Colon v. City of Boston et al

1
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
)
SAVIEL COLÓN, 	)
)
)
Plaintiff 	)
)
v. 	)
) 	Case No. 24-cv-12191
CITY OF BOSTON, BISOLA OJIKUTU in her )
official and individual capacities, TAMMY 	)
PUST in her official and individual capacities, 	)
LISA O’BRIEN in her official and individual 	)
capacities, BOSTON POLICE PATROLMEN’S )
ASSOCIATION, AND LAWRENCE 	)
CALDERONE, 	)
)
)
Defendants. 	)
)
)
__________________________________________)
MEMORANDUM AND ORDER
CASPER, C. J. 	March 5, 2026
I. 	Introduction
Plaintiff Saviel Colón (“Colón”) has filed this lawsuit against Defendants City of Boston
(“Boston”), Bisola Ojikutu (“Ojikutu”), Tammy Pust (“Pust”), Lisa O’Brien (“O’Brien”), Boston
Police Patrolmen’s Association (“BPPA”), and Lawrence Calderone (“Calderone”) (collectively,
“Defendants”). D. 1. Against all Defendants in the operative, first amended complaint (“FAC”),
D. 25, he alleges violations of his Fourteenth Amendment rights under 42 U.S.C. § 1983 (Counts
I and IX) and Massachusetts law (Count II) in connection with Boston’s policy requiring Boston
employees to be fully vaccinated against COVID-19 or to submit to weekly testing (the “Vaccine
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 1 of 43

2
or Test Policy” or the “Policy”), and violations of his First Amendment rights under § 1983 in
connection to the denial of his religious exemption request under the Policy (Count III). 	As to
Boston, Pust and Ojikutu, Colón alleges violations of his Fourteenth Amendment rights under §
1983 based on race-based disparate treatment and impact under the Policy (Count IV); as to Boston
and O’Brien, Colón alleges conspiracy to deprive equal protection of laws under 42 U.S.C. § 1985
(Count XI); as to BPPA, Colón alleges breach of duty of fair representation (Count XII); and as to
Boston, Colón alleges violations of Title VII (Counts V and VII), Massachusetts law (Count VI),
the Americans with Disabilities Act (“ADA”) (Count VIII), and breach of contract (Count XIII).1
Defendants move to dismiss the FAC under Fed. R. Civ. P. 12(b)(6). D. 48; D. 52; D. 55. Ojikutu
also moves to dismiss under Fed. R. Civ. P. 12(b)(1). D. 55. For the reasons stated below, the
Court ALLOWS Ojikutu’s motion to dismiss under Fed. R. Civ. P. 12(1), D. 55, and ALLOWS
the motions to dismiss under Fed. R. Civ. P. 12(b)(6), D. 48; D. 52; D. 55.
II. 	Standard of Review
A. 	Motion to Dismiss for Lack of Standing under Rule 12(b)(1)
When confronted with a Rule 12(b)(1) motion, “the district court must construe the
complaint liberally, treating all well-pleaded facts as true and indulging all reasonable inferences
in 	favor 	of 	the 	plaintiff.” 	Aversa 	v. 	United 	States, 	99 	F.3d 	1200, 	1209-10 	(1st 	Cir.
1996) (citing Murphy v. United States, 45 F.3d 520, 522 (1st Cir. 1995)). The Court may widen
its 	gaze, 	however, 	and 	look 	beyond 	the 	pleadings 	to 	determine 	subject 	matter
jurisdiction. Martínez-Rivera v. Commonwealth of Puerto Rico, 812 F.3d 69, 74 (1st Cir. 2016).
“[T]he party invoking the jurisdiction of a federal court carries the burden of proving its
1 Colón appears to have withdrawn Count X in his amended pleading, see D. 55-1 at 25 n. 15; D.
25, as no Count X is alleged in the FAC, see D. 25 at 65.
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 2 of 43

3
existence.” Murphy, 45 F.3d at 522 (quoting Taber Partners, I v. Merit Builders, Inc., 987 F.2d
57, 60 (1st Cir. 1993)). Standing is a jurisdictional issue, see P.R. Tel. Co. v. T-Mobile P.R. LLC,
678 F.3d 49, 57 (1st Cir. 2012), and, accordingly, challenges to standing are properly considered
under Rule 12(b)(1), see Kolancian v. Snowden, 532 F. Supp. 2d 260, 261 (D. Mass. 2008).
B. 	Motion to Dismiss for Failure to State a Claim under Rule 12(b)(6)
Under Rule 12(b)(6), a defendant may move to dismiss an action arguing that it fails to
state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The Court must determine
if the facts alleged “plausibly narrate a claim for relief.” Schatz v. Republican State Leadership
Comm., 669 F.3d 50, 55 (1st Cir. 2012) (citation omitted). Reading the complaint “as a whole,”
the Court must conduct a two-step, context-specific inquiry. García-Catalán v. United States, 734
F.3d 100, 103 (1st Cir. 2013). 	First, the Court must perform a close reading of the claim to
distinguish the factual allegations from the conclusory legal allegations contained therein. 	Id.
Factual allegations must be accepted as true, while conclusory legal allegations are not entitled
credit. 	Id. 	Second, the Court must “take the complaint’s well-pled (i.e., non-conclusory, non-
speculative) facts as true, drawing all reasonable inferences in the pleader’s favor, and see if they
plausibly narrate a claim for relief.” 	Schatz, 669 F.3d at 55. 	If they do not, then dismissal is
warranted. See Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12 (1st Cir. 2011).
III. 	Factual Background
For the purposes of the respective motions to dismiss, D. 48; D. 52; D. 55, the Court
confines itself to and accepts as true all well-pleaded facts in the FAC, save for considering
“documents incorporated by reference into the complaint, matters of public record, and facts
susceptible to judicial notice.” Haley v. City of Bos., 657 F.3d 39, 46 (1st Cir. 2011).
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 3 of 43

4
A. 	Introduction
During the COVID-19 pandemic, Boston adopted the Vaccine or Test Policy, discussed
further below, requiring Boston employees to either submit verification that they have been fully
vaccinated or to submit to weekly testing. D. 25 ¶ 70; D. 53-1. Colón, a Boston police officer,
sought a religious exemption from the Policy which Boston denied, D. 25 ¶¶ 79-137, and Colón
was placed on unpaid administrative leave for his failure to comply with the Policy until it was
lifted, id. ¶¶ 100-88. Colón alleges that Defendants violated his constitutional, state and common
law rights by denying his religious exemption and placing him on unpaid administrative leave. Id.
¶¶ 254-350.
B. 	Boston’s August 12, 2021 Vaccine or Test Policy
On August 12, 2021, Boston adopted the Vaccine or Test Policy requiring Boston
employees to either verify by October 18, 2021 that they have been fully vaccinated against
COVID-19 or “submit proof every seven (7) days of a negative COVID-19 screening test result
and be subject to restrictions on official travel.” D. 25 ¶¶ 70-72; D. 53-1 at 1. Boston stated that
the purpose of the Policy 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.” D. 25 ¶ 71; D. 53-1 at 1. Employees who “fail[ ] to
submit the required proof of a negative test will be placed on unpaid administrative leave until
verification or vaccination or a reasonable accommodation [was] approved if required by law.” D.
25 ¶ 73; D. 53-1 at 3. The Policy permitted reasonable accommodations, D. 25 ¶ 74; D. 53-1 at 4-
5, and detailed processes for employees to request a medical exemption for the vaccination
component and a religious exemption for either the vaccination or testing component, D. 25 ¶¶ 74-
78; D. 53-1 at 5. Employees requesting a religious exemption had to submit documentation to the
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 4 of 43

5
Office of Human Resources (“OHR”). 	D. 25 ¶ 77; D. 53-1 at 4. 	Upon receipt of the required
documentation, OHR began an “interactive accommodation process with the employee,” D. 25 ¶
78; D. 53-1 at 4-5, and would grant accommodations “when the required legal standards are met
and the accommodation does not cause undue hardship or pose a direct threat to the health and
safety of others,” D. 25 ¶ 78; D. 53-1 at 5. Requests for religious accommodations required, among
other things, an “explanation of [an employee’s] religious or religious-type beliefs and why those
beliefs prevent vaccination and/or testing.” D. 25 ¶ 77; D. 53-1 at 5.
On October 1, 2021, BPPA and Calderone, BPPA’s President, entered into a private
memorandum of agreement (the “October MOA”) with Boston and Pust, the Director of Boston’s
Office of Labor Relations, agreeing to the terms of the Vaccine or Test Policy on behalf of BPPA
members. 	D. 25 ¶¶ 112-13; D. 30-1 at 1. 	Under the agreement, BPPA agreed not to “grieve,
appeal, or otherwise challenge the provisions of this Agreement or the Policy via the Parties’
collective 	bargaining 	agreement, 	through 	the 	contractual 	grievance 	process, 	through 	the
Department of Labor Relations, or in any other forum, except to enforce its terms,” D. 25 ¶ 115;
D. 30-1 at 2, and Boston agreed to provide ten days of sick leave for union employees, to be
renewed on the anniversary of the October MOA’s execution, as well as up to ten additional sick
days for union employees who complied with the Policy, tested positive for COVID-19 and had
already exhausted their sick leave before June 30, 2022, D. 25 ¶ 117; D. 30-1 at 1-2.
C. 	Colón’s Religious Exemption
Colón, a Jehovah’s Witness, D. 25 ¶¶ 19, was a police officer in the Boston Police
Department (“BPD”) from 2019-2023, id. ¶¶ 51, 200. While employed with BPD, Colón was a
dues-paying member of BPPA and protected under BPPA’s collective bargaining agreement. Id.
¶¶ 55-56. Prior to COVID-19, Colón “made the religious decision that he will no longer consent
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 5 of 43

6
to vaccinations” and, by 2020, decided to stop taking “medical treatments that involve introducing
synthetic or ‘foreign’ chemical substances into his body” because he believes “the human body is
a temple to Jehovah” and “[t]herefore, introducing foreign substances directly into the body, or
even using foreign substances to test his bodily fluids can contaminate this temple, making it
unholy and ritually impure” in accordance with 1 Corinthians 6:19-20 (New World) and 2
Corinthians 7:1 (New World). Id. ¶¶ 41-44.
On September 20, 2021, Colón submitted a request for a religious exemption to the Vaccine
or Test Policy “due to [his] sincerely held Religious beliefs.” Id. ¶¶ 1, 79. By October 11, 2021,
Colón had received no response to his request and “fearing the loss of his employment,” he took a
COVID-19 test to comply with the Policy. Id. ¶ 80. When he inserted the COVID-19 test swab
into his nose, he felt “an intense burning sensation in his nose” which he contributed to “having
introduced foreign substances into his body, thereby contaminating it and making it unholy.” Id.
¶¶ 81-82. On October 18, 2021, OHR responded to Colón’s request and prompted him to complete
a Religious Accommodation Request form. Id. ¶ 84. Colón submitted the form that day, stating:
“[b]ased on my Religious beliefs, I do not accept any foreign substance into my body … Work is
requiring that I get vaccinated or submit to weekly testing, [b]oth of which contain substances that
will make my body unholy . . . I am invoking my Religious exemption to any and all vaccinations
as well as weekly testings. This will ensure that I keep my body Holy.” Id. ¶¶ 86-87.
On October 21, 2021, Colón received a notice of non-compliance with the Vaccine or Test
Policy informing him that he would be placed on “unpaid administrative leave” if he was not in
compliance by October 25, 2021. Id. ¶ 95. The BPD Office of Labor Relations and Calderone
were copied on the notice. Id. ¶ 96. On October 22, 2021, Colón informed OHR that he had not
yet received a response for his accommodation request and asked that his exemption proceed in a
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 6 of 43

7
timely manner. Id. ¶ 97. Colón received a second notice of non-compliance several days later.
Id. ¶ 98. 	On October 26, 2021, Colón was notified by O’Brien, the Chief of BPD’s Bureau of
Administration and Technology, that he was being placed on “unpaid administrative leave
effective at the beginning of [his] scheduled work shift today.” 	Id. ¶¶ 100, 102. 	The notice
informed Colón that a non-compliance hearing would take place on October 29, 2021. Id. ¶ 103.
The morning of October 28, 2021, Colón’s BPPA representative, Frederick Mendes, called
Colón to ask why he had not complied with the Vaccine or Test Policy. Id. ¶ 118. Upon learning
that Colón submitted a request for religious accommodation, Mendes urged him to comply with
weekly testing. 	Id. ¶ 119. 	Shortly after this call, Colón received another call from Mendes,
Calderone and two BPPA attorneys who attempted to convince Colón to comply with the Policy.
Id. ¶¶ 120, 122. Calderone told Colón that BPPA drafted the Policy with Boston officials, BPPA
agreed to the testing requirement on behalf of its members and Colón “ha[d] no choice but to
submit to weekly testing.” Id. ¶ 121. Later that day, Colón attended a reasonable accommodation
interactive dialogue with Pust where Colón suggested several possible accommodations to the
Policy. Id. ¶¶ 125-27; 53-2 at 1. Pust did not ask any questions about Colón’s religious beliefs
and “appeared frustrated” by Colón’s accommodation suggestions. D. 25 ¶¶ 126, 128.
On October 29, 2021, Colón, along with his BPPA representative, attended the non-
compliance hearing led by Pust’s subordinates at Boston’s Office of Labor Relations. Id. ¶¶ 132-
33. Later that afternoon, Boston denied his request as to both the vaccination and weekly testing
components of the Policy. Id. ¶ 135. Boston stated that it denied Colón’s request for a vaccination
accommodation because that component was “voluntary,” D. 53-2 at 2; D. 25 ¶ 136, and that it
denied Colón’s request for a testing accommodation because his duties as a police officer required
him to be in close proximity with others and allowing him to perform those duties without regular
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 7 of 43

8
testing would jeopardize others’ health, D. 53-2 at 2; D. 25 ¶ 137. Boston informed Colón that he
should continue testing to comply with the Policy and could use alternative forms of testing such
as “sputum collection or other mechanisms other than the Steripack nasal swabs” to do so. D. 53-
2 at 2. Colón submitted a grievance based on the denial of his religious exemption, D. 25 ¶ 139,
which BPPA never responded to or advanced to Boston, id. ¶ 140.
On November 22, 2021, Colón made a pro se complaint inquiry with the U.S. Equal
Employment Opportunity Commission (“EEOC”) that led to a charge of religious discrimination
against 	Boston 	that 	and 	was 	dual-filed 	with 	the 	Massachusetts 	Commission 	Against
Discrimination (“MCAD”). Id. ¶¶ 17, 117. On August 30, 2022, the EEOC dismissed Colón’s
charge and issued a permission-to-sue letter. Id. ¶ 183. MCAD likewise informed Colón of his
right to file a court action following its issuance of a notice of substantial weight review on March
13, 2023. Id. ¶ 17.
D. 	Colón’s Termination
On May 11, 2023, Boston ended the Vaccine or Test Policy. Id. ¶ 185. While the Policy
was effective, three Boston employees were put on unpaid administrative leave for failure to
comply, id. ¶ 172, two of which, including Colón, were Black, id. ¶ 173; see id. ¶ 59. On May 23,
2023, O’Brien left Colón two voicemails asking him to return her calls. Id. ¶ 187. On May 25,
2023, O’Brien informed Colón that since the federal and Massachusetts public health emergencies
relating to the COVID-19 pandemic expired on May 11, 2023 and the Policy was lifted, he was
ordered to return to work on May 26, 2023. Id. ¶ 188. On May 26, 2023, Colón’s counsel informed
Boston that “Colón will not return to work without receiving compensation for Boston’s violations
of his legal rights.” Id. ¶ 190.
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 8 of 43

9
Previously, on June 2, 2022, BPD had classified Colón as Medically Incapacitated. Id. ¶
182. On June 2, 2023, Colón received a “return to work order” from Boston stating that he has
been cleared from this status as of May 26, 2023. Id. ¶ 197. On June 5, 2023, Colón received a
message from BPD stating that Colón was back on full duty, but if he did not show, BPD would
“be forced to declare [him] AWOL.” Id. ¶ 198. On July 13, 2023, Boston informed Colón that he
had “been absent without approved leave since May 27, 2023” and based on this “unauthorized
absence from the Boston Police Department for more than fourteen days, the Department must
conclude that you have voluntarily abandoned your position.” Id. ¶ 200.
IV. 	Procedural History
Colón initiated this lawsuit on August 23, 2024, D. 1, and later filed the operative FAC, D.
25. Defendants now have moved to dismiss Colón’s FAC. D. 48; D. 52; D. 55. The Court heard
the parties on the pending motions and took these matters under advisement. D. 72.
V. 	Discussion
A. 	Standing as to Ojikutu
Ojikutu moves for dismissal of all counts against her under Rule 12(b)(1) on the ground
that Colón lacks standing because he failed to allege conduct by Ojikutu that caused him harm. D.
55-1 at 7-12. To establish Article III standing, “a plaintiff must show (i) that he suffered an injury
in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused
by the defendant; and (iii) that the injury would likely be redressed by judicial relief.” 	TransUnion
LLC v. Ramirez, 594 U.S. 413, 423 (2021). In determining whether a plaintiff has met this burden,
a court “takes all well-pleaded facts in the complaint as true and indulge[s] all reasonable
inferences in [plaintiff’s] favor.” Dantzler, Inc. v. Empresas Berrios Inventory & Operations, Inc.,
958 F.3d 38, 46-47 (1st Cir. 2020) (internal quotation marks omitted). “If the plaintiff does not
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 9 of 43

10
claim to have suffered an injury that the defendant caused . . . there is no case or controversy for
the federal court to resolve.” TransUnion, 594 U.S. at 423 (citation and quotation marks omitted).
Colón brings five claims against Ojikutu. 	In Colón’s substantive due process claims
(Counts I and II) and free exercise claim (Count III), Colón alleges that he was injured by the
denial of his religious exemption to the Vaccine or Test Policy and his resulting unpaid
administrative leave. D. 25 ¶¶ 254-94. In Colón’s equal protection claim (Count IV), he alleges
that he was injured because his religious exemption was denied on the basis of his race. 	Id. ¶¶
295-304. In Colón’s procedural due process claim (Count IX), he alleges that he was injured by
inadequate process for his placement on unpaid leave. Id. ¶¶ 331-41. For each of these claims, he
alleges that he was deprived of nearly twenty months of pay, suffered social and emotional harm
and lost expected retirement compensation. Id. ¶¶ 100, 188, 242-44, 248-50, 252-53.
As to standing to assert these claims, Ojikutu focuses her challenge on the second element
for standing, that any injury was likely caused by her. 	D. 55-1 at 7-12. 	The second element,
traceability, “requires the plaintiff[s] to show a sufficiently direct causal connection between the
challenged action and the identified harm.” 	In re Evenflo Co., Inc., Mktg., Sales Pracs. & Prod.
Liab. Litig., 54 F.4th 28, 34 (1st Cir. 2022) (internal quotation omitted). 	The traceability
requirement “does not require a tort-like showing of proximate causation.” 	Conservation L.
Found., Inc. v. Acad. Express, LLC, 129 F.4th 78, 90 (1st Cir. 2025) (citing Lexmark Int’l, Inc. v.
Static Control Components, Inc., 572 U.S. 118, 134 n.6 (2014)). 	Still, even where there were
multiple alleged cause of plaintiff’s injury, a plaintiff must show that a defendant’s conduct
“nevertheless causes a concrete and particularized portion of that injury.” Id. (internal citation and
quotation marks omitted).
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 10 of 43

11
Colón provides five, core allegations about Ojikutu’s conduct causing his injury: 	(1)
Ojikutu set Boston’s COVID-19 policies in her position as Executive Director of the Boston Public
Health Commission, D. 25 ¶¶ 61-62; (2) Ojikutu published studies on Black vaccine hesitancy and
medical mistrust, id. ¶¶ 62-69; (3) “on information and belief,” Ojikutu “had the ultimate authority
to grant or deny City of Boston employee requests for religious accommodations from the Vaccine
or Test Policy,” id. ¶ 130; (4) “on information and belief,” Ojikutu denied requests made by Black
employees that were based on “medical mistrust,” id. ¶ 131; and (5) Boston issued the Mandatory
Vaccine Policy under the guidance of Ojikutu, id. ¶ 143. Colón fails to establish traceability as to
the first allegation because, as Colón appears to acknowledge, Ojikutu started her position as
Executive Director of the Commission two weeks after Boston enacted the Vaccine or Test Policy,
and thus could not have set that Policy. Id. ¶¶ 60-61 (alleging that Ojikutu began as the Executive
Director of the BPHC on September 1, 2021), 70 (Vaccine or Test Policy issued on August 12,
2021); D. 68 at 4. Likewise, Colón fails to establish traceability under the fifth allegation because,
as he stipulates, the Mandatory Vaccine Policy was never enforced against him or any other BPPA
members. D. 62 at 3. Colón also fails to establish traceability under the second allegation as to
Ojikutu’s published studies as this conduct, alone, is unconnected to any alleged injury.
As for allegations three and four, Ojikutu challenges them, made “on information and
belief,” D. 25 ¶¶ 130-31, as speculative, D. 55-1 at 10-12. At the motion to dismiss stage, while
the Court “may not disregard properly pled factual allegations, ‘even if it strikes a savvy judge that
actual proof of those facts is improbable,’” Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12
(1st Cir. 2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)), the Court need
not accept conclusory or speculative allegations, Twombly, 550 U.S. at 555. Under this standard,
allegations made on “information and belief,” without facts to support it, may be disregarded.
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 11 of 43

12
Menard v. CSX Transp., Inc., 698 F.3d 40, 44-45 & n.5 (1st Cir. 2012) (noting that “information
and belief” does not mean “pure speculation, but if plaintiff had any facts to support assertion, they
should be alleged”). 	“This is so not only of legal boilerplate (e.g., “conspiracy,” “willfully”) but
also of assertions nominally cast in factual terms but so general and conclusory as to amount
merely to an assertion that unspecified facts exist to conform to the legal blueprint.” Id. at 45; see,
e.g., Ward v. Auerbach, No. 16-cv-12543-FDS, 2017 WL 2724938, at *11 (D. Mass. June 23,
2017) (rejecting allegation made “in conclusory terms, on information and belief, without any
factual detail”), aff’d sub nom. Ward v. AlphaCore Pharma, LLC, 89 F.4th 203 (1st Cir. 2023);
Gladu v. Maine Dep’t of Corr., No. 20-cv-00449-JDL, 2022 WL 2068245, at *5 (D. Me. June 8,
2022) (rejecting claim that “upon information and belief” defendants conspired because “[w]hile
it ‘may be in the realm of possibility;’ that Defendants conspired [] ‘nothing in the SAC’s factual
allegations permit a reasonable inference to that effect’”) (quoting Alston v. Spiegel, 988 F.3d 564,
577 (1st Cir. 2021)), report and recommendation adopted, No. 20-cv-00449-JDL, 2022 WL
17369430 (D. Me. Dec. 2, 2022)).
Allegations three and four both hinge on whether Colón has pled facts to support the claim
that Ojikutu had authority to grant or deny religious exemptions under the Policy. D. 25 ¶ 130.
Colón’s allegation that Ojikutu passed a regulation ordering all individuals entering any dining,
entertainment or fitness establishment in Boston to demonstrate proof of being vaccinated, D. 25
¶ 148; D. 55-6 (dated Dec. 20, 2021), does not support the allegation that she had authority to grant
or deny exemptions under the Vaccine or Test Policy, a separate policy. 	Likewise, Colón’s
references to Ojikutu’s January 22, 2022 affidavit (“Ojikutu’s state affidavit”), quoted and cited in
the FAC, in Boston Firefighters Union, Local 718, Int’l Ass’n of Fire Fighters, AFL-CIO (“Local
718”) v. Boston, 205 N.E.3d 282, 294-95 (2023), a lawsuit challenging the later Mandatory
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 12 of 43

13
Vaccine Policy to which Colón was not subject, speaks only to her involvement with that policy,
not the Vaccine or Test Policy at issue here, D. 25 ¶ 223; D. 55-5. 	Moreover, Ojikutu’s state
affidavit merely states that she “routinely advise[s] members of the City of Boston’s Cabinet and
other senior officials regarding public health related policy questions, including the employee
vaccination policy.” D. 25 ¶ 225; D. 55-5. This statement does not plausibly establish that she
had authority to grant or deny religious exemptions to Colón under the Vaccine or Test Policy.
Moreover, in Ojikutu’s affidavit in Browder v. Boston et al., No. 24-cv-11588-AK (2024)
(“Ojikutu’s federal affidavit”), which Colón also excerpted in his FAC, D. 25 ¶ 225, she states:
“[i]n my role as the Executive Director of the Boston Public Health Commission, I do not
contribute to any employment decisions from any outside municipality or agency. For example, I
do not contribute to outside agency decisions regarding termination, employment, enforcement of
policies, or reviewing requests for exemptions to policies. 	I am not part of the City of Boston
chain of command . . . I did not write, authorize, enact, or enforce the City of Boston’s employee
Vaccine or Test Policy, or Mandatory Vaccine Policy,” id.; see Clorox Co. Puerto Rico v. Proctor
& Gamble Com. Co., 228 F.3d 24, 32 (1st Cir. 2000) (noting that “[i]t is a well-settled rule that
when a written instrument contradicts allegations in the complaint to which it is attached, the
exhibit trumps the allegations”) (quoting Northern Indiana Gun & Outdoor Shows, Inc. v. City of
South Bend, 163 F.3d 449, 454 (7th Cir. 1998)); Dayutis v. Powell, No. 93-cv-257-B, 1994 WL
258785, at *5 n.11 (D.N.H. May 2, 1994) (noting that plaintiff’s allegations that “contradict and/or
misconstrue the disciplinary record referenced in his complaint” were “meritless”).
Without plausible allegations as to the traceability of Ojikutu’s alleged conduct to the
alleged injury from the denial of his religious exemption, Colón fails to allege traceability as to
Counts I, II, III and IV as to Ojikutu. Additionally, as to Count IX, Colón fails to allege conduct
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 13 of 43

14
by Ojikutu that caused his claimed deprivation of procedural due process. Thus, Ojikutu’s motion
to dismiss on the basis of lack of standing under Rule 12(b)(1) for the claims against her (Counts
I, II, III, IV and IX) is ALLOWED.
Although the Court dismisses all counts against Ojikutu on standing grounds, in the interest
of completeness, the Court addresses the arguments raised by Ojikutu in her Rule 12(b)(6) motion
along with the arguments of the other Defendants below.
B. 	State Action Under 42 U.S.C. § 1983
In Counts I, III and IX, Colón brings claims under 42 U.S.C. § 1983 against all Defendants,2
including Boston,3 BPPA and Calderone. BPPA and Calderone move to dismiss these claims on
the ground that they cannot be sued under § 1983 because “BPPA is a private association and
Calderone is a private citizen.” D. 49 at 6, 11-13. There are two elements to a § 1983 claim: (1)
that the conduct complained of transpired under the color of state law; and (2) as a result, the
plaintiff suffered a deprivation of his rights. Klunder v. Brown Univ., 778 F.3d 24, 30 (1st Cir.
2015) (citing Santiago v. Puerto Rico, 655 F.3d 61, 68 (1st Cir. 2011)). Although Calderone is a
public employee in his role as a police officer, the allegations against Calderone pertain solely to
his role as BPPA President. D. 25; D. 49 at 11 n.3. Thus, for BPPA and Calderone to have acted
2 Colón sues all individual defendants employed by the Commonwealth in both their official and
individual capacities. D. 25 ¶¶ 9, 10, 11. Although Colón does not distinguish between official
and individual capacities in his claims, Colón may not bring a § 1983 claim for monetary damages
against public officials in their official capacity. Fantini v. Salem State Coll., 557 F.3d 22, 33 (1st
Cir. 2009); D. 53 at 20. Thus, the § 1983 claims under Counts I, III, IV and IX seeking monetary
damages against Ojikutu, Pust and O’Brien in their official capacities are dismissed on this ground.
3 Neither Colón nor Boston addresses the issue of whether Boston may properly be sued under §
1983. Generally, a city is not a person within the meaning of § 1983, Will v. Michigan Dep’t of
State Police, 491 U.S. 58, 71 (1989), however, Monell established that municipalities could be
held liable under § 1983 if the deprivation of rights was the result of a municipal “‘policy or
custom,’” Broderick v. Callan, No. 84-cv-0707-N, 1986 WL 3003, at *2 (D. Mass. Mar. 6, 1986)
(quoting City of Oklahoma City v. Tuttle, 471 U.S. 808, 809 (1985)).
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 14 of 43

15
under the color of state law, it must be fair to characterize them as state actors. Klunder, 778 F.3d
at 30 (citing Estades-Negroni v. CPC Hosp. San Juan Capestrano, 412 F.3d 1, 4 (1st Cir. 2005)).
To assess whether a private party conducted itself as a state actor, there are three tests.
Estades-Negroni, 412 F.3d at 5; see Malachowski v. City of Keene, 787 F.2d 704, 710 (1st Cir.
1986). First, under the state compulsion test, a private party is considered a state actor if a state
“has exercised coercive power or has provided such significant encouragement, either overt or
covert, that the [challenged conduct] must in law be deemed to be that of the State.” 	Estades-
Negroni, 412 F.3d at 5 (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (alteration in
original)). Second, under the nexus test, a private party can be considered a state actor when the
circumstances demonstrate that the state has “so far insinuated itself into a position of
interdependence with the [private party] that it was a joint participant” in the alleged wrongdoing.
Id. (alteration in original). Third, under the public function test, “a private party is viewed as a
state actor if the plaintiff establishes that, in engaging in the challenged conduct, the private party
performed a public function that has been ‘traditionally the exclusive prerogative of the State.’”
Id. (quoting Blum, 457 U.S. at 1005). While a plaintiff need not specify which of the three tests
apply to defeat a motion to dismiss, Cruz-Arce v. Mgmt. Admin. Servs. Corp., 19 F.4th 538, 544
(1st Cir. 2021), “the allegations in the complaint, supplemented with reasonable inferences
therefrom and matters susceptible to judicial notice, must comprise a factual predicate sufficient
to render it plausible that one of these tests can be satisfied,” id., and if “challenged conduct cannot
be classified as state action, a section 1983 claim necessarily fails,” 3137, LLC v. Town of
Harwich, 126 F.4th 1, 9 (1st Cir. 2025).
Colón fails to allege state action by BPPA and Calderone under any of the state action tests.
As to the state compulsion test, Colón fails to allege facts to support the claim that “Boston coerced
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 15 of 43

16
or substantially encouraged Calderone and BPPA to help it draft and execute the Vaccine or Test
Policy.” 	D. 25 ¶ 259. 	Although Colón alleges that BPPA refused to respond to his grievance
because of the October MOA with Boston, under which BPPA members received extra sick days
in exchange for BPPA’s agreement not to challenge the Policy, id. ¶¶ 115, 117, this agreement is
neither coercive, nor is extra sick days substantial encouragement sufficient to constitute state
action, see Quezambra v. United Domestic Workers of Am. AFSCME Loc. 3930, 445 F. Supp. 3d
695, 703 (C.D. Cal. 2020) (noting that “[t]here is a general rule that unions are not state actors and
that rule ‘is not discarded merely because of the existence of a [collective bargaining agreement]
negotiated with a government entity’”) (internal citation omitted) (alteration in original)), aff’d,
No. 20-55643, 2023 WL 4398498 (9th Cir. July 7, 2023); see also Campbell v. PMI Food Equip.
Grp., Inc., 509 F.3d 776, 784 (6th Cir. 2007) (concluding that private company’s decision to
“voluntarily enter into a contract with government entities [to engage in the challenged conduct]”
where “[n]o state law or any state entry required [private company] to take any of those actions”
does not constitute state action); cf. Bain v. California Tchrs. Ass’n, 156 F. Supp. 3d 1142, 1152-
53 (C.D. Cal. 2015) (dismissing case for failure to allege state action and explaining that courts
have only found state action on behalf of unions “when the compulsion is authorized by state law”
such as when “unions were authorized by law to negotiate collective bargaining agreements that
compelled employees to pay fees that could include political and ideological expenditures as
a condition of employment”); Skinner v. Ry. Lab. Executives’ Ass’n, 489 U.S. 602, 613-16 (1989)
(holding that government regulations that “removed all legal barriers to the testing,” “made plain
. . . [the government’s] strong preference for testing” and “its desire to share the fruits of such
intrusions,” and “mandated that [private actor] not bargain away the authority to perform tests . . .
are clear indices of the Government’s encouragement, endorsement, and participation”).
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 16 of 43

17
Colón likewise fails to allege state action under the nexus test. Under this test, “a plaintiff
must show that the private party’s actions are attributable to the state through a symbiotic
relationship between the two.” Santiago, 655 F.3d at 71. “The requisite nexus is premised on a
showing of mutual interdependence.” Id. “The ‘most salient’ factor in this determination ‘is the
extent to which the private entity is (or is not) independent in the conduct of its day-to-day affairs.’”
Id. (citing Perkins v. Londonderry Basketball Club, 196 F.3d 13, 21 (1st Cir. 1999)). Colón fails
to allege facts that support state action under this test because he provides no allegations that
demonstrate that a state actor was in a position of mutual interdependence with BPPA or
Calderone. Although Colón alleges that BPPA and Calderone agreed not to challenge the Policy,
there is no indication that Boston insinuated itself into the day-to-day operations of BPPA under
this agreement. 	See Wolotsky v. Huhn, 960 F.2d 1331, 1335 (6th Cir. 1992) (finding no state
action even though state provided a significant portion of funding of a private corporation, because
state did not appoint board members, select personnel, or make decisions for organization).
Colón also fails to allege facts to support a finding that BPPA or Calderone performed a
public function. 	Under this test, it is not enough for the plaintiff to show that a private actor
performed a public function, instead he must show that a private entity “assumed powers
‘traditionally exclusively reserved to the State.’” Barrios-Velazquez v. Asociacion de Empleados
del Estado Libre Asociado de Puerto Rico, 84 F.3d 487, 493-94 (1st Cir. 1996) (quoting Rockwell
v. Cape Cod Hosp., 26 F.3d 254, 258 (1st Cir. 1994)). The activities that fall within the public
function test “are few and far between” and “are characterized by exclusivity born of pervasive
government involvement.” 	Santiago, 655 F.3d at 69. 	Colón’s allegations that BPPA and
Calderone helped draft the Vaccine or Test Policy do not suffice, as drafting a policy is not an
exclusive public function. 	See Omnipoint Commc’ns Inc. v. Comi, 233 F. Supp. 2d 388, 395
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 17 of 43

18
(N.D.N.Y. 2002) (concluding that “[w]here a private actor merely provides professional advice,
such advice cannot be considered state action for purposes of section 1983 . . . if this Court were
to adopt [the opposite view], any private citizen that recommended proposed legislation or drafted
proposed legislation that was subsequently declared unconstitutional would be subject to liability
under section 1983”). As Colón fails to allege state action by BPPA and Calderone, Counts I, III
and IX are dismissed as against these two defendants on this ground.
C. 	Count I: 42 U.S.C. § 1983 (Substantive Due Process Under Fourteenth
Amendment)
In Count I, Colón alleges that Defendants violated § 1983 by depriving his right to refuse
medical treatment in violation of his Fourteenth Amendment substantive due process rights. D.
25 ¶¶ 254-67. “To establish a substantive due process claim, a plaintiff ‘must show . . . that the
[defendant’s] acts were so egregious as to shock the conscience’ and ‘that they deprived him of a
protected interest in life, liberty, or property.’” Pollard v. Georgetown Sch. Dist., 132 F. Supp. 3d
208, 227 (D. Mass. 2015) (quoting Pagan v. Calderon, 448 F.3d 16, 32 (1st Cir. 2006)). To shock
the conscience, the alleged conduct must be “‘extreme and egregious’” or “‘truly outrageous,
uncivilized, and intolerable.’” Id. (quoting Pagan, 448 F.3d at 32).
Colón fails to state a substantive due process claim. Even accepting the allegations in the
FAC as true, Colón has not plausibly alleged actions by Defendants that would shock the
conscience. The Supreme Court has “settled that it is within the police power of a state to provide
for compulsory vaccination,” Zucht v. King, 260 U.S. 174, 176 (1922) (citing Jacobson v. Mass.,
197 U.S. 11, 26 (1905)), and courts have routinely found that vaccine requirements do not shock
the conscience, Sweeney v. Univ. of Colorado Hosp. Auth., No. 23-cv-02451-NYW-MDB, 2024
WL 3713835, at *15 (D. Colo. July 12, 2024) (collecting cases); Coughlin v. New York State
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 18 of 43

19
Unified Ct. Sys., No. 22-cv-04002-FB-JMW, 2023 WL 7091904, at *7 (E.D.N.Y. Oct. 26, 2023)
(collecting cases).
Moreover, the Vaccine or Test Policy satisfies rational basis review. 	“Since Jacobson,
courts have rejected the idea of a fundamental right to refuse vaccination.” 	Massachusetts
Correction Officers Federated Union v. Baker, 567 F. Supp. 3d 315, 325 (D. Mass. 2021); see,
e.g., Roman Cath. Diocese of Brooklyn v. Cuomo, 592 U.S. 14, 23 (2020) (Gorsuch, J.,
concurring) (explaining that because the right to refuse vaccination is not a fundamental right,
Jacobson is “essentially . . . rational basis review”); Halgren v. City of Naperville, 577 F. Supp.
3d 700, 733 (N.D. Ill. 2021) (applying rational basis review to mandated vaccination and testing),
aff'd sub nom. Lukaszczyk v. Cook Cnty., 47 F.4th 587 (7th Cir. 2022); Clark v. Jackson, No. 22-
5553, 2023 WL 2787325, at *6 (6th Cir. Apr. 5, 2023) (collecting cases); Child.’s Health Def.,
Inc. v. Rutgers, the State Univ. of N.J., 93 F.4th 66, 79-80 (3d Cir. 2024); Klaassen v. Trustees of
Indiana Univ., 7 F.4th 592, 593 (7th Cir. 2021) (rejecting assertion of fundamental right
in substantive due process claim 	because 	“vaccination requirements, 	like 	other 	public-health
measures, have been common in this nation”). 	Accordingly, the Court considers whether the
Vaccine or Test Policy lacks a “real or substantial relation” to public health and safety, whether it
is “beyond all question, a plain palpable invasion of rights secured by fundamental law” and
whether it is so arbitrary and oppressive as to warrant judicial interference. See Jacobson, 197
U.S. at 31-38.
Curbing the spread of COVID-19 is “unquestionably a compelling interest,” Roman Cath.
Diocese of Brooklyn, 592 U.S. at 18, and the Policy aimed “to minimize exposure to and
transmission of the COVID-19” and “prevent[] exposure to members of the community,” D. 25 ¶
71; D. 53-1 at 1. This Policy is at least rationally related to a legitimate government interest. See
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 19 of 43

20
Klaassen, 7 F.4th at 593 (noting that “[v]accination protects not only the vaccinated persons but
also those who come in contact with them”). In any event, rational basis does not allow courts to
second-guess the wisdom of Boston’s asserted reason for the Vaccine or Test Policy, so long as it
is, as here, properly asserted. See Phillips v. City of New York, 775 F.3d 538, 542 (2d Cir. 2015)
(concluding that determination of effectiveness of vaccine requirement was “for the legislature,
not the individual objectors”); Jacobson, 197 U.S. at 30 (explaining that courts should not
determine which public health strategy “was likely to be the most effective for the protection of
the public against disease”).
For the aforementioned reasons, Colón fails to state a claim for substantive due process
under § 1983 and the Court dismisses Count I as against all Defendants.
D. 	Count II: Massachusetts Substantive Due Process
Colón also fails to state a substantive due process claim under Massachusetts law. In Count
II, Colón alleges that Defendants violated Massachusetts law by forcing him to choose between
his right to decline medical treatment and his “contractual, constitutional, and statutory property
rights in his tenured employment and union benefits.” D. 25 ¶ 277. “[U]nder Massachusetts law
a municipality cannot be sued under the MCRA.” Kelley v. LaForce, 288 F.3d 1, 11 n.9 (1st Cir.
2002) (citing Howcroft v. City of Peabody, 51 Mass. App. Ct. 573, 591-92 (Mass. App. Ct.
2001). Therefore, this claim is dismissed as against Boston on this basis.
As to the other Defendants, the Court turns to the elements of the MCRA claim. 	To
establish a claim under the MCRA, a plaintiff must demonstrate first that “his exercise or
enjoyment of rights secured by the Constitution or laws of either the United States or of the
Commonwealth . . . has been interfered with, or attempted to be interfered with, and . . . that the
interference or attempted interference was by ‘threats, intimidation or coercion.’” Bally v. Ne.
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 20 of 43

21
Univ., 403 Mass. 713, 717 (1989) (citing Mass. Gen. L. c. 12, § 11H); Kennie v. Nat. Res. Dep’t
of Dennis, 451 Mass. 754, 759 (2008) (quoting Buster v. George W. Moore, Inc., 438 Mass. 635,
644 (2003)). “The [MCRA] and 42 U.S.C. § 1983 are parallel statutes and have been interpreted
as coextensive, except that the MCRA does not require governmental action.” Morgan v. Driscoll,
No. 98-cv-10766-RWZ, 2002 WL 15695, at *5 (D. Mass. Jan. 3, 2002). For the reasons set forth
in Count I, Colón fails to allege that a constitutionally or state protected right was interfered with
as to his alleged right to refuse vaccination and testing. McEntee v. Beth Israel Lahey Health, Inc.,
685 F. Supp. 3d 43, 52 (D. Mass. 2023); see Willoughby v. Town of Tisbury, 750 F. Supp. 2d 374,
383 (D. Mass. 2010).
Moreover, while Colón’s state claim appears additionally to raise interference with his
“property interest in his employment as a tenured Boston police officer,” D. 25 ¶ 269, and his
“contractual rights as a member of BPPA,” id. ¶ 270, Colón alleges no facts that Defendants
threatened, 	intimidated, 	or 	coerced 	him 	as 	required 	for 	a 	MCRA 	claim,
see Mass. Gen. L. c. 12, §§ 11H, 11I. Under the MCRA, “[a]n interference with a secured right is
only a violation of the Act if it is accomplished through threats, intimidation, or coercion,” which
was a purposeful limitation that “prevents the act from creating a vast, constitutional tort.” Kennie,
451 Mass. at 763. In assessing whether a defendant’s conduct constitutes a threat, intimidation or
coercion under the MCRA, the Court employs a reasonable person standard, Haufler v. Zotos, 446
Mass. 489, 505 (2006), under which “non-physical acts rarely support a basis for recovery,” 3137,
LLC, 126 F.4th at 13 (internal citation omitted). Here, Colón does not allege any physical acts by
Defendants. While case law as to what constitutes non-physical coercion is unsettled, courts have
typically found that non-physical coercion “require[s] a pattern of harassment and intimidation.”
Thomas v. Harrington, 909 F.3d 483, 493 (1st Cir. 2018) (internal citation omitted). Non-physical
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 21 of 43

22
coercion, however, cannot be proven by “‘a threat to use lawful means to reach an intended result’”
by itself. Id. (quoting Buster, 438 Mass. at 648); see McClain v. Cape Air, No. 22-cv-10649-DJC,
2023 WL 3587284, at *9 (D. Mass. May 22, 2023) (same).
For BPPA and Calderone, Colón’s allegations that his BPPA representative and Calderone
made “numerous attempts” to get Colón to comply with the Policy, D. 25 ¶ 122, Calderone told
Colón that he “has no choice but to submit to weekly testing,” id. ¶ 121, and Calderone “insisted
that Mr. Colón must attend his noncompliance hearing,” id. ¶ 124, fall short of alleging a pattern
of harassment, Daly v. Mason, 752 F. Supp. 3d 346, 365 (D. Mass. 2024) (finding no coercion
when defendant “informed [plaintiff] he would be placed on administrative leave pending the Duty
Status hearing, at which he could expect to be suspended” because “it cannot be reasonably said
that [defendant]’s statements amount to the pattern of harassment and intimidation required to
support a finding of non-physical coercion under the MCRA”) (internal quotation omitted); Burns
v. City of Worcester, 772 F. Supp. 3d 109, 143 (D. Mass. 2025) (finding that defendant
“present[ing] Plaintiff with three options: submit to the test, refuse and face insubordination
charges, or refuse testing but admit to drug abuse and enter rehabilitation” does not support a
MCRA claim because it does not allege actual or threatened physical force, “[defendant]’s warning
that Plaintiff would face disciplinary action for insubordination if he refused the drug test
constitutes a threat to use lawful means”); cf. Sheehan v. Town of Carver, MA, No. 24-cv-12347-
ADB, 2025 WL 1333711, at *27 (D. Mass. May 7, 2025) (finding plaintiff satisfied MCRA’s
intimidation requirement as “Plaintiff’s allegations sufficiently plead a conspiracy between
[Defendants] to violate her First Amendment rights, and this conspiracy included a sustained
online and in person campaign of harassment and intimidation”).
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 22 of 43

23
Similarly, Colón’s allegations that O’Brien notified Colón of his placement on unpaid leave
and upcoming compliance hearing, D. 25 ¶¶ 100-03, left him two voicemails asking him to return
her calls, id. ¶ 187, and sent “two armed plainclothes BPD Officers” to deliver his return to work
order, id. ¶ 188, do not constitute threats, intimidation, or coercion. Although, the involvement of
a police officer in ordering an individual to engaged in conduct can constitute intimidation or
coercion under the MCRA in some instances, see, e.g., Batchelder v. Allied Stores Corp., 393
Mass. 819, 823 (1985) (explaining that a uniformed security officer ordering a civilian to stop
soliciting political handbills was sufficient conduct to constitute intimidation or coercion under
MCRA); 	Sarvis 	v. 	Boston 	Safe 	Deposit 	and 	Trust 	Co., 	47 	Mass. 	App. 	Ct. 	86, 	92
(1999) (concluding that “threatening [plaintiffs] with arrest and then bringing about their arrests”
constituted threats, intimidation or coercion under MCRA), the presence of officers here does not
satisfy this threshold, particularly considering Colón was himself a police officer employed by the
same police department and he “do[es] not allege or plead any additional facts that would show
that the [conduct] was intended to coerce or intimidate them into refraining from exercising a legal
right,” 3137, LLC, 126 F.4th at 14. As for Pust and Ojikutu, Colón simply does not allege any
conduct that could reasonably be perceived as threatening, intimidating or coercive. Accordingly,
this claim, Count II, is dismissed as against all Defendants.
E. 	Count III: 42 U.S.C. § 1983 (Free Exercise Under First Amendment)
In Count III, Colón alleges that Defendants violated his First Amendment rights by “failing
to administer the Vaccine or Test Policy in a generally-applicable [] and neutral manner.” D. 25 ¶
294. “The party claiming an unconstitutional burden on the free exercise of religion must show
(1) a sincerely held religious belief, which (2) conflicts with, and thus is burdened by, the state
requirement.” Satanic Temple, Inc. v. City of Bos., 111 F.4th 156, 180 (1st Cir. 2024) (internal
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 23 of 43

24
citations omitted). 	“Only if the party is able to do so does the burden shift [] to the state” to
demonstrate both that the (3) requirement pursues an unusually important government goal, and
that (4) an exemption would substantially hinder the fulfillment of the goal.” Id. (internal citations
omitted).
Reading the FAC in the light most favorable to Colón, he plausibly alleges a sincerely held
religious belief for his refusal to vaccinate or test. 	“While the ‘truth’ of a belief is not open to
question, there remains the significant question of whether it is ‘truly held.’” 	United States v.
Seeger, 380 U.S. 163, 185 (1965); see E.E.O.C. v. Union Independiente de la Autoridad de
Acueductos y Alcantarillados de Puerto Rico, 279 F.3d 49, 57 (1st Cir. 2002). 	Accordingly, to
qualify as a bona fide belief, the plaintiff must allege “both that the belief or practice is religious
and that it is sincerely held,” Union Independiente, 279 F.3d at 56 (citation omitted), with “some
modicum of plausible facts sufficient to create an inference that the conflict arises from some
specific religious tenet or principle,” Munroe v. Bos. Med. Ctr., No. 22-cv-11935-FDS, 2024 WL
4203238, at *7 (D. Mass. Sept. 16, 2024). Colón alleges that his refusal to vaccinate and test are
rooted in his religious belief that “the human body is a temple to Jehovah . . . [t]herefore,
introducing foreign substances directly into the body, or even using foreign substances to test his
bodily fluids can contaminate this temple, making it unholy and ritually impure.” D. 25 ¶ 44. The
First Circuit and other Circuits “have pronounced that similar my-body-is-my-temple arguments
rooted in a plaintiff’s religious beliefs are sufficient to plead the existence of a bona fide religious
belief” 	in 	refusing 	COVID 	vaccination 	and 	testing. 	See, 	e.g., 	Thornton 	v. 	Ipsen
Biopharmaceuticals, Inc., 126 F.4th 76, 84 (1st Cir. 2025) (citing Barnett v. Inova Health Care
Servs., 125 F.4th 465, 471-72 (4th Cir. Jan. 7, 2025); Passarella v. Aspirus, Inc., 108 F.4th 1005,
1007-08 (7th Cir. 2024); Ringhofer v. Mayo Clinic, Ambulance, 102 F.4th 894, 902 (8th Cir.
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 24 of 43

25
2024)); see Prida v. Option Care Enters., Inc., No. 23-3936, 2025 WL 460206, at *4-5 (6th Cir.
Feb. 11, 2025). The fact that Colón tested on October 11, 2021 does not necessarily cut against
the sincerity of his religious beliefs, as he claims to have done so “out of fear” and to comply with
the Policy. D. 25 ¶ 80. Accordingly, Colón has plausibly alleged a sincerely held religious belief.4
Colón has not, however, plausibly pled a conflict between his religious beliefs and the
Policy. Although, as alleged, testing with nasal swabs conflicts with his beliefs, Boston’s denial
of his request for accommodation, which is sufficiently incorporated by reference to Colón’s FAC,
see Bazinet v. Beth Israel Lahey Health, Inc., 113 F.4th 9, 16 (1st Cir. 2024); see D. 25 ¶ 137,
informed Colón that he could use “sputum collection or other mechanisms other than the Steripack
nasal swabs” to comply with the Policy, D. 53-2 at 2. 	These testing alternatives remove the
Policy’s burden on Colón’s beliefs as Colón does not allege that all other testing mechanisms,
including sputum collection, would require him to introduce foreign substances into his body.
DeVore v. Univ. of Kentucky Bd. of Trs., 118 F.4th 839, 848 (6th Cir. 2024) (concluding that
plaintiff failed to allege testing policy conflicted with her religious beliefs as her “religious
opposition to the Policy flows almost entirely from her objections to nasal PCR testing
and vaccination, objections she raised before the University informed her that she could comply
with the Policy via oral swab or saliva tests, and she fails to account for these alternatives”).
4 In his opposition, Colón claims a conflict between the testing requirement and Jehovah’s
Witnesses’ beliefs concerning patriotic acts and secular government permission. D. 67 at 8. As
alleged in the FAC, Colón’s request for religious accommodation mentions only his religious
belief against “accept[ing] any foreign substances into [his] body” as the basis for his refusal to
vaccinate and test. D. 25 ¶ 87. Although the FAC mentions “friction between Jehovah’s Witnesses
and their secular governments,” id. ¶¶ 27-31, 234 n.8, Colón does not allege that his refusal to
vaccinate or test was based on this belief.
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 25 of 43

26
Even if Colón plausibly alleged the Policy burdened his religious beliefs, as explained
above, the Policy survives judicial review. Certainly, where a municipality has adopted religious
exemptions for a policy, it must not administer them in an unconstitutional way. See Nikolao v.
Lyon, 875 F.3d 310, 316 (6th Cir. 2017). 	Laws that are neutral with respect to religion and
generally applicable are subject to rational basis review, Brox v. Hole, 83 F.4th 87, 93 (1st Cir.
2023) (citing Fulton v. City of Philadelphia, Pennsylvania, 593 U.S. 522, 533 (2021)), whereas
laws that are neither neutral nor generally applicable “must be narrowly tailored to achieve a
compelling government interest,” id. To be neutral, a law may not “single out religion or religious
practices.” 	Does 1-6 v. Mills, 16 F.4th 20, 29 (1st Cir. 2021). 	Colón has not alleged anything
beyond mere conclusory allegations to suggest that Boston has administered its religious
exemption policy in a way that burdens some religions but not others. As outlined as to Count I,
the Policy is rationally related to the government interest of limiting exposure to COVID and it is
neutral and generally applicable. 	Accordingly, Count III fails to state a claim as against all
Defendants.
F. 	Counts V and VI: Disparate Treatment Discrimination Based on Religion
Colón also fails to state a claim for religious discrimination under Title VII and
Massachusetts law. In Counts V and VI, Colón argues that Boston violated federal and state law
by “discharg[ing]” him and “discriminat[ing] against [him] in compensation or in terms, conditions
or privileges of employment” because of his religion. D. 25 ¶ 314. “Although Chapter 151B has
been interpreted largely to mirror Title VII, the Supreme Judicial Court of Massachusetts at times
construes the Massachusetts statute more broadly to effectuate the legislature’s directive to apply
it liberally.” 	Thornton, 126 F.4th at 81 (internal citations omitted). 	“No matter the reach of
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 26 of 43

27
Chapter 151B, since ‘[n]either party has identified a material distinction between the federal and
state laws . . . we will consider the claims jointly.’” Id. (quoting Bazinet, 113 F.4th at 12 n.1).
To state a claim for religious discrimination, a plaintiff must allege: 	“(1) that [he] has
beliefs that are religious and sincerely held, and (2) that h[is] employer imposed upon h[im] an
employment requirement (3) that conflicted with those beliefs and (4) ‘was the reason for the
adverse employment action.’” Id. (quoting Lowe v. Mills, 68 F.4th 706, 719 (1st Cir.), cert. denied,
__ U.S. __, 144 S. Ct. 345 (2023)). If this showing is made, the burden shifts to the employer to
show that it “‘offered a reasonable accommodation or, if it did not offer an accommodation, that
doing so would have resulted in undue hardship.’” 	Bazinet, 113 F.4th at 15 (quoting Lowe, 68
F.4th at 719). With respect to elements three, as discussed as to Count III, Colón has not alleged
a conflict between a sincerely held religious belief and the Vaccine or Test Policy as Boston offered
alternatives to vaccine and nasal testing, D. 53-2 at 2, which Colón does not challenge, nor did he
pursue. Thus, Colón fails to state a claim for religious discrimination.
Alternatively, Boston also argues for dismissal on the grounds that an accommodation to
the testing requirement would pose an undue hardship on the city. D. 53 at 14-15. “[C]ourts may
grant a motion to dismiss based on a defendant’s affirmative defense where ‘the facts establishing
the defense [are] clear “on the face of the plaintiff’s pleadings.”’” Thornton, 126 F.4th at 81-82
(citing Zenon v. Guzman, 924 F.3d 611, 616 (1st Cir. 2019) (quoting Santana-Castro v. Toledo-
Davila, 579 F.3d 109, 113-14 (1st Cir. 2009)). The standard for determining whether a religious
exemption would impose an undue hardship on an employer is whether “the burden of granting an
accommodation would result in substantial increased costs in relation to the conduct of its
particular business.” Bazinet, 113 F. 4th at 18 (quoting Groff v. DeJoy, 600 U.S. 447, 470 (2023)).
Even under the “heightened standard” in Groff for showing an undue hardship, such showing can,
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 27 of 43

28
in certain circumstances, be made as a matter of law, see, e.g., Lowe, 68 F.4th at 722 (and cases
cited), but “[u]sually, however, it will not be possible to adjudicate the undue hardship defense at
the pleading stage because the Groff test is ‘fact-specific,’” Bazinet, 113 F.4th at 	18-19 (citing
Groff, 600 U.S. at 468).
Boston presents an undue hardship argument in its denial of Colón’s request for religious
exemption, D. 53-2 at 2; D. 25 ¶ 137, which, unlike the position statement in Bazinet, is properly
before the court at this juncture, cf. Bazinet, 113 F.4th at 19 (concluding that position statement
could not be considered because it was not referenced in plaintiff’s complaint). Boston argues that
Colón’s position as a police officer required him to be in close proximity with other City
employees, co-workers, and the public and “allowing [him] to perform [his] job duties without
regular testing for the virus would jeopardize the health of [his] co-workers and the public.” D.
53-2 at 2; see Melino v. Bos. Med. Ctr., 127 F.4th 391, 397 (1st Cir. 2025) (affirming summary
judgment for defendant for Title VII and Mass. Gen. L. c. 151B, § 1 claims on the basis that
“permitting [nurse] to work unvaccinated would pose an undue hardship ‘by increasing the risk of
COVID-19 transmission amongst staff and patients’”); Rodrique v. Hearst Commc’ns, Inc., 126
F.4th 85, 91 (1st Cir. Jan 17, 2025) (affirming summary judgment where there was no dispute that
“claimed burdens and expenses” for an accommodation to vaccination policy including burden
that “in-person work was an essential aspect of [plaintiff]’s job” “would be substantial for [the]
business”). Even as determining whether an undue hardship occurred “cannot be accomplished at
this preliminary stage of the litigation,” Bazinet, 113 F.4th at 12; cf. Lowe, 68 F. 4th at 722
(holding that potential license suspension for violating state statute constituted an undue hardship
as a matter of law), as discussed above, Colón fails to state a religious discrimination claim under
either Title VII or Massachusetts law and the Court need not and does not reach Defendants’ undue
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 28 of 43

29
burden defense. Accordingly, for failure to state a claim for religious discrimination, the Court
dismisses Counts V and VI.
G. 	Count IV: 42 U.S.C. § 1983 (Equal Protection)
In Count IV, Colón alleges Boston, Pust and Ojikutu violated the Fourteenth Amendment’s
Equal Protection Clause by refusing to grant him a religious exemption to the Vaccine or Test
Policy because he is Black. 	D. 25 ¶¶ 295-304. 	The Equal Protection Clause “prohibits a state
from treating similarly situated persons differently because of their classification in a particular
group.” 	Pollard, 132 F. Supp. 3d at 222-23 (internal citation and quotation marks omitted).
“[P]urposeful racial discrimination violative of the Equal Protection Clause falls into three
categories of state action that merit strict scrutiny: 	(1) where state action expressly classifies
individuals by race (see, e.g., Students for Fair Admissions, Inc. v. President & Fellows of Harvard
Coll., 600 U.S. 181, 194-95 (2023); Grutter v. Bollinger, 539 U.S. 306, 327-28 (2003)); (2) where
a policy is facially neutral but is in fact unevenly implemented based on race (see Yick Wo v.
Hopkins, 118 U.S. 356, 373-74 (1886)); and (3) where a facially race-neutral, and evenly applied,
policy results in a racially disparate impact and was motivated by discriminatory intent (see Vill.
of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-65 (1977); Washington v.
Davis, 426 U.S. 229, 242 (1976)).” Bos. Parent Coal. for Acad. Excellence Corp. v. Sch. Comm.
for City of Bos., 89 F.4th 46, 56 (1st Cir. 2023), cert. denied, __ U.S. __, 145 S. Ct. 15 (2024).
Colón fails to allege racial discrimination under category one as the Vaccine or Test Policy
does not classify based on race. D. 53-1. Colón also fails to allege racial discrimination under
category two because he does not allege that the Policy was unevenly applied. Colón’s allegation
that, “on information and belief,” Boston denied accommodation requests made by Black
employees, D. 25 ¶ 131, is unsupported by allegations that Boston granted similar requests made
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 29 of 43

30
by members of other racial groups. 	Likewise, Colón fails to allege racial discrimination under
category three as to a disparate impact claim. Colón’s allegation that “[a]t least two of the three
Boston employees who were put on unpaid administrative leave for refusing to comply with the
Vaccine or Test Policy were Black Americans,” D. 25 ¶ 321, is insufficient to establish
discriminatory impact, Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 511 (4th Cir. 1994)
(finding 	allegations 	of 	discrimination 	against 	four 	employees 	“fails 	to 	demonstrate 	any
discriminatory trend” because plaintiff’s data “simply involved too small a sample size to have
any probative value”); id. (collecting cases from sister circuits holding that samples of five, seven,
eight, nine, and fifteen employees were too small to establish discriminatory impact); Fudge v.
City of Providence Fire Dep’t, 766 F.2d 650, 658 (1st Cir. 1985) (ordering dismissal where four
percent of twenty-four Black applicants passed the employer’s entrance exam, as compared with
thirteen percent of 224 white applicants was insufficient to establish disparate impact); Erazo-
Vazquez v. State Indus. Prods. Corp., No. 16-cv-2709-PAD, 2021 WL 3910248, at *16 (D.P.R.
Aug. 31, 2021) (noting that “the fact that a neutral policy has an adverse effect ‘on a single
employee or even a few employees’[s] does not by itself create a prima facie case of disparate
discriminatory impact”) (quoting Holt v. Gamewell Corp., 797 F.2d 36, 38 (1st Cir. 1986)). For
this reason, Colón fails to state an equal protection claim against any Defendant.5
H. 	Count VII: Disparate Treatment/Impact Discrimination Based on Race
Colón also fails to allege disparate treatment under Title VII. 	Title VII prohibits an
employer from “discriminat[ing] against any individual with respect to his compensation, terms,
conditions, or privileges of employment[ ] because of such individual’s race, color, religion, sex,
5 Given this conclusion, the Court does not reach the Defendants’ further argument that
Colón also has failed to allege plausibly that the Policy was motivated by discriminatory intent.
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 30 of 43

31
or national origin.” 42 U.S.C. § 2000e-2(a)(1). This provision provides protection against both
disparate treatment and disparate impact discrimination. Frith v. Whole Foods Mkt., Inc., 38 F.4th
263, 270 (1st Cir. 2022); Jones v. City of Bos., 752 F.3d 38, 46 (1st Cir. 2014). Colón fails to state
a violation of Title VII under either theory of discrimination.
“A disparate treatment claim is a claim of intentional discrimination.” Frith, 38 F. 4th at
270-71 (citing Ray v. Ropes & Gray LLP, 799 F.3d 99, 112 (1st Cir. 2015)). 	Although to
ultimately succeed on the claim, a disparate-treatment plaintiff must establish “that the defendant
had a discriminatory intent or motive for taking a job-related action,” Ricci v. DeStefano, 557 U.S.
557, 577 (2009) (internal quotation omitted), the First Circuit has “explicitly held that plaintiffs
need not plead facts in the complaint that establish a prima facie case under Title VII,” Garayalde-
Rijos v. Mun. of Carolina, 747 F.3d 15, 24 (1st Cir. 2014). “Rather, the complaint simply must
contain facts that ‘plausibly allege’ that the plaintiff experienced a discriminatory employment
action.” Frith, 38 F.4th at 271 (quoting Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir.
2012) (emphasis in original)). “[T]o constitute unlawful racial discrimination under Title VII, an
employment action must have been taken ‘because of’ the race of the individual plaintiff.” 	Id.
(citing Bostock v. Clayton Cnty., Georgia, 590 U.S. 644, 658 (2020)). Colón, however, has failed
to allege plausibly that Boston denied his religious exemption request, placed him on leave and
terminated him because of his race. Looking at the core allegations that he makes for this claim,
D. 25 ¶¶ 315-23, even accepting the truth of his allegations about Ojikutu being “motivated” by a
professional interest in combating vaccine hesitancy and medical mistrust by African Americans
and that she had no comparable interest in combating same with those of different races does not
plausibly state a discriminatory intent claim where, even as alleged, Boston adopted the Policy
before Ojikutu took her position, and, as discussed above as to the lack of traceability for standing
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 31 of 43

32
purposes, it has not been plausibly alleged that Ojikutu was involved in the denial of 	Colón’s
exemption or the subsequent leave and eventual discharge decisions. See Frith, 38 F.4th at 270
(noting that “[i]f the factual allegations in a complaint, stripped of conclusory legal allegations,
raise no more than a sheer possibility that a defendant has acted unlawfully, the complaint should
be dismissed”) (internal citation and quotation marks omitted).
Colón also fails to allege disparate impact under Title VII. “Title VII prohibits employers
from utilizing ‘employment practices that cause [] a disparate impact on the basis of race’ unless
those practices are justified by business necessity.” Jones, 752 F.3d at 46 (quoting 42 U.S.C. §
2000e-2(k)). To state a claim for disparate impact, “a plaintiff starts by ‘isolating and identifying’
the employment practice being challenged,” id. (quoting Watson v. Fort Worth Bank & Trust, 487
U.S. 	977, 	994 	(1988)), 	and 	then 	must 	“show 	that 	the 	identified 	practice 	‘causes
a disparate impact on the basis of race,’” id. (quoting 42 U.S.C. § 2000e-2 (k)(1)(A)(i)). 	The
Supreme Court has “described a prima facie showing of disparate impact as essentially a threshold
showing of a significant statistical disparity . . . and nothing more.” 	Id. (internal citation and
quotation marks omitted). For the reasons addressed above as to Count IV, Colón fails to allege
plausibly a disparate impact claim. Accordingly, the Court dismisses Count VII.
I. 	Count VIII: Americans with Disabilities Act
In Count VIII, Colón alleges that Boston violated § 12112(d)(4) of the ADA by requiring
him to undertake a medical examination and inquiring into “whether he is an individual with a
disability or as to the nature or severity of the disability,” D. 25 ¶ 327, and § 12112(b)(5)(A) by
failing to “make reasonable accommodations to what it considered to be Plaintiff’s disability,” id.
¶ 329. Boston moves for dismissal on the grounds that this claim is barred by Colón’s failure to
exhaust administrative remedies and Colón did not have a disability. 	D. 53 at 26. 	The ADA
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 32 of 43

33
prohibits employers from discriminating against “a qualified individual on the basis of disability
in regard to job application procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions, and privileges of employment.”
42 U.S.C. § 12112(a). 	To recover for an asserted violation of the ADA, a claimant “first must
exhaust administrative remedies by filing a charge with the EEOC, or alternatively, with an
appropriate state or local agency, within the prescribed time limits.” 	Bonilla v. Muebles J.J.
Alvarez, Inc., 194 F.3d 275, 278 (1st Cir. 1999). Further, the lawsuit subsequently filed “‘must
bear some close relation to the allegations presented to the agency.’” Flaherty v. Entergy Nuclear
Operations, Inc., 946 F.3d 41, 56 (1st Cir. 2019) (quoting Jorge v. Rumsfeld, 404 F.3d 556, 565
(1st Cir. 2005)).
Although Colón filed a complaint with the EEOC and MCAD, D. 25 ¶ 17, he did not
mention disability discrimination therein, id. ¶¶ 177-83 (explaining that Colón filed a “religious
discrimination complaint”); D. 53-3 at 1 (alleging discrimination on the basis of religion only).
See Willitts v. Engie N. Am. Inc., No. 20-cv-11255-ADB, 2023 WL 2573344, at *9 (D. Mass.
Mar. 20, 2023) (dismissing ADA claim that was not included in EEOC complaint); Beaupin v.
Bos. Univ., No. 24-cv-12481-BEM, 2025 WL 1617225, at *8 (D. Mass. June 5, 2025) (dismissing
ADA claim because “claims raised in the present lawsuit (i.e., retaliation) are factually distinct
from those raised before MCAD and the EEOC (i.e., discrimination)”). This failing alone warrants
dismissal.
But even if Colón’s ADA claim was not barred for failure to exhaust administrative
remedies, Colón has not alleged that he had a disability under the ADA. An individual is disabled
for purposes of the ADA if “he (1) has a physical or mental impairment that substantially limits
one or more major life activities; (2) has a record of such an impairment; or (3) is regarded as
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 33 of 43

34
having such an impairment.” Román-Oliveras v. Puerto Rico Elec. Power Auth., 655 F.3d 43, 48
(1st Cir. 2011). 	Colón does not claim to have a physical or mental impairment nor a record of
such an impairment and thus, suggests that he satisfies the third definition of disability under the
ADA. See D. 25 ¶ 328. To plead a disability under the “regarded as” prong of the ADA definition,
a plaintiff must allege “that he had an actual or perceived impairment and that his employer was
either aware of or perceived the impairment at the time of the allegedly discriminatory action.”
Mancini v. City of Providence by & through Lambardi, 909 F.3d 32, 46 (1st Cir. 2018). As Boston
argues, D. 53 at 26, and Colón concedes, D. 67 at 32, courts have dismissed claims based on the
theory that unvaccinated employees may be regarded as having an impairment, McCarthy v. Mass.
Gen. Brigham, Inc., No. 24-cv-10184-DJC, 2024 WL 3416025, at *3 (D. Mass. July 15, 2024)
(collecting cases); Gallo v. Washington Nationals Baseball Club, LLC, No. 22-cv-01092-APM,
2023 WL 2455678, at *4 (D.D.C. Mar. 10, 2023). It appears that “[e]very district court to address
this issue thus far appears to have concluded the same.” Ellis v. United Airlines, Inc., No. 23-cv-
123, 2023 WL 5722887, at *2 (N.D. Ill. Sept. 5, 2023) (collecting cases); see, e.g., Sharikov v.
Philips Med. Sys. MR, Inc., 103 F.4th 159, 168 (2d Cir. 2024) (noting same); Chancey v. BASF,
No. 23-40032, 2023 WL 6598065, at *2 (5th Cir. Oct. 10, 2023) (per curiam) (concluding that
plaintiff failed to state ADA discrimination claim by alleging that his employer’s COVID-19
policies discriminated against him based on a “perceived disability”); Taylor v. Vanderbilt
University, No. 23-5285, 2023 WL 10947219, at *1-2 (6th Cir. Nov. 1, 2023) (affirming dismissal
of ADA claim brought by graduate student who was required, as a condition of continuing her
studies and work as a research assistant, to take COVID-19 tests more frequently than her peers).
Colón’s argument that Boston classified him as “Medically Incapacitated” “as a consequence of
[his] refusal to vaccinate,” D. 25 ¶ 328; D. 67 at 29 & n.9, fails to overcome the persuasive
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 34 of 43

35
authority against vaccination-status-based disabilities as it does not allege an impairment
underlying this determination, see McCarthy, 2024 WL 3416025, at *3-4; Sharikov, 103 F.4th at
168 n.7 (citing Speaks v. Health Sys. Mgmt., Inc., No. 22-cv-00077-KDB-DCK, 2022 WL
3448649, at *5 (W.D.N.C. Aug. 17, 2022) (holding that plaintiff failed to state a plausible
“regarded as” claim because “[t]he Company only regarded [plaintiff] as being required -- like all
of its employees -- to obtain a COVID-19 vaccine or be approved for an exemption and then
‘regarded’ her as having failed to do so by the deadline to become vaccinated”). 	For the
aforementioned reasons, Colón has not plausibly pled a disability to support his ADA claim and,
therefore, dismissal of Count VIII is warranted.
J. 	Count IX: 42 U.S.C. § 1983 (Procedural Due Process Under Fourteenth
Amendment)
In Count IX, Colón alleges that Defendants violated his procedural due process rights by
“placing him on indefinite unpaid administrative leave without adequate pre-deprivation notice,
with no pre-deprivation process, and a sham post-deprivation process.” D. 25 ¶ 341. To plausibly
allege a procedural due process claim, Colón “must identify a protected liberty or property interest
and allege that the defendants, acting under color of state law, deprived [him] of that interest
without constitutionally adequate process.” González-Droz v. González-Colón, 660 F.3d 1, 13
(1st Cir. 2011) (internal citation and quotation marks omitted). Constitutionally adequate process
is provided if the government has afforded the plaintiff notice and an opportunity to be heard “‘at
a meaningful time and in a meaningful manner.’” Amsden v. Moran, 904 F.2d 748, 753 (1st Cir.
1990) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).
Here, Colón asserts a property interest in his employment as a tenured police officer. D.
25 ¶¶ 269, 332-33; Valentin-Almeyda v. Municipality Of Aguadilla, 447 F.3d 85, 100 (1st Cir.
2006) (holding that tenured police officer has property interest in position); see Burns, 772 F. Supp.
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 35 of 43

36
3d at 128 (noting that “Plaintiff possess a property interest in his employment as a full-time
member of the Fire Department with tenure under Mass. Gen. L. c. 31, §§ 41-45”). Colón urges
the Court to regard unpaid administrative leave as “discharge” within the meaning of Mass. Gen.
L. c. 31, §§ 1, 41. D. 25 ¶¶ 333-35. Under Mass. Gen. L. c. 31, § 1, a discharge is “the permanent,
involuntary separation of a person from his civil service employment by his appointing authority.”
Even as alleged, Colón’s leave was not a “permanent” separation from his employment. 	The
Vaccine or Test Policy provides that failure to comply results in “place[ment] on unpaid
administrative leave until verification of vaccination or a reasonable accommodation is approved
if required by law,” which contemplates a temporary separation from employment. D. 53-1 at 3;
D. 25 ¶ 73; see Brooks v. Civ. Serv. Comm’n, No. 2001-cv-0180-B, 2004 WL 958110, at *4 (Mass.
Super. Apr. 13, 2004) (noting that “[t]here is no specific time limit placed on the duration of a
suspension”) (citing Board of Selectmen v. Civil Service Commission, 366 Mass. 547, 548
(1974)). The temporary nature of Colón’s leave is further evidenced by his May 25, 2023 return
to work order once the Policy was lifted, D. 25 ¶ 188, his resumed salary from May 26, 2023 to
June 2, 2023, id. ¶¶ 192-96, second return to work order on June 2, 2023, id. ¶ 197, notice that the
“department ha[d] put him back on full duty,” id. ¶ 198, and eventual termination on July 13, 2023
for being “absent without approved leave since May 27, 2023,” id. ¶ 200; see Brooks, 2004 WL
958110, at *4 (declining to regard placement on unpaid leave as a discharge and concluding that a
paid administrative leave “should be regarded as a ‘suspension’ with the meaning of G.L. c. 31,
§§ 1 and 41” and “the department’s decision to [later] place [employee] on unpaid medical leave
for more than five days . . . was [also] a suspension”).
That Colón’s leave was unpaid does not alter this conclusion. 	Certain courts that have
recognized that “the due process clause is implicated where the property lost due to the suspension
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 36 of 43

37
is so integral to the employee’s position such that loss of the property could be deemed a loss of
the employee’s position,” Selmani v. Vill. of Bartlett, 515 F. Supp. 3d 882, 887 (N.D. Ill. 2021)
(internal quotation omitted), have found that “[t]he denial of [an employee’s] salary constitute[s]
an effective denial of his employment,” id.; see also Bauchard v. Martin, No. 91-cv-7839, 1993
WL 79259, at *4 (N.D. Ill. Mar. 16, 1993) (concluding that police officer placed on indefinite
leave of absence had protected property interest in continued employment). Another session of
this Court, however, has noted that “[i]n the context of suspension without pay, an employee is not
entitled to notice and hearing prior to his suspension without pay if the ‘employee receives a
sufficiently prompt post-suspension hearing, the lost income is relatively insubstantial (compared
with termination), and fringe benefits such as health and life insurance are . . . not affected at all.’”
Burns, 772 F. Supp. 3d at 129 (quoting O’Connor v. Spain, No. 12-cv-40106-TSH, 2012 WL
3822101, at *10 (D. Mass. Aug. 31, 2012) (citing Gilbert v. Homar, 520 U.S. 924, 932 (1997));
see Torres-Rosado v. Rotger-Sabat, 335 F.3d 1, 9-10 (1st Cir. 2003) (explaining that “Supreme
Court rejected a categorical rule imposing constitutional due process requirements on suspensions
without pay”) (emphasis in original).
Here, although Colón’s deprivation of salary for nearly twenty months is certainly not
“insubstantial,” Burns, 772 F. Supp. 3d at 129, even as alleged, Colón was provided with adequate
process. On August 12, 2021, Colón received notice of his need to either comply with the Vaccine
or Test Policy or face unpaid administrative leave. D. 25 ¶ 70; D. 53-1 at 3. He was given until
either October 18, 2021 to get vaccinated or October 11, 2021 to begin weekly testing. Id. ¶ 72.
On October 21, 2021, he received a notice of non-compliance warning him that if he failed to
comply by the close of business on October 25, 2021, “[he] will be placed on unpaid administrative
leave at the start of [his] work shift beginning on [] October 26, 2021.” Id. ¶ 95. He received a
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 37 of 43

38
second notice of same on October 25, 2021. Id. ¶ 98. In accordance with these notices, Colón was
placed on unpaid leave for failure to comply with the Policy on October 26, 2021, id. ¶ 100, and
was given notice of a virtual hearing, id. ¶ 103, which he attended on October 29, 2021, id. ¶¶ 132-
33. 	Colón’s deprivation hearing occurred before his suspension exceeded five days and he
received notice of the hearing at least three days before it occurred, in accordance with Mass. Gen.
L. c. 31, § 41. 	This notice and hearing satisfy procedural due process requirements. 	Brockton
Power LLC v. City of Brockton, 948 F. Supp. 2d 48, 67 (D. Mass. 2013) (noting that “[p]ost-
deprivation remedies have been deemed sufficient (and fatal to a procedural due process claim)
even where ‘relief might be delayed, and damages are unavailable’”) (quoting Licari v. Ferruzzi,
22 F.3d 344, 348 (1st Cir. 1994)); Gonzalez-Droz, 660 F.3d at 14-15 (holding that five months’
prior notice that practice violated regulation, fifteen days’ notice of hearing and summons the day
before hearing “demonstrate that the plaintiff had ample notice of the hearing, a fair indication of
when it would occur, and a sufficient opportunity to prepare for it”); O’Neill v. Baker, 210 F.3d
41, 48-49 (1st Cir. 2000) (finding six days’ notice sufficient when plaintiff understood the nature
of the charges three months earlier).
Colón also alleges that Boston failed to provide him with written notice of its post-hearing
decision as required under Mass. Gen. L. c. 31, § 41. D. 25 ¶ 337. However, “[i]f a state provides
adequate post-deprivation remedies—either by statute or through common-law tort remedies
available in its courts—no claim of a violation of procedural due process can be brought under §
1983 against 	the 	state 	officials 	whose 	random 	and 	unauthorized 	conduct 	caused 	the
deprivation.” 	Murphy v. Mass. Exec. Office of Tr. Ct., 335 F. Supp. 3d 137, 148 (D. Mass.
2018) (quoting Lowe, 959 F.2d at 340). 	By allegedly failing to comply with the written notice
requirement, Pust’s subordinates, D. 25 ¶ 132, deviated from state law, “thereby committing
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 38 of 43

39
random and unauthorized actions,” Burns, 772 F. Supp. 3d at 131. 	“Because Massachusetts
provides an adequate post-deprivation remedy in the form of the Civil Service Law,” Colón’s
procedural due process claim “is barred as a matter of law.” 	Id. (citing O’Neill, 210 F.3d at
48 (concluding that “[t]he state procedures prescribed by chapter 31, sections 41-44 of the
Massachusetts 	General 	Laws clearly 	fulfill 	the 	due 	process 	requirements 	for 	pre-
termination notice and opportunity to be heard”)); Cronin v. Town of Amesbury, 81 F.3d 257, 260
(1st Cir. 1996) (describing post-termination remedies provided by the Massachusetts Civil Service
Law); Murphy, 335 F. Supp. 3d at 148. Accordingly, Colón’s procedural due process claim, Count
IX, is dismissed. 6
K. 	Count XI: 42 U.S.C. §§ 1985 (Conspiracy to Deprive Equal Protection of
Laws)
In Count XI, Colón raises a § 1985(3) claim. 	D. 25 ¶ 343. 	“A claim under § 1985(3)
requires the plaintiff to show that (1) some class-based animus (usually racial) lay behind the
conspirators’[s] action, and (2) that the conspiracy was aimed at interfering with protected rights.”
Donahue v. City of Bos., 304 F.3d 110, 122 (1st Cir. 2002) (citing Bray v. Alexandria Women’s
Health Clinic, 506 U.S. 263, 267-68 (1993)). Since the Court has concluded that Colón’s equal
protection claim fails, Colón’s claim of conspiracy to deprive him of equal protection fails too.
Rice v. New England Coll., 676 F.2d 9, 11 (1st Cir. 1982) (noting that a § 1985(3) claim requires
“proof of a conspiracy to violate independent rights”).
6 In light of the dismissal of Counts I, III, IV and IX on the aforementioned grounds, the Court
does not reach the qualified immunity challenges to those claims. D. 53 at 18-20; D. 55-1 at 6-7.
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 39 of 43

40
L. 	Counts XII and XIII: Breach of Duty of Fair Representation and Breach of
Contract
In Count XII, Colón asserts a breach of duty of fair representation against BPPA, D. 25 ¶¶
344-46, and, in Count XIII, a breach of contract claim against Boston, id. ¶¶ 347-50. As to Count
XII, although BPPA raises several bases for dismissal, the Court concludes that dismissal is
warranted at least for the reasons that Colón failed to file the claim before the Department of Labor
Relations (“DLR”) and that it is time-barred. D. 49 at 15-18. Breach of duty of fair representation
claims “must ordinarily be brought in the first instance to the [DLR],” Hines v. Bos. Pub. Sch.,
No. 15-cv-11897-DJC, 2018 WL 4963171, at *10 (D. Mass. Oct. 15, 2018) (citing Leahy v. Local
1526, Am. Fed’n. of State, Cty & Mun. Emps., 399 Mass. 341, 349 (1987)), aff’d, No. 18-2109,
2020 WL 5904425 (1st Cir. Feb. 28, 2020), and “[e]xcept for good cause shown, no charge shall
be entertained by the Department based upon any prohibited practice occurring more than six
months prior to the filing of a charge with the Department,” Borden v. Commonwealth Emp. Rels.
Bd., 104 Mass. App. Ct. 1103, 1103 (2024) (rescript) (quoting 456 C.MR. § 15.05 (2016)) (internal
quotation marks omitted).
Here, Colón’s duty of fair representation claim is premised on BPPA’s alleged inaction
and unresponsiveness to his November 18, 2021 grievance against Boston, which he sent to
“BPPA headquarters,” D. 25 ¶ 139, and BPPA’s alleged unresponsiveness to “multiple [additional]
letters . . . concerning his religious accommodation,” id. ¶¶ 140-42; see id. ¶¶ 344-46. There is no
allegation that Colón ever filed a charge with the DLR based on this conduct and alleges no “good
cause” for this failure, D. 62 at 20; cf. Leahy, 399 Mass. at 349-51 (affirming lower court’s refusal
to invoke the doctrine of primary jurisdiction where “there were no facts requiring agency
expertise, the union was not prejudiced, and the plaintiff had no notice that he should first pursue
his complaint with the commission because he reasonably relied on State and Federal precedent”),
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 40 of 43

41
and as he did not file the current lawsuit until August 23, 2024, over thirty months after he allegedly
presented his grievance against Boston to BPPA, D. 1; see Felton v. Lab. Rels. Comm’n, 33 Mass.
App. Ct. 926, 927 (1992), the Court concludes that his duty of fair representation claim is barred
on both administrative exhaustion and timeliness grounds.
As to Colón’s breach of contract claim against Boston, in which Colón alleges that Boston
breached its duties under the CBA between the City and BPPA not to “discipline or discharge”
him “except for just cause” and not to “discriminate against [him] on the basis of religion” by
placing him on administrative leave, D. 25 ¶ 348, and breached its duty of good faith and fair
dealing by ordering him to return to work after his administrative leave and then terminating him
when he failed to return, id. ¶ 349, Boston moves to dismiss on the ground that Colón’s breach of
contract claim is barred by Chapter 151B because it arises out of the same facts as his claim under
Mass. Gen. L. c. 151B, § 4. D. 53 at 28-29. “The SJC has repeatedly held that Chapter 151B,
where applicable, ‘provides the exclusive remedy for employment discrimination not based on
preexisting tort law or constitutional protections.’” James v. Bos. Police Dep’t, No. 19-cv-10430-
FDS, 2020 WL 108266 at *4 (D. Mass. Jan. 9, 2020) (quoting Charland v. Muzi Motors, Inc., 417
Mass. 580, 586 (1994)); see Mass. Gen. L c. 151B, § 9. The alleged acts comprising Colón’s claim
that Boston breached the CBA by discriminating against him on the basis of religion “[are] the
same acts upon which the employment discrimination claim was based,” and are thus barred under
Chapter 151B’s exclusivity provision, see Robinson v. City of Boston, 71 Mass. App. Ct. 765, 767
(2008).
Colón’s claim that Boston breached its duty of good faith and fair dealing under the CBA
by ordering him to return to work after his administrative leave and then terminating him when he
failed to return, D. 25 ¶ 349, however, is not barred under Chapter 151B claim as it is not premised
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 41 of 43

42
on employment discrimination. Cf. James, 2020 WL 108266 at *4. Still, dismissal of this claim
is warranted at least for the reason that Colón failed first to pursue the CBA grievance procedure
before asserting the claim here. 	“As a general rule, the ‘failure to pursue contractual grievance
procedures bars suit against the employer.’” 	Pierce v. Superintendent of Schs. of Masconomet
Reg’l Sch. Dist., 100 Mass. App. Ct. 1107, 1107 (2021) (rescript) (quoting Johnston v. School
Comm. of Watertown, 404 Mass. 23, 25 (1989)) (citations omitted). “This holds true even where
the agreement has expired, so long as the employee’s claim arose under the agreement.” 	Id.
(citation omitted); see Watertown v. Watertown Mun. Employee Ass’n, 63 Mass. App. Ct. 285,
291 (2005) (noting that “[r]ights that were violated or ‘which accrued or vested under the
agreement will, as a general rule, survive termination of the agreement’”) (quoting Litton Fin.
Printing Div., Inc. v. National Labor Relations Bd., 501 U.S. 190, 207 (1991)). As alleged, Colón’s
breach-of-good-faith-and-fair-dealing claim arises under the CBA, D. 25 ¶ 349, and Colón makes
no allegation that he first pursued it under the CBA grievance procedures or that any exceptions
to this requirement applies, see Pierce, 100 Mass. App. Ct. at 1107 (citing Azzi v. Western Elec.
Co., 19 Mass. App. Ct. 406, 408-09 (1985)); see also Penachio v. Town of Saugus, 91 Mass. App.
Ct. 1132, 1132 (2017) (affirming ruling that employee’s breach of contract claim against employer
was barred where employee failed to abide by procedures under CBA). Accordingly, Counts XII
and XIII also fail to state a claim.7
7 The Court has also considered Ojikutu’s motion to strike D. 25 ¶¶ 223-27 under Fed. R.
Civ. P. 12(f). D. 55-1 at 26-31. “Under Rule 12(f), a party may move to strike from any pleading
any . . . redundant, immaterial, impertinent, or scandalous matter,” Dennison v. LaPointe, No. 06-
cv-40100-FDS, 2006 WL 3827516, at *1 (D. Mass. Dec. 21, 2006) (citing Rule 12(f)), but
“[m]otions to strike under Rule 12(f) are generally disfavored,” U.S. S.E.C. v. Nothern, 400 F.
Supp. 2d 362, 364 (D. Mass. 2005). Having considered Ojikutu’s motion to strike, the Court, in
the exercise of its sound discretion, declines to strike D. 25 ¶¶ 223-27, particularly in light of its
determination that the totality of Colón’s allegations have failed to state a plausible claim against
her or the other Defendants.
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 42 of 43

43
VI. 	Conclusion
For the foregoing reasons, the Court ALLOWS Ojikutu’s motion to dismiss under Fed. R.
Civ. P. 12(b)(1), D. 55, ALLOWS Defendants’ motions to dismiss under Fed. R. Civ. P. 12(b)(6),
D. 48; D. 52; D. 55.
So Ordered.
/s Denise J. Casper
Chief United States District Judge
Case 1:24-cv-12191-DJC Document 84 Filed 03/05/26 Page 43 of 43