Swartz v. Sylvester
| Decision Date | 21 November 2022 |
| Docket Number | 21-1568 |
| Citation | 53 F.4th 693 |
| Parties | Thomas SWARTZ, Plaintiff, Appellant, v. Norman SYLVESTER; Town of Bourne, Defendants, Appellees. |
| Court | U.S. Court of Appeals — First Circuit |
Joseph L. Sulman, with whom Law Office of Joseph L. Sulman, Esq. was on brief, for appellant.
Gareth W. Notis, with whom Morrison Mahoney LLP was on brief, for appellees.
Before Barron, Chief Judge, Lynch and Gelpí, Circuit Judges.
Plaintiff-Appellant Thomas Swartz ("Swartz") appeals from the decision of the district court for the District of Massachusetts granting summary judgment to Defendants-Appellees Norman Sylvester ("Sylvester") and the Town of Bourne, Massachusetts. Swartz contends that his constitutional rights under the Free Exercise Clause of the First Amendment were violated when Sylvester, in his role as Fire Chief of the Bourne Fire Department ("BFD"), ordered Swartz, a firefighter, to sit for a photograph in violation of Swartz's religious beliefs. Swartz refused to take the photograph and was disciplined as a result of his refusal. Swartz brought suit against Sylvester under 42 U.S.C. § 1983 asserting the discipline constituted a violation of his constitutional rights under the Free Exercise Clause. In addition, he alleged that the Town of Bourne and Sylvester violated his rights under the Massachusetts Wage Act, Mass. Gen. Laws ch. 149, § 148, by failing to pay him for certain unused vacation and other accrued time off following his subsequent retirement from the BFD. On the Section 1983 claim, the district court granted summary judgment to Sylvester on qualified immunity grounds. The district court declined to exercise supplemental jurisdiction over the state law claim pursuant to 28 U.S.C. § 1367(c). It then dismissed the state law claim without prejudice. We affirm.
When reviewing a district court's decision on a motion for summary judgment, "we always recount [the facts] in the light most favorable to the nonmovant (here, that's [Swartz])." Johnson v. Johnson, 23 F.4th 136, 139 (1st Cir. 2022). Thomas Swartz was a firefighter working for the BFD in Bourne, Massachusetts from July 1997 until August 2018, when he retired. Norman Sylvester began in his role as the BFD's Fire Chief in February 2015. All members of the BFD had an identification card as well as an accountability tag, which both featured a picture of the firefighter.1
The photographs on the identification cards and accountability tags were inconsistent -- some firefighters wore t–shirts in their photographs while others wore ties. In 2016, Sylvester, seeking consistency among the photographs on the identification cards, began a policy of photographing the firefighters in their Class A uniforms for these photographs. The Class A uniform is a formal dress uniform worn at occasions such as ceremonies, weddings, and funerals.
Sylvester stated that he wanted consistent photographs of all the firefighters in their Class A uniforms "so everybody looked the same [and] so we had a professional department." He also planned to hang the headshots on a bulletin board in the main lobby of the fire station so members of the public could identify firefighters who had done a good or bad job at a fire scene and be aware of who worked for the BFD. He noted that the firefighters' names would not accompany the photographs. Other members of the BFD said they understood that the photographs would be used for media and promotional purposes. BFD Lieutenant Richard Emberg stated that Sylvester told him that the photographs would be used on a display wall and could also be submitted to the media in the case of a firefighter's death in the line of duty. BFD Lieutenant Paul Weeks similarly stated that Emberg had told him that the photographs would be used on a display board and also in response to requests from the media if there was, for example, a promotion or a tragedy.
Sylvester enlisted Emberg to help him organize the photographs of the firefighters in their Class A uniforms. On November 4, 2015, Emberg sent an e-mail to all BFD employees which read, On January 30, 2016, Deputy Fire Chief Joseph Carrara e-mailed all BFD employees, stating that "Lt. Emberg has been working to arrange professional photos for all department members." Carrara said Emberg was compiling a list in regards to Class A uniforms and, in preparation for the photographs, implored the firefighters to check in with their deputies if they were missing any part of the Class A uniform that would be needed for the photograph. On March 11, 2016, Emberg e-mailed all BFD employees, stating "[i]n the next few weeks all members will be getting a department photo taken by the department photographer" in their Class A uniforms. On April 11, 2016, Emberg sent another e-mail to all BFD employees, setting forth a schedule when the Class A uniform photographs would be taken for all employees, which were split into four groups. Weeks was the deputy chief supervising group three, to which Swartz was assigned.
On May 1, 2016, Emberg sent an e-mail which read that group three's Class A photographs would be taken the following day at noon, and if employees were unable to make that time slot, they should try to attend another one of the scheduled dates.2 The next day, May 2, 2016, Weeks verbally informed the members of his group, which included Swartz, that they would have their photographs taken that day in their Class A uniforms. Swartz responded that he did not want to have his photograph taken. This caught the attention of Sylvester, who had the office next to Weeks and overheard the exchange. Sylvester asked Swartz to step into his office to discuss the matter further and Swartz asked if they could shut the door and speak privately. Swartz asked whether the photographs were going to be used for identification tags or other department identification. Sylvester responded by asking Swartz, "What if you get promoted and I want to send a picture of you to the newspaper?" Swartz then informed Sylvester that he didn't want to have his photograph taken for religious reasons. He further explained that having his photograph taken for promotional purposes is against his religious beliefs.3 Sylvester asked Swartz if he had a driver's license to which Swartz responded that he did. Sylvester asked how he took that photograph, but he did not recall Swartz's answer.4 Sylvester then asked Swartz to put his objection in writing.
Swartz did so. On that same day, May 2, 2016, he sent Sylvester an e-mail, stating that he requested not to participate in "portrait photography for use other than accountability" because "[p]ortrait photography for personal recognition goes against [his] religious beliefs." In response, Sylvester stated that his request was respectfully denied because the "photos are in fact for use by the [BFD] as a form of accountability and Department Identification as a member of [BFD]," that his participation was "a requirement as an order from the Town of Bourne Fire Chief" and "[f]ailure to follow this order will result in disciplinary action." On May 5, 2016, Emberg sent an e-mail stating that May 6 and May 9 would be the last two days for firefighters to have a photograph taken in their Class A uniform. The e-mail further stated that "[t]he chief has mandated these photos." The parties agree that this e-mail was sent to all BFD employees. Swartz did not have his photograph taken on either May 6 or May 9.
For disobeying Sylvester's direct order to have his photograph taken in his Class A uniform, Swartz was subsequently disciplined. Swartz was placed on administrative leave for the night shift on May 10, 2016, and the day shift on May 12, 2016, per Sylvester's order. Following a disciplinary meeting on May 13, 2016, the disciplinary action taken against Swartz was twenty-four hours of unpaid administrative leave (which he had already served on May 10 and May 12) and that he would not be eligible for "out of grade" opportunities (which result in higher pay) for a period of at least six months, a decision which would be reevaluated after six months. Following a discussion with Sylvester, Swartz opted to take the unpaid administrative leave out of his vacation time.
As of May 13, 2016, there were four other BFD employees who had not had their photographs taken in their Class A uniforms. According to Sylvester, this was because those employees were off duty when the photographer came in, unlike Swartz, who was on duty when the photographer was there. Sylvester also noted that none of the other four employees who missed their photograph opportunity declined to sit for the photograph, as Swartz had. As of October 1, 2019, all BFD employees had ID cards and accountability tags with photographs, with the exception of a recently hired employee. However, Sylvester was still working to ensure that the identification photographs all depicted the firefighters in their class A uniforms. Swartz ended his employment with the Town of Bourne on August 22, 2018, when he retired.
Swartz filed the instant complaint against Sylvester in December 2018 under 42 U.S.C. § 1983 for violation of his rights under the Free Exercise Clause of the First Amendment. In March 2019, he moved to amend his complaint to add a claim against the Town of Bourne and Sylvester under the Massachusetts Wage Act, Mass. Gen. Laws ch. 149, § 148, for failure to pay him for certain unused vacation time and other accrued time off following his separation from the BFD. The motion to amend the complaint was granted. Following discovery, in November 2020, Sylvester and the Town of Bourne moved for summary judgment on both counts. In June 2021, the district court granted Sylvester's motion for summary judgment. Swartz v. Sylvester, 546 F. Supp. 3d 37, 57 (D. Mass. 2021).
The district court concluded that Sylvester...
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