State commission rules Brookline was not justified in firing firefighter who complained of racist remark

Gerald Alston.JOHN HILLIARD FOR THE BOSTON GLOBE/File

A state commission ruled last week the Town of Brookline was not justified in firing a black firefighter in 2016 who had complained about a racist remark, and ordered the firefighter be reinstated.

Gerald Alston, who served 11 years on the Brookline Fire Department, was fired in October 2016 after he accused a superior officer of saying a racial slur in 2010, setting off years of public turmoil over the handling of his complaint — and leaving his employment in uncertainty.

The Massachusetts Civil Service Commission said in an 83-page decision that the town’s actions following the 2010 incident were “arbitrary, capricious, and in violation of Firefighter Alston’s rights under the civil service law to be treated fairly.”

“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,” according to the decision.

Alston’s lawyer did not immediately respond to an e-mail Sunday evening.

Brookline officials could not be immediately reached for comment Sunday evening.

Town officials said in 2016 Alston’s employment was terminated based on his “incapacity to perform the essential functions of his firefighting position.”

Previously, the commission had ruled town officials were justified in firing Alston because he was not fit to work.

Alston appealed the decision and Superior Court Judge Douglas H. Wilkins ordered the Civil Service Commission in April 2018 to reconsider if the town discriminated Alston in firing him.

By the time Alston was fired, he had complained about the remark for years. In May 2010, then-Lieutenant Paul Pender called Alston, who didn’t answer his phone.

Pender was in a car with his son when, following a traffic incident, he said the N-word in reference to a driver who was black or Hispanic, according to the commission’s decision.

“Pender then realized that his racist comment may have been inadvertently left on Firefighter Alston’s voicemail, as he had not properly terminated the call on his cell phone,” according to the decision.

Pender apologized for the incident and was disciplined. He was later promoted.

The commission’s chairman, Christopher C. Bowman, wrote in the decision the town’s actions and inactions included failing to comprehend the seriousness of Pender’s use of the epithet, enabling retaliatory behavior against Alston, and attacking Alston’s credibility.

“Accordingly, as the Town has failed to show just cause for terminating Firefighter Alston, the Commission hereby allows Firefighter Alston’s appeal . . . reverses the action of the Town of Brookline, and orders that Firefighter Alston be returned to his position without loss of compensation or other rights,” he wrote.