Mass. town asks state's highest court to overturn FF's reinstatement after racism suit

Brookline Firefighter Gerald Alston was reinstated after filing a complaint saying he was fired for speaking up about workplace discrimination

Abby Patkin
Wicked Local Northwest, Concord, Mass.

BROOKLINE, Mass. — For years, legal minds and community members alike have debated whether Gerald Alston — the Brookline firefighter fired after complaining of racial bias — should keep his job.

Friday, the state's highest court will take up the case.

The Massachusetts Supreme Judicial Court will hear the town of Brookline's argument against the reinstatement of Firefighter Gerald Alston, who says he was wrongfully fired for speaking up about racial discrimination.
The Massachusetts Supreme Judicial Court will hear the town of Brookline's argument against the reinstatement of Firefighter Gerald Alston, who says he was wrongfully fired for speaking up about racial discrimination. (Photo/Swampyank, Wikimedia Commons, CC-BY 3.0)

Brookline is asking the Supreme Judicial Court to reverse a 2019 state Civil Service Commission decision that reinstated Alston and ruled the town had acted in bad faith and unjustly fired him. (A Suffolk Superior Court judge upheld the ruling in 2019, and Alston was reinstated and given back pay, though he has not returned to work.)

Alston's case dates back more than a decade, when a Brookline Fire Department superior left him a voicemail in 2010 using the "N-word." Alston, who is Black, was placed on paid leave in 2013 after the town claimed he made threatening comments at work, and Alston filed a federal discrimination suit against the town in 2015, alleging a culture of racism and retaliation.

The town fired him in 2016, claiming Alston refused to cooperate and comply with return-to-work conditions. Alston, for his part, maintains the town's hostile work environment impeded his return.

Several groups have filed briefs ahead of Friday's SJC hearing, including Select Board member Raul Fernandez, who has opposed the town's appeal.

"One of our most important duties as elected leaders is to protect our community, including our employees, from racial and other forms of discrimination," Fernandez said in a statement. " Brookline's negligence in failing to provide for a workplace free of racial harassment and the Select Board's failure to respond appropriately when such harassment occurred is what has brought us to this moment."

Here are some of the highlights:

Amicus brief from Massachusetts Employment Lawyers Association and Lawyers for Civil Rights

"Alston's is a classic 'chain of events' story. As the Commission found, based on a preponderance of the evidence, '[the Fire Department superior's] use of the racial epithet fucking [n-word], coupled with subsequent actions and inactions by Town officials at all levels, which compounded the racist comment into an avalanche of unfair, arbitrary, capricious and retaliatory behavior that infringed on Firefighter Alston's civil service rights, made it impossible for [Alston] to perform his job as a Brookline firefighter.' ... Brookline, not Alston, caused this injury."

Amicus brief from Brookline for Racial Equity and Justice, Raul Fernandez and Brookline Budget Justice

"...the Town's true gripe is that allowing racism to fester should not be so costly for the Town, and that it is better to stick the victim of racism with all the costs. ... Only by forcing the Town to internalize these costs can we guide the Town to recognize that there is (and should be) a cost to racism, and to implement antiracist policies that will also drive down their expenditures related to racism."

Combined reply brief from the Town of Brookline

"Since the Commission's decision, the Town has paid hundreds of thousands of dollars in back pay, interest and continuing pensionable, benefitted salary to Alston. The Appellees' position that the Commission's order does not require payments into perpetuity is disingenuous given the Commission's own findings. Alston is an unfit employee who repeatedly used cocaine but would not cooperate with drug tests, and, presumably never will, in light of the Commission's decision."

"Nor could the Town ever take acceptable steps to 'cure' any 'workplace environment' concerns Alston has, since he and [his attorney] would not discuss their concerns with the Town in the past, and presumably never will, in light of the Commission's decision."

Brief from Gerald Alston's team

"Alston and Brookline were unable to agree on a return to work plan and reached an impasse over Alston's request to be heard by the select board. ... At one point, Alston wrote the board's chair that he would comply with conditions but the town was not making changes necessary to ensure his safety. ... The select board did not schedule a meeting with Alston."

Brief from Massachusetts Attorney General Maura Healey, for the state Civil Service Commission

A psychiatrist who evaluated Alston in 2015 placed three conditions on Alston's return to work: mental health treatment, workplace accommodations and drug testing, according to the brief.

"Even if Alston had fully cooperated with respect to the first and third conditions, the question remained as to whether the Town had engaged in good faith efforts to remove racial bias in the workplace; the Commission decided that it had not, but rather had exacerbated Alston's condition. ... Based on these findings of fact, the Commission concluded that the Town acted in bad faith towards Alston by refusing to create an environment where he could safely perform his duties, and then blaming the inability to return on Alston himself."


(c)2021 Wicked Local Northwest, Concord, Mass.

McClatchy-Tribune News Service

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