Firefighter's Federal Racism Case Against Brookline To Continue

BROOKLINE, MA — A federal appeals court will allow a Black firefighters' civil rights lawsuit against Brookline to continue, according to a May 7 opinion.

The United States Court of Appeals First Circuit opinion comes one week after a state court ruled in Brookline firefighter Gerald Alston's favor.

The new ruling also supersedes a previous federal court decision that came down in Brookline's favor.

"Just as large oaks from single acorns grow, so too — as this case illustrates — sprawling lawsuits can grow from a single, highly charged racial slur. And this suit is not yet at an end," reads the conclusion of the Court of Appeals for the First Circuit in its opinion in Gerald Alston v Town of Brookline.

In the May 7 federal appeals court ruling, the court overturned part of an earlier federal ruling in the case of Firefighter Gerald Alston who filed a lawsuit against the town and town officials, accusing them of retaliating against him when he reported racism within the fire department.

The court said he has the right to continue suing the town and town officials as part of his federal discrimination suit, overturning a 2020 U.S. District Court ruling that sided with the town in saying there was not enough evidence to prove Alston’s claims.

The lower court "abused its discretion in erroneously excluding [the Massachusetts Civil Service Commission decision and findings]," the court wrote, adding that "properly construed" the lower court decision "tips the summary judgment scales and leads us to conclude that there was sufficient evidence from which a rational jury could find that the defendants' stated reason for firing Alston was only a pretext for discrimination."

The court said that looking back at events that spanned many years "precipitated by a supervisor uttering a vicious racial slur" a jury could reasonably conclude the town supported a narrative that the Alston's supervisor was remorseful and Alston paranoid. It also said a jury could conclude that not only was his supervisor's punishment was inadequate, but his subsequent promotions were inconsistent with Brookline's "zero tolerance" policy on racism.

"Drawing all reasonable inferences in favor of Alston, we conclude that a jury could find that Alston's unfitness for duty was not the true reason for his firing. Instead, a jury could find that the true reason for the firing was as a reprisal for Alston's complaints of discrimination and retaliation."

The appeals court sided with the lower court and the town in dismissing Alston's claims against four town officials: Town Counsel Joslin Murphy, former Human Resources Director Sandra DeBow, and former Select Board members Betsy DeWitt and Kenneth Goldstein.

But the court said cases against Former Select Board members Nancy Daly, Ben Franco, Nancy Heller and Neil Wishinsky,and recently reelected Bernard Greene could all continue, though it did not rule out government officials' immunity from civil suits in certain scenarios for them in district court.

This is different from the state court case

At the end of April, the state's highest court sided with Alston and affirmed an earlier state court decision that said the town fired him unjustly in 2016, some six years after he first reported a racist incident and then retaliation among his peers. That Supreme Judicial court case is over.

In 2010, Alston came forward to report 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 fireable 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.

Read more: Court Sides With Ex-Firefighter In Brookline Racism Case - Again

Federal May 7 Case :

Other recent related stories:

• Gerald Alston Wins Case, Encourages Brookline To Make Real Change