Alston v. Town of Brookline

• Decision Date: 07 May 2021
• Docket Number: No. 20-1434,20-1434
• Citation: 997 F.3d 23
• Parties: Gerald ALSTON, Plaintiff, Appellant, v. TOWN OF BROOKLINE et al., Defendants, Appellees, Jesse Mermell, in her individual and official capacities, Defendant.
• Court: U.S. Court of Appeals — First Circuit

997 F.3d 23

Gerald ALSTON, Plaintiff, Appellant,

v. TOWN OF BROOKLINE et al., Defendants, Appellees,Jesse Mermell, in her individual and official capacities, Defendant.

No. 20-1434

United States Court of Appeals, First Circuit.

May 7, 2021

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

Sophia Hall, Chicago, Cook County, IL, Robyn Maguire, Washington, DC, Alison Casey, Boston, MA, and Nutter McClennen & Fish LLP, on brief for Lawyers for Civil Rights, The Boston Society of Vulcans of Massachusetts, and The Charles Hamilton Houston Institute for Race and Justice, amici curiae.

Joseph A. Padolsky, with whom Patricia Correa, Douglas I. Louison, and Louison, Costello, Condon & Pfaff, LLP were on brief, for appellees.

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

SELYA, Circuit Judge.

A voicemail message, containing a crude and highly charged racial slur, sparked a controversy that rocked the tony town of Brookline, Massachusetts (the Town). On December 1, 2015, the controversy spilled over into the federal district court: plaintiff-appellant Gerald Alston, the recipient of the voicemail message, filed this civil rights action alleging violations of 42 U.S.C. §§ 1981, 1983, and 1985. The operative complaint named a long list of defendants, including (as relevant here) the Town, the Brookline Board of Selectmen (the Board), the Town's counsel and human resources director, and select members of the Board (Nancy Daly, Betsy DeWitt, Ben Franco, Kenneth Goldstein, Bernard Greene, Nancy Heller, Jesse Mermell, and Neil Wishinsky).¹ All of the individual defendants were sued in both their personal and official capacities.

The defendants denied liability and — following discovery, the dismissal of the claims against Mermell, and other pretrial skirmishing — moved for summary judgment. The district court granted their motions. See Alston v. Town of Brookline, No. 15-13987, 2020 WL 1649915, at *5 (D. Mass. Apr. 2, 2020). This timely appeal ensued.

We previously noted that, due to the complexity of Alston's appeal, we would resolve it in a series of separate opinions. See Alston v. Spiegel, 988 F.3d 564, 566, 569 n.1 (1st Cir. 2021). In this opinion, we address the appeal only insofar as it relates to the district court's grant of summary judgment in favor of the above-enumerated defendants. For the reasons discussed below, we affirm in part, vacate in part, and remand for further proceedings. Withal, we retain appellate jurisdiction over those aspects of the appeal not yet adjudicated.

I. BACKGROUND

We draw a representative sampling of the facts from the amplitudinous summary judgment record. Alston, a black man, began working for the Brookline Fire Department (the Department) in 2002 as a firefighter. During the spring of 2010, he 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 pick up the telephone, Pender left a voicemail, which concluded with Pender using a racial slur ("f.....g n....r"), apparently in reference to Alston.

Unsure about how to proceed, Alston sought the advice of senior firefighters. He also played the voicemail for the Department's chief of operations, Michael O'Reilly. O'Reilly did not report the incident to the then-Chief of the Department (Peter Skerry) but instead agreed with Alston that Alston would speak with Pender directly.

Before Alston could reach out to Pender, Pender learned through another firefighter that Alston had told O'Reilly about the voicemail. On July 8, 2010, Pender called Alston and assured him that the racial slur was not intended for Alston. Rather, 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.

The next time Alston spoke to Pender was on July 10, 2010. Pender again tried to explain the context in which he had uttered the racist comment. He added 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 Chief Skerry on July 28, 2010. At a meeting two days later attended by Alston, his wife, Skerry, O'Reilly, and then-Town counsel Jennifer Depazo, Alston played the voicemail. In response, Skerry determined that Pender's language constituted a fireable offense and informed Alston that he would advocate for Pender's termination. Alston replied that he did not want Pender to lose his job. Later that day, Skerry transferred Pender to another station.

In August of 2010, the Board met to discuss possible disciplinary action vis-à-vis Pender. Chief Skerry initially recommended a suspension of four tours of duty for Pender, but the Board rejected that recommendation and imposed a negotiated two-tour suspension. This decision took into account Pender's prior record at the Department and his expression of remorse. Along with the suspension, Pender made certain other concessions: he waived his right of appeal, committed to undergo anger management and diversity training and mediation with Alston, and consented to permanently transfer out of the station where Alston worked. Alston was not called as a witness before the Board.

Roughly 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 another firefighter, citing past practice.

On September 17, 2010 (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 his heroism in connection with a 2008 fire. Two days after Alston's return to work, Joe Canney, a fellow firefighter, wrote (on a password-protected union blog to which only union members had access) about a "faceless coward" who was marring Pender's receipt of the award. Inferring that Canney was speaking about him, Alston complained to Skerry, who said that he would request deletion of the post. The post was subsequently deleted.

In October of 2010, Alston told Skerry that he was disappointed with the Town's coddling of Pender. In response, Skerry wrote to Alston, suggesting that he seek mental health counseling. On October 14, Alston began seeing a counselor, and he was subsequently excused from work for days at a time for evaluation and treatment of workplace stress. On November 24, Alston became agitated at work as a result of a "routine scheduling decision." Taken to a local hospital, he tested positive for cocaine.

Alston has presented evidence showing that, in February of 2011, Pender again berated him for reporting the voicemail. Pender allegedly told Alston that he had "destroyed [Pender's] life and ruined [Pender's] career."

Chief Skerry retired later that year, and the Board appointed Paul Ford as the new Chief. In early 2012, Ford met with Alston to talk about how things were between Alston and Pender. Alston told Ford that he wanted to move on from the voicemail incident but that Pender refused even to shake his hand.

Alston was injured in a motor vehicle accident in May of 2012. That month, Alston filed a discrimination charge with the Massachusetts Commission Against Discrimination (MCAD). In November of 2012, 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 worsening 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 and concluded that Alston's allegations were without merit.

On May 1, 2013, Chief Ford recommended Pender's permanent promotion. The Board acquiesced, making permanent Pender's promotion to captain. By the time of this promotion, Alston had noticed that firefighters were shunning him, ignoring him, leaving the common areas as soon as he entered, and leaving him out of family social events (to which he previously had been invited). Alston has also presented evidence showing that Pender used his new position to tell recruits that Alston's lawsuit was "a bunch of lies." Pender's account is different: he testified that he talked with five recruits "who were all minorities" and that all of them were "shocked ... that something so benign is going on seven and a half years later."

On June 17, 2013, Alston filed suit on his MCAD charge in the state superior court. Two days later, a Town human resources official, Leslea Noble, notified Alston that she wished to interview him about complaints that he had voiced to coworkers. Alston did not respond. When Alston's state-court suit became public, the Town's counsel, Joslin Murphy, reminded Pender of his non-retaliation obligations.

In September of 2013, one of the selectwomen, Nancy Daly, circulated a letter from a retired black firefighter. The letter criticized Alston and asserted that it was insulting to all firefighters for Alston to claim that he could not count on fellow firefighters to save him in a life-threatening situation.

It is undisputed that Alston and Pender had a conversation on October 31, 2013. Viewing that incident in the light most favorable to Alston, see Houlton Citizens' Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999), he approached Pender, saying that his lawsuit was not personal and had nothing to do with Pender. The lawsuit, he said, was about the Town respecting him. Pender again apologized for the voicemail message but then admonished...