SJC rebukes Brookline, rules town was wrong to terminate firefighter who cited racist work environment

Gerald AlstonNathan Klima for The Boston Globe//File 2019

The state’s high court Tuesday unanimously sided with a Black former Brookline firefighter who has been battling with the town since 2010 over what he has called a racist work environment that was allowed to flourish in the Fire Department.

The Supreme Judicial Court said the town was wrong when it terminated Gerald Alston after he refused to return to the job and stopped communicating with the department, a refusal that Alston linked to his fear of working in a racially hostile environment. Alston also acknowledged using cocaine, the court said, which the town cited when its Select Board fired him in 2016.

Calling the town’s handling of Alston’s complaints as “woefully deficient and insensitive,” the court expanded civil rights protection in the workplace for government employees. The court authorized the Civil Service Commission, for the first time, to consider discriminatory work practices and the harshness of the environment that employees must work within when reviewing a municipality’s decision to fire someone.

“The commission may find that the employer is responsible for the intolerable workplace conditions, including racist and retaliatory acts, that have rendered the employee unfit to perform his or her duties and resulted in the employee’s discharge, and therefore the employee’s unfitness is not just cause for his or her termination,” the court concluded.

The state Civil Service Commission ordered Alston reinstated with back pay in 2019. The SJC agreed, rejecting every argument advanced by lawyers representing the town of Brookline to keep Alston from regaining his job.

The town argued that its decision to fire Alston came after he was absent from work for two and a half years and refused to comply with return-to-work conditions. The SJC, however, ruled that the town did not sufficiently respond to Alston’s complaints and are responsible for the work environment that kept Alston away.

“This argument ignores the key conclusion of the commission — that Alston’s inability to work was caused by the town’s actions and inactions,” Associate Justice Scott L. Kafker wrote for the court.

The dispute began in 2010 when Alston’s then-commander, Paul Pender, mistakenly left a voice mail on Alston’s line in which he referred to another driver using the N-word. Pender was subsequently promoted three times, while Alston entered a now decade-long legal battle with the town.

Alston hasn’t worked at the Fire Department since he was placed on leave in December 2013 after town officials said he made threatening comments. On Dec. 18 that year, Alston told a lieutenant he was planning to ask for a transfer to another station, according to the court’s ruling. Alston said he faced workplace hostility after that and found a written message under his coat that said “leave.”

“The commission’s findings show that the board’s handling of the use of racist language by Pender was woefully deficient and insensitive given the concerns raised by Alston about racist behavior and retaliation,” Kafker wrote. “We conclude that the commission’s determination that the town lacked just cause to discharge Alston is supported by substantial evidence.”

Bernard Greene, chairman of the Select Board, said he had not yet read the SJC ruling and declined comment.

At the board’s meeting Tuesday evening, only one member addressed the court’s ruling.

Select Board member Raul Fernandez said the ongoing battle against Alston has hurt the town financially, as well as its reputation.

“Thousands of hours of in-house counsel time for this case alone, plus half a million dollars in outside counsel, and who knows how much in payouts when the dust settles,” he said, reading from a statement. “The persecution of Gerald Alston by this town’s leadership has been a boondoggle of epic proportions and one that will cost us well into the future.”

Attempts to reach Alston or a lawyer representing him Tuesday were not successful.

The court noted that the town’s arguments for Alston’s termination are supported by evidence and “provide justification for discipline or even termination from employment in other circumstances....” But in this case, the court found that the employer, the town, had caused Alston to be unfit to return to work.

“Considering Pender’s racist comment, the retaliatory actions, the town’s continuously insensitive and inappropriate, if not outright discriminatory, responses, the commission’s findings ... [support] the conclusion that the town caused Alston’s unfitness, preventing his return to work,” Kafker wrote.

Correspondent Christine Mui contributed to this story.