United States Court of Appeals

For the First Circuit

No. 21-1568

THOMAS SWARTZ,

Plaintiff, Appellant,

v.

NORMAN SYLVESTER; TOWN OF BOURNE,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Barron, Chief Judge,

Lynch and Gelpí, Circuit Judges. 

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. 

November 21, 2022
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GELPÍ, Circuit Judge. Plaintiff-Appellant Thomas Swartz 

("Swartz") appeals from the decision of the district court for the 

District of Massachusetts granting summary judgment to DefendantsAppellees 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. 
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I. Background 

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 tshirts 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. 

1 The accountability tag and the identification card looked 

the same but served different purposes. Accountability tags had 

a hole in the top of the card which was used to keep track of 

personnel at fire scenes and was attached to the firefighter's 

gear, while the identification card stayed in the firefighter's 

wallet and was used to identify firefighters in circumstances when 

they were not in their gear. 
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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, "Anyone wishing to have a class A photo done. The 

photographer will be available Friday. If interested contact me 

please for times." On January 30, 2016, Deputy Fire Chief Joseph 

Carrara e-mailed all BFD employees, stating that "Lt. Emberg has 
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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 

2 It is unclear from the record whether this e-mail was sent 

to the entire department, though it appears it was. 
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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 

3 Swartz described himself as a confirmed Catholic and stated 

that he currently practices Christianity. He stated that he 

attends Mass almost every Sunday at a Catholic church. He 

elaborated that he derives his belief that he cannot participate 

in acts of self-promotion from the First Commandment. 

4 Although Sylvester testified to these facts, the district 

court did not make a finding on them. 
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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 twentyfour 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 
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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 
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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 was entitled 

to qualified immunity on the Section 1983 claim. It found that 

there was no genuine dispute of material fact and that Sylvester 

satisfied both prongs of the qualified immunity analysis. 

Accordingly, the district court granted summary judgment in favor 

of Sylvester. The district court then declined to exercise 

supplemental jurisdiction over the state court claim and dismissed 

it without prejudice. 

II. Discussion 

A. First Amendment Claim and Qualified Immunity

1. Standard of Review 

We review a district court's order granting summary 

judgment de novo. Conlogue v. Hamilton, 906 F.3d 150, 154 (1st 

Cir. 2018). Qualified immunity protects government officials, 

such as Sylvester, from liability when they act under color of 

state law, Gray v. Cummings, 917 F.3d 1, 9 (1st Cir. 2019), and 

when their actions or decisions, "although injurious, 'do[] not 

violate clearly established statutory or constitutional rights of 

which a reasonable person would have known.'" Conlogue, 906 F.3d 

at 154 (alteration in original) (quoting Harlow v. Fitzgerald, 457 
- 10 -

U.S. 800, 818 (1982)). Qualified immunity protects "all but the 

plainly incompetent or those who knowingly violate the law." City 

of Tahlequah v. Bond, 142 S. Ct. 9, 11 (2021) (quoting District of 

Columbia v. Wesby, 138 S. Ct. 577, 589 (2018)). 

"Under the familiar two-prong framework, courts ask (1) 

whether the defendant violated the plaintiff's constitutional 

rights and (2) whether the right at issue was 'clearly established' 

at the time of the alleged violation." Est. of Rahim by Rahim v. 

Doe, 51 F.4th 402, 410 (1st Cir. 2022) (quoting Conlogue, 906 F.3d 

at 155). Though we refer to them as the first and second prong, 

the two prongs need not be addressed in that order. Conlogue, 906 

F.3d at 155. "[A]n [official] may be entitled to immunity based 

on either prong." Est. of Rahim, 51 F.4th at 410. Upon de novo 

review, we agree with the district court in that Sylvester did not 

violate Swartz's constitutional rights and is entitled to 

qualified immunity based on the first prong. 

2. District Court Decision 

The district court found that Sylvester was entitled to 

qualified immunity. As to the first prong, whether the facts are 

sufficient to establish a violation of a constitutional right, the 

district court found that they were not. First, the district court 

noted that the parties agreed that Sylvester's order and Swartz's 

subsequent discipline were facially neutral. The district court 

then evaluated whether reasonable jurors could conclude that the 
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purpose of the neutral directive was to coerce Swartz into 

violating sincere religious principles, and found that they could 

not. Despite Swartz's contention that the timing evidenced 

Sylvester's hostility towards Swartz's religious beliefs 

(specifically, making the photographs mandatory in response to 

Swartz's denial), the district court disagreed. It concluded that 

there was no evidence that Sylvester's reasons for the directive 

were pretextual and that it was generally applicable to all 

firefighters. The district court further found that the initial 

order was mandatory, but that even if it had not been, that fact 

would not permit an inference that Sylvester's order was enacted 

because of his religious beliefs as opposed to in spite of them. 

Because the order was facially neutral and generally applicable, 

the district court applied rational basis review, and found that 

the policy of taking the photographs of the firefighters in their 

Class A uniforms -- namely, to promote the integrity of the BFD -

- fell within said standard. Therefore, under the first prong of 

the qualified immunity analysis, the district court found no 

violation of Swartz's rights under the Free Exercise Clause. 

The district court proceeded to analyze the second prong 

of the qualified immunity test. It concluded that, even assuming 

that there was a violation of Swartz's rights under the Free 

Exercise Clause, "the contours of those rights were not 

sufficiently clear such that a reasonable official would have 
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understood that what he was doing was a violation." The court 

noted that neither party pointed to an analogous case and, in cases 

where the officer was acting under "similar circumstances," City 

of Escondido v. Emmons, 139 S. Ct. 500, 504 (2019) (quoting Wesby, 

138 S. Ct. at 590), courts had declined to find a constitutional 

violation. Finally, the court concluded that in the instant case, 

"a reasonable officer would not have understood [that] his conduct 

would violate the right to the free exercise of religion." The 

district court elaborated that it was reasonable that Sylvester 

did not immediately understand Swartz's religious beliefs. 

Further, it found that once Swartz clarified that he refused to 

have his photograph taken for promotional purposes, a reasonable 

official would not think that a photograph taken for accountability

and identification purposes would violate Swartz's religious 

beliefs. Accordingly, the district court concluded that Sylvester 

was entitled to qualified immunity on the second prong as well. 

3. Analysis

We first discuss the free exercise principles that will 

guide our analysis of the first prong of the qualified immunity 

framework, on the issue of whether Sylvester violated Swartz's

constitutional rights. The First Amendment's Free Exercise Clause 

provides: "Congress shall make no law respecting an establishment 

of religion, or prohibiting the free exercise thereof . . . ." It 

has been incorporated against the states by the Fourteenth 
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Amendment. Church of the Lukumi Babalu Aye, Inc. v. City of 

Hialeah, 508 U.S. 520, 531 (1993) (citing Cantwell v. Connecticut, 

310 U.S. 296, 303 (1940)). "[Swartz]'s claim was properly brought 

pursuant to 42 U.S.C. § 1983, which allows individuals to 'sue 

certain persons for depriving them of federally assured rights' 

under color of state law." Fincher v. Town of Brookline, 26 F.4th 

479, 485 (1st Cir. 2022) (quoting Gagliardi v. Sullivan, 513 F.3d 

301, 306 (1st Cir. 2008)). The parties do not dispute, and we 

agree, that Sylvester, as Fire Chief of the BFD, could be held 

liable under Section 1983 if he did indeed violate Swartz's 

constitutional rights. We turn to that question now. 

"[T]he right of free exercise does not relieve an 

individual of the obligation to comply with a 'valid and neutral 

law of general applicability on the ground that the law proscribes 

(or prescribes) conduct that his religion prescribes (or 

proscribes).'" Emp. Div., Dep't of Hum. Res. of Or. v. Smith, 494 

U.S. 872, 879 (1990) (quoting United States v. Lee, 455 U.S. 252, 

263 n.3 (1982) (Stevens, J., concurring in judgment)). Therefore, 

we decline to find a constitutional violation when a neutral and 

generally applicable law or policy "incidentally burdens free 

exercise rights . . . if it is rationally related to a legitimate 

governmental interest." Does 1-6 v. Mills, 16 F.4th 20, 29 (1st 

Cir. 2021), cert. denied sub nom. Does 1-3 v. Mills, 142 S. Ct. 

1112 (2022). We utilize heightened scrutiny when a law or policy 
- 14 -

is not neutral or generally applicable, "sustain[ing] it only if 

it is narrowly tailored to achieve a compelling governmental 

interest." Id. To qualify as neutral, a policy must not target 

religious beliefs or practices "because of their religious 

nature." See Fulton v. City of Philadelphia, 141 S. Ct. 1868, 

1877 (2021) (first citing Masterpiece Cakeshop, Ltd. v. Colo. C.R. 

Comm'n, 138 S. Ct. 1719, 1730-32 (2018); and then citing Lukumi, 

508 U.S. at 533). If the policy's objective is to impede or 

constrain religion, the policy is not neutral. See Lukumi, 508 

U.S. at 533 (citation omitted). Additionally, a policy must be 

generally applicable to avoid heightened scrutiny. To qualify as 

generally applicable, a policy cannot selectively burden conduct 

motivated by religion while simultaneously exempting the conduct's

secular counterpart. See Lukumi, 508 U.S. at 543. If a policy 

permits "individualized governmental assessment of the reasons for 

the relevant conduct," it is not generally applicable. See Dep't 

of Hum. Res. of Or., 494 U.S. at 884. 

Swartz argues that a reasonable juror could find that 

Sylvester's conduct (i.e., his directive regarding the photograph 

and Swartz's subsequent discipline) was not neutral or generally 

applicable. As to the evidence supporting this contention, Swartz 

cites the sequence of events surrounding his refusal to be 

photographed and his subsequent discipline. Specifically, he 

contends that Sylvester's directive to have a photograph taken 
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only became a mandatory order when Swartz objected on religious 

grounds, and that fact raises an inference of discriminatory intent 

and hostility towards Swartz's religious beliefs. Swartz contends 

that the evidence, viewed in the light most favorably to him, 

permits a reasonable juror to infer that 

Sylvester's decision to order Swartz and the 

rest of the BFD to participate in the Class A 

photograph was predicated on Sylvester's 

hostility towards Swartz's religious-based 

objection and thus to his religious beliefs, 

or in the alternative, that the purpose of 

Sylvester's order was to coerce Swartz into 

violating his sincerely held religious 

beliefs. 

Accordingly, Swartz argues, Sylvester's conduct should be analyzed 

under strict scrutiny and, when so analyzed, Sylvester cannot 

establish that his conduct furthered a compelling government 

interest and was narrowly tailored. 

First, we cannot agree that Sylvester's conduct was not 

neutral. Clearly, it was facially neutral. See Swartz, 546 F. 

Supp. 3d at 50 ("Here, the parties agree that Sylvester's 

directive, and the subsequent discipline administered to Swartz, 

were facially neutral."). Swartz must therefore prove that 

Sylvester's conduct was undertaken because of Swartz's religious 

beliefs. See Fulton, 141 S. Ct. at 1877 ("[The g]overnment fails 

to act neutrally when it proceeds in a manner intolerant of 

religious beliefs or restricts practices because of their 

religious nature."); Lukumi, 508 U.S. at 533 ("[I]f the object of 
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a law is to infringe upon or restrict practices because of their 

religious motivation, the law is not neutral"). We are mindful 

that the Free Exercise Clause "'forbids subtle departures from 

neutrality' and 'covert suppression of particular religious 

beliefs.'" Lukumi, 508 U.S. at 534 (first quoting Gillette v. 

United States, 401 U.S. 437, 452 (1971); and then quoting Bowen v. 

Roy, 476 U.S. 693, 703 (1986)). When assessing neutrality, "a 

court must 'survey meticulously' the totality of the evidence, 

'both direct and circumstantial.'" New Hope Fam. Servs., Inc. v. 

Poole, 966 F.3d 145, 163 (2d Cir. 2020) (quoting Lukumi, 508 U.S. 

at 534, 540). This includes the series of events leading to the 

conduct, as well as the historical background. Id. 

Swartz's evidence on this point is primarily the 

sequence of events leading to the Class A photographs becoming

mandatory -- specifically, the speed with which they became 

mandatory after he objected on religious grounds, which he claims 

raises an inference that the order was because of his religious 

exemption.5 Even assuming arguendo that it is true the photographs 

became mandatory immediately after Swartz objected to them, that 

fact alone does not establish that Sylvester took that action 

because of Swartz's religious beliefs. See Lukumi, 508 U.S. at 

5 We note that Swartz's argument on this point contradicts 

the district court's finding that communications sent before 

Swartz objected indicate that the photographs were in fact 

mandatory prior to his objections. Swartz, 546 F. Supp. 3d at 50. 
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540-41 (determining object of ordinances was discriminatory as 

they "were enacted '"because of," not merely "in spite of"' their 

suppression of [the relevant] religious practice" (quoting 

Personnel Adm'r of Mass. v. Feeney, 442 U.S. 256, 279 (1979))). 

Unlike in Lukumi, where hostile statements were made regarding the 

religious practice prior to the law's enactment, 508 U.S. at 540-

41, Sylvester did not show hostility toward Swartz's religious 

beliefs, but instead asked further questions about it to determine 

if he could implement the policy without infringing on Swartz's 

beliefs. When Swartz clarified that he could not have his 

photograph taken for promotional purposes (for example, to be sent 

to the media), Sylvester attempted to avoid infringing on Swartz's 

religious beliefs by clarifying that the photographs would be used 

for identification and accountability purposes. 

Additionally, in Lukumi, both the text of the ordinances 

and their effect "compel[led] the conclusion that suppression of 

the central element of the [religious practice] was the object of 

the ordinances." 508 U.S. at 534. The record before us does not 

compel such a finding. Beyond pure speculation, Swartz offers no 

evidence that would allow a reasonable juror to conclude that the 

requirement to have Class A photographs taken became mandatory 

because of his religiously motivated objection to having his 

photograph taken, rather than simply because he objected. See

Medina-Rivera v. MVM, Inc., 713 F.3d 132, 140 (1st Cir. 2013) ("[A 
- 18 -

plaintiff] cannot deflect summary judgment with pure speculation 

. . . ."); Ahern v. Shinseki, 629 F.3d 49, 54 (1st Cir. 2010) ("A 

properly supported summary judgment motion cannot be defeated by 

relying upon conclusory allegations, improbable inferences, 

acrimonious invective, or rank speculation."). Swartz has not 

proffered sufficient evidence that would permit a reasonable juror 

to conclude that the rule was not neutral.6 

Sylvester's conduct was also generally applicable. 

"[Policies] burdening religious practice must be of general 

applicability." Lukumi, 508 U.S. at 542. "To be generally 

applicable, a law may not selectively burden religiously motivated 

conduct while exempting comparable secularly motivated conduct." 

Mills, 16 F.4th at 29. A policy or course of conduct may run afoul 

of general applicability if it "'invite[s]' the government to 

consider the particular reasons for a person's conduct by providing 

6 We note that, although Swartz mentions that other employees 

in his department did not get their photographs taken on the 

initial dates set by the department and were not subsequently 

disciplined, he does not develop an argument that explains how 

that fact could support a finding that the policy at issue was not 

neutral. Therefore, any such argument is waived. See United 

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990). Nevertheless, 

even if Swartz had developed such an argument, it would not 

succeed. As we will explain in our discussion below regarding 

Swartz's contention that the policy was not generally applicable, 

there is no evidence in the record that anyone else in the 

department objected to it, and so the treatment of those employees 

does not support a finding that the policy was enacted because 

Swartz objected for religious reasons rather than the fact that 

Swartz objected, independent of the reason for the objection.
- 19 -

'a mechanism for individualized exemptions.'" Fulton, 141 S. Ct. 

at 1877 (quoting Smith, 494 U.S. at 884). 

As the district court found, the directive was generally 

applicable to all firefighters in the BFD. Swartz, 546 F. Supp. 

3d at 52. By the time Swartz was disciplined on May 10, when he 

was placed on administrative leave, all firefighters had been 

informed that Sylvester mandated the photographs. Insofar as 

Swartz can be read to argue that Sylvester granted an exemption 

from the photograph requirement to the other firefighters who did 

not get their photographs taken on the initial dates set by the 

department and were not subsequently disciplined, and that this 

rendered the policy not generally applicable, we disagree. As a 

preliminary matter, Swartz develops no argument on how the fact 

that other firefighters were not disciplined created an exemption 

and, if so, how the presence of this exemption would bear on 

whether the policy was generally applicable, so these arguments 

are waived. See United States v. Zannino, 895 F.2d 1, 17 (1st 

Cir. 1990). But even addressing these arguments on the merits 

would not help Swartz. Swartz failed to bring forth any evidence 

of Sylvester granting exemptions from the photograph requirement 

to other firefighters (if any) that objected, and indeed conceded 

in his briefing to us that though "Sylvester disciplined Swartz 

and no other BFD members," "it is not in dispute that these other 

BFD employees did not object to having their Class A photograph 
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taken." The fact that some BFD employees did not have their 

photographs taken because they were not on duty when the 

photographer came to the station does not change our conclusion 

that the directive was generally applicable, because they did not 

object to having their photographs taken as Swartz did. Further, 

Swartz did not bring forth any evidence that there was a mechanism 

for individualized exemptions within Sylvester's directive or that 

the directive invited Sylvester to consider the reasons for 

requesting an exemption. 

Accordingly, finding that Sylvester's conduct was both 

neutral and generally applicable, we do not apply heightened 

scrutiny, but will "sustain the [policy] against constitutional 

challenge if it is rationally related to a legitimate governmental 

interest." Mills, 16 F.4th at 29. Sylvester's directive passes 

rational basis review. As both parties agree that one purpose of 

the photographs was for a public bulletin board and for media 

requests as needed, Swartz, 546 F. Supp. 3d at 53, the photograph 

policy is rationally related to the legitimate governmental 

interest of publicizing the BFD and promoting the integrity of 

government institutions. In his brief, Swartz does not challenge 

the district court's conclusion that Sylvester's directive would 

pass rational basis review. Instead, he focuses his briefing on 

whether the directive would pass strict scrutiny and argues that 

it would not. We agree with the district court that the directive 
- 21 -

easily satisfies rational basis review. See Gonzalez-Droz v. 

Gonzalez-Colon, 660 F.3d 1, 9 (1st Cir. 2011) ("Rational basis 

review 'is a paradigm of judicial restraint.'" (quoting FCC v. 

Beach Commc'ns, Inc., 508 U.S. 307, 314 (1993))). Moreover, as we 

explained supra, strict scrutiny is not triggered in this instance. 

See Mills, 16 F.4th at 30-32 (declining to apply strict scrutiny 

when emergency rule was both neutral and generally applicable). 

Upon de novo review, we agree with the district court's 

conclusion that Sylvester did not violate Swartz's constitutional 

rights as required by the first prong of the qualified immunity 

analysis. Because we may find qualified immunity under either 

prong of the two-prong test, Est. of Rahim, 51 F.4th at 410, we 

accordingly affirm the district court's decision that Sylvester 

was entitled to qualified immunity as to the federal claim against 

him. 

B. Supplemental State Law Claim 

1. Standard of Review 

"We review a district court's decision regarding the 

exercise of supplemental jurisdiction for abuse of discretion." 

Allstate Interiors & Exteriors, Inc. v. Stonestreet Constr., LLC, 

730 F.3d 67, 72 (1st Cir. 2013). "[I]n any civil action of which 

the district courts have original jurisdiction, the district 

courts shall have supplemental jurisdiction over all other claims 

that are so related to claims in the action within such original 
- 22 -

jurisdiction that they form part of the same case or controversy 

. . . ." 28 U.S.C. § 1367(a). The district court may decline to 

exercise said jurisdiction when it "has dismissed all claims over 

which it has original jurisdiction." Id. § 1367(c)(3). 

2. Analysis 

Swartz argues that because the district court erred in 

dismissing his Section 1983 claim, it also abused its discretion 

in dismissing his Massachusetts Wage Act claim against Sylvester 

and the Town of Bourne. Concluding, as we do, that the district 

court did not err in granting Sylvester's motion for summary 

judgment on the federal law claim, we see no abuse of discretion 

in its decision to decline to exercise supplemental jurisdiction 

over the remaining state law claim. See Signs for Jesus v. Town 

of Pembroke, NH, 977 F.3d 93, 114 (1st Cir. 2020) ("We have held 

that a district court may decline to exercise supplemental 

jurisdiction when it has dismissed all claims over which it has 

original jurisdiction, 28 U.S.C. § 1367, and absent certain 

circumstances inapplicable here, doing so is not an abuse of 

discretion."). 

III. Conclusion

The judgment of the district court is 

AFFIRMED.