Massachusetts SJC Upholds Reinstatement of Brookline Firefighter

The ongoing saga of Brookline firefighter Gerald Alston took another step toward closure with the Supreme Judicial Court of Massachusetts upholding a decision by the Massachusetts Civil Service Commission to order his reinstatement to the fire department.

Alston had been terminated back in 2016 after having been out of work since 2012. The town accused him exhibiting threatening behavior at work, using drugs, and failing to comply with the town’s efforts to evaluate his fitness to return to duty. The termination was based upon his inability to return to work.

Alston alleged that his treatment was retaliation for his having reported a white officer for using the N-word.  As explained by the SJC:

  • The underlying dispute in this case began with a racist comment, apparently on a misplaced telephone call. 
  • As Lieutenant Paul Pender was in a car driven by his son, he was cut off by a stranger.  Pender referred to the person as a “fucking n—-r.” 
  • Unbeknownst to him, Pender had not properly hung up from a previous call, and he left a record of what he said on the voicemail of fellow firefighter Gerald Alston. 
  • Alston is African-American; Pender, his supervisor at the time, is Caucasian. 
  • A tumultuous six years of litigation and acrimony ensued, culminating in 2016 with Pender receiving his third promotion since leaving the voicemail and Alston being fired by the town of Brookline (town).

The incident has, by my count, led to at least four state and federal civil suits since 2010, and Alston’s cases have been featured here 4 times previously. Perhaps the easiest way to summarize the ruling is to quote the SJC, quoting in part the Civil Service Commission:

We begin with the commission’s summary of its decision, which clearly and concisely encapsulates its findings of fact and legal analysis:

  • “A white Brookline Fire Lieutenant made the racist comment ‘fucking [n-word]’ to describe a motorist who the lieutenant believed to be black or Hispanic.  That racist comment inadvertently ended up on the voice mail of the lieutenant’s employee, Gerald Alston, an African American firefighter in the Brookline Fire Department.
  • “Town officials responded with a minor, short-term suspension of the lieutenant followed by his almost-immediate promotion.  Thereafter, Town officials:  granted further promotions of the lieutenant; failed to prevent retaliatory behavior against Firefighter Alston; and enabled the lieutenant to use his position to lobby many other members of the force against Firefighter Alston and paint himself as the victim.
  • “These actions by the Town were arbitrary, capricious, and in violation of Firefighter Alston’s rights under the civil service law to be treated fairly ‘. . . without regard to political affiliation, race, color, age, national origin, sex, marital status, handicap, or religion and with proper regard for . . . basic rights outlined in [the civil service law] and constitutional rights as citizens…’ The Town’s own actions and inactions were the reasons that made it impossible for Firefighter Alston to return to work, which formed the basis of the Town’s decision to terminate his employment.
  • “When a municipality’s own violation of a tenured employee’s rights has prevented the employee from returning to work, as here, the Town cannot use that inability to work as just cause for discharging the employee from his tenured position.”

We conclude that there is substantial evidence to support this decision; it is also a correct statement of the law.  For these reasons, we affirm.

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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