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Alston v. Civil Service Commission

Superior Court of Massachusetts, Suffolk

April 11, 2018


          File Date April 12, 2018


          Douglas H. Wilkins, Associate Justice of the Superior Court

          The plaintiff, Gerald Alston ("Alston" or "Plaintiff") brought this administrative appeal under G.L.c. 31, § 44 from a decision dated April 13, 2017 ("Decision") by the Massachusetts Civil Service Commission ("Commission"). Without benefit of an evidentiary hearing, the Decision upheld the defendant, Town of Brookline’s ("Town" or "Brookline") action terminating Alston’s employment with the Brookline Fire Department, where he had been a firefighter since 2002. After the Commission filed the Administrative Record ("AR") and a Supplemental Record, the Plaintiff filed "Gerald Alston’s Motion for Judgment on the Pleadings" ("Plaintiff’s Motion") pursuant to Superior Court Standing Order 1-96. The Town opposed that motion and filed "Defendant Brookline Fire Department’s Cross Motion for Judgment on the Pleadings." ("Defendant’s Motion.") After hearing on February 15, 2018, the Plaintiff’s Motion is ALLOWED and the Defendant’s Motion is DENIED.


         The undisputed facts of record, and inferences favorable to Alston, as party opposing summary decision, would support (and might compel) a finding that Alston was the victim of overt racism and official tolerance of a racially hostile environment in the Brookline Fire Department. The evidence warrants the following additional factual conclusions. Alston would not have been terminated but for that discrimination, which caused him serious psychic damage. In addition, the Town ordered him to prove not only (1) his fitness as a firefighter, but also (2) his ability to return to and endure an unlawful, racially hostile environment. It fired him for declining to make those showings. Alston reasonably viewed the Town’s second requirement as unwarranted (and unlawful).

         The evidence supported the following additional subsidiary findings of fact. Brookline Fire Lieutenant Paul Pender left a racial slur ("fucking nigger"[1]) on Alston’s voice mail in May 2010. Lt. Pender later apologized and, adding insult to injury, said his statement was not about Alston but a black "gangbanger" who cut him off in traffic. Alston is African-American.

         After Alston complained about these two racial slurs, the Brookline Fire Department disciplined Lt. Pender for two tours (four days) in August 2010. But it promoted Lt. Pender to Acting Captain in September 2010. In July 2016, Brookline appointed then-Captain Pender as the Brookline Fire Department’s Acting Deputy Fire Chief. It might turn out that Acting Deputy Pender has grown beyond the stage he was at in May 2010, but where the Commission did not even hold a hearing, the court has no choice at this point but to draw the inference that the Town willingly appointed a known racist, particularly where other evidence tended to show a racially hostile working environment. The Hearing Officer himself acknowledged that Brookline’s conduct "raised an eyebrow" and offered the following footnote:

In particular I note the elevation of a fire officer to the position of Deputy Fire Chief after having been disciplined for his racially-insensitive behavior, the allegedly cavalier approach to the "Leave incident" [discussed below] which resulted in disciplining Firefighter Alston for his outburst but deeming the anonymous note that prompted his outburst not "inherently" discriminatory in nature and worthy of no further investigation, and the suggestion by the Brookline DICR Commission [Diversity, Inclusion and Community Relations Commission] that a "culture of institutional racism" existed in Brookline and needed to be addressed with "extreme urgency ... with actions not words."

AR. 503 n.12. The record also supports the inference-which must be taken as true at this point-that Brookline’s racially hostile environment has caused the very same problems upon which Brookline relies to prove Alston’s alleged "unfitness":

As a direct result of the racial slur, subsequent experiences of bias, retaliation and a hostile work environment, Mr. Alston is no longer able to trust his co-workers in [the] performance of life threatening duties.

         Report of Dr. Cynthia Carter (AR 503).

         This may be enough to warrant reversal, but the record shows additional background facts as well, many of which further support a conclusion of a racially hostile environment. On December 19, 2013, Mr. Alston "saw the word ‘Leave’ drawn in the dust accumulated on a piece of BFD apparatus" ("leave incident"), which he took as "a highly offensive attack on him personally." A.R. 486. "[A]t some point during the discussion, he mentioned the phrase ‘going postal, ’" although the content and intent of that remark is unclear enough that the court must assume, on summary decision, that this did not refer to actions by Alston himself. Id. Following the leave incident, Mr. Alston was placed on administrative leave pending fitness for duty determination. Id.

         Dr. Andrew Brown evaluated Mr. Alston. Dr. Brown concluded "that Firefighter Alston was not fit for duty due to his difficulty in controlling his behavioral outbursts in the workplace, and Firefighter Alston’s insistence that he be insulated from any risk of job termination if such outbursts should occur in the future." Id. at 199. Subsequently, Dr. Marilyn Price evaluated Mr. Alston on February 12, 2015. In a report dated March 18, 2015, she concluded that "Firefighter Alston would be able to return to work full time if a return plan can be arranged with sufficient accommodations to reduce his stress and if Firefighter Alston commits to appropriate treatment [she] would recommend." Id. at 225. Her recommendations were: (1) "treatment with a psychiatrist and a therapist ... to be better able to handle stressors he is likely to encounter upon returning to work," id.; (2) modification of the work environment "so that Firefighter Alston’s level of stress is decreased," id. at 227; and (3) "random toxic screens for a period of at least 2 years to ensure that he does not rely on alcohol, cocaine or marijuana to deal with his symptoms," id.

         Following Dr. Price’s evaluation, Fire Chief Paul D. Ford sent a letter dated March 25, 2015 to Mr. Alston along with a copy of Dr. Price’s report. A.R. 177. In his letter, Fire Chief Ford noted Dr. Price’s specific recommendations for Mr. Alston’s return to work and requested a meeting to be held on April 2, 2015. Id. On February 5, 2016, the Town Counsel noted that it anticipated Mr. Alston’s return to work and listed three conditions. Id. at 229-30. Specifically, the Town requested that Mr. Alston (1) return medical releases so that it "may confirm his treatment in compliance with" Dr. Price’s first condition; (2) schedule a meeting with Fire Chief Ford to discuss "reasonable accommodations"; and (3) attend pre-return toxic drug screen. Id. at 230. On February 17, 2016, the Town Counsel noted that Mr. Alston failed to meet the conditions. Sup. A.R. 66. On May 11, 2016, Fire Chief Ford requested a meeting to be held on May 18, id., 235, which Mr. Alston appears to not have attended, see id. at 236.

          On June 8, 2016, Mr. Alston met with Acting Fire Chief Ward. See id. at 239. On June 14, 2016, Town Counsel requested a medical release and a copy of Mr. Alston’s medical evaluation. Id. On July 21, 2016, the Town requested that Mr. Alston submit his medical evaluation and toxic screen as part of fitness to duty evaluation. Id. at 241. On August 17, 2016, the Town notified its intent to terminate Mr. Alston citing his alleged failure to provide medical documentation indicating that he has complied with conditions previously set by the Town or that he has work capacity. Sup. A.R. 16.

         On October 5, 2016, The Town officially discharged him from his employment as a firefighter, effective October 5, 2016 "on the ground of incapacity to perform the essential functions of [his] firefighter position." A.R. 83-84. The Town based its decision on Mr. Alston’s failure "to participate in the interactive dialogue or otherwise return to work or produce sound and sufficient evidence as to why he cannot return to work." Id. at 112. The Town communicated the decision to Mr. Alston by a letter dated October 6, 2016. See id. at 83-84.

         In a report dated October 18, 2016, Dr. Carter concluded that "Mr. Alston is not able to return to work as Brookline Fire Fighter under any circumstance, either on full or restricted duty. I cannot identify any policy, training, or other educational tool that would alter this." A.R. 296.

         The Commission concluded that there was just cause for terminating Mr. Alston. It determined that "[d]espite numerous requests, he never provided any documentation necessary to establish his compliance with the counseling he required as a condition to return to work; he repeatedly failed to appear for drug screens and return to work evaluations scheduled for him; he repeatedly failed to participate in meetings with Fire Chief Ford and his successor Acting Fire Chief Ward, to develop the accommodations that would facilitate his return to work." A.R. 500. It further determined that "[a]t no time after he left work in 2014 did he express a specific intent or ability to return to work as BFD Firefighter, with or without accommodations." Id.

         The Commission did not consider the medical report prepared by Dr. Cynthia Carter. Id. at 500-01.[2] Neither party argues whether the Commission committed an error in not considering Dr. Carter’s report. See Pl.’s Mem.; Def.’s Opp’n; Pl.’s Reply.

         The court considers additional facts below, in the course of the Discussion.


         Under G.L.c. 31, § 44, the Court may set aside the Decision if it determines "that the substantial rights of any party may have been prejudiced because the agency decision is in violation of constitutional provisions; in excess of statutory authority or jurisdiction of the agency; based on an error of law; made on unlawful procedure; unsupported by substantial evidence; unwarranted by the facts found by the court on the record as submitted or as amplified; or arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with law." Malloch v. Town of Hanover,472 Mass. 783, 795 (2015) (internal quotation marks omitted), quoting Rivas v. Chelsea Housing Authority,464 Mass. 329, 334 (2013). When reviewing an agency decision, the court must give "due weight to the experience, technical competence, and specialized knowledge of the agency, as well as to the discretionary authority conferred upon it." ...

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