Browder v. City of Boston

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

____________________________________

)

MICHAEL BROWDER, )

)

Plaintiff, )

)

) Civil Action No. 1:24-CV-11588-AK

v. )

)

CITY OF BOSTON, ET. AL., )

)

Defendants. )

)

MEMORANDUM AND ORDER ON

DEFENDANTS’ CITY OF BOSTON & TAMMY PUST’S MOTION TO DISMISS

ANGEL KELLEY, D.J.

Plaintiff Michael Browder Jr. commenced this action against the City of Boston (the

“City”) and Tammy Pust, the City’s Interim Director of Labor Relations, in her individual and

official capacities (collectively, “Defendants”), along with other parties who are not the subject

of this memorandum. [Dkt. 1]. Browder alleges that the City’s COVID-19 Vaccine Verification

or Required Testing policy (“Policy”), and the manner of its administration, violated his

constitutional, statutory, and contractual rights. Defendants move to dismiss all claims against

them under Fed. R. Civ. P. 12(b)(6) [Dkt. 28] (the “Motion”), arguing that the complaint fails to

state a plausible claim and that Pust is entitled to qualified immunity [Dkt. 29]. Browder

opposes dismissal. [Dkt. 34]. For the reasons that follow, the Motion is GRANTED IN PART

and DENIED IN PART.

I. BACKGROUND

The following recitation draws principally from Browder’s complaint and, where noted,

from Defendants’ briefing. At the pleading stage, the Court accepts well-pleaded allegations as

true, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and construes them in the light most favorable

to Browder, Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 7 (1st Cir. 2011).

A. Factual Background

Browder became a firefighter with the Boston Fire Department (“BFD”) in 2007. He is a

devout member of the Nation of Islam and alleges that, on religious grounds, biochemical

vaccines and testing of bodily fluids are prohibited because they constitute seeking protection

from affliction “other than God,” which informs his refusal to vaccinate or submit to testing.

On August 12, 2021, the City implemented the Policy, under which first responders were

required either to verify full vaccination or to submit a negative COVID-19 test result every

seven days beginning October 4, 2021. Noncompliance could result in unpaid administrative

leave. [Dkt. 29-1 at 3]. The Policy’s stated purpose was “to minimize exposure to and

transmission of the COVID-19 virus in City workplaces by providing occupational protection to

all City employees and preventing exposure to members of the community we serve.” [Id. at 1;

Dkt. 1 at ¶ 76]. Medical exemptions relieved employees from vaccination but not from weekly

testing, while religious exemptions applied only to vaccination verification. [Dkt. 29-1 at 5].

On September 27, 2021, Browder requested a religious exemption from both vaccination

and weekly testing. He submitted a Religious Accommodation Request on October 7, 2021,

citing Quranic verses and teachings of the Nation of Islam, and proposing alternatives including

twice daily self-monitoring, pre-shift temperature checks, and enhanced personal protective

equipment. [Dkt. 29-2]. Two weeks elapsed without a decision. On October 25, 2021, the City

warned that noncompliance by the close of that business day would result in unpaid leave.

Although not scheduled to work on October 26, Browder was placed on indefinite unpaid

administrative leave on October 27 for noncompliance.

On October 28, 2021, Pust’s office sent an Interactive Dialogue Questions form to clarify

Browder’s submission; the questionnaire did not seek his spiritual authorities or detailed

religious tenets. Browder returned the form the same day. On October 29, 2021, the City issued

a written denial of his exemption request. The denial stated that vaccination verification was

voluntary and therefore did not require accommodation, and it concluded that exempting

Browder from weekly testing would impose an undue hardship, given his close contact duties.

Also on October 29, the Deputy Chief of Personnel at the BFD scheduled a noncompliance

hearing for November 2 and informed Browder he faced discipline up to termination. Browder

emailed Pust seeking paid leave or a termination notice and received no reply. The November 2

hearing was canceled with only Browder present; a reconvened hearing on November 4 affirmed

that he would remain on unpaid leave unless he complied.

On November 17, 2021, Browder filed a union grievance with Boston Firefighters Local

718 International Association of Fire Fighters AFL-CIO (“Local 718”). The union declined to

advance the grievance, and Browder withdrew it on December 1, 2021. On December 20, 2021,

the City adopted a Mandatory Vaccine Policy for all employees. First responder unions obtained

a preliminary injunction prohibiting enforcement on February 15, 2022, and that injunction was

vacated by the Massachusetts Supreme Judicial Court on March 30, 2023. The City did not

reinstate the mandate; while the injunction was in effect the City purported to revert to the

original policy but ceased enforcing the testing requirement. The City rescinded the Policy on

May 11, 2023.

On May 24, 2023, the City directed Browder to return to work by May 31 without back

pay; he declined. A July 12, 2023 meeting to discuss his work status did not occur because

Browder did not appear. On September 29, 2023, he was terminated for unauthorized absence.

B. Procedural History

Browder filed this action on June 19, 2024, asserting multiple federal and state claims

against the City, Pust in her individual and official capacities, Dr. Ojikutu in her individual and

official capacities, Local 718, and John Soares. Against the City, his claims included substantive

and procedural due process claims under 42 U.S.C. § 1983 (Counts I and IX), free exercise and

equal protection claims under 42 U.S.C. § 1983 (Counts III and IV), federal and state statutory

discrimination claims (Counts V, VI, and VII), an ADA claim (Count VIII), a Takings Clause

claim (Count X), a 42 U.S.C. § 1985 conspiracy claim (Count XI), and a breach of contract claim

(Count XIII). Against Pust, he asserted several Section 1983 and state law claims (Counts I–IV),

a Takings Clause claim (Count X), and a § 1985 conspiracy claim (Count XI). Defendants

moved to dismiss on October 16, 2024, and, with respect to Pust, asserted qualified immunity.

Browder filed his opposition on November 6, 2024, and subsequently voluntarily dismissed

several claims against these Defendants.1

II. LEGAL STANDARD

A defendant may move under Fed. R. Civ. P. 12(b)(6) to dismiss a complaint for failure

to state a claim. “To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft, 556 U.S.

at 678 (citation omitted). A court must accept all well-pleaded facts as true and draw all

reasonable inferences in the plaintiff’s favor, but need not credit “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory statements.” Id. at 678–79 (citing

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Legal conclusions and bare recitations

of elements are not entitled to the assumption of truth. See García-Catalán v. United States, 734

1 Browder voluntarily dismissed his state law disparate treatment claim under Mass. Gen. Laws ch. 151B § 4 (Count

VI), his Takings Clause claim (Count X), and his Section 1985 conspiracy claim (Count XI). [Dkt. 34].

F.3d 100, 103 (1st Cir. 2013). The court separates factual allegations from legal conclusions,

Back Beach Neighbors Comm. v. Town of Rockport, 535 F. Supp. 3d 57, 62 (D. Mass. 2021),

and determines whether the facts permit a reasonable inference of liability; if so, the motion must

be denied, Haley v. City of Bos., 657 F.3d 39, 46 (1st Cir. 2011). In assessing plausibility, the

court may consider documents incorporated by reference in the complaint and official public

records. Freeman v. Town of Hudson, 714 F.3d 29, 35-36 (1st Cir. 2013).

III. DISCUSSION

The Court addresses Browder’s claims in sequence, then finishes with Pust’s defense of

qualified immunity.

A. Counts I, II, and IX: Due Process

Browder asserts three due process claims: federal substantive due process under the

Fourteenth Amendment (Count I); Massachusetts substantive due process under Mass. Gen.

Laws ch. 12, § 11I (Count II); and federal procedural due process under the Fourteenth

Amendment (Count IX). The Court addresses each claim in turn.

1. Substantive Due Process under 42 U.S.C. § 1983 (Count I)

To state a substantive due process claim, a plaintiff must show that the government

deprived him of a constitutionally protected “life, liberty, or property interest” and that the

challenged government action either shocks the conscience, Clark v. Boscher, 514 F.3d 107, 112

(1st Cir. 2008), or is not rationally related to a legitimate governmental purpose, Collins v.

Nuzzo, 244 F.3d 246, 250 (1st Cir. 2001). The Supreme Court has recognized a liberty interest

in bodily integrity and in refusing unwanted medical treatment. See Cruzan v. Dir., Mo. Dep’t of

Health, 497 U.S. 261, 278 (1990). That recognition does not displace controlling precedent

requiring deferential review of ordinary public health measures that are reasonably related to

legitimate governmental objectives. See Jacobson v. Massachusetts, 197 U.S. 11 (1905);

Washington v. Glucksberg, 521 U.S. 702, 728–29 (1997); cf. Dobbs v. Jackson Women’s Health

Org., 597 U.S. 215, 300-01 (2022).

Accepting Browder’s well pleaded allegations as true, he plausibly alleges that the Policy

burdened a liberty interest by conditioning continued employment on either vaccination or

regular testing and by placing him on indefinite unpaid leave for noncompliance. Those

allegations suffice to invoke substantive due process protection at the pleading stage. The

dispositive question is the proper standard of review and whether the Policy survives it.

The City adopted the Policy to reduce workplace transmission of a contagious disease, a

plainly legitimate public health objective. The Policy afforded employees an alternative to

vaccination rather than imposing a single involuntary medical procedure. Under Jacobson and

its progeny, regulations of this character are governed by a deferential rational basis inquiry

unless the challenged conduct shocks the conscience. Browder’s complaint does not plausibly

allege conscience shocking executive action or facts showing that the Policy was arbitrary or

wholly unrelated to the stated public health goal. His sincere preference to avoid both

vaccination and testing does not render the Policy irrational as a matter of law. See Collins, 244

F.3d at 250-51. Accordingly, this claim fails, Defendants’ Motion with respect to Count I is

GRANTED, and Browder’s federal substantive due process claim is DISMISSED.

2. Massachusetts Substantive Due Process (Count II)

Browder contends that Pust violated the Massachusetts Declaration of Rights

(“Declaration of Rights”) by conditioning his continued employment on vaccination or weekly

testing, thereby forcing him to choose between exercising a religiously grounded right to refuse

medical intervention and retaining his tenured position. Pust moves to dismiss on the ground

that Browder has not alleged infringement of a fundamental right that would trigger heightened

scrutiny and that, in any event, the Policy bears a rational relationship to the City’s legitimate

public health objectives. Browder responds that Massachusetts recognizes a constitutional

liberty to decline medical treatment and that his allegations plausibly show coercion warranting

heightened review at the pleadings stage.

Under Massachusetts law, the court asks first whether the challenged government action

implicates a fundamental right or liberty interest; if it does, strict scrutiny applies, and if it does

not the action is upheld so long as it is rationally related to a legitimate state interest. Kligler v.

Att’y Gen., 198 N.E.3d 1229, 1248 (Mass. 2022); see Commonwealth v. Ellis, 708 N.E.2d 644,

(Mass. 1999). The Supreme Judicial Court has recognized a constitutional and common law

right to refuse medical treatment in appropriate circumstances. Norwood Hosp. v. Munoz, 564

N.E.2d 1017, 1021 (Mass. 1991) (“This court has recognized . . . that individuals have a common

law right to determine for themselves whether to allow a physical invasion of their bodies.”).

The Declaration of Rights can, in some contexts, afford “broader protection . . . than the Federal

Constitution.” Commonwealth v. DiBenedetto, 203 N.E.3d 579, 592 (Mass. 2023).

Applying those principles, Browder alleges that Pust initiated an interactive dialogue

process with him, then disengaged. Then Pust, or someone she may have directed, conditioned

his continued employment on submitting to a medical regimen that his faith forbids, and

Browder alleges that noncompliance exposed him to indefinite unpaid leave and eventual

separation. Those allegations, if proven, could constitute a coercive interference with bodily

integrity interests recognized under Massachusetts law. Whether the Declaration of Rights, as

construed in Norwood Hospital, extends to the workplace measures at issue and whether the

City’s public health justifications withstand strict scrutiny are factual and legal questions not

amenable to resolution on a motion to dismiss. The Court notes, however, to ultimately hold

Pust liable, Browder must prove facts showing that she personally participated in or authorized

the challenged conduct rather than relying on generalized allegations of institutional action.

Accepting the complaint’s nonconclusory allegations as true and drawing reasonable inferences

in Browder’s favor, the Defendants’ Motion is DENIED with respect to Count II, which survives

dismissal at this stage.

3. Procedural Due under 42 U.S.C. § 1983 (Count IX)

Browder alleges that the City and Pust deprived him of procedural due process by placing

him on indefinite unpaid administrative leave while his religious accommodation request

remained pending, thereby taking a constitutionally protected property interest in continued

public employment without providing an adequate pre-deprivation process. Defendants move to

dismiss on the ground that Browder lacked a protected property interest and that, in any event, he

received constitutionally adequate process. Browder responds that, as a tenured public

employee, he had a due process protected property interest in continued employment, and that

the City removed him without the notice and meaningful pre-deprivation hearing the

Constitution requires.

Procedural due process violation requires: a protected liberty or property interest, state

action depriving the plaintiff of that interest, and a failure to provide constitutionally adequate

process. García‑González v. Puig‑Morales, 761 F.3d 81, 88 (1st Cir. 2014). Where state law

creates a legitimate claim of entitlement to public employment, a property interest exists and the

employee ordinarily must receive notice and an opportunity to respond appropriate to the

circumstances before termination or other significant deprivation. See Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 542–43, 546 (1985). Post-deprivation procedures may suffice only

where pre-deprivation process is impracticable or the state provides an adequate post-deprivation

remedy. Parratt v. Taylor, 451 U.S. 527, 538-39 (1981).

Here, Browder alleges status as a tenured civil service firefighter, prompt placement on

indefinite unpaid leave while his accommodation request remained unresolved, minimal advance

notice, and only a brief, apparently cursory post-deprivation proceeding that did not permit

meaningful review of the exemption denial. Those allegations, taken as true, suffice to show a

plausible deprivation of a property interest without constitutionally adequate pre-deprivation

process. Whether exigent public health circumstances justified the City’s procedures and

whether the City’s actual notice and post-deprivation remedies were constitutionally adequate

are factual questions not ripe for resolution on a Rule 12(b)(6) motion. Again, to ultimately hold

Pust liable, Browder must prove facts showing her personal participation. Thus, the Defendants’

Motion is DENIED as to Count IX, which survives dismissal.

B. Free Exercise under the First Amendment (Count III)

Browder alleges that the Policy, as administered, violated his rights under the Free

Exercise Clause by imposing a substantial burden on his sincerely held religious belief that

biomedical vaccines and testing are forbidden, and by singling out religious objections for

disparate treatment.

To survive dismissal, Browder must plausibly allege that the Policy either is not neutral

or not generally applicable, or that it was applied in a discriminatory manner that permits resort

to strict scrutiny. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,

531–33 (1993); Emp. Div., Dept. of Hum. Res. of Or. v. Smith, 494 U.S. 872, 879 (1990). A

facially neutral law that allows individualized exemptions may nonetheless fail general

applicability and thus trigger strict scrutiny. See Fulton v. City of Philadelphia, 593 U.S. 522,

537-38 (2021). Government action that impermissibly probes the validity or centrality of

religious beliefs also raises Free Exercise concerns. See Masterpiece Cakeshop, Ltd. v. Colo.

C.R. Comm’n, 584 U.S. 617, 638 (2018). The First Circuit recently held that allegations that a

government policy granted medical but not religious exemptions, and that medical exemptions

were routinely granted while religious exemptions were denied, may survive a motion to dismiss

where the complaint pleads plausible facts of disparate administration. See Lowe v. Mills, 68

F.4th 706, 714 (1st Cir. 2023).

Applying these principles, Browder’s allegations are sufficient to state a Free Exercise

claim. The Policy is facially neutral and includes both medical and religious exemption

procedures, but the complaint alleges that medical exemptions were routinely granted while

religious exemptions like Browder’s were denied, that disciplinary consequences fell

disproportionately on religious objectors while other noncompliant employees avoided adverse

sanctions, and that the administrative process required Browder to justify and document doctrinal

points in a manner that discounted or disparaged his beliefs. Accepted as true, those allegations

plausibly show selective enforcement and an impermissible inquiry into religious belief that

distinguish this case from a garden variety one. The Court notes reliance on an official’s post

hoc publications or scholarly statements standing alone is insufficient to show discriminatory

administration unless the complaint pleads facts tying those materials to the challenged decision.

Browder’s surviving allegations must therefore prove discriminatory administration by the City

or by Pust rather than resting solely on scholarly statements made by others in different roles or

at different times.

Accordingly, the Motion is DENIED as to Count III. Browder may pursue his Free

Exercise claim against the City, but to obtain damages from Pust in her individual capacity,

Browder must later prove specific, nonconclusory facts showing Pust’s direct involvement in or

ratification of the allegedly discriminatory administration.

C. Equal Protection under the Fourteenth Amendment (Count IV)

Browder alleges that the Policy was enforced in a racially discriminatory manner and

produced a disparate impact on Black employees. He contends that Defendants denied religious

exemptions disproportionately to Black employees, disparaged objections rooted in medical

mistrust associated with Black Americans, and singled him out for indefinite unpaid leave while

other noncompliant employees faced no comparable sanction. Defendants counter that the

Policy is facially neutral, that Browder’s disparate treatment theory requires proof of

discriminatory intent, and the disparate impact theory requires a statistically significant showing,

and that the City’s public health justification is an obvious nondiscriminatory explanation for the

challenged outcomes.

An official action will not be held unconstitutional solely because it results in racially

disproportionate impact; proof of racially discriminatory intent or purpose is required to show

violation of the Equal Protection Clause. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,

429 U.S. 252, 265–66 (1977), (discussing Washington v. Davis, 426 U.S. 229 (1976)). Disparate

treatment claims require proof that the plaintiff was intentionally treated differently from

similarly situated persons on account of a protected class characteristic like race. Barrington

Cove Ltd. P’ship v. R.I. Hous. & Mortg. Fin. Corp., 246 F.3d 1, 7 (1st Cir. 2001). Disparate

impact claims in the employment context require identification of a specific employment practice

and a showing of significant statistical disparity before the employer may justify the practice as

job related and consistent with business necessity. Ricci v. DeStefano, 557 U.S. 557, 577–79

(2009); see Jones v. City of Boston, 752 F.3d 38, 46 (1st Cir. 2014); 42 U.S.C. §

2000e‑2(k)(1)(A)(i).

Applying those standards, Browder’s complaint states a plausible equal protection claim.

He alleges multiple exemption denials that disproportionately affected Black employees, and his

isolated placement on indefinite unpaid leave after refusing both vaccination and testing. Those

allegations permit a reasonable inference of discriminatory intent or at least a disparate impact

that warrants factual development rather than dismissal at the pleading stage. This conclusion

does not foreclose the City’s obvious nondiscriminatory explanation, namely legitimate public

health and workplace safety concerns, or employer defenses available under Ricci and Title VII.

It only recognizes that, on a motion to dismiss, the complaint’s specific allegations are sufficient

to require further factual inquiry. The Motion is therefore DENIED as to Count IV.

D. Title VII Religious Discrimination (Counts V)

Browder alleges that the City discriminated on the basis of religion by refusing to

accommodate his sincere Nation of Islam objections to vaccination and weekly testing, placing

him on indefinite unpaid administrative leave, and rejecting proposed alternatives such as

reassignment and enhanced personal protective equipment. Defendants argue that Browder has

not pleaded a bona fide religious belief or that accommodation would impose an undue hardship.

To plead a prima facie claim for disparate treatment religious discrimination, Browder

must allege: (1) “a bona fide religious practice [that] conflicts with an employment requirement”;

and (2) that the conflict motivated an adverse employment action. Bazinet v. Beth Israel Lahey

Health, Inc., 113 F.4th 9, 15 (1st Cir. 2024) (citation omitted). Once a plaintiff makes this

showing, the burden shifts to the employer to demonstrate that it offered a reasonable

accommodation or that accommodating the employee would have imposed an undue hardship on

its operations. Id.

Browder has pleaded a sincerely held religious objection communicated through a

Reasonable Accommodation Request, disciplinary consequences arising from noncompliance,

and specific alternative accommodations the City declined. Those allegations satisfy the prima

facie pleading elements and shift the burden to the City to justify denial of accommodation as an

undue hardship. Whether reassignment was infeasible, testing accommodations were

unworkable, or accommodation would have imposed a substantial burden are merits questions

for summary judgment or trial, not for resolution on a Rule 12(b)(6) motion. Defendants’

Motion is DENIED as to Count V, and discovery is appropriate to develop evidence concerning

the sincerity of Browder’s beliefs and whether accommodation would have imposed an undue

hardship on the City.

E. Title VII Race Discrimination (Count VII)

Browder alleges that the City’s enforcement and accommodation decisions produced a

disparate racial effect and were implemented with discriminatory purpose, citing selective denial

of religious exemptions that disproportionately affected Black employees and his own singular

placement on indefinite unpaid leave. Defendants contend the Policy is facially neutral,

Browder’s allegations of racial animus are speculative and derivative of his religious claim, and

the limited sample of disciplinary actions is insufficient to allege disparate impact.

Title VII disparate treatment claims require an allegation that the plaintiff was treated

differently than similarly situated employees because of discriminatory intent. Barrington Cove

Ltd. P’ship, 246 F.3d at 7. When a policy is facially neutral, a Title VII plaintiff may proceed by

demonstrating that a neutral practice produced a disparate impact traceable to the employer and

is not justified by legitimate business necessity. See 42 U.S.C. § 2000e‑2(k)(1)(A)(i); Ricci, 557

U.S. at 577–78; Jones, 752 F.3d at 46.

Here, Browder pleads multiple exemption denials that disproportionately affected Black

employees, allegedly disparaging characterizations tied to medical mistrust among Black

Americans, and his isolated placement on indefinite unpaid leave. Read in the light most

favorable to him, those allegations permit a plausible inference of discriminatory intent or at

least a disparate impact that warrants factual development. The City’s nondiscriminatory

justification of workplace safety and public health remains a potent defense, but it is not

dispositive on the pleadings. Defendants’ Motion is DENIED as to Count VII, and discovery

will determine whether statistical proof and job‑related business necessity justifications resolve

the competing theories.

F. Americans with Disabilities Act (Count VIII)

Browder alleges that the City’s Policy subjected him to involuntary medical examinations

and disability related inquiries by requiring weekly COVID-19 testing of unvaccinated

employees as a condition of continued employment. Defendants move to dismiss principally on

two grounds: (1) Browder failed to exhaust administrative remedies because his earlier charge

referenced only religion and retaliation and not disability; and (2) the complaint does not allege

that Browder is disabled (nor that he was regarded as disabled), so he cannot state a

discrimination claim under the ADA. Defendants also contend that compelled testing, standing

alone, does not convert unvaccinated status into a cognizable impairment under the ADA.

To state a claim under the ADA, a plaintiff must allege: (1) disability “within the

meaning of the ADA; (2). . . ab[ility] to perform the essential functions of [the] job with or

without [a reasonable] accommodation;” and (3) an adverse employment action because of the

disability. López-López v. Robinson Sch., 958 F.3d 96, 104 (1st Cir. 2020) (quoting Ruiz Rivera

v. Pfizer Pharms., LLC, 521 F.3d 76, 82 (1st Cir. 2008)). A plaintiff must also exhaust

administrative remedies by filing a timely charge with the EEOC or an appropriate state agency,

Bonilla v. Muebles J.J. Alvarez, Inc., 194 F.3d 275, 278 (1st Cir. 1999), and the judicial

complaint is generally limited to claims reasonably encompassed by that charge.

The complaint alleges no actual disability, no record of a disability, and no facts showing

that Browder was regarded as disabled. It also does not allege that Browder requested an

accommodation for an impairment. Compelled testing or unvaccinated status, standing alone,

does not convert the plaintiff into a person with an ADA cognizable impairment. See Kosiba v.

Cath. Health Sys. of Long Island, Inc., No. 23-6, 2024 WL 3024652, at *1 n.1 (2d Cir. June 17,

2024). Because the complaint fails to plead the ADA’s basic statutory predicate of disability, the

elements of an ADA discrimination claim are not met, and Defendants’ Motion is GRANTED

as to Count VIII. Browder’s ADA claims including any challenge under 42 U.S.C. §

12112(d)(4) fail for lack of pleaded disability and are DISMISSED without prejudice to

amendment only if Browder can plead nonconclusory facts establishing an actual or perceived

disability and exhaustion of administrative remedies.

G. Breach of Contract (Count XIII)

Browder alleges that the City breached the 2017–2021 collective bargaining agreement

(“CBA”) by placing him on indefinite unpaid administrative leave while his religious exemption

request remained pending, by abruptly ordering him back to work after nineteen months and then

declaring him absent without leave so as to deprive him of civil service appeal rights, and by

refusing to advance his grievance through the CBA grievance process—conduct that Browder

asserts violated the CBA’s just cause, nondiscrimination, and good faith dealings terms and

caused contract damages. Defendants move to dismiss the contract claim as preempted by the

exclusivity provisions of Mass. Gen. Laws ch. 151B § 9 on the ground that the alleged breaches

arise from the same facts as Browder’s employment discrimination claims.

A breach of contract claim under Massachusetts law requires a plaintiff to show: (1) there

was an agreement between him and the defendant; (2) the plaintiff was “ready, willing, and able”

to perform his end of the contract; (3) the defendant committed a breach of the contract; and (4)

the plaintiff suffered harm as a result. Guldseth v. Fam. Med. Assocs. LLC, 45 F.4th 526, 534

(1st Cir. 2022) (quoting Bulwer v. Mount Auburn Hosp., 46 N.E.3d 24, 39 (Mass. 2016)).

The complaint identifies the operative collective bargaining agreement, cites specific

contractual protections including just cause, grievance and appeal procedures, and the covenant

of good faith and fair dealing, and alleges particular acts by the City: placement on indefinite

unpaid leave while an exemption request was pending and an abrupt return‑to‑work order after

nineteen months followed by a declaration of unauthorized absence. Those allegations, if

proven, plausibly show breaches of contractual obligations distinct from statutory discrimination

remedies. Whether the alleged breaches are simply a repackaging of Chapter 151B claims,

whether the City acted in bad faith, and whether contractual remedies remain available are fact

intensive issues for discovery. Defendants’ Motion is DENIED as to Count XIII, and the

contract claim survives to permit discovery into the CBA terms, the specific acts alleged to have

breached those terms, causation, and whether the claim is preempted or barred by the Chapter

151B remedial scheme.

H. Qualified Immunity

To begin, “courts must maintain a balance between a defendant-official’s interest in the

early dismissal of claims as to which [s]he is immune, and a plaintiff’s interest in benefiting from

the favorable standards afforded to him on a motion to dismiss . . .” Jakuttis v. Town of Dracut,

Massachusetts, 656 F. Supp. 3d 302, 318 (D. Mass. 2023). Government officials sued in their

individual capacities are immune from damages liability unless the plaintiff plausibly alleges

both that: (1) an official violated a federal constitutional or statutory right; and (2) that the right

was clearly established at the time of the challenged conduct so that a reasonable official would

have understood that her conduct was unlawful. Eves v. LePage, 927 F.3d 575, 582–583 (1st

Cir. 2019); see Pearson v. Callahan, 555 U.S. 223, 232 (2009). The Court evaluates those prongs

sequentially and with attention both to the particularity of the alleged facts and to the legal

context in which Pust acted.

Applying the first prong, Browder has pleaded plausible allegations that Pust personally

participated in the interactive exemption process and materially contributed to the denial and the

discipline that followed. He alleges that Pust’s office supplied the interactive dialogue

questionnaire, that she corresponded with him directly about his request, and that she was the

operative City official handling exemption communications. Accepting those allegations as true

at the pleading stage, Browder has alleged plausible Free Exercise and due process violations.

The second prong yields a more nuanced result. The Free Exercise principles forbidding

selective enforcement and impermissible inquiry into the content or centrality of religious belief

were clearly established before the events alleged, as reflected in Lukumi, 508 U.S. 520, and

subsequently refined in Fulton, 593 U.S. 522. A reasonable official would have known that

treating religious exemptions differently from comparable secular exemptions or demanding

doctrinal proof could violate the Free Exercise Clause. The procedural due process right of

tenured public employees to constitutionally adequate notice and an opportunity to be heard prior

to a significant deprivation was likewise clearly established by Loudermill, 470 U.S. 532, and

related precedent. By contrast, the proposition that an employee has a clearly established

constitutional right to refuse routine workplace testing or to invalidate a neutral vaccine or test

regimen as a categorical matter was not clearly established at the time and lacks controlling

Supreme Court or First Circuit precedent, Jacobson, 197 U.S. 11, and related public health cases

support deferential review of reasonable pandemic measures.

Accordingly, qualified immunity is DENIED as to claims based on an impermissible

Free Exercise violation and as to the surviving due process claims because Browder has

plausibly alleged Pust’s direct involvement, and the governing law was clearly established.

Qualified immunity is GRANTED, however, with respect to any claim premised on a

categorical entitlement to refuse routine workplace testing or to nullify a neutral vaccine-or-test

mandate, because the law has not clearly established such a sweeping right. See Jacobson, 197

U.S. 11.

IV. CONCLUSION

For the reasons stated above, Defendants’ Motion to Dismiss [Dkt. 28] is GRANTED IN

PART and DENIED IN PART as follows:

• GRANTED as to Count I (federal substantive due process under 42 U.S.C. §

1983), which is DISMISSED.

• DENIED as to Count II (Massachusetts substantive due process under the

Declaration of Rights), which survives as to Pust to the extent the complaint

plausibly alleges her direct involvement.

• DENIED as to Count III (free exercise under the First Amendment), which

survives against the City and to Pust to the extent Browder plausibly alleges

Pust’s direct involvement.

• DENIED as to Count IV (equal protection under 42 U.S.C. § 1983).

• DENIED as to Count V (Title VII failure to accommodate and religious

discrimination).

• VOLUNTARILY DISMISSED as to Count VI (state law disparate treatment

and religious discrimination).

• DENIED as to Count VII (Title VII race discrimination).

• GRANTED as to Count VIII (Americans with Disabilities Act), which is

DISMISSED.

• DENIED as to Count IX (procedural due process under 42 U.S.C. § 1983), which

survives against the City and to Pust to the extent Browder plausibly alleges

Pust’s direct involvement.

• VOLUNTARILY DISMISSED as to Count X (Takings Clause).

• VOLUNTARILY DISMISSED as to Count XI (conspiracy to deprive of equal

protection under 42 U.S.C. § 1985).

• DENIED as to Count XIII (Breach of Contract).

• As to Pust’s assertion of qualified immunity, it is DENIED with respect to claims

alleging Pust’s direct involvement in discriminatory treatment of Browder’s Free

Exercise rights or in denial of constitutionally required due process. Qualified

immunity is GRANTED¸ however, for any claim premised on a categorical

constitutional entitlement to refuse routine workplace testing or to nullify a

neutral vaccine-or-test mandate.

SO ORDERED.

Dated: October 1, 2025 /s/ Angel Kelley

Hon. Angel Kelley

United States District Judge