Brookline v. Alston

NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-12974
TOWN OF BROOKLINE vs. GERALD ALSTON & another.1
Suffolk. January 8, 2021. - April 27, 2021.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,
& Georges, JJ.
Civil Service, Decision of Civil Service Commission, Fire
fighters, Reinstatement of personnel. Fire Fighter.
Municipal Corporations, Fire department. Administrative
Law, Substantial evidence. Employment, Discrimination,
Termination. Public Employment, Termination, Reinstatement
of personnel. Judgment, Preclusive effect. Anti-
Discrimination Law, Race, Employment.
Civil action commenced in the Superior Court Department on
March 18, 2019.
The case was heard by Douglas H. Wilkins, J., on motions
for judgment on the pleadings.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Joseph A. Padolsky for the plaintiff.
Brooks A. Ames for Gerald Alston.
Robert L. Quinan, Jr., Assistant Attorney General, for
Civil Service Commission.
1 Civil Service Commission.
2
Joseph L. Sulman, 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.
KAFKER, J. 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
3
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
4
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 "attached to when [Alston] got on
the job because [Pender] knew, as far as [Alston] could tell,
everything about the station, everything about firefighting . .
2 We acknowledge the amicus brief submitted by Brookline for
Racial Justice and Equity, Raul Fernandez, and Brookline Budget
Justice, as well as the amicus brief submitted by the
Massachusetts Employment Lawyers Association and Lawyers for
Civil Rights.
5
. . [Alston] would ask certain questions and [Pender] always
had the answer."
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
3At the time he used the racial slur, Pender was in a car
with his son driving. The commission credited Pender's
testimony that Pender used the slur to refer to another driver,
not Alston. Pender has described the driver at whom he directed
the slur on various occasions as "a young black kid," a "black
or Hispanic" male, and "some young gangbanger."
6
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.
7
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
4 Alston wanted outside counsel, rather than Sandra DeBow,
to conduct the investigation, and he and DeBow had a heated
argument about this subject at some point.
8
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
5 The board also ordered Pender's permanent transfer from
that station and required mediation with Alston, anger
management training, and diversity training.
6 Pender's two-tour suspension equated to a loss of forty-
two hours of pay. In 2013, however, Pender and the town entered
a settlement agreement in which the town gave Pender forty-two
hours of vacation time. Pender alleged that this time was the
result of long-standing issues over vacation time with the town
and not related to his 2010 suspension, but neither Pender nor
the town was able to provide any documentation to support that
contention.
7 Pender was promoted as part of a series of promotions to
fill vacancies after a deputy chief position opened. His name
was at the top of the civil service list for the temporary
captain position.
9
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:
"FACELESS COWARD
"by Joe Canney
"To the faceless coward who for no good reason, except of
course his own self interest leaked to the media about one
of our BROTHER"s [sic] alleged acts of misconduct on what
should have been the proudest day of their professional
lives is ________. I honestly can't even find an
appropriate word for it. I have been around this job a
long time and seen and heard a lot, but this even exceeds
my wildest expectations of someones [sic] having a personal
agenda to destroy another. This union went through this
type of personal, meritless attacks before and it almost
destroyed us, don't let this ever happen again, for all our
sakes!"
Alston reported the post to Skerry, and Skerry told him that he
would ask the union to remove the post. The town did not
investigate the post or Canney and took no further action
related to the post.
In November 2010, Alston was transported by ambulance to a
hospital after becoming highly agitated by the driving
assignments made by his lieutenant at work. Alston was upset
that he was assigned to a particular vehicle and a less senior
10
probationary firefighter had been assigned to the other vehicle.
The probationary firefighter was Pender's nephew. When Alston
expressed his displeasure with the assignments, another
firefighter responded that the assignments had nothing to do
with Pender. This comment enraged and agitated Alston, and he
agreed to be taken to a hospital. While in the hospital, Alston
tested positive for cocaine and admitted that he had used it
recently for the first time in twenty years. Alston also
disclosed that he had started smoking marijuana in July to deal
with his anger and anxiety and that he had lost forty pounds
over the preceding few months due to his loss of appetite and
stress from work.
Beginning in late 2010, Alston was diagnosed on numerous
occasions with "adjustment disorder."8 Notes from a social
worker interview on October 14, 2010, reveal that Alston
reported experiencing racism at work and explained that his
anger was exacerbated by the way in which his supervisors and
colleagues responded to the incident. He raised similar
concerns with treatment providers in November and December 2010
as well and continued to do so in the ensuing months.
8 One of the psychiatrists who examined Alston described
adjustment disorder as "a DSM-5 diagnosis in which a person has
a psychological response to specific stressors, however the
response is more severe or lasts longer than one would normally
expect."
11
c. Other allegations by Alston. Alston filed a complaint
with the Massachusetts Commission Against Discrimination (MCAD)
on May 24, 2012. He alleged that the town discriminated against
him by promoting Pender after he used the racist slur and that
the town handled the incident differently because of Alston's
race. In an amended complaint filed on November 19, Alston
alleged that he had been "shunned, isolated and mocked by his
fellow firefighters at the direction and instruction of his
superiors for three years with significantly worsening
conditions" and that he had "made repeated complaints to his
chiefs and human resources on a monthly, if not weekly basis"
through 2011 and early 2012.9 The town attempted to investigate
the claims in Alston's amended MCAD complaint, but Alston
refused to participate in the investigation. The town could not
find any corroboration for his allegations.
On at least two occasions, Pender and Alston spoke in
person about the voicemail.10 After each conversation, Pender
took transcript-like notes to summarize the conversations, both
of which he gave to DeBow on November 19, 2013. During the
first conversation, which took place in February 2011, Pender
9 Alston ultimately withdrew his MCAD complaint and chose to
pursue a lawsuit in court.
10Alston approached Pender and initiated the conversation
on each occasion.
12
told Alston, "I don't know how we can be good Gerald, you
destroyed my life and ruined my career. But I'm glad you're
good. . . . I tried to tell you when we talked on the phone
that if you went to the Chief this would create a huge shit
storm." Six days later, Alston reached out to his psychiatrist,
Dr. Michael Kahn, to say that he was "very depressed, anxious,
sleeping badly, crying, [and] not focusing."
On the second occasion, in late October 2013, Pender told
Alston that his name and his family's name were being dragged
through the mud and that Alston's lawsuit against the town "was
a bunch of lies" with "very little truth in it." Pender also
said that his use of the slur was the result of road rage, which
"can be a side effect of [posttraumatic stress disorder], which
[he] had been treated for after a bad fire the previous year."
Pender also questioned Alston about statements in the lawsuit
indicating that Alston said that Pender should not have been
promoted. On that same day, Alston reached out to his
psychiatrist and reported that he felt like "beating someone up"
and was "very focused on . . . wanting to get retribution and
satisfaction for his having been called a racial slur allegedly
two to three years ago."
On May 1, 2013, Chief Paul Ford, the fire chief who
succeeded Skerry, had recommended Pender for permanent promotion
to captain. With regard to how the voicemail incident affected
13
his considerations, Ford later testified in a deposition, "I
mean, we all know that he said something he should [not] have.
. . . I looked at that he was disciplined, so, sort of paid his
price." The board permanently promoted Pender to captain on May
7. In his new role, Pender served as captain of training, which
he described as the second in command of training new
firefighters. When training new recruits, Pender would tell
them "[his] side of the story" regarding the voicemail incident
and that what they heard about the incident from the media "is a
bunch of lies."
On June 17, 2013, Alston commenced a civil action against
the town in the Superior Court in Norfolk County (Norfolk
litigation). The action was based on the same allegations as in
his amended MCAD complaint and alleged discrimination under
G. L. c. 151B. During discovery, Alston provided the following
details on his work environment in response to interrogatories:
"I was sent to Station 4 in December of 2011 or January of
2012. When I arrived I entered the kitchen and said 'good
morning guys.' One of several firefighters replied. I
approached one firefighter to shake his hand at which point
he stood up and walked away. I worked twenty-four hours.
Prior to finishing my shift I went to the dining area to
find out when dinner would be held. I found all of the
firefighters on duty eating together as is the norm. I
asked why I hadn't been told that dinner was happening and
they replied 'what are you talking about.'
"The next morning I woke up and went to breakfast where
several firefighters were sitting with Lt. Pender. Again,
I stated 'good morning guys' and once again no one
responded. When I began to prepare my breakfast they left
14
the room. This was the standard response each and every
time I worked in a station other than my usual Station Five
for several years, until recently when this case was
publicized in a local newspaper article.
" . . .
"Prior to the incident with Lt. Pender I attended many
family social events for my fellow firefighters including
weddings, parties, cookouts, Baptisms, graduations etc.,
etc. After the Lt. Pender incident I was never invited to
those events. Before the Lt. Pender incident I was proud
and privileged to serve as the singer of the national
anthem at graduations and retirement services. After the
Lt. Pender incident, to this day, I have never been invited
to participate in those ceremonies in any way."
This case was dismissed in July 2014 because of Alston's
noncompliance with discovery requests.11
d. "Leave" incident. On December 18, 2013, Alston told a
lieutenant that he planned to ask for a transfer to another
station. The next day, as Alston was preparing to end his
shift, he found the word "Leave" written on the door to his seat
on the fire engine under his jacket. Alston photographed the
message and told several nearby firefighters about it. Alston
told these firefighters that he was not going to put up with
this anymore and that he had kept quiet for a long time, and
said something to the effect of "shooting up the place." When
he returned for his next shift several days later, Alston
addressed the group of firefighters at his station. As he was
11Alston's attempts to obtain relief from the judgment were
denied in July 2015.
15
speaking, he became very agitated and said, "[P]eople go postal
over matters like this." The two lieutenants at the station
concluded that he was likely just "blowing off steam" but
reported the statements to their superior. Ford spoke directly
with Alston at the station, and Alston became extremely agitated
as they spoke. Alston eventually told the chief and deputy
chief, "Look, he's my friend, and you're my friend, and even you
could get caught in a cross-fire." Ford told Alston to go home
that day. When they spoke the next day, Alston agreed that he
was not in a good place with regard to his mental health and
agreed to be evaluated by the town's psychiatrist, Dr. Andrew
Brown. On December 27, 2013 -- five days after Alston had made
the "postal" and "shooting" comments -- the chief told Alston he
was not allowed on town property until Brown completed his
evaluation.12 The town's police department circulated a flyer to
all of its officers on around December 27 with Alston's
photographs and description and information reflecting Alston's
comments about "going postal."
e. Evaluations and failed attempts to return to work.
Brown concluded his first fitness for duty evaluation of Alston
12Brown evaluated Alston on January 6, 2014. Brown told
the chief and DeBow soon thereafter that Alston did not pose any
threat to himself or others. At this point, the stay away order
against Alston was withdrawn. Alston, however, never returned
to work after December 22, 2013.
16
on January 21, 2014, about one month after Alston's comments at
the station. Brown told Ford and DeBow that Alston did not pose
any threat to himself or others. Brown determined that Alston's
ability to regulate his emotions was impaired and that this
compromised his capacity to perform consistently the duties of a
firefighter. Brown opined that Alston needed psychiatric
treatment to address this impairment. Over the next few months,
Brown and Kahn continued to evaluate Alston and communicate with
each other about Alston's condition.
On March 19, 2014, Alston submitted a written request for a
transfer to a smaller station. Around the same time, the town
received Alston's medical records from his November 2010
hospital visit through discovery in Alston's lawsuit in the
Norfolk litigation. These records revealed Alston's cocaine and
marijuana use.
On May 14, 2014, DeBow released two investigatory reports
related to the December 2013 incident. One report considered
whether the "Leave" writing violated the town's
antidiscrimination policy. DeBow concluded that it could not be
determined who had written "Leave" or why. The report also
suggested, without any factual basis, that
"the possibility cannot be discounted that the word 'Leave'
was written by a member of the . . . fraternity to which
the truck had made a run the previous evening or some other
neighbor or member of the public passing by who saw a ready
canvas of salt and sand and took the opportunity to write
17
the word 'leave.' Again, there is no evidence to establish
that this scenario occurred nor is there any evidence that
it did not occur."
In the other report, DeBow concluded that Alston violated
the workplace safety policy with his "shooting" and "going
postal" comments. DeBow found that these comments "caused
[Alston's] co-workers to be reasonably afraid of violent acts in
the workplace." The town imposed a two-tour suspension and a
return to work plan on Alston. The chief wrote to Alston that
he would need to meet several conditions to return to work.13
The chief also told Alston that his transfer request "will be
addressed upon your return to duty."
Alston met with Kahn on October 7, 2014. Kahn conveyed to
the town that Alston was "angry at everyone," "in desperate
financial straits," "living out of his car," upset that the
Norfolk litigation had been dismissed, and concerned that Brown
was lying to him. The town informed Alston that he had used up
his available leave on October 23. On November 24, Alston and
his attorney, accompanied by some of Alston's supporters, showed
13Those conditions were (1) regular and ongoing psychiatric
treatment; (2) execution of a release authorizing the town to
discuss his treatment and progress with his provider; (3)
completion of an anger management course; (4) satisfactory
reevaluation of his fitness to return to duty by a town
psychiatrist; and (5) random urine drug testing for twenty-four
months upon his return to work. Alston satisfied each of the
first three conditions in the following months. Around this
time, his complaint in the Norfolk litigation was dismissed.
18
up for a meeting with the fire chief and DeBow. The meeting did
not go forward, however, as Alston and his attorney insisted
that the supporters be allowed to be present. On the next day,
November 25, DeBow sent Alston a letter that faulted Alston for
not attending meetings at which his return to work (with or
without accommodations) would be discussed, gave Alston until
December 4 to identify reasonable accommodations for his return,
and notified Alston that he had to attend a follow-up evaluation
on December 5. Later, on December 19, a member of the board
wrote a letter to Alston that stated:
"The Board of Selectmen acknowledged more than four years
ago, and this Board acknowledges today, that unspeakable
words were left on your voicemail that should never have
been said. We acknowledge the deep hurt that those words
caused you, and we acknowledge the wrongdoing of your
supervisor. We are also informed that the supervisor who
uttered those words to you and was formally disciplined for
the incident offered his apology to you, and has since
repeatedly expressed remorse and regret for his conduct."
f. Evaluation by Dr. Price. Dr. Marilyn Price conducted
the follow-up evaluation of Alston on February 12, 2015.14 Price
met with Alston for about three hours and reviewed all of his
medical records. She described her role as "to say can [Alston]
go back and work and under what circumstances can he go back to
work."
14The town replaced Brown with Price because Alston no
longer trusted Brown. Alston's concern was partially based on
the fact that Brown did not disclose that he was a former
student of Kahn, Alston's personal psychiatrist.
19
As several other providers had previously done, Price
diagnosed Alston with adjustment disorder. She identified four
stressors that affected Alston: the voicemail from Pender;
Pender's promotion to temporary captain in September 2010; the
reference to the Pender incident by a superior in November 2010;
and discovering the word "Leave" under his jacket in December
2013. Price found that "[h]earing a racial slur from a
Lieutenant he trusted was especially troubling to Firefighter
Alston because it called into question how he was really
perceived by his fellow firefighters and raised concern about
whether others would have his back in dangerous situations."
She explained that the effect of these stressors was
"perpetuated" because legal issues and negotiations "keep the
stressor alive, essentially." She further explained, "Unless
the work environment can be modified so that Firefighter
Alston's level of stress is decreased, it is very unlikely that
he would be able to work effectively and have the level of trust
of his fellow firefighters that is required." Price also gave
great weight to the fact that Alston said that he wanted to
return to work.
Price concluded that Alston could return to work if three
conditions were met. First, Alston would have to receive
monthly treatment from a psychiatrist and weekly treatment with
a therapist. Second, there would have to be reasonable
20
workplace accommodations that reduced the level of stress for
Alston. Third, Alston would have to undergo random drug
screening for two years after he returned to work. The town
sent Price's report to Alston on March 25, 2015.
After Price completed her evaluation and issued her report,
the town attempted to schedule meetings and communicate with
Alston on numerous occasions regarding his return to work.
Beginning in August 2015, the town reached out to Alston or his
attorney a number of times with little success. For example,
after the town identified March 7, 2016, as a return to work
date, it scheduled Alston for a drug test on February 10, but
Alston failed to appear. Then, after demanding to Ford that he
be allowed to meet with the full board in March 2016, Alston and
his attorney did not respond to subsequent calls and letters
from Ford and his successor. Alston and his attorney continued
to ignore the department's attempts to contact Alston and
schedule meetings through August 2016.
Alston commenced a lawsuit in Federal court in December
2015 against the town, the union, and various town officials,
alleging civil rights violations under Federal law. A Federal
judge concluded that Alston could not bring any claims that he
either brought or could have brought in the Norfolk litigation.
Alston v. Brookline, 308 F. Supp. 3d 509, 516 (D. Mass. 2018).
The judge granted summary judgment in favor of the town on
21
Alston's remaining claims, concluding that there was no genuine
dispute of material fact that the town did not discriminate
against Alston. Alston vs. Brookline, U.S. Dist. Ct., No. 15-
13987-GAO (D. Mass. Apr. 2, 2020). Rather, the judge concluded
that the town fired Alston because "he repeatedly declined to
attend meetings he was invited to or present evidence of his own
about his ability to return to work." Id. Alston's appeal from
the summary judgment decision currently is pending.
g. Pender's third promotion and Alston's termination. On
June 16, 2016, Pender was recommended for another promotion to
temporary deputy fire chief. Pender provided the board with a
written statement as it considered the recommendation on June
21. In that statement, Pender told the board that he had
"apologized countless times for [his] action [on the day he left
the voicemail]" and stated, "I don't know what happened back
then between Mr. Alston and the Town, but apparently he felt
slighted somehow. His course of action, which gets the most
attention, is to drag me into it all over again." Several
firefighters spoke on Pender's behalf, decrying the "narrative
fabricated" against Pender and the town. One of the deputy
chiefs said, "[W]e should have all moved on" and lamented the
"smear campaign" led by "a few people with a separate agenda."
At a subsequent hearing on July 12, several members of the
board endorsed Pender's promotion. One member emphasized,
22
"Brookline needs to move on and cease debating past rights and
wrongs. A better future is not possible if we remain trapped in
conversations about perceived past misdeeds or mistakes."
Another stated that
"hav[ing] 'zero tolerance' for any use of the N word, or
any of the other words that have vile and hurtful histories
and usages, would not be good policy where that use is a
one-time and isolated act. Such an act warrants
discipline, but the use of racist slur six years ago,
without more, cannot be justification to permanently
preclude someone form [sic] the benefits of employment he
would otherwise be entitled to receive. . . . [Pender,]
after having made this grievous mistake, did come around
and begin to repair the damage he caused . . . ."
Pender's promotion became effective a few days later, on July
18.
On July 21, 2016, DeBow informed Alston that the town had
scheduled a return to work evaluation for him on August 2. When
Alston failed to appear for the evaluation, the town notified
Alston of his contemplated discharge on August 17. An outside
hearing officer held a hearing on August 30 and issued a report
recommending that the town terminate Alston. The town notified
Alston of the hearing officer's findings on September 30 and
told him that his termination would be considered at the October
5 board meeting. The board voted to terminate Alston at that
meeting.15
Alston had been absent from work on various forms of
15
leave since December 22, 2013.
23
2. Procedural history. Alston appealed from his
termination to the commission. In 2017, the commission upheld
his termination and dismissed Alston's appeal in a summary
decision. The commission concluded that the town "had
reasonable justification to conclude that [Alston] was not then
capable of performing the duties of his position as a . . .
Firefighter and that there was no reasonable basis to expect his
return to duty at any time in the foreseeable future, with or
without accommodations." Alston appealed from this order to the
Superior Court under G. L. c. 30A, § 14. The judge vacated the
commission's order and remanded it to the commission for an
evidentiary hearing. The judge, interpreting the civil service
law, held that "an employer lacks 'just cause' if a termination
would not have occurred but for the employer's racially hostile
environment, maintained in violation of basic merit principles."
The judge also reasoned that "an employer has no right to demand
proof that an otherwise fit employee can perform job duties in a
racially hostile environment." The judge concluded that the
commission could not decide the issues in a summary decision and
remanded the case to the commission for the evidentiary hearing.
On remand, the commission conducted a ten-day evidentiary
hearing. It heard testimony from fourteen witnesses and
received 280 exhibits. As discussed more fully infra, the
commission concluded that the town lacked just cause to
24
terminate Alston and ordered his reinstatement. The town then
appealed from the commission's order to the Superior Court. The
Superior Court judge granted Alston's motion for judgment on the
pleadings. The town appealed.
3. Discussion. The town raises numerous issues on appeal.
At the heart of the town's appeal, however, are two core
arguments. The town first argues that the commission exceeded
its authority by considering claims of discrimination that must
instead be addressed under G. L. c. 151B, and by ignoring the
preclusive effect of prior litigation. The town then argues
that the commission's determination that the town lacked just
cause to terminate Alston is not supported by substantial
evidence. Rather, according to the town, the evidence
demonstrates that the town had just cause to terminate Alston
because he could not perform the duties of a town firefighter
and failed to comply with the town's return to work
requirements. We address each argument in turn infra, starting
with the two relevant statutes and explaining the overlapping
protections they provide, how the statutes interact with each
other, and the remedies each furnishes.
a. Relevant statutory language. Under the civil service
law, G. L. c. 31, an appointing authority cannot discharge or
remove an employee without "just cause." G. L. c. 31, § 41
("Except for just cause . . . , a tenured employee shall not be
25
discharged . . . [or] removed . . ."). Although the civil
service law does not define what constitutes "just cause," we
have held that it exists where the employee has committed
"substantial misconduct which adversely affects the public
interest by impairing the efficiency of the public service."
Doherty v. Civil Serv. Comm'n, 486 Mass. 487, 493 (2020),
quoting Police Comm'r of Boston v. Civil Service Comm'n, 39
Mass. App. Ct. 594, 599 (1996). Such misconduct is generally
understood to include misconduct at work, e.g., Doherty, supra
at 489 (commission found just cause for discipline where
employee was "rude" and "unprofessional" and charged with
unsatisfactory performance), or a failure to perform duties or
meet job requirements, see Cullen v. Mayor of Newton, 308 Mass.
578, 581 (1941) (civil service law permits "removal of those who
have proved to be incompetent or unworthy to continue in the
public service"). See also Nolan v. Police Comm'r of Boston,
383 Mass. 625, 630 (1981) (police department "has the authority
and duty to determine a police officer's fitness to perform his
duties or to return to full working status"). When reviewing
civil service disciplinary actions, the civil service law
mandates that the commission reverse an action of the appointing
authority "if the employee, by a preponderance of evidence,
establishes that said action was based . . . upon any factor or
conduct on the part of the employee not reasonably related to
26
the fitness of the employee to perform in his position." G. L.
c. 31, § 43.
In determining whether the decision was based on improper
factors, we must also recognize that the civil service law
expressly mandates that decisions be consistent with "basic
merit principles." Massachusetts Ass'n of Minority Law
Enforcement Officers v. Abban, 434 Mass. 256, 264 (2001)
(fundamental purpose of civil service law is "to ensure
decision-making in accordance with basic merit principles").
"Basic merit principles" include "assuring fair treatment of all
applicants and employees in all aspects of personnel
administration without regard to political affiliation, race,
color, age, national origin, sex, marital status, handicap, or
religion and with proper regard for privacy, basic rights
outlined in [G. L. c. 31] and constitutional rights as citizens"
(emphases added). G. L. c. 31, § 1.
Despite this express language directed at fair treatment of
all employees regardless of race, the town contends that G. L.
c. 151B provides the exclusive remedy to address the type of
misconduct at issue. This argument oversimplifies the
relationship between the two statutes. Chapter 151B
specifically prohibits a broad range of discrimination in
employment on the grounds of race, sex, sexual orientation,
gender identity, national origin, disability, or religion. See
27
G. L. c. 151B, § 4. It "creates an administrative procedure for
the enforcement of antidiscrimination statutes of the
Commonwealth." See Charland v. Muzi Motors, Inc., 417 Mass.
580, 582 (1994). As relevant here, employees can bring a claim
against their employer under c. 151B for a hostile work
environment. See College-Town, Div. of Interco, Inc. v.
Massachusetts Comm'n Against Discrimination, 400 Mass. 156, 162
(1987) ("The discrimination prohibited by G. L. c. 151B,
§ 4 [1], encompasses a work environment pervaded by abuse and
harassment"). An employee may also bring a claim of
retaliation. See, e.g., Psy-Ed Corp. v. Klein, 459 Mass. 697,
707 (2011) (employee has claim for retaliation under c. 151B
where employee engaged in protected conduct, he or she suffered
some adverse action, and causal connection exists between
conduct and adverse action).16 Chapter 151B provides a
16 Retaliation is a different claim from discrimination
under G. L. c. 151B. See Verdrager v. Mintz, Levin, Cohn,
Ferris, Glovsky, & Popeo, P.C., 474 Mass. 382, 405 (2016). "An
employee bringing a retaliation claim is not complaining of
discriminatory treatment as such, but rather of treatment that
'punish[es]' her for complaining of or otherwise opposing such
discriminatory treatment." Id., quoting Ruffino v. State St.
Bank & Trust Co., 908 F. Supp. 1019, 1040 (D. Mass. 1995).
Therefore, a "claim of retaliation may succeed even if the
underlying claim of discrimination fails, provided that in
asserting her discrimination claim, the claimant can 'prove that
[she] reasonably and in good faith believed that the [employer]
was engaged in wrongful discrimination'" (alterations in
original). Psy-Ed Corp., 459 Mass. at 706–707, quoting Abramian
v. President & Fellows of Harvard College, 432 Mass. 107, 121
(2000).
28
comprehensive set of remedies that address discrimination,
harassment, and retaliation, including those based on race.17
In this case we must determine how G. L. cc. 31 and 151B
interact in cases involving civil service employees. Generally,
"[i]n the absence of explicit legislative commands to the
contrary, we construe statutes to harmonize and not to undercut
each other." Ryan v. Mary Ann Morse Healthcare Corp., 483 Mass.
612, 620 (2019), quoting School Comm. of Newton v. Newton Sch.
Custodians Ass'n, Local 454, SEIU, 438 Mass. 739, 751 (2003).
We "attempt to interpret statutes addressing the same subject
matter harmoniously, 'so that effect is given to every provision
in all of them.'" Green v. Wyman-Gordon Co., 422 Mass. 551, 554
(1996), quoting 2B Singer, Sutherland Statutory Construction
§ 51.02, at 122 (5th ed. 1992). In fact, in an analogous
context, we concluded that the existence of a distinct, but
overlapping, statutory scheme permitted an aggrieved party to
pursue a remedy under either the civil service law or the
17Both courts and the MCAD have broad authority to remedy
c. 151B violations. G. L. c. 151B, § 5. The statute includes a
nonexhaustive list of remedial actions that the MCAD can take,
including "hiring, reinstatement or upgrading the employees,
with or without back pay, or restoration to membership in any
respondent labor organization." Id. See Stonehill College v.
Massachusetts Comm'n Against Discrimination, 441 Mass. 549, 567,
cert. denied sub nom. Wilfert Bros. Realty Co. v. Massachusetts
Comm'n Against Discrimination, 543 U.S. 979 (2004). Damages are
also available, including compensatory damages, front pay,
emotional distress damages, and punitive damages.
29
related statute. See Fernandes v. Attleboro Hous. Auth., 470
Mass. 117, 126 (2014) ("Although both the civil service law and
the Wage Act address wrongful conduct arising in the employment
context, they have distinct purposes and, as a consequence,
provide different remedies for the violation of their statutory
mandates").
In the instant case, G. L. c. 151B provides specific
guidance on how it interrelates with other statutes. General
Laws c. 151B, § 9, provides:
"This chapter shall be construed liberally for the
accomplishment of its purposes, and any law inconsistent
with any provision of this chapter shall not apply, but
nothing contained in this chapter shall be deemed to repeal
any provision of any other law of this commonwealth
relating to discrimination; but, as to acts declared
unlawful by [G. L. c. 151B, § 4], the administrative
procedure provided in this chapter under [§ 5] shall, while
pending, be exclusive; and the final determination on the
merits shall exclude any other civil action, based on the
same grievance of the individual concerned." (Emphases
added.)
The language as to repeal and exclusivity is carefully
drafted here. As the foregoing indicates, nothing about G. L.
c. 151B was intended to repeal any portion of any existing law
"relating to discrimination," which includes the civil service
law protection against discharges without just cause and
enforcement of basic merit principles.18 Instead, G. L. c. 151B
18The civil service system has been in existence since at
least 1884. See St. 1884, c. 320. "Race" was added to the
definition of "basic merit principles" in 1981. See St. 1981,
30
proceedings are exclusive as to "acts declared unlawful" by
c. 151B only when administrative proceedings are pending before
the MCAD, or a final determination on the merits has been made
"based on the same grievance." This prioritization regarding
"acts declared unlawful by [G. L. c. 151B, § 4,]" makes sense
given that G. L. c. 151B is designed specifically to address
discrimination and provides a comprehensive remedial structure
to rectify discrimination. See Green, 422 Mass. at 555 (G. L.
c. 151B is "broad and comprehensive remedial scheme"). Here,
however, Alston's only MCAD proceeding ended several years
before he sought review of his termination with the commission.
There was no proceeding pending under G. L. c. 151B, § 5, when
Alston appealed from his termination to the commission.
Therefore, neither § 9 nor G. L. c. 151B more broadly bar the
commission from considering conduct related to discrimination
when reviewing whether the town had just cause to terminate
Alston.
Moreover, interpreting the civil service law in a way that
permits the commission to consider racist or retaliatory
statements and acts, and the municipality's improper response to
those statements and actions, in the commission's just cause
determination does not displace or undermine the purpose served
c. 767, § 10. General Laws c. 151B originally was enacted in
1946. See St. 1946, c. 368, § 4.
31
by G. L. c. 151B. The just cause analysis may overlap with, but
remain different from, a determination of discrimination. The
commission here focused on arbitrary and capricious decision-
making in response to the racist statement and apparently
retaliatory acts without making express findings of
discrimination or retaliation as defined by G. L. c. 151B. It
need not do so to find a lack of just cause.19 Racist and
retaliatory acts, combined with an arbitrary and capricious
response by the employer, may be found to be sufficient to
support a determination that the discharge was unjustified. A
civil service employee has greater job protection than most
19 As the hearing officer explained:
"It is not necessary to conclude whether the Town violated
the state's anti-discrimination law to decide this appeal
and I have not attempted to do so here. The Commission is
not mandated to function as an alternative to MCAD or the
Court as an adjudicator of the rights of those who have
experienced discrimination or retaliation in violation of
their civil rights or other laws. However, when a civil
service appointing authority commits acts which are
fundamentally unfair and fall within the penumbra of the
prohibited conduct of those laws, it is appropriate for the
Commission to take notice of that misconduct in order to
fulfil the statutory mandate to assure 'fair treatment' of
civil service employees, free from 'arbitrary and
capricious' acts, 'without regard' for an employee's 'race'
or other protected status, and 'with proper regard' for
civil service law and an employee's 'constitutional rights,
as citizens.' G. L. c. 31, § 1."
32
other employees as reflected in the just cause provision, and
additional procedural and job-specific rights.20
From the foregoing, it is clear that the commission's
mandate is to protect civil service employees from termination
from employment for reasons that violate basic merit principles.
As most relevant here, the commission may determine that an
employee has been subject to, and rendered unfit by, racist and
retaliatory acts and an arbitrary and capricious response to
those acts by the municipality. See Malloch v. Hanover, 472
Mass. 783, 799-800 (2015) (promotion and bypass decision tainted
by gender bias would violate basic merit principles). The
commission can further determine that, in these circumstances,
termination of such an employee violates basic merit principles.
More specifically, the commission may find that the employer is
responsible for the intolerable workplace conditions, including
racist and retaliatory acts, that have rendered the employee
unfit to perform his or her duties and resulted in the
employee's discharge, and therefore the employee's unfitness is
not just cause for his or her termination. Cf. Salvi v. Suffolk
County Sheriff's Dep't, 67 Mass. App. Ct. 596, 606-607 (2006)
20We need not decide today to what extent a decision on the
merits rejecting a claim of discrimination under G. L. c. 151B
by either the MCAD or a court would have preclusive effect on
the commission's ability to consider discriminatory conduct as
part of its analysis as to whether a municipality had just
cause.
33
(homophobic slurs, shunning, and inappropriate corrective action
resulting in intolerable workplace conditions and deterioration
of employee's mental health found to constitute constructive
discharge). Rather, the intolerable workplace environment that
the municipality created or sustained is the cause of the
employee's unfitness and unjust termination. Cf. GTE Prods.
Corp. v. Stewart, 421 Mass. 22, 34 (1995) (where employee
resigns because of work environment created by employer that is
"so difficult as to be intolerable," resignation treated as if
employer terminated employee); Salvi, supra. To reiterate, in
making this determination, the commission has the authority to
hear evidence and make findings based on the types of
discriminatory and retaliatory statements and actions that are
proscribed by G. L. c. 151B.21
The town also argues that the commission is barred by claim
preclusion and issue preclusion. The town argues that Alston
previously litigated his claims in the Norfolk litigation, and
the judge's dismissal in that case bars Alston from relitigating
his allegations of discrimination in this case. "Claim
21The town relies on our decision in Charland, 417 Mass. at
586, in which we held that "where applicable, G. L. c. 151B
provides the exclusive remedy for employment discrimination not
based on preexisting tort law or constitutional protections."
As we have explained, however, Alston did not bring an
employment discrimination claim against the town; rather, he
contested whether the town had just cause to terminate him from
his position.
34
preclusion makes a valid, final judgment conclusive on the
parties and their privies, and prevents relitigation of all
matters that were or could have been adjudicated in the action."
DeGiacomo v. Quincy, 476 Mass. 38, 41 (2016), quoting Kobrin v.
Board of Registration in Med., 444 Mass. 837, 843 (2005).
"[C]laim preclusion requires three elements: '(1) the identity
or privity of the parties to the present and prior actions, (2)
identity of the cause of action, and (3) prior final judgment on
the merits.'" DeGiacomo, supra, quoting Kobrin, supra.
On the other hand, "[i]ssue preclusion 'prevents
relitigation of an issue determined in an earlier action where
the same issue arises in a later action, based on a different
claim, between the same parties or [parties in privity with the
same parties].'" DeGiacomo, 476 Mass. at 42, quoting Kobrin,
444 Mass. at 843. "A party is precluded from relitigating an
issue where '(1) there was a final judgment on the merits in the
prior adjudication; (2) the party against whom preclusion is
asserted was a party (or in privity with a party) to the prior
adjudication; and (3) the issue in the prior adjudication was
identical to the issue in the current adjudication,' was
essential to the earlier judgment, and was actually litigated in
the prior action." DeGiacomo, supra, quoting Kobrin, supra.
The judge below concluded that claim preclusion did not
apply because Alston was not raising claims under G. L. c. 151B
35
as he had in the Norfolk litigation. Similarly, the judge
concluded that the Norfolk litigation did not determine any
facts, and therefore, issue preclusion did not apply.
We agree that neither claim nor issue preclusion applies
here. Claim preclusion clearly is inapplicable, as the two
actions involve different claims. The Norfolk litigation
involved claims under G. L. c. 151B; the present case involves a
challenge to Alston's termination under G. L. c. 31, §§ 41 and
43.
Issue preclusion also does not apply. Even if an identical
issue could be identified, which is doubtful here,22 "issue
preclusion can be used only to prevent relitigation of issues
actually litigated in the prior action" (emphasis added).
Kobrin, 444 Mass. at 843-844. There is no indication that the
parties actually litigated the issues of discrimination and
retaliation, as the case was dismissed as a discovery sanction.
The Norfolk litigation involved allegations of racial
22
discrimination based on the voicemail and subsequent acts of
retaliation prior to 2014; the present litigation involves a
challenge to the town's termination of Alston without just cause
in 2016. Although the pre-2014 discriminatory and retaliatory
acts figured into the 2016 analysis, as discussed supra, the
issue whether the town discriminated against Alston under G. L.
c. 151B prior to 2014 is different from whether the town had
just cause to terminate Alston in 2016 under G. L. c. 31, § 41.
Thus, although the two cases involve some of the same underlying
facts, the issues in each case appear to be distinct. See
Kobrin, 444 Mass. at 843 (no issue preclusion where issues not
identical).
36
b. Substantial evidence. The decision of the commission
"will be upheld unless it is 'unsupported by substantial
evidence[,] . . . arbitrary or capricious, an abuse of
discretion, or otherwise not in accordance with the law.'"
Boston Police Dep't v. Civil Serv. Comm'n, 483 Mass. 461, 469
(2019), quoting G. L. c. 30A, § 14 (7). "Substantial evidence
is 'such evidence as a reasonable mind might accept as adequate
to support a conclusion.'" Boston Police Dep't, supra at 474,
quoting G. L. c. 30A, § 1 (6). Importantly, we "give due weight
to the experience, technical competence, and specialized
knowledge of the agency, as well as to the discretionary
authority conferred upon it." G. L. c. 30A, § 14 (7). "This
standard of review is highly deferential to the agency on
questions of fact and reasonable inferences drawn therefrom."
Flint v. Commissioner of Pub. Welfare, 412 Mass. 416, 420
(1992). Accordingly, as the party challenging the commission's
order here, the town "bears a heavy burden." Spencer v. Civil
Serv. Comm'n, 479 Mass. 210, 215 (2018).
We begin with the commission's summary of its decision,
which clearly and concisely encapsulates its findings of fact
and legal analysis:
"A white Brookline Fire Lieutenant made the racist comment
'fucking [n-word]' to describe a motorist who the
lieutenant believed to be black or Hispanic. That racist
comment inadvertently ended up on the voice mail of the
37
lieutenant's employee, Gerald Alston, an African American
firefighter in the Brookline Fire Department.
"Town officials responded with a minor, short-term
suspension of the lieutenant followed by his almost-
immediate promotion. Thereafter, Town officials: granted
further promotions of the lieutenant; failed to prevent
retaliatory behavior against Firefighter Alston; and
enabled the lieutenant to use his position to lobby many
other members of the force against Firefighter Alston and
paint himself as the victim.
"These actions by the Town were arbitrary, capricious, and
in violation of Firefighter Alston's rights under the civil
service law to be treated fairly '. . . without regard to
political affiliation, race, color, age, national origin,
sex, marital status, handicap, or religion and with proper
regard for . . . basic rights outlined in [the civil
service law] and constitutional rights as citizens . . . .'
G. L. c. 31, § 1. 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.
"When a municipality's own violation of a tenured
employee's rights has prevented the employee from returning
to work, as here, the Town cannot use that inability to
work as just cause for discharging the employee from his
tenured position."
We conclude that there is substantial evidence to support
this decision; it is also a correct statement of the law. For
these reasons, we affirm.
Beginning with the original incident, the commission's
findings show that the board's handling of the use of racist
language by Pender was woefully deficient and insensitive given
the concerns raised by Alston about racist behavior and
retaliation. As the commission explained:
38
"The Town's failure to respond to the report of the racial
epithet in a timely manner; their failure to impose a
proper level of discipline; and their decision to
repeatedly promote Mr. Pender showed that the Town failed
to comprehend the seriousness of Mr. Pender's use of the
racial epithet and the damaging impact it had on
Firefighter Alston."
Not only did it take weeks for the department to begin
investigating the incident, but the board also then failed to
conduct any meaningful inquiry into the incident, instead
conducting what the commission described as "an informal
discussion" with Pender and his attorney.23 It also disregarded
23We emphasize today what should no longer need to be said
in 2021 -- the use of "n----r" has absolutely no place in any
workplace environment in the Commonwealth, including among those
subject to the civil service laws. The Appeals Court has
previously condemned the use of "n----r" in this context. See
Green v. Harvard Vanguard Med. Assocs., 79 Mass. App. Ct. 1, 8
(2011) (phrase "fucking [n----r]" is "disgusting, demeaning, and
humiliating" and use of words and their "impact upon those to
whom they are directed . . . is a grave matter"); Augis Corp. v.
Massachusetts Comm'n Against Discrimination, 75 Mass. App. Ct.
398, 409 (2009) ("[This slur] inflicts cruel injury by its very
utterance. It is degrading, it is humiliating, and it is
freighted with a long and shameful history of humiliation, the
ugly effects of which continue to haunt us all. The words have
no legitimate place in the working environment -- indeed, they
have no legitimate place -- and there is no conceivable
justification for their use by a workplace supervisor"). Other
courts have echoed these sentiments, emphasizing how harmful the
word is. See, e.g., Ayissi-Etoh v. Fannie Mae, 712 F.3d 572,
580 (D.C. Cir. 2013) (Kavanaugh, J., concurring) (term "sums up
. . . all the bitter years of insult and struggle in America"
[citation omitted]); Hrobowski v. Worthington Steel Co., 358
F.3d 473, 477 (7th Cir. 2004) (courts "recognize that the [slur]
can have a highly disturbing impact on the listener"); Spriggs
v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001) ("[f]ar
more than a mere offensive utterance," term is "pure anathema to
39
the disciplinary recommendation of the chief of the department
at the time and gave Pender a more lenient punishment.
That Pender was promoted almost immediately after serving
his suspension further compounded the initial failures. Alston
was shocked by Pender's promotion because he had been assured by
the chief that Pender would not be promoted. The town and the
department have attempted to justify this promotion by arguing
that it was automatic because Pender was at the top of the civil
service list and that it was temporary. As the commission
emphasized, candidates at the top of the list easily can be
passed over provided reasonable justification exists. See
Sherman v. Randolph, 472 Mass. 802, 804 (2015) ("Candidates at
the top of the list . . . may be bypassed if the appointing
authority chooses a candidate lower on the eligibility list
based on reasonable justification"). The town or the department
clearly had such justification here given Pender's recent
actions.
Thereafter, Pender was promoted at least two more times,
further compounding Alston's sense that racism in his workplace
was not being addressed. As the commission emphasized:
"After being promoted, Mr. Pender used his position as
Captain of Training to tell his 'side of the story'
African-Americans" [quotation omitted]); Monteiro v. Tempe Union
High Sch. Dist., 158 F.3d 1022, 1034 (9th Cir. 1998) ("the most
noxious racial epithet in the contemporary American lexicon").
40
regarding the incident to all new recruits, telling them
that what they read in the local paper about this matter
was 'a bunch of lies.' . . . This was not a momentary
misstatement by Mr. Pender. Rather, both at the time, and
years later, he would repeatedly make comments suggesting
that his racist comment was overblown and, in turn, that
Firefighter Alston had overreacted to the racist comment.
Most troubling is that, over a period of years, Mr. Pender
would reinforce that message to every new recruit of the
Brookline Fire Department."
The commission also described numerous instances of
retaliatory behavior in the ensuing months and years that the
town failed to investigate or discipline properly. The town did
nothing to investigative the union blog post -- which minimized
the racist comment and retaliated against Alston for reporting
it -- aside from asking that it be removed. It also did nothing
when Pender himself handed the town transcripts of conversations
with Alston in which he "attack[ed]" Alston's decision to report
the incident. When referring to Pender's comments to Alston
regarding his decision to report the incident, the commission
observed that "[i]t is difficult to imagine a more stressful
situation for an employee than when a supervisor, who had
recently made a racist comment, is now attacking the employee
for reporting it." Similarly, the commission identified a
number of ways in which it found that the town acted in bad
faith. One example was the town's unfounded, if not farcical,
suggestion in its official investigative report of the incident
that "Leave" could have been written by a fraternity member or a
41
passerby despite "there [being] no evidence to establish this
scenario occurred."
The commission also pointed to evidence from the members of
the board. Its findings show that "[d]uring the public comment
session, Town officials and employees repeatedly referenced the
remorse and apologies of Mr. Pender and appeared to explicitly
call out Firefighter Alston for his inability to 'move on,'"
ignoring that "Pender had, on multiple occasions, verbally
attacked Firefighter Alston for reporting the incident and
repeatedly minimized his misconduct to fellow firefighters,
including all new recruits," and that other members of the
department had engaged in retaliatory behavior against Alston in
support of Pender.
The commission also made findings regarding the effect of
these actions on Alston: "After reviewing all of the evidence,
including the testimony of Firefighter Alston, [the commission
has] concluded that Mr. Pender's use of the racial epithet
'fucking [n----r],' coupled with subsequent actions and
inactions by Town officials at all levels, which compounded the
racist comment into an avalanche of unfair, arbitrary,
capricious and retaliatory behavior that infringed on
Firefighter Alston's civil service rights, made it impossible
for him to perform his job as a Brookline firefighter." More
particularly, the commission credited the expert testimony from
42
Price to the extent that she concluded that "hearing a racial
slur from a Lieutenant he trusted was especially troubling to
Firefighter Alston because it called into question how he was
really perceived by his fellow firefighters and raised concern
about whether others would have his back in dangerous
situations." Furthermore, the commission adopted the expert's
determination that "Alston developed psychological symptoms in
response to hearing the racial slur from his Lieutenant" and
that Alston was diagnosed properly in 2015 with adjustment
disorder. The commission did not, however, "find that the
evidence supported [Price's] conclusion that Firefighter Alston
would be able to return to work upon meeting the conditions
outlined in her report." The commission rejected this part of
her testimony because "she simply did not have the benefit of
the entire record that was presented to the Commission through
two hundred eighty (280) exhibits and fourteen (14) witnesses
over ten (10) days of hearing."
In light of these findings, we conclude that there is
substantial evidence to support the commission's determination
that the town acted arbitrarily and capriciously and in
violation of "Alston's rights under the civil service law to be
treated fairly 'without regard to . . . race.'" Considering
Pender's racist comment, the retaliatory actions, and the town's
continuously insensitive and inappropriate, if not outright
43
discriminatory, responses, the commission's findings constitute
"such evidence as a reasonable mind might accept as adequate to
support" the conclusion that the town caused Alston's unfitness
preventing his return to work. See G. L. c. 30A, § 1 (6). Cf.
Salvi, 67 Mass. App. Ct. at 606-607.
The town makes several arguments why the commission's
conclusion was not supported by substantial evidence. First,
the town argues that the conclusion that Alston was prevented
from returning to work was erroneous because the commission's
findings demonstrate that the town terminated Alston after his
absence from work for nearly two and one-half years and his
failure to participate in the return to work process. This
argument ignores the key conclusion of the commission -- that
Alston's inability to work was caused by the town's actions and
inactions. This is also the type of difficult, fact-specific
determination that requires deference to the commission if it is
supported by substantial evidence. As we explained in Labor
Relations Comm'n v. University Hosp., Inc., 359 Mass. 516, 521
(1971):
"A court may not displace an administrative board's choice
between two fairly conflicting views, even though the court
would justifiably have made a different choice had the
matter been before it de novo. The judicial inquiry is
limited to a determination whether within the record which
was before the Commission and which it has sent to the
court for review there is 'such evidence as a reasonable
mind might accept as adequate to support' the Commission's
conclusion . . . . If there is, the action of the
44
Commission must be affirmed even though the court would
have reached a different result if it were originally in
the position of the Commission." (Citations omitted.)
The town does not dispute the findings on which the commission
based its decision. It simply argues that the commission should
have reached a different conclusion about Alston's ability to
return to work and the causes thereof based on those findings.
To be sure, much of the conduct that the town points to as
evidence of Alston's lack of fitness is also supported by
evidence in the record. Alston's extended absence from work,
his drug use and mental health concerns, and his steadfast
refusal even to meet with or speak to members of the department
on the return to work process present serious concerns,
especially for public safety workers, and provide justification
for discipline or even termination from employment in other
circumstances, where the commission has not found racist and
retaliatory conduct in the workplace and that the employer's
arbitrary and capricious responses to such conduct, all in
violation of merit principles, rendered the employer responsible
for such absences, drug use, or mental health problems. We read
the commission's decision here, in the context of the highly
unusual facts of this case and Alston's particular mental
illness, to excuse noncompliance with attendance and cooperation
requirements. That is not to say, however, that illegal drug
use, or a failure to participate in a reasonable return to work
45
process, would not be just cause for discipline or termination
under different circumstances.
Ultimately, however, it is the job of the commission, not
this court, to weigh the evidence before it and determine
whether a municipality had just cause to terminate an employee.
Our review is simply to determine whether the commission's
decision is supported by substantial evidence. See Brackett v.
Civil Serv. Comm'n, 447 Mass. 233, 241 (2006). See also Boston
Police Dep't, 483 Mass. at 476. Here, the commission's
essential findings are supported by evidence in the record. The
commission provided detailed findings supporting its conclusion
that racist comments and retaliatory actions and arbitrary and
capricious responses by the town in violation of merit
principles rendered Alston unfit and that there was not just
cause for his discharge despite lack of cooperation with
conditions imposed by the town. The town therefore has not
carried its burden to demonstrate that the commission's decision
was not supported by substantial evidence.
The town raises one more specific issue that we must
address. It argues that the commission unlawfully substituted
its judgment for that of Price, who concluded that Alston could
return to work if he met several conditions. The town argues
that agencies are permitted only to "take notice of general,
technical or scientific facts within their specialized
46
knowledge." G. L. c. 30A, § 11 (5). As the fact finder,
however, the commission was free to credit portions of Price's
expert opinion and disregard others. Police Dep't of Boston v.
Kavaleski, 463 Mass. 680, 694 (2012), quoting School Comm. of
Brockton v. Massachusetts Comm'n Against Discrimination, 423
Mass. 7, 15 (1996) ("The commission . . . is the sole judge of
the credibility and weight of the evidence before it"). See
also Boston Police Dep't, 483 Mass. at 474 & n.24 (court defers
to commission's credibility determinations and factual findings,
including assessment of expert evidence).
Moreover, it was appropriate for the commission to reject
portions of Price's report because it found that she was not
aware of, or did not incorporate into her report, several
important considerations that were presented to the board during
the evidentiary hearing. See Kavaleski, 463 Mass. at 694 ("The
commission was entitled to discredit [an expert's] assessment of
Kavaleski even though Kavaleski offered no expert testimony of
her own. . . . The commission properly explained on the record
its reasons for rejecting portions of [the expert's]
testimony"). Specifically, the commission found that Price was
not aware of the following additional information: the town's
failure to comprehend the seriousness of Pender's use of "n----
r" and failure to take the necessary steps to repair the damage
caused by Pender; the town's enabling of retaliatory behavior
47
against Alston by Pender and others and allowing Pender to paint
himself as the victim; and the town's attacks on Alston's
credibility "that appeared to lack bona fides and proper regard
for fundamental fairness and good faith." The commission
juxtaposed the extensive record it compiled over the course of a
ten-day hearing with the more limited and mostly documentary
information provided to Price by the town.24 The commission also
offered detailed support based on its findings justifying each
of these conclusions and explaining its deviation from Price's
conclusions. There was therefore no error in the board's
decision to diverge from Price's conclusion that Alston could
return to work if several conditions were met.
c. Remedy. All that remains is determining the proper
remedy for Alston's improper termination. The statute is
unequivocal: G. L. c. 31, § 43, states, "If the commission by a
preponderance of the evidence determines that there was just
cause for an action taken against such person it shall affirm
the action of the appointing authority, otherwise it shall
reverse such action and the person concerned shall be returned
to his position without loss of compensation or other rights
. . ." (emphasis added). See Malloch, 472 Mass. at 788, quoting
24 For example, the 2016 hearings at which Pender's
promotion was considered and to which the commission pointed
numerous times occurred well over one year after Price evaluated
Alston.
48
Thurdin v. SEI Boston, LLC, 452 Mass. 436, 444 (2008) ("where
the language of a statute is plain and unambiguous, it is
conclusive as to legislative intent"). This express and
specific language is controlling. Therefore, we conclude that
once the commission concluded that the town lacked just cause to
terminate Alston, the commission was statutorily required to
order Alston's reinstatement.
The town argues nonetheless that an order to reinstate an
unfit firefighter to the payroll and roster without a
requirement that he actually work is beyond the commission's
jurisdiction, as it is essentially an order for the town to pay
for leave for an indefinite time. The problem with the town's
argument is that the town has been found responsible by the
commission for Alston's unfitness. The town cannot render him
unfit, and then refuse to rehire or pay him.25
25We recognize that G. L. c. 151B includes a variety of
remedies for discrimination, providing for a more flexible
response to discrimination in the work force. This helps
explain why G. L. c. 151B provides the exclusive remedy when
there is a pending claim of discrimination or a decision on the
merits on the discrimination claim. Ordering Alston to return
to a work environment in which he cannot currently work is far
from ideal. Nevertheless, reinstatement is the remedy dictated
by the civil service law. We do note that the commission
suggests in its briefing that the town may have the option of
pursuing involuntary disability retirement on behalf of Alston
under G. L. c. 32, § 16. Our holding, however, is simply that
the civil service law requires Alston's reinstatement, and we
express no opinion as to what options the town or Alston may
have going forward.
49
4. Conclusion. For the foregoing reasons, the judgment
affirming the decision of the Civil Service Commission is
affirmed.
So ordered.