's 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, plaintiff's 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, plaintiff's 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-discriminatory 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 decision-makers 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 plaintiff's supervisor, the alleged epithets were not directly related in any way to the contested employment decision. Id. Thus, the trial court properly denied plaintiff's 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.