Alston v. Int'l Ass'n of Firefighters, No. 20-1434

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtSELYA, Circuit Judge.
Citation998 F.3d 11
Parties Gerald ALSTON, Plaintiff, Appellant, v. INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 950, Defendant, Appellee.
Decision Date19 May 2021
Docket NumberNo. 20-1434

998 F.3d 11

Gerald ALSTON, Plaintiff, Appellant,
v.
INTERNATIONAL ASSOCIATION OF FIREFIGHTERS, LOCAL 950, Defendant, Appellee.

No. 20-1434

United States Court of Appeals, First Circuit.

May 19, 2021


Brooks A. Ames, with whom Brookline Justice League was on brief, for appellant.

John M. Becker, with whom James Racine and Sandulli Grace, P.C. were on brief, for appellee.

Before Lynch and Selya, Circuit Judges, and Laplante,* District Judge.

SELYA, Circuit Judge.

Plaintiff-appellant Gerald Alston's supervisor left him a voicemail containing the most inflammatory of racial slurs. The message triggered a lengthy series of events that Alston says culminated in his firing six years later. Alston did not go quietly into this bleak night but, rather, sued in the federal district court alleging, inter alia, violations of 42 U.S.C. §§ 1981, 1983, and 1985. The operative complaint names as defendants the Town of Brookline, Massachusetts (the Town), the Brookline Board of Selectmen (the Board), select members of the Board, the Town's counsel and human resources director, Local 950, International Association of Firefighters (the Union), and a Town Meeting member (Stanley Spiegel). In resolving these myriad claims, the district court first dismissed with prejudice the claims against Spiegel. See Alston v. Town of Brookline, No. 15-13987, 2017 WL 1536213, *1 (D. Mass. Apr. 26, 2017). It then dismissed the claims against a Selectwoman, Jesse Mermell, in an unpublished order. See Alston v. Town of Brookline, No. 15-13987, 2018 WL 3302995, at *2 n.1 (D. Mass. July 5, 2018). Following extensive discovery, the court granted summary judgment, by means of two successive rescripts, in favor of the other defendants. See Alston v. Town of Brookline, No. 15-13987, 2020 WL 1649915 (D. Mass. Apr. 2, 2020) (addressing motions by the Town, the Board, and the remaining individual defendants); Alston v. Town of Brookline, No. 15-13987, 2020 WL 1615408 (D. Mass. Apr. 2, 2020) (addressing the Union's motion).

Alston filed a single notice of appeal, challenging all of these orders (save for the order dismissing the claims against Mermell). After hearing oral argument, we chose to decide the appeal in serial opinions. First, we affirmed the district court's dismissal of Alston's claims against Spiegel. See Alston v. Spiegel, 988 F.3d 564 (1st Cir. 2021). Next, we reviewed the district court's entry of summary judgment in favor of the Town, the Board, and the remaining individual defendants, vacating and remanding as to some claims and affirming as to others. See

998 F.3d 18

Alston v. Brookline (Alston/Town ), 997 F.3d 23, 29–30 (1st Cir. 2021) [No. 20-1434]. In this final opinion, we address the district court's grant of summary judgment to the Union. Concluding — as did the district court — that the record reveals no genuine issue of material fact and that the Union is entitled to judgment as a matter of law, we affirm.

I. BACKGROUND

We rehearse the relevant facts and travel of the case, focusing primarily on Alston's interactions with the Union. The reader who hungers for a more panoramic view may consult our earlier opinion in Alston/Town, 997 F.3d at 29–35 [No. 20-1434 ].

Alston, a black man, began working for the Brookline Fire Department (the Department) as a firefighter in 2002. Shortly thereafter, he became a member of the Union, which represents all firefighter personnel employed by the Town, excepting only the fire chief, the chief of operations, and the civilian staff.

During the spring of 2010, Alston sustained a work-related injury that temporarily put him out of work. On May 30, 2010, Paul Pender, then a lieutenant in the Department and Alston's supervisor, called Alston to check on his well-being. When Alston did not answer, Pender left a voicemail, which concluded with Pender using a racial slur ("f.....g n....r"), apparently in reference to Alston. After consultation with fellow firefighters, he concluded that he ought to reach out to Pender.

Pender, however, beat him to the punch and called him on July 8. He attempted to assure Alston that the racial slur was not intended for him. Instead, it was intended for "a young black gang-banger" who had cut off Pender in traffic. Offended by Pender's explanation, Alston abruptly ended the call.

Two days later, Pender again tried to explain the context in which he had uttered the racial slur. By then, Alston had spoken about the voicemail with Michael O'Reilly, the Department's chief of operations. Pender stated that reporting the voicemail to O'Reilly "was the stupidest thing [Alston] could have ever done." He then asked Alston, "Are you after my job or something?"

Alston filed a written complaint with then-Chief Peter Skerry on July 28. On July 30, Skerry determined that Pender's language constituted a fireable offense and transferred Pender to another station. Disciplinary proceedings took place the next month. At Pender's request, the Union provided him with legal representation. After determining that the racial slur may not have been directed at Alston, the Board imposed a negotiated two-tour suspension. Along with the suspension, Pender made certain other concessions: he waived his right of appeal, committed to undergo anger management and diversity training, agreed to mediation with Alston, and consented to transfer permanently out of the station where Alston worked.

Approximately two weeks after the effective date of Pender's suspension, the Town promoted Pender to temporary fire captain. In doing so, the Town used Pender's greater seniority to break a tie with then-Union President Shaun Fay, citing past practice. Fay did not appeal the Town's decision to promote Pender to the vacancy. Nor did he ask the Union to file a grievance regarding the Town's selection of Pender.

On September 17 (in anticipation of Alston's post-injury return to work), Chief Skerry met with the Department's officers. He reminded them that the Town has zero tolerance for either discrimination or retaliation. A week after that meeting, Pender was given a medal at the White House for

998 F.3d 19

his heroism in connection with a 2008 fire. Two days after Alston's return to work, Joe Canney, a fellow firefighter and Union member, wrote on a password-protected Union blog, to which only Union members had access, a reference to a "faceless coward" who was marring Pender's receipt of the award. The post complained about someone "leak[ing] to the media about our BROTHER[']S alleged acts of misconduct on what should have been the proudest day of their professional lives." Because a news report about Alston's complaint against Pender had recently been published, Alston put two and two together and understood Joe Canney to be speaking about him. Alston complained to Skerry, who responded that he would request deletion of the post. That post was subsequently deleted.

The parties dispute whether Joe Canney was a Union officer at the time he posted to the blog. Alston points to the Union's 2010 tax filings, which list him as its vice-president. But Paul Trahon, the Union President since 2013, testified that the tax filings were inaccurate. Consistent with his testimony, Union meeting minutes from this period list Paul Canney — not Joe Canney — as one of the Union's officers. The tax filings make clear that the two Canneys are separate individuals.

On November 24, Alston became agitated at work in the wake of a "routine scheduling decision." Taken to a local hospital, he tested positive for cocaine.

Read in the light most favorable to Alston, see Houlton Citizens' Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999), the record reflects that, in February of 2011, Pender again berated Alston for reporting the voicemail. Pender allegedly told Alston that he had "destroyed [Pender's] life and ruined [Pender's] career."

Alston was injured in a motor vehicle accident in May of 2012. That month, Alston filed a charge of discrimination with the Massachusetts Commission Against Discrimination (MCAD). In November, he amended the charge to incorporate a claim for retaliation. Specifically, he alleged that he had been "shunned, isolated, and mocked by his fellow firefighters at the direction and instruction of his superiors," that these conditions had been growing worse over the past three years, and that he had repeatedly complained about his plight without any intervention by management. Spurred by Alston's charge, the Town human resources director, Sandra DeBow, launched an investigation. She ultimately concluded that Alston's allegations were without merit.

Alston never complained to then-Union president Fay about any instance of retaliation or about being ignored by other firefighters. Nevertheless — as 2012 drew to a close — Fay learned that Alston had alleged that his coworkers were retaliating against him by ignoring him. Fay questioned Alston's group about the charge, and the members of the group denied that any form of "shunning" was taking place.

On January 4, 2013, Lieutenant Ronald Cronin wrote to the new fire chief Paul Ford requesting that Alston be transferred back to his assigned engine. The stated purpose of this request was to keep Alston either on "street level" or with Lieutenant Justin Robinson at all times in...

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1 practice notes
  • Moore v. British Airways PLC, 21-1037
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • April 29, 2022
    ...the elements of [her] claim in order to survive a motion for summary judgment." Alston v. Int'l Ass'n of Firefighters, Local 950, 998 F.3d 11, 24 (1st Cir. 2021) (internal quotation omitted) (quoting Pina v. Children's Place, 740 F.3d 785, 795-96 (1st Cir. 2014) ).AThe Montreal Convention i......
1 cases
  • Moore v. British Airways PLC, 21-1037
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • April 29, 2022
    ...the elements of [her] claim in order to survive a motion for summary judgment." Alston v. Int'l Ass'n of Firefighters, Local 950, 998 F.3d 11, 24 (1st Cir. 2021) (internal quotation omitted) (quoting Pina v. Children's Place, 740 F.3d 785, 795-96 (1st Cir. 2014) ).AThe Montreal Convention i......

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