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Use of Racial Epithet Strong Enough To Alter Working Environment Long Term

Gerald Alston worked as a firefighter for the Brookline Fire Department. In 2010, Alston was injured on the job and required a temporary leave. While out on leave, Alston’s supervisor Paul Pender left a voicemail for Alston that ended with him uttering a racial slur (f***ing n*****). Alston is a Black man. Alston shared the voicemail with the Department’s chief of operations. That person did not report the slur to the department chief. Instead, they planned for Alston to discuss it with Pender directly. Pender told Alston that the slur was intended for a “young black gang-banger” who had cut him off in traffic. Alston found that explanation offensive. Pender tried again to justify the context and chastised Alston for sharing the voicemail. Alston complained. The Board suspended Pender for two weeks, and Pender committed to attend anger management as well as diversity training. He also consented to a transfer to a different station. However, two weeks later, the Town of Brookline promoted Pender to Fire Captain. As Pender continued to be promoted, the department encouraged Alston to seek mental health counseling, ostracized him, and accused him of telling “a bunch of lies.” After the fire department fired him in 2016, Alston sued.

The First Circuit Court of Appeals reviewed the case on appeal from a Massachusetts Civil Service Commission decision. The court found the Town of Brookline’s reasons for firing Alston could be pretextual. The Town “chose not to impose meaningful discipline” on Pender for his slur, elected to overlook the shunning and ignoring of Alston by other firefighters, and “promoted a false narrative that painted [Alston] as a paranoid employee who simply couldn’t ‘move on.’” Although the events described spanned many years, the court found the sequence was initiated by a supervisor “uttering a vicious racial slur.” The circuit court pointed to language in prior cases finding the single act of speaking the n-word could quickly alter the conditions of a workplace and create an abusive working environment. Given Pender’s use of the epithet, a two-week suspension was insufficient, according to the court. In addition, his promotions were inconsistent with zero-tolerance towards racism, and the defendants worked to protect Pender by encouraging a narrative where Alston was paranoid and Pender remorseful. A jury could reasonably find that the given reason for firing Alston was pretextual.