Mass Firefighter Sues Fire Chief For Religious Discrimination Over Photo

A Massachusetts firefighter who was disciplined for refusing to pose for a photograph on religious grounds, is suing his fire chief for violating his First Amendment rights.

Thomas Swartz, a firefighter-paramedic for the Borne Fire Department, claims Fire Chief Norman Sylvester asked him to pose for a photo, and suspended him for one-day without pay when he refused. According to Swartz, his religious beliefs prevent him from having his photo taken under the circumstances because it would have constituted self-promotion.

Quoting from the complaint:

  • Swartz’s sincerely held religious beliefs prevent him from participating in acts of self-promotion. His belief derives from the First Commandment.
  • On May 2, 2016 Swartz and other members of the department were asked to dress in their Class A uniform and participate in a group photograph. This request came from Lieutenant Richard Emberg.
  • Swartz confirmed with Chief Sylvester that the planned photograph was not for department identification, safety concerns, or accountability purposes.
  • After confirming that the photograph was not for identification, safety concerns, or accountability, Swartz declined to participate in the photograph because it violated his religious beliefs against self-promotion.
  • Over his firefighter career, Swartz had declined to participate in similar requests to participate in group promotional photos. The practice of the department had always been that such photographs were optional.
  • Despite this past practice, Swartz was instructed by Chief Sylvester to explain in writing why he would not participate in the photograph. Swartz complied and put his explanation in writing. In this email he repeated his request not to participate in the photograph.
  • Swartz stated “(p)ortrait photograph for personal recognition goes against my religious beliefs.”
  • On May 13, 2016 a disciplinary hearing was held regarding Swartz’s decision not to participate in the promotional photo for religious reasons.
  • Following the hearing Chief Sylvester imposed discipline on Swartz of a twenty-four hour unpaid suspension and ineligibility for out of grade opportunities for six months.

The complaint contains a single count of a violation of Swartz’s First Amendment rights under 42 U.S.C. § 1983. Chief Sylvester is being sued personally. The town is not named in the suit.

The Cape Code Times is reporting that Bourne Town Counsel Robert Troy took issue with Swartz’s allegations, saying in an email that his understanding was that the discipline was for refusing to be photographed for an identification badge. The paper is also reporting that Swartz applied for a disability pension and has been out of work since February, 2018.

Here is a copy of the complaint:  SWARTZ v SYLVESTER

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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