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Ayers v. Currituck County Department of Social Services

Court of Appeals of North Carolina

October 1, 2019

JUDITH M. AYERS, Petitioner

          Heard in the Court of Appeals 26 March 2019.

          Appeal by Respondent from Final Decision entered 13 June 2018 by Administrative Law Judge Melissa Owens Lassiter in the Office of Administrative Hearings. Currituck County, No. 17 OSP 8518

          Hornthal, Riley, Ellis & Maland, L.L.P., by John D. Leidy, for petitioner-appellee.

          The Twiford Law Firm, by John S. Morrison, for respondent-appellant.

          HAMPSON, JUDGE.

         Factual and Procedural Background

         Currituck County Department of Social Services (DSS) appeals from a Final Decision of the Administrative Law Judge (ALJ) reversing a Final Agency Decision by DSS to terminate the employment of Judith M. Ayers (Petitioner) and further requiring Petitioner be retroactively reinstated to her same or similar position with DSS with full back pay and payment of reasonable attorneys' fees. The Record before us reflects the following:

         Late in the afternoon on Friday, 3 November 2017, at approximately 4:45 p.m., Samantha Hurd (Hurd), Director of DSS, was working to compile statistics related to DSS's Child Protective Services Unit, including demographic information such as race and gender of individuals and families with which DSS was engaged. In the process of going though handwritten reports, Hurd identified several reports that required some additional information or about which she had questions. As was the customary practice, Hurd found Petitioner, the Supervisor of the Child Protective Services Unit, to go through the reports about which Hurd had questions. On this particular afternoon, Petitioner was working in a vacant office.

         One report Hurd had questions about involved the "F family."[1] On the intake form for the F family, the assigned social worker had listed the letters "NR" under the race category. Hurd did not recognize the abbreviation and knew Petitioner, as the supervisor of the unit, would be able to obtain the information. Hurd asked Petitioner what NR meant, and Petitioner replied she was unsure.[2] Petitioner then volunteered a suggestion as to a possible meaning. Hurd believed Petitioner said NR could mean "nigger rican."[3] The two left the vacant office to locate the actual file to obtain the information. Embarrassed, Petitioner asked Hurd not to tell anyone what had been said. Both Petitioner and Hurd are white females. Hurd later testified Petitioner's statement made "a significant impact" on her because it was vulgar, crude, demeaning, and discriminatory, as it disparaged both African Americans and Puerto Ricans.

         Over the ensuing weekend, Hurd conferred with an attorney for DSS and a personnel consultant about the incident, as well as consulting an excerpt from a guide on the imposition of discipline of North Carolina public employees. On Monday, 6 November 2017, Petitioner was summoned to a pre-dismissal conference with Hurd. Petitioner was provided a written summary of the allegations, including the specific allegation that Petitioner had used the phrase "n ----- rican." The written notice asserted Petitioner's alleged actions constituted "unacceptable personal conduct, in that it was conduct for which no reasonable person should be expected to be warned of in advance, the willful violation of known or written work rules, and conduct unbecoming of an employee of [DSS]."

         In correspondence presented to Hurd either prior to or at the 6 November 2017 pre-dismissal conference, Petitioner wrote:

You stated that our meeting will be about the comment that I made on Friday afternoon. I made the comment directly to you while we were alone in the unoccupied social work office. You asked what a race 'code' meant that was hand written . . . [, and] we each paused attempting to decipher as it was not clear and it was said as a random guess. I immediately commented that I couldn't believe I had just said that. I apologize for making that comment. I know the comment was unacceptable. It would be unacceptable in any setting, personal or professional.

         After receiving Hurd's written notice of the allegations at the pre-dismissal conference, Petitioner prepared a further written response disputing the events as recounted by Hurd and the grounds for her potential dismissal, stating in part:

Your synopsis is not exactly how I recall the exchange on November 3, 2017. I do not recall saying the words as they are spelled out in your letter, though I do not deny that I did say two unrelated words in the tone of answering a nonsensical word problem.

         Petitioner went on to state: "Your assumption of my negative effect on the morale of subordinates and service delivery are baseless. The syllables spoken were not used to describe anyone. Separately or together they do not describe a race."

         On 8 November 2017, Hurd issued a letter with her decision to terminate Petitioner. This correspondence stated that during the pre-dismissal conference, Petitioner "acknowledged using the words 'n ----- rican' during your conversation with me and described this as 'totally inappropriate and unacceptable'." The letter concluded: "After consideration of all of this information I have decided to terminate your employment with [DSS] for unacceptable personal conduct."

         On 14 November 2017, Petitioner gave a written appeal to DSS, challenging the grounds and procedure used in her termination. In this appeal, Petitioner wrote: "You spell out in quotation marks what you claim I said. I did not say those remarks as they are recounted by you." Petitioner further stated: "You state that I acknowledged using the words spelled out by you. I did not. I apologized for making an illogical comment or 'random guess' that was unacceptable." Petitioner then asserted: "You state 'at no time (in the pre dismissal conference) did you (I) deny using the words' that were spelled out. I did not deny nor did I agree with those words spelled out by you." On 21 November 2017, DSS, through Hurd, issued a Final Agency Decision affirming the decision to terminate Petitioner's employment.

         On or about 15 December 2017, Petitioner filed a Petition for Contested Case Hearing alleging she had been dismissed from her employment by DSS "without just cause or due process." The matter was heard before the ALJ on 19 April 2018. During this evidentiary hearing, Petitioner disputed that she had said: "n ----- rican." Rather, she maintained she had used the phrase: "nigra rican." For clarification, Petitioner's counsel asked her to spell the words Petitioner thought she used, to which Petitioner spelled out: "n-i-g-r-a" and "r-i-c-a-n." Petitioner explained:

I guess I used neither of those words often or ever, and those words are in my word bank because of people in my family.
My grandmother was from Norfolk, an old southern lady, and she would refer to negroes as nigra. And as kids we didn't know if that was a good word or a bad word, but by our generation, it was close enough that we just didn't say it unless we were imitating my grandmother.
And rican, my brother-in-law is from Ecuador, and he lived in New York, so he would often tell stories or different situations about stereotyping the different Latin American community up in New York. And he would refer to people as rican.
That's the only -- I can't say I intended to say any of this, but those are the words that would be in my personal word bank.

         On cross-examination, Petitioner conceded this was the first time she had expressly articulated what she believed she had said on 3 November 2017, despite prior opportunities to straighten the record. "I felt like the situation -- the incident -- I said something improper whether it was nigra or n-i-g-g-e-r. What she heard was improper, what I said was improper, and I still accept that." Petitioner went on to state, "I wouldn't allow my social workers to say that."

         On 13 June 2018, the ALJ entered its Final Decision containing numerous Findings of Fact and Conclusions of Law. In particular, as to the 3 November 2017 incident, the ALJ found:

23. During the conversation between Petitioner and Ms. Hurd, Ms. Hurd asked more than once "what does this ['NR'] mean?" Finally, Petitioner responded, "I think it means "Negra-Rican." Petitioner believes she used the word "Negra" as her grandmother used that word to refer to African-Americans. Ms. Hurd believes Petitioner said the word "n ----- "[.]

         The ALJ, having inserted a third iteration of the phrase into the record, further found:

47. Petitioner felt that she had used the word "Negra," and conceded that at the time of the November 3, 2017 incident, and in all subsequent discussions about it. She also consistently conceded that using the word "Negra" was improper and unacceptable in a work setting. Ms. Hurd misunderstood Petitioner's apology as an acknowledgement that she had used the "n" word which Ms. Hurd believed Petitioner said. However, Petitioner's apology for saying "Negra" was not an acknowledgement by Petitioner that she had used the "n" word as Ms. Hurd alleged. Nonetheless, Ms. Hurd's confusion was not material to the November 3, 2017 incident and did not cause Ms. Hurd to decide to dismiss or to discipline Petitioner.

         The ALJ then made Conclusions of Law, including analyzing the facts of the case in light of Warren v. North Carolina Department of Crime Control, 221 N.C.App. 376, 726 S.E.2d 920 (2012), and Granger v. University of North Carolina, 197 N.C.App. 699, 678 S.E.2d 715 (2009). The ALJ concluded:

12. The undersigned agrees with the Fourth Circuit's analysis in Spriggs v. Diamond Auto Glass that the use of the "n" word is far more than just a mere offensive utterance, and is a "pure anathema to African-Americans" that creates an abusive working and personal environment. . . . In this case, unlike Pamela Granger in Granger, supra., Petitioner did not use the "n" word in referring to another coworker in [DSS], but blurted out "Negra-Rican" while trying to interpret the "NR" abbreviation on a form during a private conversation with her supervisor. Unlike Pamela Granger, Petitioner did not say she "would not hire another black person," was not overheard by one of her subordinate employees or any other employee at work, and did not expose [DSS] to embarrassment and potential legal liability. . . . Petitioner surprised herself by saying what she said, immediately regretted her statement, immediately told Ms. Hurd that she could not believe she had said that, and apologized to Ms. Hurd.
13. While Ms. Hurd believed Petitioner spoke the "n" word during their private conversation on November 3, 2017, the greater weight of evidence demonstrated that Petitioner involuntarily blurted out the phrase "Negro-Rican" during a momentary lapse in judgment. Petitioner's statement was not committed maliciously, was not meant or said for any racially-motivated reason, or with any racially motivated intent. Petitioner's explanation for making that statement was credible and believable. Therefore, [DSS] failed to prove the first prong of Warren by failing to prove by a preponderance of the evidence that Petitioner engaged in the conduct alleged by [DSS].

         Based on Conclusion of Law 13, [4] the ALJ concluded no further analysis was required because DSS failed to even prove Petitioner engaged in the specific conduct alleged by DSS. The ALJ, nevertheless, went on to conclude DSS also erred in the Final Agency Decision by failing to give proper weight to the fact no one other than Hurd overheard the comment on 3 November 2017 and by failing to give proper weight to Petitioner's lack of disciplinary history during her almost 11 years of service.

         Based on the totality of the Findings of Fact and Conclusions of Law, the ALJ determined:

15. The relevant facts and mitigating factors, including, but not limited to, Petitioner's disciplinary history, her years of service, prior job performance, and the lack of any harm sustained by Respondent, further supports a determination that Petitioner's conduct does not rise to the level of conduct that would justify the severest sanction ...

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