BOSTON — The First Amendment and the First Commandment are at the center of a federal lawsuit filed by a former Bourne firefighter alleging his civil rights were violated by the department's chief.
Thomas Swartz, of Falmouth, filed the lawsuit Dec. 18 in U.S. District Court in Boston, alleging that Fire Chief Norman Sylvester violated his First Amendment right to religious freedom when he suspended Swartz without pay for 24 hours after Swartz refused to have his photograph taken.
Swartz's interpretation of the First Commandment means he will not have his photograph taken for "promotional purposes" because it is a form of self promotion, according to the lawsuit.
The dispute started on May 2, 2016, when Swartz was asked to wear his dress uniform and participate in a group photograph to be taken by Lt. Richard Emberg, the four-page lawsuit says.
After Swartz confirmed with Sylvester that the picture was not for "department identification, safety concerns or accountability purposes" he declined to participate because it violated his religious beliefs, specifically against self promotion, according to the lawsuit.
Swartz declined to participate in similar requests throughout his career and the department always treated the photo shoots as optional, the lawsuit says.
Sylvester allegedly "instructed" Swartz to explain, in writing, why he was not going to have his picture taken.
"In this email he repeated his request not to participate in the photograph," Swartz's attorney, Joseph Sulman of Waltham, wrote in the lawsuit. "Swartz stated '(p)ortrait photograph for personal recognition goes against my religious beliefs.'"
On May 13, 2016, 11 days after the photo was supposed to be taken, Swartz attended a disciplinary hearing. After the hearing, Sylvester imposed the 24-hour unpaid suspension and made Swartz ineligible for "out of grade opportunities" for six months, Sulman wrote.
The decision meant he was ineligible to temporarily act as a supervisor, and be paid at the higher rate of pay for that work.
Other firefighters "declined" to participate in the group photograph but were not disciplined, Sulman wrote.
The only count in the lawsuit is for a violation of Swartz's First Amendment right to freedom of religion and he is asking for damages for lost wages, emotional distress, pain and suffering as well as punitive damages and attorney's fees.
Swartz applied for disability retirement in February 2018 and has been out of work since then, Sulman said Wednesday.
Swartz waited to file the lawsuit until he was no longer employed by the Bourne Fire Department, Sulman said.
"All I can say is, this was something that bothered him at the time but he was still working there," he said. "No one should read into the fact it was not filed at the time as indicating it wasn't serious. It certainly was."
The time limit for civil rights claims is three years.
"Once Mr. Swartz was not working there, I think he was able to decide he wanted to pursue this because it would not create day-to-day friction," Sulman said.
Bourne Town Counsel Robert Troy wrote in an email that, contrary to the allegation that it was a group photo, Sylvester told him that Swartz accepted the discipline that was imposed upon him for initially declining to be photographed for an identification badge required of all department officers who respond to emergency calls from the public.
Swartz subsequently complied with the department's requirements and there was no further communication until the filing of the civil suit, Troy wrote.
Troy was not aware of the incident prior to the filing of the lawsuit, he wrote.
The town referred the case to its insurance carrier, which in turn assigned it to Gareth M. Notis of Morrison, Mahoney LLP in Boston. Troy is the designated spokesman for the case, Notis said in a voicemail.
Sylvester could not be reached for comment.
Swartz also has a pending case in front of the state Civil Service Commission. It went to a pre-hearing on Oct. 16.
A records request for the documents in that case was denied on Oct. 15 by Commission Records Access Officer Christopher Bowman, who wrote that the hearings are private unless either party makes a request to make them public.
No final decision has been issued in the case, according to the commission's website.
The commission case is unrelated to the First Amendment claims in the lawsuit, Sulman said, but he is not at liberty to talk about it.
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