The text message from a home contractor’s cellphone contained one of the worst racist slurs out there.
His would-be customer, who is Black, didn't like being referred to that way and took her business elsewhere. But the slur was never meant for her eyes, the contractor and his lawyer contend.
They have gone to court to nullify the $10,000 penalty levied by the New York Division of Human Rights.
One derogatory text message does not prove someone is a racist nor indicate how they really feel about African Americans, the lawyer argues.
Court papers show how the matter evolved.
William I. Miller, who is white, installs window treatments through his one-person company based in the New York town of Tonawanda, Blind Faith Window Coverings. In January 2018, he went to Deidre Chesson’s home on Block Street in Buffalo to give her a quote on blinds for a bay window. They had done business before, and Chesson had recommended Miller to relatives.
Miller quoted Chesson a price of $204. She considered the offer fair but told him she wanted to first look for matching valances at JCPenney. They parted ways, with Miller assuming she was not going to take his offer.
Less than an hour later, Chesson was driving to JC Penney when her cellphone announced an incoming text message. It had come from Miller’s phone and clearly was not meant for her.
Miller, it appeared, was texting someone to vent. The text included complaints about being stuck in traffic, having a tooth pulled hours earlier — the “highlight of my day” — and about the visit to Chesson’s home.
Referring to Chesson, the text said: “Another (racial epithet) lying to me.”
There had been no sale, the text said. “Now she wants to look for valances at JCPenney.”
Because Chesson was driving, her then-14-year-old daughter picked up the text and soon began to cry, Chesson would later testify.
Miller, who refused to be interviewed for this article, texted an apology the next day.
“Can’t tell you how sorry I am,” he wrote to Chesson. He went on to blame his brother for writing the text and sending it to Chesson when he’d meant to send it to his wife. Chesson must have seen the brother with him in the car, the contractor wrote.
“What a (expletive) jerk he was,” the apology continued. “You've known me for a long time,” Miller wrote, “that's not me.”
He added: “Probably a third of my customers are Black.”
Chesson filed a complaint with the state Division of Human Rights. Even though she had decided not to hire Miller, she said she was a victim of racial discrimination in a “public accommodation,” the state Human Rights Law’s term for a business or service offered to the general public.
The hearing took place in February 2020, shortly before the pandemic slowed society and government. Miller, who attended, chose not to take the stand, the transcript shows. Chesson was the only witness.
She testified that she was certain William Miller, not his brother, sent the text: “Earlier on, when he was running late, he told me the reason why he was running late was because he was at the dentist,” she said. “He had a tooth pulled. … When he came to the house, he even had gauze still in his mouth.”
She said she was sure the brother wasn’t in the car. It was cold outside, and no one would have waited in the car for the hour or so that Miller needed to work up his quote, she said. Further, she said, they had all left the house together, Miller to head home and Chesson and her daughter to drive to JCPenney. She saw Miller’s vehicle parked in her driveway.
“No one was in that car,” Chesson testified.
As for the racist term, Chesson said she was hurt but “more so because my daughter was crying.”
“My daughter isn't used to this type of language,” she testified. “But I was also hurt because Mr. Miller has came into my home, came into my family's home and provided services for me and my family, and for someone to think this way …
“I can't change how people think and feel,” she added, “but if this is how you feel, you need not to be in business going into people homes doing what you’re doing.”
Chesson said she had intended to use Miller’s service, she just wanted to go to JCPenney first and find a matching valance. After receiving the text message, she hired someone else.
Miller’s lawyer, Joseph J. Marusak, contended that Miller didn’t deny Chesson service. He had worked for her before and came to her house in the hopes of working for her again. Chesson decided not to hire him because of a text message not meant for her, Marusak pointed out.
“He never told you he didn't want to earn money on this project, right?” Marusak asked Chesson.
“Correct,” she said.
“He never told you he wasn't going to give you services because of your race, correct?”
“Correct,” she answered.
The Human Rights Division lawyer, Neil L. Zions, said the text message had a chilling effect on Chesson’s willingness to do business with him or have him in her home. This qualifies as a denial of service, he said.
An administrative law judge for the Human Rights Division, Martin Erazo Jr., agreed with him.
“Miller sent the text message to her, and in doing so, let her know how he felt about doing business with African Americans,” Erazo wrote in his decision.
After seeing the message, Chesson was not obligated to do business with Miller and Blind Faith, “and the fact that she did not, does not absolve them of liability,” Erazo wrote. The revelation "amounted to an actual denial of service."
He decided Miller should pay a $3,000 fine and pay Chesson $7,000 for her “emotional pain and suffering.” His findings became the foundation for the “final order” that the Human Rights Division’s commissioner signed months later.
Erazo was not breaking new legal ground. Federal courts have ruled the racial epithet has a powerful derogatory meaning that can drive customers away to avoid discrimination. “Without question,” a district court judge in Massachusetts ruled in Jones v. City of Boston in 1990, “the racial epithet … shows an intent to discriminate on the basis of race.”
Marusak, who did not return a telephone message seeking comment, filed his court papers days ago, after receiving the commissioner’s final order in April. He’s asking a state Supreme Court judge to set aside Erazo’s ruling because, to him, the state agency did not prove its case. He filed documents showing the arguments he had made months earlier: A single racially derogatory text message is not tantamount to someone being racist and does not indicate how Miller "really felt" about African Americans or Chesson.
Although the racial slur “should never be condoned,” it does not “amount to the unlawful discriminatory practice of a denial of a public service,” Marusak concluded.
Calling the $10,000 penalty unfair, he proposed a $500 fine and $1,000 for Chesson.
Reached days ago, Chesson acknowledged she has not yet received the $7,000 but did not know about the court challenge. She declined to talk about the matter.