Swampscott Released Formal Response To Discrimination Complaint

SWAMPSCOTT, MA — The official town of Swampscott response to a discrimination complaint from a female police officer candidate filed against Town Administrator Sean Fitzgerald indicates the town findings that any disconnect was on one level a misunderstanding about the wording of a question during the interview process while the complaint itself is part of a larger objection to the town's move away from Civil Service to a more interview-based process designed to bring more diversity to the town's public safety departments.

The town released the official response to the complaint filed with the Massachusetts Commission Against Discrimination that recently led to several heated and emotional exchanges between Town Administrator Sean Fitzgerald, Select Board members and the public during Select Board meetings.

(Also on Patch: Swampscott Select Board Backs Town Administrator In Complaint)

"It's the Board's responsibility to protect the privacy and rights of town employees," Select Board Chair David Grishman said. "Given that in this circumstance, both the accuser and accused are both town employees, and especially since the MCAD complaint but not the town's response memorandum was previously released to the media, the Board decided that the interest of all concerned would be best protected with the public disclosure of these documents."

In that response, the town concluded that "the balance of information here does not support a finding that (the complainant) was subjected to discrimination on the basis of sex as defined by the law. The evidence at most suggests a misunderstanding by a candidate that made her feel uncomfortable, and efforts by her future colleagues to take advantage of an opportunity to embarrass a public official in retaliation for his validly exercising authority in a manner they did not find agreeable.

"This case lacks merit, and should be dismissed."

According to the town report, Fitzgerald is accused of asking the female police candidate: "(I)f you could change one thing about yourself, what would it be and why?"

The report said the candidate stated she wished she were "shorter," an apparent belief that the question was in relation to a physical attribute. While the report said Fitzgerald did not intend it that way, and the question was more related to determining "self-awareness" or potential for "self-improvement," the belief on behalf of the interviewee that the question was based on her appearance made her feel uncomfortable both during the rest of the interview and subsequently.

"There are ultimately a number of reasonable explanations by which it can simultaneously be true that Mr. Fitzgerald did not ask for the complainant to comment on her physical characteristics while the complainant was uncomfortable during the interview, and even that she believed she was expected to answer with a physical characteristic," the town response said. "That subjective belief, however, does not compel a conclusion that Mr. Fitzgerald indeed asked for a physical characteristic. Rather, the combination of Mr. Fitzgerald's notes, experience conducting interviews, and familiarity with this question about what a candidate would change, more reasonably supports the conclusion that he did not ask the complainant about a physical characteristic and that the complainant simply misunderstood what she was being asked."

The town argues in the report that the candidate was not discriminated against because she was forwarded a formal offer following the interview and was eventually hired as a police officer.

The complaint also indicates that the candidate felt that some comments Fitzgerald subsequently made about her gender made her feel like she was hired only because she was a woman and not based on her own merits.

Fitzgerald has publicly stated many times, including upon the hiring of new officers and firefighters this fall, that one goal of the switch from Civil Service — which is largely a non-subjective process based on test scores — and the new hiring process, which is more along the lines of a traditional corporate hiring process involving interviews, references and takes into account life experiences, is to increase the number of women and people of color in what has traditionally been a white male-dominated force not fully representative of the regional population.

"This is visceral," he said during a May 6 Select Board meeting. "I want people to understand these changes have been very difficult. But what has it helped us to do? It's helped us hire the most diverse number of individuals in the town's history. But the price I'm paying now is that I have individuals casting aspersions unfairly."

According to the report, police union representatives expressed frustration not that the female candidate was recommended for hire, but because Fitzgerald essentially disqualified the white male candidates that made up the rest of the three finalists because of their interview responses.

"The Union made its objections clear about Mr. Fitzgerald's decision not to advance these candidates but has not taken any sort of action against the town administrator for his decision, in tacit recognition that his decision was a valid exercise of authority, and there was no actionable basis to challenge it," the town response said. "What has instead taken place is the advancement of an internal complaint at the direction of the complainant's colleagues and, following notice that the facts did not support that any town policy had been violated."

(Scott Souza is a Patch field editor covering Beverly, Danvers, Marblehead, Peabody, Salem and Swampscott. He can be reached at Scott.Souza@Patch.com. X/Twitter: @Scott_Souza.)