On March 11, Juan Alexander Concepción, Esq. released his highly anticipated findings from his investigation into the Pender/Alston raced-based statement case. This publication has followed this matter closely, reporting on our findings with a timeline of events on March 2.

The Town hired Concepción on December 19, 2014 to independently investigate assertions made by Brookline Firefighter Gerald Alston about his employment made in a publicly presented letter to the Board of Selectmen on November 24, 2014. 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.

On almost every count, Concepción supported the Town’s determinations, including the length of Pender’s suspension. Attorney Concepción made “Best Practices” observations to assist the Town moving forward. He also recommended the Town and Alston consider private mediation to mend differences and the parties’ relationship, which was supported by the Selectmen. Selectmen Chair Ken Goldstein commented to this publication, “I thought the report was fair, detailed and balanced.

What follows is the March 11 Executive Summary of Concepción’s report.  The March 25 Public Statement by the Brookline Board of Selectmen regarding the case has also been made available.

Executive Summary: March 11, 2015, Report of Juan Concepción Regarding Firefighter Gerald Alston

Findings as to matters raised by Firefighter Alston as to which the Town retained Attorney Concepción as outside reviewer under the Town’s anti-discrimination policy:

  •  The Town’s determination that the racial slur left by Firefighter Alston’s supervisor on his voice mail on May 30, 2010, had not been directed at Firefighter Alston is supported by the record (also noting that the supervisor was nonetheless disciplined).
  • The Town’s determination that it could not identify who inscribed the word “Leave” in the dust or dirt on a fire truck door on or about December 19, 2013, due to lack of evidence is supported by the record.
  •  It is premature for the Town to determine that Firefighter Alston’s complaint of an alleged breach of the confidentiality of his personnel record did not allege a violation of the anti-discrimination policy (noting that the Town has sought further clarification from Mr. Alston).

Observations as to other “determinations” questioned by Mr. Alston in his November 24, 2014, letter to the Board of Selectmen as to which the Town requested Attorney Concepción’s “processes” and “best practices” review:

  • With regard to the “determination that a short suspension was sufficient discipline” for Mr. Alston’s supervisor, Attorney Concepción observed that the discipline imposed was one of other steps the Town took to address the supervisor’s misconduct.
  • With regard to the “determination that [the] supervisor would be eligible for promotion and would in fact be promoted from Lieutenant to Captain” despite promises made to the contrary, Attorney Concepción observed that the record did not disclose any such promises; that the supervisor was not promoted until May 2013, which suggested a “reasonable period” for the “Town to make a well considered and reasoned decision on his promotion; that intervening promotions (one preceding the slur) were temporary promotions to cover long-term absences; and that a decision to by-pass the supervisor in May 2013 could have been challenged by the supervisor under civil service law.
  • With regard to the “determination that an internet posting by a fellow firefighter calling [Firefighter Alston] a ‘faceless coward’” did not violate the anti-discrimination policy, Attorney Concepción observed that there is no indication that the Town made any such determination.
  • With regard to the “determination to conceal from MCAD” Firefighter Alston’s complaint about his supervisor’s message while at the same time engaging it to conduct workforce trainings, Attorney Concepción found no suggestion of efforts to conceal in the record, and that, to the contrary, the Town had credited Mr. Alston’s report and had retained the MCAD to conduct the trainings for the purpose of addressing the misconduct.
  • With regard to the “determination that MCAD trainings in 2010 and 2011 were sufficient to ensure” a discrimination- and retaliation-free environment within the Fire Department, Attorney Concepción observed that there was no suggestion of such a determination in the record, and that, in addition to the trainings, the Town had adopted and widely distributed a comprehensive anti-discrimination policy, and had initiated anti-discrimination training at its fire academy.
  • With regard to the “determination” that Mr. Alston was in violation of the Workplace Safety Policy when he complained about the word “leave”, Attorney Concepción observed that Mr. Alston was found to have been in violation of that policy not on this basis, but rather on the basis of certain statements he made relating to workplace “shootings” on two different dates that were witnessed by multiple employees, together with his demeanor in this time frame.
  • With regard to the “determination” that Mr. Alston was in need of a fitness-forduty examination based on his having complained of the “leave” incident or based on “false statements made about [his] experiences in the Fire House since complaining about [his] supervisor’s racist message,” Attorney Concepción observed that Mr. Alston was determined to be in need of a fitness-for-duty examination not on this basis, but rather based on the same conduct and demeanor on which the Workplace Safety Policy violation finding was premised (see above) and on his own statement to the Fire Chief that he was not focused and worried about his performance should he have to report to a fire.

“Best Practices” observations and recommendations:

  • The Town’s processes and procedures were “suitably responsive to the sensitive matters” at issue.
  • The Town should conduct more regular anti-discrimination training.
  • All investigations under the anti-discrimination policy should be completed in a timely manner.
  • The anti-discrimination policy should be amended to include a time frame for appeals.
  • Town Counsel should not participate as an investigator in order to avoid a “lawyer as witness” conflict.