The Town of Brookline argued in a Suffolk County courtroom Thursday that it should not have to resume paying firefighter Gerald Alston, despite a February ruling that he had been improperly fired after claiming racial discrimination at the fire department.
The Massachusetts Civil Service Commission ordered the town to reinstate Alston more than a month ago, concluding that Brookline had failed to address his valid claims of discriminatory and retaliatory behavior by his coworkers.
But Doug Louison, the town's attorney, asked Massachusetts Superior Court Judge Douglas Wilkins to stay that decision while the town appeals the ruling. Louison said the commission overstepped its authority and ignored "an abundance of substantial evidence" that Alston had become "unsuitable to serve as a firefighter."
Alston began his career in the Brookline Fire Department in 2002, but was injured while on duty in 2010. During his convalescence, his supervisor, Paul Pender, called to check on him, leaving a message on Alston’s voicemail. Pender was a passenger in his son’s car during that call, and when another motorist cut them off, Pender said “f---ing [n-word]” – which was recorded on Alston’s voicemail.
Alston filed a complaint which initiated several tumultuous years at the department, including several confrontations with coworkers. At one point, Alston suggested he was having violent thoughts about his workmates, and might “go postal.”
He wound up on extended leave, and Brookline had set conditions for his return to active duty, including that he undergo therapy to help him deal with stress on the job.
Alston argued it was years of racial hostility within the department that caused the stress, and he refused the therapy and other conditions.
The commission had initially rejected Alston's claims, but last April Wilkins ordered the commission to reopen the case and hold a hearing to investigate the allegations of racial harassment to better evaluate Alston's complaint.
The commission held 10 days of hearings in July and August, and concluded earlier this year that Alston was treated unfairly by Brookline. “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,” the commission ruled in a Feb. 14 decision written by Commissioner Christopher Bowman.
The commission concluded in its ruling that Brookline never took appropriate punitive action against Pender for his racist comment, and that Alston faced repeated retaliation from Pender and other co-workers for reporting it. Pender apologized and was briefly suspended, but shortly thereafter was promoted to Temporary Fire Captain.
Less than a year after the initial comment, Pender reported to the town’s human resources director that he had spoken with Alston and told him “you destroyed my life and ruined my career.” Bowman concluded the town should have “recognized Mr. Pender’s comments for what they were (retaliation),” and that at that point “there would have been no justification for continuing Mr. Pender’s employment with the town.”
But Pender received several more promotions prior to his retirement in 2017. As Captain of Training, he repeatedly discussed the Alston case with fire department trainees, making the point that he had apologized, and Alston was overreacting.
“Put another way,” Bowman wrote, “Mr. Pender was telling every new recruit that if and when a supervisor is heard making a racist comment, it should be considered benign; it should not be reported; and it should be settled in-house with a handshake.”
The town had accepted Pender’s version of events and “actively promoted a false narrative that painted firefighter Alston as a paranoid employee who simply couldn’t 'move on' from racist comments made by a purportedly remorseful supervisor years earlier.”
The commission’s ruling ordered Brookline to reinstate Alston to his position in the fire department, but Louison said Thursday that would create an absurd result: The town would have to continue paying Alston though he would not return to work, effectively creating a permanent "no-show position."
Alston said Thursday he was unsure whether he would ever go back to work at the fire department.
"At this point, I don't know," he told reporters after the hearing. "It's something to think about. I enjoyed being a firefighter. I loved it."
At a select board meeting the week after the commission hearing, more than a dozen Brookline residents showed up to urge the board to simply settle with Alston and not appeal the commission's ruling.
But the select board announced March 12 that it would file an appeal, in part because Alston still has a separate federal civil rights suit pending against the town and several members of the select board.
"This Board wishes to resolve the litigation and we are willing to address Mr. Alston’s concerns," the members said in that statement. "We cannot resolve the civil service case without a resolution of the federal lawsuit."
Alston said Thursday he has no intention of settling the federal case. "That case is going forward no matter what," he said.
Read the Civil Service Commission's findings below:
Alston v. Brookline Civil S... by on Scribd
