MONTPELIER, Vt. (Legal Newsline) - A Vermont corrections department worker was unjustly fired for a 30-second exchange in which he asked if a Black colleague was cooking fried chicken, the state Supreme Court ruled, rejecting the state’s argument the firing was justified for his “very racist” remark.
Michael Miller, who is white, entered the breakroom of the Chittenden Regional Correctional Facility in December 2020 while the microwave was in use. When a Black coworker returned, Miller asked if the food was the coworker’s and “whether it was fried chicken,” the Supreme Court said. The coworker said it was his food but it was seafood with vegetables, not fried chicken.
Other employees who witnessed the exchange said Miller repeated that the food smelled like fried chicken and his coworker ignored him. The entire exchange lasted around 30 seconds, the court said.
The Black coworker then wrote to the prison superintendent and his union about the incident, saying Miller had made a “very racist” remark, especially because he was a supervisor. Miller was placed on leave and investigated the incident, concluding Miller had engaged in discriminatory and unprofessional behavior and he had violated nine personnel policies and work rules. For this, Miller was fired.
Miller then filed a grievance with the Vermont Labor Relations Board through his union, the Vermont State Employees’ Association. The Board reversed his firing, citing federal employment law and the Title VII antidiscrimination statute. While the Black coworker belongs to a protected class, the Board concluded, there was no evidence of racial discrimination because Miller’s remarks didn’t alter any material terms of employment.
The state appealed, and the Vermont Supreme Court upheld the Board’s decision in an opinion by Justice Harold Eaton.
“It is not our role on appeal to reinterpret the Board’s reasonable legal conclusions,” the court said, including its reliance on Title VII. “An isolated incident …is typically insufficient to establish a harassment claim unless it is `extraordinarily severe.’”
In fact, a 2017 decision by the Eighth Circuit Court of Appeals hinged upon a nearly identical claim that an employee asked: “hey anybody smell that? I smell fried chicken” in the presence of a Black coworker. The federal appeals court dismissed it as “stray remarks,” not severe enough to create a hostile work environment.
Justice Nancy Waples dissented, joined by Chief Justice Paul Reiber, saying the plain language of the collective bargaining agreement prohibited Miller’s conduct. The state must be able to take corrective action “before it rises to the level of being legally actionable,” she wrote.
“In essence, the State will be powerless to prevent racial discrimination and harassment claims through the workplace policies intended to do so, being left with only the option of litigating them in court, essentially ensuring the State’s exposure to some form of liability,” she wrote.