                               UNPUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                               No. 05-1680



JAMES ISAAC; WILLIAM STEWART; ALVIN WILLIAMS;
GERALD AGNEW; WAYMOND CHAVIS; JAMES MITCHELL;
LYDELL LANDRUM,

                                             Plaintiffs - Appellants,

             versus


NORTH CAROLINA DEPARTMENT OF TRANSPORTATION,

                                                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (CA-03-137-5-BR)


Submitted:    June 16, 2006                   Decided:   July 11, 2006


Before WIDENER, WILLIAMS, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Alan McSurely, Chapel Hill, North Carolina, for Appellants. Roy
Cooper, North Carolina Attorney General, Tiare B. Smiley, Special
Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

       Seven   African-American     employees       of    the    North    Carolina

Department of Transportation (“NCDOT”) sued their employer alleging

causes of action under Title VII, 42 U.S.C.A. § 1981 (West 2003),

and the North Carolina Constitution after a co-worker displayed a

noose in their workplace during Black History Month. NCDOT removed

the case to federal court and moved for summary judgment.                      The

district court dismissed the § 1981 cause of action and granted

summary judgment to NCDOT on the state constitutional claims and

the    Title   VII   retaliation   claims.      The      court   denied    summary

judgment on the hostile work environment claims, however.                    After

trial on those claims, a jury found that the co-worker’s behavior

constituted a hostile work environment, but that NCDOT was not

liable for the co-worker’s acts.          The employees appeal, contending

that    the    district   court    should    have     remanded     their     state

constitutional claims to state court, and that the court gave

erroneous jury instructions regarding the employer’s liability for

the hostile work environment.        We affirm.



                                      I.

       The employees work at NCDOT’s Beryl Road Equipment Unit. They

maintain that on or about February 1, 2002, the first day of Black

History Month, a fellow employee, Raymond Powell, fashioned a

hangman’s noose out of a piece of rope and hung it from a wire


                                      2
antenna over his workstation.   They further contend that the rope

remained in place until March 14, and that during that time, shop

supervisors repeatedly commented on the noose and laughed.     They

also maintain that at a staff meeting in March, Powell stated, “we

[white people] need to go back to the way things used to be.   Fight

‘em and hang ‘em like my father did.”

     The employees reported these allegations to the Civil Rights

Division of the state Office of Administrative Hearings, which is

the agency designated by the state legislature to receive EEOC

complaints.   NCDOT received notice of those EEOC charges on March

14, 2002, at which point it began its own investigation of the

events.   On May 7, 2002, NCDOT issued a statement, concluding that

it found no noose in the workshop, and that the only rope at

Powell’s workstation was a “special tool designed by Raymond Powell

. . . . to pull electrical wire and hydraulic hoses through tight

inaccessible pathways such as pipes, tubes, and other metal/steel

pathways.”    In July 2002, the Office of Administrative Hearings

determined there was “credible evidence” that Powell had displayed

a hangman’s noose.   After failed conciliation efforts between the

employees and NCDOT, EEOC issued right-to-sue letters to the

employees, who then filed the instant action.




                                 3
                                      II.

      On appeal, the employees first contend that the district court

erred by granting summary judgment against them on their state

constitutional claims instead of remanding those claims to state

court.     They seem to suggest that the district court lacked

jurisdiction over the state claims. See Brief of Appellants at 22.

      Because the district court had supplemental jurisdiction over

the state claims, it did not err in exercising that jurisdiction.

Federal courts may exercise supplemental jurisdiction over state

law claims if they “form part of the same case or controversy” as

claims that are properly within the jurisdiction of the federal

court.     28 U.S.C.A. § 1367 (West 1993).         “The state and federal

claims must derive from a common nucleus of operative fact.             But

if, considered without regard to their federal or state character,

a plaintiff’s claims are such that he would ordinarily be expected

to   try   them   all   in   one   judicial   proceeding,   then,   assuming

substantiality of the federal issues, there is power in federal

courts to hear the whole.”         United Mine Workers of Am. v. Gibbs,

383 U.S. 715, 725 (1966); see also Axel Johnson, Inc. v. Carroll

Carolina Oil Co., Inc., 145 F.3d 660, 662 (4th Cir. 1998) (noting

that § 1367 codified the Supreme Court’s holding in Gibbs).

      There can be no doubt that the employees’ state constitutional

claims arise out of the “same core of operative facts” as their

Title VII claims.       Indeed, in pleading their state claims in the


                                       4
complaint, the employees specifically incorporated by reference all

of the factual allegations supporting their federal claims. All of

the allegations in the complaint concern the alleged harassment of

the employees by co-workers and the NCDOT’s assertedly inadequate

investigation of those complaints.               Therefore, § 1367 permits the

exercise of federal jurisdiction over the state claims.

     Of     course,     even    if   the       requirements   for       supplemental

jurisdiction are met, a district court has the discretion not to

exercise    such   jurisdiction.           A   federal   court    may    decline   to

exercise jurisdiction over state law claims if, inter alia, “the

claim raises a novel or complex issue of state law.”                     28 U.S.C.A.

§ 1367(c).     The employees apparently believe that this exception

applies    here;    they   contend    that       their   claims     present     novel

questions of state law because “the 1971 anti-discrimination clause

in question has not been interpreted by [the] North Carolina

appellate division.”          Brief of Appellant at 12.

     That assertion is simply false.              Article I, § 19 of the North

Carolina Constitution -- on which the employees base their state

constitutional claims -- is not a new or obscure provision.                     On the

contrary,    it    is   the    state’s     fundamental     guarantee       of   equal

protection. North Carolina courts have repeatedly interpreted this

provision, holding that it parallels the Fourteenth Amendment.

“The principle of equal protection of the law is explicit in both

the Fourteenth Amendment to the United States Constitution and


                                           5
Article I, Section 19 of the Constitution of North Carolina . . .

. Our courts use the same test as federal courts in evaluating the

constitutionality of challenged classifications under an equal

protection analysis.”       Richardson v. N.C. Dep’t of Corr., 478

S.E.2d 501, 505 (N.C. 1996); see also Disher v. Weaver, 308 F.

Supp. 2d 614, 624 (M.D.N.C. 2004) (“North Carolina courts have

consistently interpreted [Art. I, § 19] to be synonymous with the

provisions   of   the   Fourteenth   Amendment   of   the   United   States

Constitution, finding that equivalent rights and protections are

provided by each source.”) (citing Bacon v. Lee, 549 S.E.2d 840,

856 n.11 (N.C. 2001)).

     Even if the state constitutional claims did present novel or

complex questions of state law, the district court was not required

to remand them.    Section 1367(c) is permissive -- it merely allows

a district court to dispose of a state claim over which it could

exercise supplemental jurisdiction.      For that reason, we review a

district court’s decision to retain jurisdiction for abuse of

discretion. See, e.g., White v. County of Newberry, S.C., 985 F.2d

168, 172 (4th Cir. 1993) (reviewing decision to retain jurisdiction

under § 1367 for abuse of discretion).       In the present case, the

district court’s decision to retain discretion over state claims

based on the same core of operative facts as the employees’ § 1981

and Title VII claims constitutes no abuse of discretion.




                                     6
                                     III.

       The employees next argue that the district court erred in

defining the term “supervisor” in its instructions to the jury.

They preserved this contention by objecting to that definition at

trial; accordingly, we review the alleged error for abuse of

discretion.    See United States v. Ebersole, 411 F.3d 517, 526 (4th

Cir. 2005).

       The district court instructed the jury that if it determined

that   a   co-worker   created   a   hostile   work   environment   for   the

employees, it could not impose liability on NCDOT unless it found

two additional facts by a preponderance of the evidence:

            First, that plaintiff’s supervisor or successively
       higher authority knew, that is had actual knowledge, or
       should have known, that is had constructive knowledge, of
       the racially hostile or abusive environment; and,
            Second, that the supervisor or higher authority
       permitted it to continue by failing to take remedial
       action.

The employees acknowledge that this instruction was a correct

statement of the law.      See Brief of Appellant at 30.

       Nevertheless, they argue that the court erred when it defined

the term “supervisor” as follows:

            A supervisor is a person with immediate or
       successively higher authority over the employee.      The
       essence of supervisory status is the authority to affect
       terms and conditions of employment, primarily consisting
       of the power to hire, fire, demote, promote, transfer, or
       discipline the employee. This includes someone with the
       power to provide significant input into employment
       decisions, to instruct the offending employee to cease
       harassing behavior, or to implement other means of taking
       remedial action.

                                      7
J.A.    904.     According    to    the     employees,    this    instruction

impermissibly “directed the jury away from agency and negligence

law applicable to a co-employee harasser case,” and instead invited

them to consider the “relative power of [employer’s] ‘agents.’”

Brief of Appellee at 30, 35.              Although their argument is not

entirely clear, apparently the employees contend on appeal that the

district court should not have defined “supervisor,” but simply

should have focused on NCDOT as an organization -- “what did the

employer or agency know?      What should it have known?          When did it

know about the harassment?         When should it have known about the

harassment?”     Brief of Appellant at 33 (emphasis in original).

       The problem with this argument is that we cannot know what

NCDOT knew (or should have known) without knowing what its agents

and supervisors knew (or should have known).             An organization can

only act through human beings.        See United States v. W.F. Brinkley

& Son Const. Co., Inc., 783 F.3d 1157, 1159 n.5 (1986) (“Of course,

a corporation acts through its officers or agents.”); see also

United States v. One Parcel of Land Located at 7326 Highway 45

North, 965 F.3d 311, 316 (7th Cir. 1992) (“As a legal fiction, a

corporation cannot ‘know’ like an individual. . . .              A corporation

acts through its agents.     Similarly, a corporation ‘knows’ through

its agents.”) (citing W. Fletcher, 3 Corporations § 787 (1986)).

       The   employees   themselves    acknowledged      just    this   in   the

district court, asking the court to instruct the jury:


                                      8
          Defendant, as the Plaintiffs’ employer, will be
     responsible or liable for permitting such behavior only
     if the Plaintiff proves by a preponderance of the
     evidence that the Plaintiff’s supervisor or successively
     higher authority knew, that is, had actual knowledge[,]
     or should have known, that is, had constructive
     knowledge, of the hostile or abusive work environment and
     permitted it to continue by failing to take remedial
     action.

Like the court’s instruction, the employees’ proposed instruction

imposed liability only when a “supervisor or successively higher

authority” had knowledge of the harassment.     Thus, the district

court did not abuse its discretion by focusing the jury’s attention

on the knowledge of NCDOT’s supervisory employees rather than on

what NDCOT, as a nameless, faceless entity, “knew.”



                               IV.

     We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.     For all

of the foregoing reasons, the judgment of the district court is



                                                           AFFIRMED.




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