Split Appeals Court rules racial epithet should not have cost state worker her job

The state Court of Appeals split, 2-1, in deciding that a career state employee should not have lost her job after uttering a single racial epithet to a supervisor in 2017.

The decision issued Tuesday means the Currituck County Department of Social Services must restore Judith Ayers’ job, award her back pay, and cover attorneys’ fees for the seven-year legal battle. The case has included three trips to the state’s second-highest court.

Ayers’ punishment will consist of two weeks of unpaid suspension and “cultural diversity and racial sensitivity training,” according to the Appeals Court’s opinion.

“[W]e conclude DSS failed to meet and carry its burden of proving it acted with just cause to dismiss Ayers,” wrote Judge Hunter Murphy for the court.

Ayers had worked for DSS for 10 years before the “incident,” as Murphy’s opinion described the event that led to Ayers’ dismissal.

In November 2017 Ayers was speaking with county DSS Director Samantha Hurd. Both women are white. The two women “had a history of disagreements and conflict in their roles,” Murphy wrote.

“Hurd asked Ayers about a racial demarcation–‘NR’–that a social worker had included on a client intake form; Hurd did not recognize the demarcation, asked Ayers what it stood for multiple times, and Ayers responded with a racial epithet,” Murphy quoted from an earlier Appeals Court opinion.

“Ayers claimed she said ‘nigra rican,’ while Hurd claimed Ayers said ‘[n—–] rican’ (‘the N word’). According to testimony from Hurd and Ayers, Ayers initially laughed about the comment, but became apologetic and embarrassed soon afterward. After investigation, Hurd and Ayers discovered the client referred to on the form was Caucasian,” according to the Appeals Court opinion.

After conferring with the DSS lawyer, Hurd placed Ayers on paid “investigatory status” and later fired her. Ayers appealed. On three separate occasions, an administrative law judge issued rulings overturning Hurd’s decision.

On two previous occasions, in 2019 and 2021, the Appeals Court sent the case back to the administrative law judge to address additional issues. Tuesday’s ruling marked the first time that the Appeals Court affirmed the ALJ’s decision.

“Ayers’s conduct carried a risk of significant potential harm, albeit a relatively low risk of that harm coming to pass,” Murphy wrote. “Ayers’s use of a racial slur in an office, with the door open, created the possibility that her subordinate employees or a client in the building might have overheard the language. And the impact of such a slur having been heard was potentially great.”

“This conduct, if exposed to a subordinate or client, ‘would have affected Respondent’s integrity, employee morale, [and the] provision of services,’ not only by virtue of the morale impact on any listeners who have been personally affected by the slur, but also by severely undermining confidence that DSS’s employees were discharging their duties in a manner that upheld the dignitary equality of all persons, regardless of race,” Murphy added.

“However, our ‘severity of the violation’ inquiry does not end there,” Murphy explained. “While gravity of the harm, had it come to pass, speaks to the severity of the conduct, ‘that Petitioner’s conduct … was an aberrant and unintended event’ mitigates this severity.”

“Ayers’s use of a racial slur in the workplace, even when not directed at a particular person and seemingly without the intent to convey racial animosity, was a severely unprofessional and insensitive choice,” Murphy wrote. “But the ALJ did not, and we cannot, ignore the considerable circumstances in mitigation.”

“Ayers immediately and consistently recognized and regretted the wrongfulness of her conduct, DSS has not shown any harm had resulted by the time it terminated Ayers, Ayers had an otherwise unblemished employment history, and DSS has not historically dismissed employes for a single instance of [unacceptable personal conduct],” Murphy added. “In other words, despite the severity and seriousness, DSS has not established why appropriately addressing Ayers’s UPC required it to deviate from its historical disciplinary practices where Ayers’s UPC was an aberrant incident for which she readily accepted responsibility and felt remorse, especially where no actual harm resulted.”

Judge John Tyson concurred in the result of Murphy’s ruling without joining his opinion. Judge Allegra Collins dissented.

“Petitioner initially laughed about the comment but became apologetic and embarrassed soon afterward,” Collins wrote. “The sole issue before this Court is whether Petitioner’s unacceptable personal conduct amounted to just cause for her dismissal. Because I believe Petitioner’s unacceptable personal conduct was just cause for dismissal, I dissent from the majority opinion.”

Collins labeled the harm from Ayers’ comments “significant.” “Petitioner’s conduct eroded the Director’s trust in Petitioner’s motives and judgment,” the judge wrote. “Petitioner’s conduct also negatively affected her African-American co-worker’s ability to trust Petitioner’s judgment and accept guidance from Petitioner.”

“Moreover, DSS has policies prohibiting individuals from using demeaning or inappropriate terms or epithets and telling off-color jokes concerning race. DSS has a duty to enforce these policies, and to further its stated goal of supporting parents by respecting each family’s cultural, racial, ethnic, and religious heritage in their interactions with the family and the mutual establishment of goals,” Collins added. “Finally, Petitioner’s unacceptable personal conduct exposed DSS to vulnerability for negligent retention and supervision liability and violated DSS’s compliance with the Civil Rights Act of 1964, which could jeopardize its receipt of federal funding.”

“Although this appears to have been an isolated incident by Petitioner, a single act of unacceptable personal conduct can present just cause for any discipline, up to and including dismissal,” she wrote.