After engaging in discussions with several sources pertinent to this case, these are the events as we’ve come to understand them in the Pender/Alston Case
Gerald Alston is a black firefighter and ten year veteran of the Brookline Fire Department.
Paul Pender is a white Lieutenant in the Brookline Fire Department. He will soon become a Medal of Valor recipient, our nations highest honor for public service, for running into a burning building to save the life of a fellow firefighter in 2008.
Alston injures his back on the job. Two days later, Pender, Alston’s supervisor, calls Alston’s phone while driving to see how he is doing. Pender, angry with another driver, hangs up the phone, but before he does, he unknowingly leaves the message “You Fucking N^@!*r”, in a loud, angry and forceful tone of voice. Gerald Alston’s wife is the first to hear the message on their home voicemail.
Alston reports the incident to an Operations Officer and it goes up the chain of command. Fire Chief Skerry reports the incident to HR Director Sandra DeBow-Huang. At the time no discrimination policy exists that covers anything beyond sexual harassment, although DeBow-Huang had begun working on the policy before the Pender case came to her attention.
Immediate action is taken and Pender is transferred from the Babcock Firehouse he loves. At every firehouse, there is a pecking order of firefighters by seniority and rank. Pender goes from being the senior-most Lieutenant at Babcock to the junior–most Lieutenant at his new firehouse. DeBow-Huang launches an investigation into the matter for submittal to the Board of Selectman.
Upon reflection, Debow-Huang determines that HR’s discovery of the incident was not by Best Practice. Merriam-Webster dictionary defines Best Practice as a procedure that has been shown by research and experience to produce optimal results and that is established or proposed as a standard suitable for widespread adoption. A decision is made to train town supervisors of their duty to report a potential claim immediately. This training goes to all department heads and 175 supervisors and occurs between October and December of 2010.
The memo with the results of the investigation into the Pender case is submitted to the Board of Selectmen for review. The memo is called “Investigation of Complaint, race-based statement.” The finding regarding Pender is that “using 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 Public, and further that such conduct is also prejudicial to good order.”
The memo recommends “progressive discipline” for Pender.
The memo submitted to the BOS for review also says,
“In closing, I must state that FF Gerald Alston has approached this situation, which was personally difficult, with courage, professionalism, and fairness that I have not seen in many employees. Throughout the process he tried to look at the statement in a straightforward and objective manner, trying to understand how this statement could be reconciled with his understanding of a man who had been his Lieutenant, mentor and friend. Rather than lashing out or reacting in anger, which some would say was due, he sought assistance from confidants in the Fire Department and ultimately in the Town. And most strikingly, he immediately sought to turn this very negative occurrence into a positive, not for himself but for the entire Town. FF Alston should be commended for this attitude and understanding which will go far in ultimately putting this matter behind him and moving forward as a stronger firefighter in a stronger, more responsive and racially sensitive department and town.”
In August of 2010, based on the findings of the investigation, the Board of Selectmen, suspend Paul Pender for seven days without pay, which is served from August 30 through September 6 of that year. BOS also demands Pender take several corrective actions, which are not disclosed.
On September 13, 2010, just one week after serving a suspension for racial profanity toward a subordinate, the Brookline Fire Department promotes Paul Pender to Temporary Captain.
Police and Fire officers move around a lot among stations; for example, people get injured and other officers temporarily take their place and move up in rank. So it’s not uncommon for a Lieutenant to temporarily take a Captain’s spot. The collective bargaining agreement requires minimum manning and law requires the town to hire from a list of people who have passed the proper Civil Servants exams to qualify for promotion. There were only two people on the list at the time Pender was promoted and Pender was at the top of the list. The Fire Chief was legitimately concerned about the Department being sued by Pender if Pender was passed over under the civil service law, as well as the collective bargaining agreement. However, another best practice would have been to review this more closely rather than automatically giving him the promotion because he was at the top of the list. It has been reported to this publication the Selectmen were not consulted on the decision to promote Pender.
Alston, who has returned to active duty, finds out about Pender’s promotion from reading a roll sheet at his station. Brook Ames, attorney for Gerald Alston, reported Alston also lost his spot driving one of the fire trucks to Paul Pender ’s nephew.
Pender is summoned to the White House to receive the National Medal of Valor.
In late 2010, the Town of Brookline Human Resource Department institutes the Policy Against Discrimination, Sexual Harassment and Retaliation.
2011 – 2012
Pender’s promotion hurt Alston deeply. His new supervisor, who has undergone training at the Massachusetts Commission Against Discrimination, reports concerns about Alston’s welfare to Human Resources. Alston is upset and his supervisor fears Alston has made statements indicating potential policy violations against him.
Based on the diligence of his supervisor, three investigations are launched to investigate potential complaints, but Alston will not participate in any of the investigations.
Alston eventually files a report with the MCAD but the statute of limitations has expired.
In June of 2013, Alston files a lawsuit in Norfolk Superior Court against the Town of Brookline. It is dismissed in early 2014 for administrative reasons.
Pender is promoted to Captain permanently in 2013. According to the Town,
“This was done with much deliberation and careful consideration. Pender had expressed great remorse, served his suspension and completed all the corrective actions asked of him by the Board of Selectmen. The corrective actions were significant and given in part with Alston’s concerns in mind. The corrective actions are confidential but apologizing to the full fire department was one of them. Since the 2010 incident Lt. Pender had served his position with distinction and the board could not find a reason not to promote him given his otherwise impeccable decades-long record. The Board would have potentially faced both contractual and civil service challenges if it had not promoted Pender.”
In December 2013 the word “Leave” is written on the door of an apparatus Alston mans, in an obvious attempt to send Alston an ominous message. Reportedly, this upsets Alston and he makes comments alluding to how this would make a person go “postal.” Reportedly those on the scene view his comments as innocuous.
Based on comments after the “Leave” incident, Alston is required to take a Fitness for Duty exam. He is judged not to be a threat to himself or others in the workplace. Alston is also judged to be unfit for duty for undisclosed reasons.
Alston is put on paid Administrative Leave. Thereafter he is placed on sick leave. At some point, during the summer of 2014, it becomes apparent Gerald is running out of accrued time and will go on an unpaid leave status. The town asks, and then new Fire Chief Ford orders, Alston to attend a meeting to see if he can return him to work at least in a modified capacity. Alston, through his attorney, refuses.
In the fall of 2014, Alston’s sick time runs out and he stops receiving paychecks.
In an effort to review actions from an independent lens, the town hires Juan Alexander Concepción, Esq. to head up an investigation into how the town handled this case. Concepción has a broad experience in law, focusing his practice on business and commercial litigation and workplace law counseling and dispute resolution. He is a certified trainer on the prevention of unlawful discrimination and harassment in the workplace. Mr. Concepción also has significant experience in the handling of state and federal regulatory investigations. There is no word on when the investigation will be concluded.
In February of 2015, Gerald Alston submits to Chief Ford’s order and begins taking Fitness for Duty examinations. Gerald Alston is temporarily back on paid administrative leave. The Fire Department and Alston are now working together to return him to work.
R. Harvey Bravman, Publisher