-: Okay, good morning Counsel.
I'll ask the Clerk to call the first case.
Clerk: SJC-12974,
Town of Brookline v. Gerald Alston.
-: Great, Mr. Padolsky, you're first.
-: Thank you, Your Honor.
May it please the Court, Joseph Padolsky
for the Town of--
(computer notification sounding)
This Court solicited amicus briefs,
on a very specific issue,
and that was whether the Superior Court judge
properly ruled that the Town lacks just cause
to terminate the firefighter from fitness,
where the termination would not have occurred,
but for the Town's racially hostile work environment,
maintained in violation of basic merit principles
as defined Chapter 31, Section one.
The original unanimous conclusion
of the Civil Service Commission,
when it first heard this case was
that the Town's decision was in compliance
with Chapter 31.
Fully aware of Mr. Alston's arguments
as to his unfitness and his argument
that his unfitness was the result of race discrimination.
This goes to many of the issues raised in the papers,
precedent, statutory interpretation, deference.
The Commission cites, a long line of decisions
regarding the ability of an appointed authority
to terminate an unfit employee, regardless of the cause.
The Commission specifically states
under civil service law,
the decision does not turn on whether or not the cause
of the disability is attributable
to the employer, the employee, or a third party.
-: Counsel, can I interrupt you there?
'Cause we're familiar with the facts of your case,
and the law on this
and all the various permutations this case has gone through.
You know, it's taken awhile.
So I'd like to change the focus a little bit
with a hypothetical,
and to take it out of this realm,
that you're in,
so that you don't have to admit to anything
or argue anything you don't want to argue.
And that is, let's take a female plaintiff,
a female employee, who may be throughout the course
of her life has been subject to catcalls,
maybe some sexual assault.
It's a high number of women
who have endured that throughout their lives.
And, and she enters a profession,
maybe one where there are a lot
of men perhaps feeling,
she's grown up now, they're grown up, this won't happen.
And, and she's sexually harassed.
And it really affects her and she complains about it.
And as a result of that complaint, the men double down
and she's ostracized, she's marginalized, she's made fun of.
And so going into work becomes quite traumatic
and affects her mental health.
Would you still say in that case,
she's not been affected by,
that it wasn't the employment environment,
the hostile work environment that caused her
to be unfit for the job?
-: So in your hypothetical, Your Honor,
I think that, that's something that actually is addressed
by a civil service case on record.
And that's the Dalrymple case.
Ms. Dalrymple was a Winthrop police officer,
recently retired.
She had a long history of discrimination
within the department and hostile work environment claims.
And in the course of her tenure, 40-year tenure
with the department, she had many, many issues.
She actually received many verdicts
from a jury, from the MCAD finding in her favor.
Separately, she had a number of civil service issues,
and those civil service issues were addressed
by the Commissions under civil service law.
And so I think your question
has different answers depending upon the forum
in which the case is litigated.
And the phrase, employment environment,
under civil service law, I think means something different
than employment environment under Chapter 151B,
and I think the cases speak to that.
-: What's the difference?
-: Well, under 151B there's
a hostile work environment standard.
That standard is specifically within 151B
and the case law that derives from 151B.
That standard is tested.
It's been up through the Courts at all levels.
There's very specific guides to employees,
employers as to what is and is not discrimination.
It has very specific guides
as to what an employer's responsibility is when
that employer is on notice.
-: Okay, so what's the civil service definition?
-: Under civil service,
there's no specific environment standard.
And that I think is one of the issues with this case.
So the case that I cite,
that many of the parties cite in this matter
is Vinard versus the Town of Canton.
That case also involved a few female firefighter
with gender discrimination claims and--
-: Was it gender or sex counsel?
Sometimes they distinguish
-: I believe they were gender discrimination claims.
The employee in that case brought
an appeal to the Civil Service Commission
and said that "These actions were taken
"against me because of gender discrimination."
And the Commission stated in the decision
that the claims may have merit, but that's for the MCAD,
and if removed the Courts to decide her 151B suit.
That's actually the case
in which the dicta phrase from the Commission,
the phrase from the Commission comes from, dicta.
"The Commission has concurrent authority
"to address such matters as violation
"of basic merit principles of civil service law."
Interestingly, in that case
the Commission doesn't actually address the environment
under the basic merit principles.
Rather it defers to the civil, the MCAD
on a hostile work environment claim.
The Commission-- -: What about causation?
-: Does it address that?
-: Causation for the--
hostile. -: The alleged unfitness.
-: In that case, no, it doesn't.
There are other cases cited by the Commission
in the string cites, in the briefs,
which specifically state what I stated earlier,
which is that when it comes
to fitness evaluations under civil service law,
causation is not part of the standard.
-: Okay, so, okay.
So then let's move to the facts of your case.
So is it your major argument then
that not withstanding any facts,
the basic problem is there's an exclusivity issue
with 151B and the Civil Service Commission
is just not the right place for that challenge?
-: That's one of the major arguments.
Yes, Your Honor.
And part of that is in that Vinard case
the Civil Service Commission sites
Phillips versus Cambridge,
Holden versus the DOC,
and in citing that specifically says,
fairly classic employment discrimination claims are not
something that the Civil Service Commission does.
That's something that should take place at the MCAD.
the very same year, the Commission
issued a decision in Pereira DeAraujo versus
the Abington Police Department, 31 MCSR 59.
And the Commission very specifically states,
"The Commission has no jurisdiction over discrimination."
It was not--
-: Counsel, can I interrupt you for a second?
Joseph: Yes, Your Honor.
-: Failure of having jurisdiction
over a discrimination claim is one thing,
but the Commission does have the ability to determine
whether or not the termination was for just cause.
And I guess I'm struggling with the argument
that in evaluating, just cause,
the Commission cannot,
which I think is your position,
cannot consider whether or not the person was terminated
because of their inability to conform
to an environment that had become racially charged.
I think that at the bottom
that is your position,
that the Commission consider
whether just cause includes the ability of the employee
to conform his conduct to a racially charged environment.
-: That is not quite the position of the Town.
Mr. Alston filed a discrimination claim in Federal Court,
which the Town defended on discrimination law
and Judge O'Toole dismissed the case
at the summary judgment stage, and so the Town--
-: That was for failure to prosecute.
There was never a finding
of no discrimination or discrimination was there?
-: No, Your Honor, that case was on the merits,
substantively on the merits,
involving the Federal Court discovery record,
which was a two and a half three-year discovery record
and the record of the testimony
and the documentary exhibits
before the Civil Service Commission.
The case that Your Honor is referring
to is the Norfolk Superior Court case.
Dalila: Right.
-: That case was specifically
involving Mr. Alston's discrimination claims
both for the 2010 incident
and his claim of a hostile work environment.
And the Commission found that,
that case was dismissed for procedural reasons.
And that's not in accordance
with the actual reason for dismissal
and it's not in accordance with the case law.
That case was dismissed in Norfolk.
It was a charge filed in 2012 at the MCAD,
was removed to Norfolk Superior Court.
That case was--
-: Can I interrupt you?
Just getting back to my question though.
Can in connection with determining just cause,
what legal authority or proposition
would preclude the Commission
from considering whether
or not the employee failed to conform his conduct
to a racially charged environment?
-: So assuming for the sake of answering your question,
that the premise of the question,
that there was a hostile work environment,
that the case law cited by the Commission,
one of which I spoke to already,
Vinard versus the Town of Canton,
Marcus versus the City of Chelsea,
Morgan versus the Town of Billerica,
Puza versus Westfield Police Department,
all within the Commission's April 20, 2017 decision,
specifically say that the cause
of the disabling injury or the cause of the unfitness
is not something that the Commission gets into
in determining whether or not someone's unfit.
And the other issue is the issue of the order--
-: That can't be right.
I mean, if the employer beats the employee up
you know, and he can't do the job,
he can't be returned to work,
they can just fire him?
-: It's not to say Your Honor
that the employee wouldn't have remedies to remedy--
-: The point is civil service remedies.
I mean, the only way you can fire someone
under the civil service laws,
it has to be for just cause.
And basic merit principles explicitly adopt the idea
that discrimination on the basis
of race is not just cause.
That part I don't have any trouble with.
The part I have a real problem with
is the remedies here are so complicated.
Because the remedies for discrimination
under 151B are very subtle and varied.
You can have constructive discharge.
You can get front pay.
You can get back pay.
Here, we're stuck with this very limited remedy
of return to work.
Isn't that the problem?
I mean, I just think you have a loser,
if you're going to argue
that discrimination is completely out of bounds
in the civil service context.
That just seems wrong.
But I see the remedy being too rigid
to deal with the problems we have
which is the employee now may not be able
to be a firefighter and he's been returned to work.
So assume you're wrong for a second,
that race discrimination is not the basis,
that if race is properly considered.
But I don't know how to deal
with the remedy because the remedy seems too rigid.
Can you address that?
Again, I know you're reserving your rights.
You think race, they can discriminate on the basis
of race and it won't be a just cause discharge.
But say we disagree with you on that.
(talking over each other)
I'm concerned that the remedy here doesn't deal
with the fact that someone
can both be discriminated against and unable to do the job.
And it seems to require them to be put back to work.
-: I think that's what civil service law does
require Your Honor, under Section 43,
it's reinstatement to the job that,
that person was terminated from.
And I think that part of the issue here
is that there are laws
in effect under 151B, under Chapter 32,
under Chapter 41, Section 111F,
that specifically deal
with how a person has a remedy when they are unfit
as a result of something that happened at work--
-: Let me ask you Justice Kafker's question
a different way, Mr. Padolsky.
Let's say that the relief from judgment motion
had been allowed in Norfolk Superior Court.
Let's say, and I know you may disagree with this,
all the evidence came in consistent
with what Mr. Alston is alleging.
What would be the remedy?
-: Well, that would be a 151B claim.
So the Court would have plenary authority.
They'd have injunctive relief.
They could issue an equitable order.
They could issue--
-: I know, but I want to be sort of tactile here
with Justice Kafker's question.
What we have here is again, on Mr. Alston's behalf
a hostile work environment.
It's created by the Fire Department,
not by the firefighter.
He just can't go back there.
And yeah, we've got concerns,
even if he were reinstated that he wouldn't be able
to go back because of some other concerns.
What's the remedy look like?
-: He could receive a compensatory award.
There could be a punitive award.
I don't think that that remedy--
-: But that's only under 151B.
I'm trying to, just to circle back to my question
is what do we do?
How does the remedy, I think Justice Lowy
is asking the same question.
But what would be the remedy in the civil service context?
And we got two different prongs.
We have one at-will like Norfolk.
They dismissed it, but not on the merits.
So we can disagree with you on that.
But at the same time
we have discrimination based on race here.
What's the remedy in civil service?
Is your argument because the civil service remedy
is only that you return to work that,
that can't be a remedy because he can't do the job?
Is that your argument?
Because there has to be some remedy
if there's a wrong, isn't there?
-: My position is that, that highlights
why Civil Service Commission is not the jurisdiction,
with jurisdiction over matters such as this,
because they do not have a legislatively prescribed remedy
for the scenario that Your Honors have described.
It's not something that the legislature has ever envisioned.
It's not something that has ever occurred
in civil service law.
-: So you say that legislature has never envisioned it,
but Chapter 31, Section one says
as far as basic principles go
by showing fair treatment of all applicants and employees
in all aspects of personal administration,
without regard for race or color.
Doesn't that demonstrate a legislative intent?
-: That specifically states that in administering
the Commonwealth civil service law,
those factors should not be used.
And this Court's cases speak to that.
The Mamio case, most directly,
that it says very directly that it administering that law
you cannot use any
of the enumerated protected classes including race and--
-: There's just no way we have said that.
I mean, not in this context.
The remedy is exclusive if the case is pending
or there's a final determination on the merits.
So we don't have that here.
I know you're arguing that it's a decision on the merits
but it's a discovery violation.
So we don't have a decision on the merits.
It's not exclusive
but we got a remedy that doesn't make any sense
in the civil service context,
if the person can't do the job.
So I don't know where that leaves us
but it leaves us with great uncertainty, not clarity here.
You're kind of making it simple
but you know, it's just not.
And it just seems, I mean,
I understand because 151B,
the cases weren't properly prosecuted,
we don't have any guidance on this side,
but we're sort of stuck
with a wrong, without the right remedy.
-: I suggest we turn to Counselor Ames and Quinan
and see what they have to say about this.
Attorney--
-: Thank you.
Woman: You're on mute sir.
-: Thank you, Your Honors.
Brooks Ames representing Gerald Alston.
I will take up the Court's question about remedy.
It seems to me that Judge Wilkins got this right,
when he said, if the statute,
the civil service statute provides
that if the municipality fails
to show just cause for termination,
the remedy is reinstatement.
And that does not create a injustice--
-: Well, can I push you then on this?
So I agree that racial discrimination
is a relevant factor under the civil service laws.
I don't have a problem
with that part of your argument.
But your your client doesn't comply
with any of the process,
the drug testing, the appearing
for meetings with the chiefs.
And he's got a very dangerous and important job.
If they can't figure out whether he can do the job,
this rigid reinstatement remedy potentially exposes him,
his fellow fighter fires,
and the public to danger, doesn't it?
I mean, just because it,
and under 151B, there'd be lots of solutions.
He could get a constructive discharge.
He could get front pay.
He'd have a duty to mitigate his damages.
I mean, it makes a lot of sense under 151B.
But this remedy in this context is very limited.
I'm just trying to figure out
how we accomplish all the goals we have to address here.
-: Well, if the reason that he's unable to return
to work is the discrimination,
then that's the heart of it.
Now I take your point that if he can't return to work,
for whatever reason, he's not capable of doing the job
for whatever reason, then there's not a good reason
that he actually be performing the duties
of a firefighter on the job.
But that's not required.
He's currently on the payroll.
He's a firefighter in good standing.
He's just on leave with pay.
And there are remedies--
-: Forever.
-: There are remedies-- -: Forever?
-: I'm just trying to get a sense
of does the Town have the abil...
We say we agree with you, that the Town has
handled him improperly in a discriminatory way,
but now they've gotten their act together
and they have to make sure he can, one,
do the work and that they can't pay someone to do nothing.
Can they?
So what are their options?
-: I think that the Commission's brief
and I'm sorry to steal my brother's thunder here,
but the Commission's brief sets out one statute
that is available to an employer
in the Town of Brookline's position here.
And that statute is the involuntary
accidental disability retirement statute,
which says that if you have an employee
who's been disabled, essentially,
in the line of duty, you can retire them,
even if they don't want to retire.
There's a remedy.
It's involuntary retirement.
So if the Town takes the position,
which I believe the Town does,
which is that Mr. Alston is incapacitated
from performing his duties,
it's not without recourse
in terms of, you know what it can do.
It could choose to involuntarily retire him
and ask the State Retirement Board to put him
on an accidental disability retirement.
That is something that's available to the Town.
It hasn't chosen to do that,
but that is available to it.
I will keep going, but I that's the chief--
-: And that Won't be a violation of the civil service laws?
If they discriminated against him,
it led to his disability.
He now can't do the work.
But they can do that without violating...
Because the civil services ordered him reinstated.
But you're saying that they can do that.
And that, that won't be a subsequent violation
of either 151B or the civil service laws.
Is that what you're saying?
-: Yes, I don't think that, that would be.
I see those as as complimentary statutes in some respect.
Now, the other possibility Your Honors
is that once this case, once the cloud
of this case is removed from Mr. Alston,
because this has created
a reputational harm to Mr. Alston.
He has been branded essentially, an unfit firefighter
by the Town, according to the Town,
not based on its misconduct,
but according to the Town, based on Mr. Alston's misconduct.
Once that cloud has been removed,
Mr. Alston could potentially try
to seek a firefighter position in another jurisdiction.
That's a possibility.
But there would have to be a name clearing
which really only the end of this process can provide.
-: How would that work if he was,
this may not have anything
to do it this particular case,
but how would that work
if he's been involuntarily retired
on accidental disability?
How could he--
-: Well, those are alternative possibilities
that could come out of Mr. Alston being reinstated.
The Town could exercise its right,
to try to involuntary retire him
or something could be worked out
in which he attempts
to work at another department but--
-: Counsel, is there another remedy possible
that once this issue would be ordered,
once this order would be issued,
that Town or the Fire Department could work
out some kind of settlement agreement with Mr. Alston?
-: Yes, that's clearly another remedy,
that the Town could choose to buy him out, for instance.
That's a possibility.
The other possibility is that Your Honors could suggest
that the legislature amend the statute
to provide a particular remedy in this circumstances.
If your view is that the current remedy is too too rigid,
that's another possibility.
The legislature has the power to change the remedy,
if it doesn't view this as flexible enough.
-: There's a federal case.
From what I understand the federal case is on appeal,
is that correct?
-: Yes, Mr. Padolsky and I argued that
to the First Circuit on Tuesday and--
-: If they reverse the decision
of the Federal District Court,
meaning that there's a live discrimination case involved
does that affect our...
If that had been the State Court
that would mean that we'd have a pending 151B case.
If we have a pending federal discrimination case,
does that affect what we can do?
Or is that totally separate?
-: I believe that, that's entirely separate.
I do want to push back on my brother's argument
that there's something significant
about the fact that the District Court
entered summary judgment.
On appeal our argument that we made was
that the summary judgment was entered in error
because the judge chose not to take
into account on the summary judgment record
the facts that have been found by the Commission.
So we don't think it's a useful,
that the federal case isn't a useful guide
for the question that's in front of Your Honors.
-: How would the Federal Court have to defer
to the Civil Service Commission's fact-finding?
-: It doesn't have to defer to the Commission's fact-finding
but with regards to summary judgment
it has to view the facts
in the light most favorable to Mr. Alston
and the Civil Service Commission's report
is the presentation of facts that if credited
by a jury could support the claims
that Mr. Alston is making in Federal Court.
-: And there was no appeal of the Norfolk judgment.
So there was a motion for new trial.
I can't remember what they filed in that case
but that case is dead.
The State 151B case is over and done with
and there's no pending appeal on that, right?
-: Correct, and importantly,
that case concluded in 2014.
So clearly it did not address the question
of whether Mr. Alston was correctly terminated in 2016.
There was a fair amount that occurred between 2014 and 2016.
And judge Wilkins correctly stated in his opinion
that the claimant isn't required to rely on the last straw,
just the last straw when they're alleging
a hostile work environment has caused their inability
to return to work.
-: Chief, could I just,
before we lose Mr. Ames, quick question.
Counsel, I'd just like to get your take
on the argument that the remand was incorrect.
And that the problem here is really
in a way that you've got the civil service dealing
with a medical disability
as a result of a hostile work environment,
and that the civil service
just shouldn't be and is unable to do that.
It doesn't even have the means to do it.
And I guess by way of example,
if it's Dr. Price,
Dr. Price has an opinion, and it seems
like the decision's in contravention of the opinion.
-: Well, as to the Commission's jurisdiction,
it seems to me that the whole purpose
of the civil service law is to protect employees
from bad faith terminations
and this is a classic bad faith termination,
because it's based on something
that's completely out of Mr. Alston's control.
It's a question of bias,
that's reflected in a hostile work environment
that makes it impossible for him to work.
And that goes right to the heart
of what the civil service law is intended to address.
And the particular amendment to that law brings
into that protection explicitly the protection
from racial discrimination.
So it seems to me, this is exactly the sort
of thing that the Commission should do.
And I would hope that the opinion that comes
out of this would encourage the Commission
to continue to do this,
because racism in public safety workplaces
is very divisive and damaging,
not only to the individual employees involved,
but it threatens the operation of the entire department,
because of the paramilitary nature of these departments
where you really have to depend
on the other person and have that trust.
If that trust isn't there
public safety breaks down, cooperation breaks down.
It creates a hazard in the workplace.
So I think this is exactly the sort
of case that the Commission
should be taking up and adjudicating.
-: Any other questions?
Okay, Attorney Quinan, you're on mute.
-: May it now please the Court.
I'd like to begin by recapping,
I think the five options
that we're opening to the parties
in this case to resolve this matter.
First and foremost,
they certainly could have reached
an out of Court resolution of this matter.
Secondly, as my brother mentioned, an involuntary
if necessary disability retirement
was an option in this case.
Thirdly, the Town--
-: Can I ask how that works though?
So that's subject to your other clients,
Purac or whatever, Crabb, or whoever the...
That gonna be dependent on whether they find, right?
So we've got a a civil service remedy
that says he's gotta be reinstated.
And then we've got this other remedy
that you're talking about,
that's totally dependent
on the other clients you represent, right?
It's a bit of an oddity, isn't it?
That we're gonna say that the remedy here
makes sense based on something
we don't even know what the resolution of it will be, right?
-: Well, we do know in this case
that there were multiple mental health treatment providers,
at least four, that unanimously agreed
that Gerald Alston was suffering from a disability
as a result of this hostile work environment.
And that several of them agreed that he was incapable
of returning to work because of the environment.
So that would be the principal--
-: If we issue an order,
and again, I'm trying to see how this plays out
in a way that all everybody's different needs
and the statutory requirements are met.
If we issue an order saying he was discriminated against,
but he may not be able to be reinstated
even though that is a requirement
of the civil service laws.
But that's okay because if he can't do it,
he may get accidental disability.
That's an acceptable legal resolution of this case?
-: Well, as Your Honor pointed out,
it isn't a guarantee
that all the necessary parties would accept this.
So the Commission did what it could do
and what it was obliged to do,
first, by considering the question posed
by Justice Wittland, that, you know
the Commission was obliged to consider
whether because of a work environment
that had become racially charged
and intolerable for this individual.
He wasn't able to fit in.
-: But is that right though?
Because I'm worried that the Commission,
he has to be able to do the job to be ordered reinstated.
That's what I'm worried about.
I get that the Civil Service Commission could take
into account race discrimination.
I get that if they caused his disability
by racial discrimination, they're not off the hook.
But can you order someone back to work,
particularly in a job like a firefighter,
where there's no evidence they can do the job?
-: Well, what the Town could not do is simply cut him loose
and terminate him and say
we have no further obligations to you.
That's what they did.
That's what is unlawful in this case.
And that is why the Commission needed to intervene
and order his reinstatement.
Now it leaves the Town able
to cure the hostile work environment potentially by ensuring
that there is no interaction
between Alston and those who tormented him.
-: If I can interrupt, isn't that really the answer
to Justice Kafker's question,
that civil service has this one remedy, reinstatement.
And if the Town, assuming that it's true,
that it had a racially charged firefighting department
wants to do something,
it's its responsibility to change the environment
and see if Mr. Alston can therefore work
in this new environment, that's not racially charged.
-: Absolutely, and whether that be
within the Brookline Fire Department Station Number Two,
or within the Brookline Fire Department altogether,
or whether they need to rehabilitate him
to the point where he could be employed
by a different community as a firefighter.
Those are all other options,
open to the Town in this circumstance.
-: And you have started delineating
the five options available.
You stopped it two.
What were the other three?
-: So could have cured the hostile work environment,
such that he could go back to the actual job.
They could have, as I said, rehabilitated him
to be able to transfer to a new work environment,
or the final option is what is happening.
He's reinstated and he's placed on paid leave.
Those are the options.
Now to turn back to--
-: Can I ask-- -: Sure.
-: But we also have a lot of fact-finding
by the Civil Service Commission
that he's not cooperating,
that they've asked him to show up
to meet with the Chief and he doesn't show up.
They've asked him to do drug testing
and he refuses to do the drug testing.
(talking over each other)
-: I mean, this isn't the first thing
that needs to happen is
that the Town makes it possible for him to return
to work by curing the racially hostile work environment?
He did ask to meet with the policymaking level
of the Town and he was rebuffed time and again.
One meeting with the Chair of the Board
of Selectmen ended with the Chair
of the Select Board getting
up and leaving the meeting in a huff.
So, you know, the first thing is
that the Town needed to take steps to accommodate him
to cure the system.
-: Mr. Quinan, how do we measure that?
How does the Town measure the abolition
of a racially charged atmosphere?
I think everybody in the world
would want to know that,
if we could measure the elimination
of racism in an institution.
-: Well, that is a very difficult challenge.
No question about that, but certainly engaging
in productive, constructive dialogue
would have been a start.
And we know that even that didn't happen here.
-: I'm just getting to the end point
because we're left with an all or nothing and remedy.
And I understand what the civil suit law is different
than the discrimination laws as well.
But I just think, you know,
saying that once it's assured
for racism is over, I just don't see that.
-: Well, so I think that, that leaves us where we're at,
which is that he's been reinstated
and until the Town can come to an accommodation
with him he's going to remain on paid leave.
-: Any other questions?
Okay, thank you very much, Counsel.
Quinan: Thank you.