Bourne Fire Chief Norman Sylvester

Former Bourne Fire Chief Norman Sylvester

Two lawsuits brought against the Town of Bourne and former Bourne fire chief Norman P. Sylvester have been dismissed in US District Court for Massachusetts in Boston.

The lawsuits alleged a violation of a former firefighter’s constitutional right to freedom of religion, and violation of state law for refusing payment benefits for work-related mental anguish.

The dismissals were part of a decision handed down by Chief Judge F. Dennis Saylor IV on June 28. Both the Town of Bourne and Chief Sylvester requested summary judgments as opposed to jury trials, meaning the presiding judge decides a case based on facts presented by the two sides.

The lawsuits were brought by former Bourne firefighter Thomas F. Swartz. Mr. Swartz claimed that Chief Sylvester violated his constitutional right to freedom of religion by disciplining him for not agreeing to appear in a group photograph wearing his Class A uniform. Mr. Swartz claimed his religion opposes self-promotion, which he claimed was the purpose of the photo.

Following a hearing on May 13, 2016, Chief Sylvester disciplined Mr. Swartz with a 24-hour unpaid suspension. The chief also made Mr. Swartz ineligible for out-of-grade opportunities for the following six months. That prevented Mr. Swartz, then a firefighter/EMT, from earning a higher wage by filling in for an officer with a higher pay grade.

In his decision, Judge Saylor noted that Chief Sylvester testified that the intent of the photograph was for a display board inside the fire station. The chief said a public display board of photographs of Bourne firefighters is a tradition he wanted to bring to the BFD, the judge noted.

In addition, the judge said, there is no evidence that the names of the firefighters were posted with the photo. The judge also pointed out that there is no evidence that the photograph, or any photo of Mr. Swartz, appeared in a newspaper. That, the judge said, might be a violation of Mr. Swartz’s First Amendment rights.

“There is no evidence in the record that Swartz’s photograph or any others were ever sent to the media,” the judge’s ruling said. “His photograph, and others, were only displayed on the bulletin board. Thus, it appears that Sylvester never used the photograph in any way that Swartz had explained to him violated his beliefs.”

In the other suit against Chief Sylvester and the town, Mr. Swartz claimed he was not reimbursed for medical expenses he incurred for treatment of depression and stress caused by his work with the Bourne Fire Department.

The lawsuit claimed that Mr. Swartz “responded to numerous emergencies involving injuries and even fatalities.” In Mr. Swartz’s final year with the department, a fellow Bourne firefighter died unexpectedly. That added to Mr. Swartz’s stress and depression, the lawsuit claimed.

On February 1, 2018, Mr. Swartz was placed on paid administrative leave. He received medical treatment that included a brief hospital stay. In April 2019 he submitted his claim for reimbursement, including copies of bills he paid.

State law, the lawsuit contended, required Chief Sylvester to respond to Mr. Swartz’s claim for reimbursement: to either honor the claim or to issue reasons for denying the claim. Mr. Swartz’s attorney claimed that the chief did neither.

The lawsuit claimed that Chief Sylvester’s lack of response was “without good cause, arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law.” The lawsuit asked the court to declare that Mr. Swartz’s claim for payment of benefits is valid under state law.

In his ruling, Judge Saylor noted that a district court has the discretion to decline exercising what he called “supplemental jurisdiction” in a case. Supplemental jurisdiction allows federal courts to hear additional claims related to the original claim, even though the court would lack the subject-matter jurisdiction to hear the additional claims independently.

A footnote in Judge Saylor’s ruling noted that there is “at least some doubt” as to how the benefits issue “shares a common nucleus of operative fact with the photograph issue.”

Judge Saylor ruled that the court will decline to exercise its supplemental jurisdiction over the second lawsuit.

“Accordingly, count two will be dismissed without prejudice,” the judge said.

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