Labor – Discrimination – Disparate treatment

Listen to this article

Where a Boston firefighter who unsuccessfully sought a religious exemption from vaccination and testing requirements has filed a complaint against his union, the complaint should not be dismissed, as the factual allegations are sufficient to state plausible claims of disparate treatment religious discrimination under Title VII and Chapter 151B and breach of the duty of fair representation.

“Plaintiff Michael Browder sued Defendant Boston Firefighters Local 718, International Association of Fire Fighters, AFL‑CIO (‘Local 718′), alleging disparate treatment religious discrimination under 42 U.S.C. §2000e‑2 (Count V), disparate treatment religious discrimination under Mass. Gen. Laws ch. 151B, §4 (Count VI), conspiracy to deprive equal protection under 42 U.S.C. §1985 (Count XI), and breach of the duty of fair representation (Count XII). Browder also sued Tammy Pust, the City of Boston (the ‘City’), Bisola Ojikutu (‘Dr. Ojikutu’), and then Local 718 president, John Soares. Local 718 moves to dismiss all claims against it, arguing that Browder has failed to state a claim upon which relief can be granted (the ‘Motion’). … Browder voluntarily dismissed Count XI, the §1985 conspiracy claim, against all defendants but opposes Local 718’s Motion, arguing that he has plausibly alleged entitlement to relief. … For the following reasons, Local 718’s Motion is denied. …

“Browder alleges that, as a member of the Nation of Islam, his sincerely held religious beliefs forbid both COVID‑19 vaccination and biochemical testing, that those beliefs conflicted with the City’s Policy and the later Mandatory Vaccine Policy, and that his refusal to vaccinate or submit to testing resulted in indefinite unpaid administrative leave and ultimate separation. He further alleges that Local 718 disparaged him, refused to advance his grievance after a hearing was scheduled, and publicly and selectively supported other members’ objections: conduct he contends evinces discriminatory animus and meaningfully induced or contributed to the City’s adverse employment decisions against him. …

“To establish a prima facie case of disparate treatment discrimination under Title VII, a plaintiff must show: (1) membership in a protected class; (2) qualification for the position; (3) the employer took an adverse employment action against them; and (4) some evidence of a causal link between their protected status and the adverse employment action. …

“Browder has plausibly pleaded the necessary elements. He is a member of a protected class, as a Black person, under Title VII. He was qualified for his position, having worked at BFD for over a dozen years. He alleges adverse employment actions, including being placed on indefinite unpaid leave and then, ultimately, his termination. He also alleges facts that could be read to give rise to an inference of discriminatory animus by Local 718 leadership and a causal connection with an adverse employment action. … Construing the allegations in Browder’s favor, the Court concludes Count V states a plausible claim against Local 718 and denies the Motion as to Count V. …

“A Chapter 151B claim requires the plaintiff to plead: (1) membership in a protected class; (2) harm; (3) discriminatory animus; and (3) causation. …

“Viewing the allegations holistically and drawing reasonable inferences in Browder’s favor, the Court finds Count VI plausibly pleads discriminatory motive and proximate causation, and therefore denies the Motion as to Count VI. …

“… A duty of fair representation claim requires a unionized employee to plead three elements: (1) the union owed a duty to represent the employee as the exclusive bargaining representative; (2) the union’s conduct was arbitrary, discriminatory, or in bad faith; and (3) the union’s breach proximately caused the employee’s damages. …

“Here, Browder has pleaded the threshold elements. … He also alleges particularized facts bearing on arbitrariness and discriminatory motive. Between October and December 2021, Local 718’s counsel initially sought interim relief, then union officers disparaged Browder as a ‘loose cannon,’ told him he was ‘on his own,’ and Soares publicly insulted him at a joint emergency meeting. Browder further alleges that Local 718’s general opposition to vaccine mandates did not extend to his dual objection to both vaccination and testing and that he expressly withdrew his grievance for lack of confidence in the Union’s fairness. Taken together, these contemporaneous allegations permit a reasonable inference that Local 718’s refusal to pursue his grievance was arbitrary or motivated by hostility toward his religious beliefs and that this refusal foreclosed his contractual remedy, contributing to his unpaid leave and separation. At the Rule 12(b)(6) stage, these factual allegations are sufficient to state a plausible duty of fair representation claim. Local 718’s arguments about broad prosecutorial discretion, alleged failure to exhaust other remedies, and the City’s ultimate disciplinary authority raise merits issues inappropriate for resolution on a motion to dismiss. Accordingly, Count XII survives and the Motion is denied as to this claim.”

Browder v. City of Boston, et al. (Lawyers Weekly No. 02-564-25) (13 pages) (Kelley, J.) (Civil Action No. 1:24-CV-11588-AK) (Oct. 1, 2025).

Click here to read the full text of the opinion.