Collateral Damage Discipline of Boston Lieutenants Reversed

In a particularly blunt decision, the Massachusetts Civil Service Commission has overturned the discipline of two Boston fire lieutenants referring to them as “collateral damage for what appears to be a strategic move to counter” race discrimination allegations.

Lieutenant Marc Hayhurst and Lieutenant Brian Summering were suspended for two tours each (24 hours total) for failing to follow departmental procedures in reporting threatening behavior following a harassment incident in their firehouse in 2018. The incident was covered here last December and resulted in the termination of firefighter Gregory R. LaVallee.

LaVallee was accused of using the N-word in the presence of a black firefighter, identified as CB, in the early morning hours of December 13, 2018 at the Hanover Street station. At the time LaVallee was off-duty and had been drinking. CB, who was playing a video game in the station’s TV room, reported LaVallee to the officers. As explained in the decision:

  • FF CB… exited the TV room to inform his commanding officer that night, Lt. Summering, of the incident.
  • Lt. Summering was in his quarters located down a hallway outside the TV room.
  • When FF CB knocked on Lt. Summering’s door, Lt. Hayhurst, commanding officer on the engine that night, also opened the door to his adjacent quarters.
  • FF CB told Lt. Summering: “You better get fucking [FF GL] out of the TV room before I punch him in the face. He’s drunk, he’s saying [n-word] this, [n-word] that, and spitting on the floor.”
  • Lts. Summering and Hayhurst walked down the hall to the TV room, followed by FF CB.
  • FF GL was slouched on a couch.
  • One of the Lts. said “come on, [FF GL], get up,” or similar words to that effect.
  • FF GL complied, and they guided him out of the TV room to the bunk room.
  • When the Lts. addressed him as he was slouched on the couch, FF GL’s demeanor indicated that he was intoxicated.
  • Lt. Summering told FF CB that the incoming Captain would handle the situation in the morning. FF CB informed Lt. Summering that he wanted FF GL to transfer out of the firehouse.

The following morning, the matter was turned over the to station captain, identified as JR. LaVallee was subsequently terminated. The department suspended Lt. Hayhurst and Summering, concluding they should have reported the matter immediately to their district chief rather than waiting until the following morning to report it to their captain. As explained in their suspension letters:

  • “ … On December 13, 2018 at approximately 0100 hours, an off duty member of the Engine Company 8 entered the firehouse, under the influence of alcohol and then threatened and spit at another on-duty member of the firehouse. When a member, on or off duty, threatens another member of the department, it is the officers responsibility to promptly report offensive and inappropriate behavior to their superior officer immediately. Consequently, you shall receive a two (2) tour suspension for violation of Rule 18.44 (k); §§ (1) and (2), accompanied by an Official Reprimand.”

In overturning the suspension, the author of the decision, Commissioner Christopher Bowman, concluded:

  • The BFD, here and in [LaVallee’s appeal]… found that FF GL spat at FF CB in the TV Room that morning; and that FF GL stated: “N****r…I’ll fuckin’ fuck you up right now n****r” and “You fucking n****r…do you want to fight me, I’ll fuck you up”.
  • Those findings are not supported by a preponderance of the evidence for the same reasons stated in the Commission’s decision regarding FF GL.
  • First, a review of the record shows that FF CB never actually stated (verbally or in writing) that FF GL spat at him.
  • It appears that the word “at” was first used by the BFD in its investigative report.
  • FF CB has, at different times, reported that FF GL was “spitting”; “spitting all over the place”; and/or “spitting toward me.”
  • Further, based on FF CB’s own testimony and the enlarged color photographs he submitted during his testimony, FF CB was sitting in a large recliner chair with a tall back, facing in the opposite direction of FF GL, who was sitting on recliner chairs approximately nine (9) feet away.
  • While the unsavory act of FF GL spitting on the floor while eating Chinese food and uttering the n-word, standing alone, represents substantial misconduct, the record doesn’t support the allegation that FF GL was spitting at FF CB that morning.
  • The preponderance of the evidence also does not support the finding that FF GL stated “I’ll fuck you up” and/or that he challenged FF CB to a physical fight.
  • Finally, although FF CB made this allegation regarding the additional comments in this 5A report, his own EEOC complaint does not allege that Mr. FF GL made these additional threatening comments.
  • As referenced above, the preponderance of the evidence does not support the BFD’s conclusion that FF GL “threatened and spit” at FF CB.
  • Since FF GL did not threaten FF CB with physical harm, nor did FF CB make such an allegation to the Appellants, the Appellants did not violate these rules.
  • Likely sensing that potential outcome, the BFD, as part of the proceedings before the Commission, sought to expand the reasons why the Appellants may have violated these rules.
  • For the first time, the BFD argued that the Appellants violated this rule by failing to immediately notify the Deputy Fire Chief that FF CB told the Appellants that he (FF CB) would punch FF GL in the face if the Appellants did not get FF GL out of the TV Room.
  • First, the notice of discipline never referenced this allegation. Rather, the notice specifically references the alleged failure by the Appellants to notify the Deputy Fire Chief about FF GL’s threats against FF CB, which never happened. Second, after conducting a thorough investigation, and viewing FF CB’s statements in the proper context, the BFD exercised wise judgment and chose not to pursue charges against FF CB for making these statements. That is precisely the same type of sound judgment that the Appellants used that night when they did not immediately report FF CB’s “threats” to the Deputy Fire Chief.
  • What the Appellants did do, both immediately, and within hours, appears both reasonable and consistent with BFD rules and guidelines.
  • They acted immediately to diffuse a volatile situation and remove FF GL from the TV Room.
  • They checked in with FF CB at least twice during the shift.
  • Between 6:30 and 7:00 A.M. that same morning, they both immediately notified their incoming superior officers about what occurred, knowing that this serious matter would need to be reported up the chain of command.
  • As stated above, FF GL engaged in egregious misconduct when he made racist comments to FF CB.
  • The Appellants, however, did not engage in misconduct that night, and the BFD’s decision to make them collateral damage, for what appears to be a strategic move to counter FF CB’s MCAD complaint against the City, is inconsistent with basic merit principles – and good conscience.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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