                     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
                                      ___________

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

                                          -2-
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.




                                          -3-
            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).

                                          -4-
       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.

                                           -5-
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).

                                          -6-
          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.


                                            -7-
        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.

                                            -8-
       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).

                                            -9-
        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.

                                           -10-
A true copy.

      Attest:

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




                          -11-
