Keywords: 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
[Excerpt] – 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.