Berry v. Department of Social Services

• Citation: 447 F.3d 642
• Decision Date: 01 May 2006
• Docket Number: No. 04-15566.,04-15566.
• Parties: Daniel M. BERRY, Plaintiff-Appellant, v. DEPARTMENT OF SOCIAL SERVICES, Tehama County; Bill Snelson, Director, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

447 F.3d 642

Daniel M. BERRY, Plaintiff-Appellant, v. DEPARTMENT OF SOCIAL SERVICES, Tehama County; Bill Snelson, Director, Defendants-Appellees.

No. 04-15566.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 18, 2005.

Filed May 1, 2006.

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Anthony J. Poidmore, Roseville, CA, and Brad Dacus and James Griffiths, Pacific Justice Institute, Sacramento, CA, for the plaintiff-appellant.

J. Scott Smith and Laurence L. Angelo, Angelo, Kilday & Kilduff, Sacramento, CA, for the defendants-appellees.

Appeal from the United States District Court for the Eastern District of California, Lawrence K. Karlton, Senior Judge, Presiding. D.C. No. CV-02-00942-LKK.

Before: FARRIS, TASHIMA, and CALLAHAN, Circuit Judges.

CALLAHAN, Circuit Judge:

Daniel M. Berry filed this lawsuit alleging that his public employer, the Tehama County Department of Social Services ("Department"), was violating his rights under the First Amendment of the United States Constitution and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., by prohibiting him from discussing religion with his clients, displaying religious items in his cubicle, and using a conference room for prayer meetings. The district court granted summary judgment in favor of the Department, Mr. Berry appealed, and we affirm. Applying the balancing standard set forth in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), we conclude that the Department has successfully navigated between the Scylla of not respecting its employee's right to the free exercise of his religion and the Charybdis of violating the Establishment Clause of the First Amendment by appearing to endorse religion. Specifically, we hold that the public employer's interests in avoiding violations of the Establishment Clause and in maintaining the conference room as a nonpublic forum outweigh the resulting limitations on Mr. Berry's free exercise of his religion at work. We also hold that the public employer was not required to further accommodate Mr. Berry's religious views under Title VII.

I

Mr. Berry describes himself as "an evangelical Christian who holds sincere religious beliefs that require him to share his faith, when appropriate, and to pray with other Christians." The Department has employed Mr. Berry since 1991. In 1997, he transferred to the employment services division. His official duties involve assisting unemployed and underemployed clients in their transition out of welfare programs. These duties frequently require him to conduct client interviews. The record shows that over ninety percent of these interviews take place in Mr. Berry's cubicle.

At the time of his transfer, the Department told Mr. Berry that its policy was that employees in his position were not allowed to talk about religion with clients and the agencies the employees contacted. Mr. Berry acquiesced to this position. In fact, he initially thought that he was prohibited from talking about religion from the moment he arrived at work until the moment he left. Mr. Berry testified that one day his daughter called him on the phone when she was sick at home and he felt that he was prohibited from praying with his daughter. Accordingly, he approached his supervisor who clarified that the prohibition on talking about religion only applied to clients.

Mr. Berry, nonetheless, was uncomfortable with the restriction and requested to be relieved from it, as he felt that it conflicted with his religious beliefs. In January 2002, he received a counseling memorandum instructing him to "adhere to the Department's policy about absolute avoidance of religious communications with participants and/or other persons (such as Child Care Providers) that you have contact with as part of your employment."

The Department does not prohibit Mr. Berry from talking about religion with his colleagues. Around January 2001, he organized a monthly employee prayer meeting that was to take place in the Red Bluff Room, a conference room in the Department's facility. The prayer meetings were voluntary and were held at lunch time. The Director of the Department told Mr. Berry that he could not use the Red Bluff Room for these meetings. Mr. Berry, however, continued to conduct the prayer meetings there without scheduling the meetings in any official manner. In April 2001, the Director sent Mr. Berry a letter reiterating that prayer meetings could not be held in the Red Bluff Room.¹ Mr. Berry was informed that he could pray in the break room during regular lunch hours or he and his group could go outside and pray on the departmental grounds.

Although employees were generally allowed to decorate their cubicles, when he transferred to the employment services division in 1997, Mr. Berry received a memorandum from his supervisor that explained:

You may not display religious items in an area where those items are visible to any applicant, recipient, or participant under or within any program administered by the Department of Social Services.

Mr. Berry stated that sometime in the fall of 2001, he contacted a civil rights organization to inquire whether he could legally keep a Bible on his desk and decorate his cubicle with faith-related items. Apparently encouraged by the response he received, Mr. Berry in early December 2001, put a Spanish language Bible on his desk and hung a sign that read "Happy Birthday Jesus" on the wall of his cubicle.

On December 6, 2001, Mr. Berry received a letter of reprimand instructing him that he could not display religious items that were visible to clients. The letter referenced the 1997 memorandum and instructed him to remove the name "Jesus" from the sign and to remove the Bible from the view of his clients.² Mr. Berry complied by removing the sign and keeping his Bible hidden from view.

Following the December 6, 2001 letter of reprimand, Mr. Berry filed charges with the Equal Employment Opportunity Commission ("EEOC"). He requested and received a "right to sue letter" from the EEOC and, on May 1, 2002, filed this action. The complaint sought injunctive and declaratory relief. Specifically, it sought judicial declarations that the Department was required, under the First Amendment of the Constitution and Title VII, to accommodate Mr. Berry's religious beliefs by allowing him to (1) share his religious view with clients where they "initiate the discussion or are open and receptive to such discussions," (2) use the conference room for voluntary prayer group meetings, and (3) display religious objects in his cubicle.

In due course, the parties filed cross-motions for summary judgment. The district court denied Mr. Berry's motion and granted the Department's motion. Mr. Berry then filed a timely notice of appeal.

II

We review the district court's grant of summary judgment de novo. Doe v. Lebbos, 348 F.3d 820, 825 (9th Cir.2003). Whether an employee's speech is protected under the First Amendment and whether a restriction on speech is constitutional are also reviewed de novo. See Hyland v. Wonder, 972 F.2d 1129, 1134 (9th Cir. 1992) ("Whether [ ] speech is protected by the First Amendment and is a matter of `public concern' is a question of constitutional law we review de novo."); see also Daily Herald Co. v. Munro, 838 F.2d 380, 383 (9th Cir.1988) ("When a district court holds a restriction on speech constitutional, we conduct an independent, de novo examination of the facts.").

III

A. Limitation on Mr. Berry's Speech with Clients

The district court applied the Pickering balancing test to the Department's limitation of Mr. Berry's speech with clients. The Court in Pickering commenced with the recognition that teachers as public employees do not relinquish the First Amendment rights they would otherwise enjoy as citizens.³ 391 U.S at 568, 88 S.Ct. 1731. The Court, however, also recognized that a "State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." Id. It held that the reconciliation of these competing interests requires "a balance between the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Id. The Supreme Court in 2004 reaffirmed the use of the Pickering balancing test "[t]o reconcile the employee's right to engage in speech and the government employer's right to protect its own legitimate interests in performing its mission." City of San Diego v. Roe, 543 U.S. 77, 82, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004).

Mr. Berry, however, argues that we should apply a stricter test instead of a balancing test because the Department's restrictions on his religious speech to clients violate his rights under both the Free Exercise and the Free Speech clauses of the First Amendment. Mr. Berry reasons that this is consistent with such cases as Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993), and Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990).⁴

We decline Mr. Berry's proposal because it does not take into consideration the employer's interests that led the Supreme Court to adopt the Pickering balancing test in the first place.⁵ Pickering, 391 U.S. at 568, 88 S.Ct. 1731. Our rejection of the use of a stricter test is supported by the Supreme Court's 2004 opinion in Roe, which again applied the Pickering balancing test to limitations on employee speech. 543 U.S. at 82, 125 S.Ct. 521. Moreover, the Supreme Court clarified that not all employer limitations on an employee's speech warrant judicial review even under a balancing test, but only those restrictions that raise some credible...