Thomas Altman v. MN Dept. of Correcti

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 00-1168

No. 00-1489

___________

Thomas Altman; Kristen Larson; *

Kenneth Yackly, *

*

Plaintiffs - Appellants/ *

Cross Appellees, *

* Appeals from the United States

v. * District Court for the

* District of Minnesota.

Minnesota Department of *

Corrections, et al., *

*

*

Defendants - Appellees/ *

Cross Appellants. *

___________

Submitted: November 15, 2000

Filed: May 29, 2001

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Before LOKEN, LAY, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________

LOKEN, Circuit Judge.

Thomas Altman, Kristen Larson, and Kenneth Yackly are employees of the

Minnesota Department of Corrections assigned to the correctional facility in Shakopee,

which we will refer to as MCFS. In October 1997, they silently read their Bibles

during a mandatory seventy-five-minute training program entitled “Gays and Lesbians

in the Workplace.” The three received written reprimands, which made Larson and

Yackly ineligible for promotions then in progress. They filed this action against the

Department and various officials alleging, inter alia, that the reprimands violated their

federal and state constitutional rights of free speech, free exercise of religion, and

freedom of conscience, their right to equal protection of the law, and Title VII. For

relief, they sought a declaratory judgment that their discipline was illegal and

unconstitutional, withdrawal of the reprimands, promotion of Larson and Yackly with

back pay and benefits, rescission of Altman’s negative performance evaluation,

compensatory damages for humiliation and anguish, and attorneys’ fees.

The district court granted summary judgment dismissing the employees’ free

speech, equal protection, and title VII claims. The employees appeal those rulings, and

we will hereafter refer to them collectively as “Appellants.” The court upheld

Appellants’ free exercise and freedom of conscience claims. It granted the individual

defendants qualified immunity on those damage claims and ordered defendants in their

official capacities to withdraw the written reprimands. Appellants appeal the grant of

qualified immunity, the refusal to order Larson and Yackly promoted, and the denial

of attorneys’ fees. Defendants cross appeal the grant of any relief on Appellants’ free

exercise and freedom of conscience claims. Concluding that Appellants have raised

triable free speech, equal protection, and Title VII issues, we reverse.

I. Background

In mid-1997, MCFS’s training director persuaded Warden Connie Roehrich to

include in the next regular one-day training session a program dealing with issues of

gays and lesbians in the workplace. When the agenda for the training session was

published to MCFS staff, Altman sent Roehrich an e-mail objecting to the mandatory

nature of this program and protesting that it would “raise deviant sexual behavior for

staff to a level of acceptance and respectability.” Faced with this protest, and rumors

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that other staff members objected to this part of the mandatory training session,

Roehrich issued a memorandum to all staff explaining that the gays-and-lesbians-in-the-

workplace program was part of “the facility’s strong commitment to create a work

environment where people are treated respectfully, regardless of their individual

differences.” The training is not “designed to tell you what your personal attitudes or

beliefs should be,” the memorandum continued, but all employees must attend.

Prior to the training session, Appellants reviewed the training materials for the

gays-and-lesbians-in-the-workplace program and concluded the training would be, in

the words of their complaint, “state-sponsored indoctrination designed to sanction,

condone, promote, and otherwise approve behavior and a style of life [Appellants]

believe to be immoral, sinful, perverse, and contrary to the teachings of the Bible.”

Immediately prior to the session, Appellants met and decided to read their Bibles

during this program as a silent protest and as support because of the discomforting

subject matter. During the program, Appellants read their Bibles, copied scripture, and

participated to a limited extent. They did not disrupt the trainers’ presentation.

Numerous supervisors attended the program; none complained about Appellants’

behavior or told them to stop reading their Bibles.

After the program, two of the trainers reported Appellants’ behavior, and the

MCFS Affirmative Action Officer filed a complaint. Following an internal

investigation, written reprimands were issued to Appellants as formal discipline. The

reprimands were based on Appellants’ conduct during this portion of the training

session. The reprimands made Appellants ineligible for promotion for two years. The

summary judgment record includes deposition testimony by numerous witnesses that,

to their knowledge, prison officials have never disciplined other employees who were

inattentive during training sessions, for example, by sleeping or reading magazines.

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II. Free Speech, Equal Protection, and Title VII Claims

To prevail on their First Amendment claims, Appellants must prove they were

punished for conduct “fairly characterized as constituting speech on a matter of public

concern,” Connick v. Myers, 461 U.S. 138, 146 (1983), and that their interest in

speaking out on that matter of public concern “outweighs the public employer’s interest

in promoting its efficiency by prohibiting the conduct.” Dunn v. Carroll, 40 F.3d 287,

291 (8th Cir. 1994), citing Pickering v. Board of Educ., 391 U.S.C 563, 568 (1968).

Appellants contend that defendants violated Appellants’ right to equal protection of the

law because defendants have not disciplined similarly situated persons -- employees

who have been inattentive for other reasons during MCFS training sessions. In their

Title VII claim, Appellants allege they were impermissibly disciplined on the basis of

their religious beliefs. In our view, these claims raise genuine, interrelated issues of

material fact.

Appellants argue that reading their Bibles during the training program was

nonverbal conduct that qualifies as speech for First Amendment purposes, an issue

defendants do not contest for summary judgment purposes. However, the district court

concluded that Appellants did not engage in speech on a matter of public interest and

concern because they were “concerned only with internal policies or practices which

are of relevance only to the employees of that institution.” Cox v. Dardanelle Pub. Sch.

Dist., 790 F.2d 668, 672 (8th Cir. 1986); see Buazard v. Meridith, 172 F.3d 546, 549

(8th Cir. 1999). We disagree. Though the issue is inherently “internal,” the way in

which the Department and MCFS deal with issues of gays and lesbians in the

workplace affects the performance of their public duties and is a matter of political and

social concern to the general public. By making attendance at the training session

mandatory, MCFS created a context in which employees speaking out in opposition to

their public employer’s handling of this social issue should be considered speech on a

matter of public interest and concern. See, e.g., Calvit v. Minneapolis Pub. Schs., 122

F.3d 1112, 1117 (8th Cir. 1997).

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Even if a public employee’s speech addresses a matter of public concern, “[t]he

Pickering balance requires full consideration of the government’s interest in the

effective and efficient fulfillment of its responsibilities to the public.” Connick, 461

U.S. at 150. We deal here with actions of the government as public employer, not as

sovereign, and “constitutional review of government employment decisions must rest

on different principles than review of speech restraints imposed by the government as

sovereign.” Waters v. Churchill, 511 U.S. 661, 674 (1994) (plurality opinion).1 The

public employer will be justified in imposing discipline if the speech impeded the

employee’s ability to perform his or her responsibilities, or undermined office

relationships, or disrupted office operations or efficiencies. See Kincade v. City of

Blue Springs, 64 F.3d 389, 397 (8th Cir. 1995). In this regard, a public employer may

decide to train its employees, it may establish the parameters of that training, and it may

require employees to participate. An employee who refuses to be trained has, from the

employer’s reasonable perspective, impeded his or her ability to do the job.

Defendants argue that Appellants were reprimanded for insubordination --

refusing to be trained -- not for their nonverbal speech. This is a potentially strong

argument under the Pickering line of cases, but it is not supported by the undisputed

facts in this summary judgment record. In our view, the critical fact is that other

employees have been similarly inattentive at MCFS training sessions, but none has ever

1

Judge Lay argues in dissent that Appellants are entitled to summary judgment

on their First Amendment claims because “motive analysis is irrelevant to the free

speech claim.” For this proposition the dissent cites only cases involving the

government as sovereign. But in Crawford-El v. Britton, 523 U.S. 574, 585 (1998), the

Supreme Court cited as examples of federal claims in which a government official’s

motive is a necessary element “termination of employment based on political affiliation

in violation of the First Amendment” and “retaliation for the exercise of free speech or

other constitutional rights.” Likewise, in Waters v. Churchill, which involved a public

employee free speech claim, the Court held that summary judgment was improper

because the employee “produced enough evidence to create a material issue of disputed

fact about [defendants’] actual motivation.” 511 U.S. at 681.

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been disciplined. Thus, the only employees disciplined for “insubordination” are those

who spoke out in opposition to the training message, despite Warden Roehrich’s prior

assurance that, “In no way is this training designed to tell you what your personal

attitudes or beliefs should be.” Moreover, Appellants were selected out for punishment

after conveying their opposition by reading the Bible. Of course, defendants’ motive

for reprimanding Appellants is a disputed issue of fact. But summary judgment

dismissing their First Amendment, equal protection, and Title VII claims is

inappropriate (either on the merits or on the basis of qualified immunity2) when a trial

might establish that the reason for the discipline was Appellants’ non-disruptive speech,

or their religion, or the fact that they expressed their opposition through religious

activity, and that other employees went unpunished who showed equally insubordinate

but less constitutionally protected disregard for MCFS training.3 Likewise, we reverse

the dismissal of Appellants’ state law free speech claims based upon Article 1, § 3 of

the Minnesota Constitution, whose protections are co-extensive with those of the First

Amendment. See State v. Wicklund, 589 N.W.2d 793, 798-801 (Minn. 1999).

2

The individual defendants argue they are entitled to qualified immunity on

Appellants’ free speech and equal protection claims, but their argument assumes the

absence of unconstitutional motive. In granting defendants summary judgment on the

merits of these claims, the district court did not reach the question of qualified

immunity. We do not foreclose the court from taking up the question on remand,

consistent with the Supreme Court’s guidelines in Part IV of its Crawford-El opinion,

523 U.S. at 597-601.

3

We note that, even if Appellants were more harshly treated than other similarly

intransigent trainees, an equal protection violation requires proof of “something more

than different treatment by government officials”; there must also be “the presence of

an unlawful intent to discriminate against the plaintiff for an invalid reason,” such as

their religion. Batra v. Board of Regents, 79 F.3d 717, 721 (8th Cir. 1996).

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III. Free Exercise of Religion/Freedom of Conscience Claims

Appellants claim that reprimanding them for reading their Bibles during the

training program violated their First and Fourteenth Amendment rights to freely

exercise their religion. To prevail on this claim, they must first show “that the

governmental action complained of substantially burdened their religious activities.”

Brown v. Polk County, 61 F.3d 650, 658 (8th Cir. 1995) (en banc). If they prove that

a substantial burden would otherwise result, then their government employer must

tolerate religious activities “that can be accommodated without undue hardship.” Id.

at 654. We decide the undue hardship issue by applying to this free exercise inquiry

the Pickering balancing test used in public employee free speech cases. Id. at 658.

Focusing exclusively on whether the Bible reading adversely affected the

prison’s ability to function effectively, the district court concluded that Appellants’ free

exercise rights were violated because Appellants’ Bible reading did not disrupt the

training session nor adversely affect working relationships among MCFS staff, and

because prison officials have not disciplined other employees who were inattentive

during training sessions. Defendants appeal this ruling, arguing that Appellants’

exercise of religion was not significantly burdened. We agree.

Government significantly burdens the exercise of religion if it significantly

constrains conduct or expression that manifests a central tenet of a person’s religious

beliefs, meaningfully curtails the ability to express adherence to a particular faith, or

denies reasonable opportunities to engage in fundamental religious activities. See Weir

v. Nix, 114 F.3d 817, 820 (8th Cir. 1997). One type of burden occurs when

government “conditions receipt of an important benefit [such as employment] upon

conduct proscribed by a religious faith, or . . . denies such a benefit because of conduct

mandated by religious belief.” Thomas v. Review Bd., 450 U.S. 707, 717-18 (1981).

This is an issue of law we review de novo. Weir, 114 F.3d at 820.

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It is telling that neither the district court nor Appellants even attempt to identify

a significant burden in this case. Appellants do not suggest that their religion requires

them to read the Bible while working, and the record reflects that Larson has brought

her Bible to work and read it during lunch periods and breaks without punishment or

criticism from her supervisors. Shifting our focus from the Bible-reading to the training

program, Appellants alleged in their complaint that they opposed the training program

as “little more than state-sponsored propaganda promoting the acceptance of

homosexuality,” behavior they “sincerely believe . . . is immoral and sinful.” Accepting

that these are faith-based beliefs, we note that Warden Roehrich’s memorandum

assured all employees that their employer was not telling anyone what to believe.

Thus, the only burden placed on Appellants was a requirement they attend a seventy-

five-minute training program at which they were exposed to widely-accepted views that

they oppose on faith-based principles. This is not, in our view, a substantial burden on

their free exercise of religion.

Appellants’ state law freedom of conscience claims are based upon Article 1,

§ 16 of the Minnesota Constitution. Like the Free Exercise Clause, this provision only

applies to state action that “excessively burdens” religious beliefs. Hill-Murray

Federation v. Hill-Murray High School, 487 N.W.2d 857, 866 (Minn. 1992).

Accordingly, the failure to establish a substantial burden on Appellants’ exercise of

religion defeats their freedom of conscience claims as well.

The judgment of the district court is reversed, and the case is remanded with

instructions to dismiss Appellants’ free exercise and freedom of conscience claims and

for further proceedings not inconsistent with this opinion.

LAY, Circuit Judge, concurring in part and dissenting in part.

While I concur with much of the majority’s opinion, with all due respect, I write

separately to express a limited area of disagreement.

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I agree that MCFS’s cross-appeal on the free exercise issue should be granted

and the district court’s judgment reversed. Plaintiffs have not demonstrated a

substantial burden to their religious activities. I further agree that there are disputed

issues of fact on the Title VII and equal protection claims that preclude summary

judgment.

I disagree, however, with the majority’s treatment of the free speech issue.

While I concur that the district court erred in granting summary judgment to MCFS on

this issue, this court should hold that plaintiffs succeed on their free speech claims as

a matter of law. It is uncontested that there was an entire class of “insubordinate”

employees at these training sessions. They were engaged in a variety of activities:

sleeping, secular reading materials, and paperwork, along with the plaintiffs who

quietly read their Bibles. MCFS supervisors, well aware of the class of “insubordinate”

employees, punished only those employees who were engaged in religious reading.

Thus, I fail to see any factual dispute on the free speech issue: plaintiffs were clearly

punished because of the content of their behavior, rather than the behavior itself. This

is clearly unconstitutional. See R.A.V. v. St. Paul, 505 U.S. 377, 383-387 (1992)

(holding content-based discrimination is forbidden even if the government has the

authority to ban the underlying activity); Rodney A. Smolla, Smolla and Nimmer on

Freedom of Speech, § 3:10 (2000) (“[a]t the core of R.A.V. there lies the proposition

that the First Amendment’s restrictions on content-based and viewpoint-based

discrimination apply even when the government regulation involves a type of speech

that as a class normally receives no First Amendment protection.”) While I concur that

the Title VII and equal protection claims must be remanded because the presence of

invidious motive is disputed, such a motive analysis is irrelevant to the free speech

claim. See Simon & Schuster, Inc. v. Members of New York State Crime Victims

Bd., 502 U.S. 105 (1991) (“our cases have consistently held that illicit . . . intent is not

the sine qua non of a violation of the First Amendment.”) (quotations omitted); Smolla,

supra, § 3:5 (“[the Supreme Court does] not requir[e] evidence of an invidious motive

to discriminate against or censor certain types of speech.”) (emphasis omitted).

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As far as qualified immunity, this court should decide the qualified immunity

question as a matter of law.4 Admittedly, where there is a disputed issue of fact

between the parties, summary judgment on the question of qualified immunity is

inappropriate. See Gainor v. Rogers, 973 F.2d 1379, 1385 (8th Cir. 1992); Duncan v.

Storie, 869 F.2d 1100 (8th Cir. 1989) (holding dispute over where defendant was

arrested--inside or outside his home--precluded summary judgment on qualified

immunity). But as the majority concedes, the only disputed fact here is defendants’

motive for punishing the plaintiffs. According to the Supreme Court, however, motive

is irrelevant to a qualified immunity defense. See Harlow v. Fitzgerald, 457 U.S. 800,

817 (1982); Crawford-El v. Britton, 523 U.S. 574, 588 (1998) (“[under existing

precedent] a defense of qualified immunity may not be rebutted by evidence that the

defendant’s conduct was malicious or otherwise improperly motivated. Evidence

concerning the defendant’s subjective intent is simply irrelevant to that defense.”). As

the Court said in Harlow, such a subjective analysis defeats the purposes behind

qualified immunity, since “[j]udicial inquiry into subjective motivation therefore may

entail broad-ranging discovery . . . . [i]nquires of this kind can be peculiarly disruptive

of effective government.” Harlow, 457 U.S. at 817. Since there is no issue of disputed

fact (other than the defendants’ motive, which is irrelevant to the qualified immunity

analysis), we should directly address the qualified immunity question as a matter of

law.

Therefore, we should grant the MCFS’s cross-appeal on the free exercise claim

and reverse the district court’s judgment. I further agree that we should reverse the

district court judgment on the free speech, Title VII, and equal protection claims.

While the majority would remand all three claims for a trial, I would remand only the

Title VII and equal protection claims, granting judgment to the plaintiffs on their free

speech claim as a matter of law.

4

Since I would decide the free speech issue as a matter of law, obviously I would

reach the qualified immunity question there as well.

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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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