Court Sides With Ex-Firefighter In Brookline Racism Case - Again

BROOKLINE, MA — A Massachusetts Supreme Judicial court Tuesday sided with former Brookline firefighter Gerald Alston, whose supervisor left a racial epithet on his voicemail and was promoted, while Alston was fired after reporting harassment.

"We conclude that there is substantial evidence to support the commission's determination," a unanimous SJC wrote in its 49-page opinion, and agreed that the commission's earlier order that Alston be reinstated and the town continue to pay him — even if he doesn't physically come to work— stand.

"The commission's findings show that the board's handling of the use of racist language by [Alston's supervisor] was woefully deficient and insensitive given the concerns raised by Alston about racist behavior and retaliation," it read.

The ruling is the latest related to the years-long case.

Alston's case went before the Civil Service Commission, a government agency that regulates the employment and working conditions of municipal employees. At first, the commission sided with the town when Alston was fired in 2016. When Alston's attorney challenged that in Superior Court in 2019 the commission changed course and ruled that Alston should be reinstated, with back pay. In January, despite pushback among Town Meeting members, the Town appealed the 2019 commission decision, arguing in part that they fired Alston for just cause when he refused to meet with them and abide by conditions of reinstatement.

"This argument ignores the key conclusions of the commission - that Alston's inability to work was caused by the town's actions and inactions," the court wrote in its findings.

Patch has reached out to Town Counsel for comment.

The voicemail

In 2010, then-firefighter Alston came forward to report that a racial slur was left on his voicemail by a white supervisor. He had the voicemail to prove it and that claim was not disputed, although the supervisor and an internal investigation concluded the slur was directed at someone else, not Alston. What was disputed, was the handling of the incident. The fire chief at the time told Alston the slur was a fire able offense, but Alston said he did not want the supervisor to lose his job. The then fire chief told Alston at the time the supervisor would be disciplined and would not be promoted. Against the chief's recommendation of a greater punishment, the select board at the time gave the supervisor a small punishment and then three subsequent promotions, according to court records.

The supervisor chastised Alston for reporting him, and Alston then said despite being transferred to a new firehouse, he was harassed by fellow firefighters.

Alston was placed on paid leave in 2013 after the town claimed he made threatening comments at work in response to his treatment, according to the court records. A doctor told the town Alston suffered emotional distress and anger as a result of his treatment in the department. In October 2014, he was placed on unpaid administrative leave. The town fired Alston in 2016, saying he refused to return to duty or work with officials. After the 2019 commission ruling, the town began paying Alston, including back pay.

Whose jurisdiction

The town also argued in their appeal that an order to reinstate an unfit firefighter to the payroll and roster without a requirement that he actually work is beyond the commission's jurisdiction, as it is essentially an order for the town to pay for leave for an indefinite time.

"The problem with the town's argument is that the town has been found responsible by the commission for Alston's unfitness," the ruling read. "The town cannot render him unfit and then refuse to rehire or pay him."

Reaction

Select Board member Raul Fernandez who has been lobbying for the town to end the Alston litigation said the ruling was a long time coming.

"This case has been active for so long, and frankly it should have been over a long time ago," Fernandez said. "Gerald has not just been denied justice by a series of Select Boards, he has had the town add to his injustice, including this board."

Fernandez said that following the Town Meetings in which the town's legislative branch voted to formally apologize to Alston and then to demand the town stop spending money on litigating against him, the town should have stopped.

Instead, he said, those who have been fighting for racial justice in town have been criticized for making the town look bad.

"In reality, it's the decision of those who have been persecuting Alston who have been costing the town financially but in reputation," he said. "It required unanimous supreme judicial court to say 'this is ridiculous.'"

A separate case

Alston and his attorney also brought a federal suit against the Town alleging a systemic pattern of racism and retaliation in 2015. In April 2020, a federal court ruled that there was not enough evidence to prove that the town as well as current and former Select Board members, current and former town staff and the International Association of Firefighters Local 950 had taken part in a pattern of racism and retaliation against a firefighter. Alston and his attorney are appealing that ruling.

• Previously: Brookline Appeals Superior Court Ruling On Firefighter Alston
• Brookline Town Meeting Votes To Block Funding Alston Litigation

Jenna Fisher is a news reporter for Patch. Got a tip? She can be reached at Jenna.Fisher@patch.com. Follow her on Twitter and Instagram (@ReporterJenna). Have a something you'd like posted on the Patch? Here's how.