Town of Brookline v. Alston
| Decision Date | 27 April 2021 |
| Docket Number | SJC-12974 |
| Citation | 167 N.E.3d 385,487 Mass. 278 |
| Parties | TOWN OF BROOKLINE v. Gerald ALSTON & another. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Joseph A. Padolsky, Boston, for the plaintiff.
Brooks A. Ames, for Gerald Alston.
Robert L. Quinan, Jr., Assistant Attorney General, for Civil Service Commission.
Joseph L. Sulman, Waltham, for Massachusetts Employment Lawyers Association & another, amici curiae, submitted a brief.
Jin-Ho King & Ilyas J. Rona, for Brookline for Racial Justice and Equity & others, amici curiae, submitted a brief.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.
The issue presented is whether the Civil Service Commission (commission) can consider evidence related to a racially hostile or retaliatory work environment when assessing whether a municipality had just cause to terminate a tenured civil service employee. The underlying dispute in this case began with a racist comment, apparently on a misplaced telephone call. As Lieutenant Paul Pender was in a car driven by his son, he was cut off by a stranger. Pender referred to the person as a "fucking n----r." Unbeknownst to him, Pender had not properly hung up from a previous call, and he left a record of what he said on the voicemail of fellow firefighter Gerald Alston. Alston is African-American; Pender, his supervisor at the time, is Caucasian. A tumultuous six years of litigation and acrimony ensued, culminating in 2016 with Pender receiving his third promotion since leaving the voicemail and Alston being fired by the town of Brookline (town). When Alston challenged his termination before the commission, the commission first summarily concluded that the town had just cause to terminate Alston due to his extended absence from duty and his failure to cooperate with the town's return to work requirements. Alston successfully challenged that ruling in the Superior Court, and the matter was remanded to the commission for an evidentiary hearing. After that hearing on remand, the commission concluded that there was not just cause for the discharge, as the decision to terminate Alston was "arbitrary, capricious, and in violation of [his] rights under the civil service law to be treated fairly ‘without regard to ... [his] race.’ " The commission ordered his reinstatement, and that decision was affirmed by the same Superior Court judge. The town appealed, and we transferred the matter to this court on our own motion.
We first conclude that the commission can consider, in the context of its analysis whether an employee was fired without just cause in violation of basic merit principles, evidence of discriminatory or retaliatory conduct that is more typically addressed in the context of a claim under G. L. c. 151B. The relevant statutes ensure that civil service employees are not terminated without just cause and that their termination be consistent with basic merit principles. A civil service employee whose unfitness is determined to be caused by racist remarks and retaliation in the workplace and the employer's arbitrary and capricious response to such remarks and retaliation may not be terminated by the employer responsible for causing the unfitness. Applying this standard, we conclude that the commission's determination that the town lacked just cause to discharge Alston is supported by substantial evidence. Finally, as described more fully infra, we reject each of the town's arguments as to why the commission exceeded its authority and lacked substantial evidence for its decision.2
1. Commission's findings. We present the relevant facts as found by the commission. As this case involves events that occurred over the course of six years, and because its disposition depends on the unusual, if not unique, facts found here, we provide a detailed factual and procedural background.
a. Voicemail incident. Alston became a firefighter with the town in 2002. He served on a full-time basis for eleven years. He was considered a "very good firefighter." In 2010, he was assigned to Group 2, Station 5. Pender, then a lieutenant, was one of Alston's supervisors in Group 2. Pender joined the town's fire department (department) in 1984. Prior to May 2010, Pender and Alston had a good relationship. Alston described Pender as someone he
Early in 2010, Alston suffered an injury while on duty that kept him out of work. On May 30, 2010, Pender called Alston to check on his well-being, but the call went to Alston's voicemail. Pender thought that he had ended the call but in fact had not. As a result, Pender left the voicemail on Alston's telephone in which he said "fucking n----r."3 Alston's wife listened to the voicemail first and then told Alston to listen to it. Alston was shocked and hurt by the slur. Unsure whether the voicemail included the slur, Pender called Alston numerous times that same day and in the ensuing days; Alston never returned his calls. Pender testified that he also told other firefighters what happened and "sort of expressed relief [to them] that ... [Alston] was [his] buddy and [he was] sure nothing was going to happen."
Alston sought advice from several senior firefighters on what he should do about the incident. He also spoke with the chief of operations, Michael O'Reilly, shortly after May 30 and played the voicemail for him. O'Reilly did not report the incident to the fire chief or town officials. O'Reilly and Alston agreed that Alston would reach out to Pender directly. Pender and Alston spoke by telephone on July 8, and Pender told Alston that the slur was not intended for him but was directed at "some young gangbanger" who had cut him off in traffic. This further upset Alston, who ended the call. Pender called Alston again two days later and repeated his explanation of the context in which he made the slur. He also told Alston that reporting the incident to O'Reilly was the most stupid thing Alston could have done and asked Alston, "Do you want me to lose my job?"
On July 28, Alston sent a formal complaint to the then fire chief, Peter Skerry. Skerry immediately notified the town's director of human resources, Sandra DeBow. Two days later, on July 30, Alston, his wife, Skerry, O'Reilly, and town counsel met to address the complaint. Alston played the voicemail at the meeting. After hearing the message, Skerry determined that Pender's use of the slur was a fireable offense and told Alston that he would fight for Pender's termination. Alston responded that he did not want Pender terminated. Skerry also told Alston that Pender would be ineligible for a promotion and assured Alston that the department took his complaint seriously. That day, Pender was transferred to another station.
DeBow began an investigation into the incident.4 As part of her investigation, she interviewed Pender on August 2. During that interview, Pender admitted using the slur but maintained that it was not directed at Alston. On August 16, DeBow issued her investigative report, which concluded that Pender's use, during a work-related call, of "profanity and a well-recognized, racially-inflammatory term rises to the level of conduct unbecoming to a firefighter as it would tend to lower the service in the estimation of the [p]ublic, and further that such conduct is also prejudicial to good order." DeBow recommended progressive discipline, Pender's permanent transfer, mediation between Alston and Pender, development of an antidiscrimination policy, and antidiscrimination training, including training on supervisors having a duty to report incidents.
On August 17, the day after DeBow issued her report, the town's board of selectmen (board) held a closed-door disciplinary hearing for Pender. Alston was not called as a witness and did not appear before the board. Skerry recommended that Pender be suspended for four tours (the equivalent of eighty-four hours of lost pay). The board rejected Skerry's recommendation and chose to suspend Pender for two tours with another two tours held in abeyance pending no further misconduct.5 Pender served his two-tour suspension between August 30 and September 6.6
On September 10, four days after he completed his suspension, Pender was promoted to temporary fire captain.7 Alston learned of the promotion on September 15 and immediately called DeBow to voice his objection, particularly given Skerry's representations at the July 30 meeting that Pender would not be promoted. Alston also expressed his agitation with Pender's promotion when speaking with Skerry on October 12.
b. Subsequent incidents in 2010. Before Alston returned to work, Skerry met with the officers to address rumors of backlash against Alston after Pender's transfer from the station. Skerry told the officers that the town had zero tolerance for discrimination or retaliation and that a firefighter had exercised his right to file a complaint and should be treated cordially when he came back to work. Alston returned to work on September 21, 2010.
Two days after Alston returned, Firefighter Joseph Canney posted a message on the union's blog. The commission found that the post was referring to Alston. The post stated:
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