Berry v. Dept of Social Services ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL M. BERRY, 
Plaintiff-Appellant,
No. 04-15566
v.
DEPARTMENT OF SOCIAL SERVICES,  D.C. No.
CV-02-00942-LKK
Tehama County; BILL SNELSON,
OPINION
Director,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior Judge, Presiding
Argued and Submitted
November 18, 2005—San Francisco, California
Filed May 1, 2006
Before: Jerome Farris, A. Wallace Tashima, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan
4877
BERRY v. DEP’T OF SOCIAL SERVICES 4881
COUNSEL
Anthony J. Poidmore, Roseville, California, and Brad Dacus
and James Griffiths, Pacific Justice Institute, Sacramento,
California, for the plaintiff-appellant.
J. Scott Smith and Laurence L. Angelo, Angelo, Kilday &
Kilduff, Sacramento, California, for the defendants-appellees.
OPINION
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, dis-
playing 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 Pick-
ering v. Board of Education, 391 U.S. 563 (1968), we con-
clude 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
4882 BERRY v. DEP’T OF SOCIAL SERVICES
Establishment Clause of the First Amendment by appearing to
endorse religion. Specifically, we hold that the public employ-
er’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 Chris-
tians.” 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 pro-
grams. 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 talk-
ing 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 restric-
tion and requested to be relieved from it, as he felt that it con-
flicted with his religious beliefs. In January 2002, he received
BERRY v. DEP’T OF SOCIAL SERVICES 4883
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
1
The letter states, in relevant part:
Firstly, I have not been empowered by the Board of Supervisors
to allow County facilities to be used for non-County purposes.
For clarification let me restate part of what you were told around
the first of the year. If ANY group is given permission to use a
non-public portion of our building for purposes other than that
directly associated with the carrying out of our administrative
duties as Social Services, then that use opens up the non-public
portions of the building to ANY and ALL groups that wish to
request usage thereof. I would be required to grant permission, if
requested, to ANY and ALL who would ask regardless of the
purpose or motivation of said group. I am not willing to do that.
Therefore, you may not use these facilities for the purpose of
praying as an organized or informal group.
Let me make it perfectly clear that I am in no way infringing on
your constitutional right of free speech. As you are aware, free-
dom of speech and expression are constitutionally protected by
the First Amendment of the United States Constitution. However
the privileges afforded by the First Amendment are not unlimited,
the constitutionality of limitations on speech vary depending
4884 BERRY v. DEP’T OF SOCIAL SERVICES
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 ser-
vices 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, recip-
ient, 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 con-
tacted 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 repri-
mand 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
upon the forum used to express speech. You are free to believe
as you see fit and to express those views in the appropriate
forum.
Whether it be your intent or not, using a County conference room
for public purposes (i.e. non County related) transforms it into a
public forum that can be used by any group of any persuasion,
whether or not they are employed by the County.
Lastly, Article XVI, section 5 of the California Constitution for-
bids any county from aiding or supporting any religious sect,
church, creed or sectarian purpose with public funds.
BERRY v. DEP’T OF SOCIAL SERVICES 4885
clients.2 Mr. Berry complied by removing the sign and keep-
ing 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 Depart-
ment was required, under the First Amendment of the Consti-
tution 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.
2
The letter stated, in part:
On October 3, 2001 you were informed by me that if you did not
interview in your work area you could display religious items.
You were also told that since you do interview at your area, your
work space is not a “private work space” and therefore you may
not display religious items that are visible to the clients.
This week you have placed a Bible in plain view to the clients
that you interview in your work area. This week you also have
placed a sign on the County’s wall in plain view of your clients
in your work area which reads “Happy Birthday Jesus.”
You have deliberately placed these items in your work area
knowing that we have specifically provided instructions to you
prohibiting such display and non-verbal communication to the
clients.
You are instructed to immediately remove the Bible from view
of the clients. You may put the Bible in your desk or in a large
envelope which we are providing you. You are instructed to
remove the “Jesus” part of your Happy Birthday Jesus sign which
you have placed on the wall of your work area. The issue is that
the Bible and other religious non-verbal communications can not
be visible to your clients.
4886 BERRY v. DEP’T OF SOCIAL SERVICES
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 constitu-
tional are also reviewed de novo. See Hyland v. Wonder, 972
F.2d 1129, 1134 (9th Cir. 1992) (“Whether [ ] speech is pro-
tected by the First Amendment and is a matter of ‘public con-
cern’ 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
[1] The district court applied the Pickering balancing test
to the Department’s limitation of Mr. Berry’s speech with cli-
ents. 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. The Court, however, also recognized that a
3
The Supreme Court has consistently recognized public employees’
rights under the First Amendment. See City of San Diego v. Roe, 543 U.S.
77, 80 (2004) (“[A] government employee does not relinquish all First
Amendment rights otherwise enjoyed by citizens just by reason of his or
her employment.”); see also Connick v. Myers, 461 U.S. 138, 142 (1983)
(“For at least 15 years, it has been settled that a state cannot condition
public employment on a basis that infringes the employee’s constitution-
ally protected interest in freedom of expression.”).
BERRY v. DEP’T OF SOCIAL SERVICES 4887
“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 inter-
est 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 Picker-
ing balancing test “[t]o reconcile the employee’s right to
engage in speech and the government employer’s right to pro-
tect its own legitimate interests in performing its mission.”
City of San Diego v. Roe, 543 U.S. 77, 82 (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 (1993), and Employment Divi-
sion, Department of Human Resources of Oregon v. Smith,
494 U.S. 872 (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. Our rejection of the
4
Neither of these cases are directly applicable as they concerned govern-
ment restrictions on citizen activities — the sacrifice of an animal as part
of a religious ceremony in Church of Lukumi Babalu, and the use of pey-
ote as part of a religious ceremony in Smith — rather than a public
employer’s limitation on an employee’s speech.
5
It is true that in Smith, the Court discusses the “application of a neutral,
generally applicable law to religiously motivated action” which implicates
“the Free Exercise Clause in conjunction with other constitutional protec-
tions.” 494 U.S. at 881. The Court, however, recognized that its discussion
4888 BERRY v. DEP’T OF SOCIAL SERVICES
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. More-
over, the Supreme Court clarified that not all employer limita-
tions on an employee’s speech warrant judicial review even
under a balancing test, but only those restrictions that raise
some credible constitutional concern. Id. The Court in Roe
explained “Pickering did not hold that any and all statements
by a public employee are entitled to balancing. To require
Pickering balancing in every case where speech by a public
employee is at issue, no matter the content of the speech,
could compromise the proper functioning of government
offices.” 543 U.S. at 82. See also Connick v. Myers, 461 U.S.
138, 146 (1983).6 Accordingly, we decline to subject the
of “hybrid” situations was dicta. Id. at 882 (“The present case does not
present such a hybrid situation[.]”); see also Knight v. Conn. Dep’t of Pub.
Health, 275 F.3d 156, 167 (2nd Cir. 2001) (“Appellants’ reliance on Smith
is misplaced, as the language relating to hybrid claims is dicta and not
binding on this court.”). Furthermore, the Court noted that it had rarely
applied the stricter test set forth in Sherbert v. Verner, 374 U.S. 398
(1963), by which “governmental actions that substantially burden a reli-
gious practice must be justified by a compelling governmental interest.”
Smith, 494 U.S. at 883.
6
After reviewing the evolution of the law from the time when the “un-
challenged dogma was that a public employee had no right to object to
conditions placed upon the term of employment,” 461 U.S. at 143, to the
Court’s decision in Pickering, the Court wrote in Connick:
Pickering, its antecedents and progeny, lead us to conclude that
if [the employee’s] questionnaire cannot be fairly characterized
as constituting speech on a matter of public concern, it is unnec-
essary for us to scrutinize the reasons for her discharge. When
employee expression cannot be fairly considered as relating to
any matter of political, social, or other concern to the community,
government officials should enjoy wide latitude in managing
their offices, without intrusive oversight by the judiciary in the
name of the First Amendment. Perhaps the government employ-
er’s dismissal of the worker may not be fair, but ordinary dis-
missals from government service which violate no fixed tenure or
applicable statute or regulation are not subject to judicial review
even if the reasons for the dismissal are alleged to be mistaken
or unreasonable.
461 U.S. at 146 (footnote omitted).
BERRY v. DEP’T OF SOCIAL SERVICES 4889
Department’s restrictions on Mr. Berry’s speech to a stricter
test.
Instead, we adhere to our practice of applying a balancing
test when confronted with constitutional challenges to restric-
tions on public employee speech in the workplace. In Tucker
v. State of California Department of Education, 97 F.3d 1204
(9th Cir. 1996), we rejected a similar contention that we
should apply a stricter test, and instead reviewed a public
employer’s limitations on an employee’s religious speech pur-
suant to the “applicable doctrine, which is found in the case
law governing employee speech in the workplace.” Id. at
1209-10. In a prior case concerning a high school teacher’s
challenge to a restriction barring him from discussing religion
with students, we held that the school district’s interest in
avoiding an Establishment Clause violation trumped the
teacher’s right to talk to students. Peloza v. Capistrano Uni-
fied Sch. Dist., 37 F.3d 517, 522 (9th Cir. 1994).
[2] The balancing test we applied in Tucker and Peloza,
and which we apply in this case, is a slight variation on the
Pickering balancing test. In Roe, the Supreme Court stated
that the Pickering balancing test:
requires a court evaluating restraints on a public
employee’s speech to balance “the interests of the
[employee], as a citizen, in commenting upon mat-
ters 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.”
Roe, 543 U.S. at 82 (quoting Pickering, 391 U.S. at 568).
Here, Mr. Berry contends that his speech is protected under
the First Amendment as religious speech, rather than as com-
ments upon matters of public concern. Nonetheless, we con-
clude that the Pickering balancing approach applies regardless
of the reason an employee believes his or her speech is consti-
4890 BERRY v. DEP’T OF SOCIAL SERVICES
tutionally protected.7 Mr. Berry, of course, is entitled to seek
the greatest latitude possible for expressing his religious
beliefs at work. The Department, however, must run the
gauntlet of either being sued for not respecting an employee’s
rights under the Free Exercise and Free Speech clauses of the
First Amendment or being sued for violating the Establish-
ment Clause of the First Amendment by appearing to endorse
its employee’s religious expression. The Pickering balancing
test recognizes these important, but sometimes competing,
concerns and allows a public employer to navigate a safe
course.
[3] Applying the Pickering test to the Department’s restric-
tion on Mr. Berry’s speech with clients, we determine that the
restriction is reasonable. The Supreme Court has reiterated
that avoiding an Establishment Clause violation may be a
compelling state interest. See Lamb’s Chapel v. Ctr. Moriches
Union Free Sch. Dist., 508 U.S. 384, 394 (1993) (remarking
that “the interest of the State in avoiding an Establishment
Clause violation ‘may be [a] compelling’ one justifying an
abridgment of free speech otherwise protected by the First
Amendment” (quoting Widmar v. Vincent, 454 U.S. 263, 271
(1981)); see also Good News Club v. Milford Cent. Sch., 533
U.S. 98, 112 (2001) (“We have said that a state interest in
avoiding an Establishment Clause violation ‘may be charac-
terized as compelling,’ and therefore may justify content-
based discrimination.” (quoting Widmar, 454 U.S. at 271)).
[4] Moreover, unlike the situations presented in Lamb’s
Chapel and Good News Club, the Department’s concern with
an Establishment Clause violation is well taken. The Depart-
ment’s clients seek assistance from Mr. Berry in his capacity
as an agent of the state. Accordingly, they may be motivated
to seek ways of ingratiating themselves with Mr. Berry, or
conversely, they may seek reasons to explain a perceived fail-
7
The Second Circuit has reached a similar conclusion. Knight, 275 F.3d
at 167.
BERRY v. DEP’T OF SOCIAL SERVICES 4891
ure to assist them. It follows that any discussion by Mr. Berry
of his religion runs a real danger of entangling the Department
with religion. This danger is heightened by Mr. Berry’s
admission that unless restricted, he will share his faith with
others and pray with them.8 Although Mr. Berry states he will
only do so “when appropriate,” he does not explain how he
determines when sharing his religion is appropriate. Further-
more, any legal consequences from Mr. Berry’s discussion of
religion with clients will fall upon the Department, as much
as, if not more than, on Mr. Berry. We conclude that under the
balancing test, the Department’s need to avoid possible viola-
tions of the Establishment Clause of the First Amendment
outweighs the restriction’s curtailment of Mr. Berry’s reli-
gious speech on the job.
B. Limitations on the Display of Religious Items
Mr. Berry contends that the Department’s refusal to allow
him to display a Bible or a “Happy Birthday Jesus” sign is
“viewpont discrimination.” He further suggests that compared
to his religious speech “there is even less danger that a mere
posting of material with religious content, or the placement of
a Bible on the desk of a Department employee will cause a
8
Mr. Berry’s objection that there have not been any client complaints
against him is not well taken. He has been prohibited from discussing his
religion with clients from the day he accepted his position. Although it
appears that Mr. Berry has for the most part abided by that limitation, an
unchallenged portion of the Department’s statement of undisputed facts
filed in the district court recites:
In deposition testimony, Plaintiff has admitted that from time to
time he has had religious conversations with, or prayed in the
presence of County’s clients. On one occasion, he prayed in the
presence of one of his Hispanic clients who first asked him to
pray for a family member, and later asked Plaintiff to pray
directly with her, which he did. On another occasion, Plaintiff
prayed in Spanish for a client who was caught being dishonest,
however, he did not believe that the client knew that Plaintiff was
praying for him at the time.
4892 BERRY v. DEP’T OF SOCIAL SERVICES
reasonable observer to believe that the County has suddenly
set up shop as a religious agency.”
We hold that the Department’s restrictions on the display
of religious items are reasonable under the Pickering balanc-
ing test. Our opinion in Tucker is instructive. In Tucker, we
first noted that the government “has a greater interest in con-
trolling what materials are posted on its property than it does
in controlling the speech of the people who work for it.”
Tucker, 97 F.3d at 1214. We also recognized that materials
posted on the walls of the corridors of government offices
may be interpreted as representing the views of the state. Id.
We, nonetheless, struck down an order that prevented the dis-
play of religious materials outside employees’ cubicles or
offices, when employees were free to post materials on other
subjects. In doing so, however, we noted:
The state’s strongest argument is that allowing the
posting of religious material on the interior space of
the building in question would give the appearance
of government endorsement of religious messages.
Such endorsement would, of course, be unconstitu-
tional.
97 F.3d at 1215 (citing County of Allegheny v. ACLU, 492
U.S. 573, 592-601 (1989)).
[5] In Tucker, the public did not have access to the office
areas at issue. 97 F.3d at 1212. Here, the very reason for the
Department’s restrictions is that clients have access to Mr.
Berry’s cubicle and might reasonably interpret the presence of
visible religious items as government endorsement of religion.
Mr. Berry is not deprived of his Bible. He may keep it in his
desk drawer and may read it whenever he does not have a cli-
ent with him in his cubicle. Displaying the Bible implicitly
endorses a religious message and it is precisely that message
which the Department reasonably seeks to avoid.9 We con-
9
The Department’s concern that the presence of religious items on pub-
lic property may give rise to an implied endorsement of religion finds
BERRY v. DEP’T OF SOCIAL SERVICES 4893
clude that under the balancing test, the Department’s need to
avoid an appearance of endorsement of religion outweighs the
curtailment on Mr. Berry’s ability to display religious items
in his cubicle, which is frequented by the Department’s cli-
ents.
C. Use of the Conference Room for Prayers
Mr. Berry claims that the Red Bluff Room is open to other
nonbusiness-related meetings and therefore allowing individ-
ual employees to use the room for prayer would not be seen
as endorsing religion. He contends that the room had been
used for such activities as “Junior Mints,” “social organiza-
tions,” “rodeo-theme picnics,” baby showers, and birthday
celebrations. The district court, however disagreed, noting:
There is no evidence in the record here demonstrat-
ing that the Red Bluff Room is used for anything
other than official business meetings and business-
related social functions, such as employee birthday
parties, of the sort ordinarily allowed by employers
in meeting areas. There is no evidence of the County
ever having allowed any religious or political group
to meet in the space or announcing its intention to
allow such a meeting. Indeed, there is no evidence
that the room has been made publicly accessible at
all. Thus, the conference room falls into that cate-
gory of public property which is “not intended to be
a forum for the public expression of ideas and opin-
ions.” May [v. Evansville-Vanderburgh School
Corp.], 787 F.2d [1105,] 1113 [(7th Cir. 1986)].
[6] The Supreme Court in Cornelius v. NAACP Legal
some support in the Supreme Court’s recent opinions in McCreary County
v. ACLU, 125 S. Ct. 2722 (2005), and Van Orden v. Perry, 125 S. Ct. 2854
(2005).
4894 BERRY v. DEP’T OF SOCIAL SERVICES
Defense & Educational Fund, 473 U.S. 788, 802 (1985), held
that “[t]he government does not create a public forum by inac-
tion or by permitting limited discourse, but only by intention-
ally opening a nontraditional forum for public discourse.”10
The Court further held “[t]he Government’s decision to
restrict access to a nonpublic forum need only be reasonable;
it need not be the most reasonable or the only reasonable limi-
tation.” Id. at 808 (emphasis in original). In Arkansas Educa-
tional Television Commission v. Forbes, (Forbes), 523 U.S.
666 (1998), the Court further noted that “the government does
not create a designated public forum when it does no more
than reserve eligibility for access to the forum to a particular
class of speakers, whose members must then, as individuals,
‘obtain permission.’ ” Id. at 679 (internal citation omitted).11
10
In Cornelius, the Supreme Court noted that it had identified three
types of fora in Perry Education Assn. v. Perry Local Educators’ Assn.,
460 U.S. 37, 44 (1983):
[1] the traditional public forum, [2] the public forum created by
government designation, and [3] the nonpublic forum. Traditional
public fora are those places which “by long tradition or by gov-
ernment fiat have been devoted to assembly and debate.” 460
U.S. at 45, 103 S.Ct. at 954. Public streets and parks fall into this
category. See Hague v. CIO, 307 U.S. 496, 515, . . . (1939). In
addition to traditional public fora, a public forum may be created
by government designation of a place or channel of communica-
tion for use by the public at large for assembly and speech, for
use by certain speakers, or for the discussion of certain subjects.
Perry Education Assn., supra, 460 U.S., at 45 and 46, n. 7. . . .
Of course, the government “is not required to indefinitely retain
the open character of the facility.” Id., at 46, 103 S.Ct., at 955.
473 U.S. at 802.
11
The Court offered the following explanation for its policy:
The Cornelius distinction between general and selective access
furthers First Amendment interests. By recognizing the distinc-
tion, we encourage the government to open its property to some
expressive activity in cases where, if faced with an all-or-nothing
choice, it might not open the property at all. That this distinction
turns on governmental intent does not render it unprotective of
BERRY v. DEP’T OF SOCIAL SERVICES 4895
Accordingly, we must first consider whether accepting Mr.
Berry’s allegations as true, there is sufficient evidence from
which a trier of fact could determine that the Department has
opened the Red Bluff Room to public discourse.
Our review of the record reveals that the Department held
an annual western-style barbecue for its employees in con-
junction with the annual Red Bluff Rodeo and, on that occa-
sion, food was placed in the Red Bluff Room for the
employees to eat. “Junior Mints” was a group that helped put
on the annual Rodeo Day barbecue for the employees. The
only other evidence in the record of use of the Red Bluff
Room by a “social organization” concerned an occasion when
some employees sought to organize a “Relay for Life” walk
to raise money for cancer research.12 Although the group used
the room once, the Director then determined that the “Relay
for Life” group was a nonbusiness related group and stopped
the group from using the room, just as he did with Mr. Berry.
[7] Thus, the only permitted use of the Red Bluff Room
that was not generally associated with the Department’s
administrative duties was for birthday parties and baby show-
ers. This appears to be similar to the reservation of “eligibility
for access to the forum to a particular class of speakers”
which the Supreme Court in Forbes held did not create a pub-
speech. Rather, it reflects the reality that, with the exception of
traditional public fora, the government retains the choice of
whether to designate its property as a forum for specified classes
of speakers.
523 U.S. at 680.
12
Although Berry’s brief mentions the use of the Red Bluff Room for
“quilting group meetings” there is no support for this conclusory allega-
tion in the record. See Carmen v. San Francisco Unified Sch. Dist., 237
F.3d 1026, 1031 (9th Cir. 2001) (holding that a “court need not examine
the entire file for evidence establishing a genuine issue of fact, where the
evidence is not set forth in the opposing papers with adequate references
so that it could conveniently be found.”).
4896 BERRY v. DEP’T OF SOCIAL SERVICES
lic forum. 523 U.S. at 679. It is certainly not the type of inten-
tional opening of a nontraditional forum for public discourse
that the Supreme Court has indicated is necessary to convert
a nonpublic forum into a public forum. Cornelius, 473 U.S.
at 808. Accordingly, we determine that the Red Bluff Room
remains a nonpublic forum.
Mr. Berry argues that even for a nonpublic forum the gov-
ernment regulation of speech must be reasonable, and that the
restriction may not be based on disagreement with the speak-
er’s view. He cites Justice O’Connor’s concurring opinion in
International Society for Krishna Consciousness, Inc. v. Lee,
505 U.S. 672 (1992), that the question is whether restrictions
are “reasonably related to maintaining the multipurpose envi-
ronment that the [authority] has deliberately created.” Id. at
689.
This approach fails for several reasons. First, the Red Bluff
Room does not have the multiple purposes presented by the
airport at issue in Lee. Second, the reason given by the
Department for not allowing Mr. Berry to use the Red Bluff
Room was viewpoint neutral. Third, in light of the Depart-
ment’s prior denial of use of the Red Bluff Room by the
“Relay for Life” group, and the lack of any evidence that the
Department permitted the use of the Red Bluff Room for any
other social organizations, we are compelled to conclude that
Mr. Berry was denied the use of the Red Bluff Room because
he sought to use it for a nonbusiness-related activity, and not
because that activity happened to be religious.
[8] We conclude that the Department’s decision to allow
the Red Bluff Room to be used for birthday parties and baby
showers, but not by employee social organizations is a “rea-
sonable” limitation as defined by the Supreme Court in Cor-
nelius and Forbes.13 The Department could reasonably
13
The Supreme Court’s approach to “reasonableness” in United States
v. Kokinda, 497 U.S. 720 (1990), is instructive. At issue was a Postal Ser-
BERRY v. DEP’T OF SOCIAL SERVICES 4897
determine that such business-related social functions furthered
its administrative tasks in ways that employee social organiza-
tions and prayer meetings would not. Birthday parties and
baby showers are arguably less likely to challenge employees’
religious beliefs, are less likely to exclude employees and are
unlikely to be held to “honor” any individual employee more
than once a year. Certainly the distinction is not compelling,
but we think that it is reasonable, and that is all that is
required for a nonpublic forum. Cornelius, 473 U.S. at 808.
We conclude that the Department’s decision to deny Mr.
Berry’s proposed use of the Red Bluff Room, a nonpublic
forum, for prayer meetings did not violate his rights under the
First Amendment.
IV
Mr. Berry also advances claims of religious discrimination
under Title VII. He argues that the Department failed to
accommodate his religious beliefs when it (a) prohibited him
from discussing religion with the Department’s clients and (b)
required that he not display his Bible and remove a religious
sign from his cubicle’s wall. In addition, he sets forth a
vice regulation prohibiting the solicitation of contributions on a sidewalk
adjacent to a post office. Justice O’Connor’s plurality opinion first found
that the sidewalk was not a public forum, and noted “[e]ven conceding
that the forum here has been dedicated to some First Amendment uses,
and thus is not a purely non-public forum, under Perry, regulation of the
reserved non-public uses would still require application of the reasonable-
ness test.” 497 U.S. at 730. Justice O’Connor then reviews the Postal Ser-
vices experiments over 15 years with various exceptions to its rule against
solicitation, and concludes:
[w]hether or not the Service permits other forms of speech, which
may or may not be disruptive, it is not unreasonable to prohibit
solicitation on the ground that it is unquestionably a particular
form of speech that is disruptive of business.
Id. at 733. Justice Kennedy, concurring in the judgment, opined that the
regulation met the traditional standards applied to time, place and manner
restrictions. Id. at 738.
4898 BERRY v. DEP’T OF SOCIAL SERVICES
disparate-treatment claim based on the Department’s refusal
to allow him to use the Red Bluff Room for prayer meetings.
A. The Failure-to-Accommodate Claims
[9] Title VII claims are analyzed under the burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Bodett v. Coxcom, Inc., 366 F.3d 736,
743 (9th Cir. 2004); Peterson v. Hewlett-Packard Co., 358
F.3d 599, 603 (9th Cir. 2004). Accordingly, for his failure-to-
accommodate claims, Mr. Berry must first set forth a prima
facie case that: “(1) he had a bona fide religious belief, the
practice of which conflicts with an employment duty; (2) he
informed his employer of the belief and conflict; and (3) the
employer discharged, threatened, or otherwise subjected him
to an adverse employment action because of his inability to
fulfill the job requirement.” Peterson, 358 F.3d at 606. We
agree with the district court that Berry has established a prima
facie case by showing that: “(1) he is an evangelical Christian
who believes in sharing his faith with others and he was repri-
manded for this practice insofar as he communicated with cli-
ents about religion; (2) he informed his employer of his
beliefs and the conflict; and (3) the employer, at least implic-
itly, threatened some adverse action by formally instructing
him not to pray with or proselytize to clients.”
[10] Once a prima facie showing has been made, the bur-
den shifts to the Department to show that “it initiated good
faith efforts to accommodate reasonably the employee’s reli-
gious practices or that it could not reasonably accommodate
the employee without undue hardship.” Id. at 606 (citing
Tiano v. Dillard Dep’t Stores, Inc., 139 F.3d 679, 681 (9th
Cir. 1998)). As undue hardship is not defined within the lan-
guage of Title VII, courts have had to determine it on a case-
by-case basis. See, e.g., Beadle v. Hillsborough County Sher-
iff’s Dep’t, 29 F.3d 589, 592 (11th Cir. 1994) (noting that
“undue hardship” is not defined by statute and that the precise
BERRY v. DEP’T OF SOCIAL SERVICES 4899
reach of the employer’s obligation to its employee must be
determined on a case-by-case basis).
[11] The outer limits of “undue hardship” need not detain
us as the Department has clearly demonstrated that it cannot
accommodate either Mr. Berry’s desire to discuss religion
with the Department’s clients or his preference for displaying
religious items in his cubicle. As we have noted, allowing Mr.
Berry to discuss religion with the Department’s clients would
create a danger of violations of the Establishment Clause of
the First Amendment. This constitutes an undue hardship. See
Knight, 275 F.3d at 168 (“Permitting appellants to evangelize
while providing services to clients would jeopardize the
state’s ability to provide services in a religion-neutral mat-
ter.”). Similarly, it would be an undue hardship to require the
Department to accept, or have to rebut, the inherent sugges-
tion of Department sponsorship that would arise from allow-
ing the display of religious items in a cubicle in which Mr.
Berry interviews clients who are seeking assistance. We con-
clude that Mr. Berry has not shown that the Department’s
restrictions on his religious speech to clients and on display-
ing religious items constitute a failure to accommodate his
religious beliefs.14
B. The Disparate-Treatment Claim
Mr. Berry asserts a disparate-treatment claim under Title
VII based on the Department’s refusal to allow him to use the
Red Bluff Room for prayer meetings. In order to establish a
prima facie case of disparate treatment, Mr. Berry must show
that “(1) he is a member of a protected class; (2) he was quali-
fied for his position; (3) he experienced an adverse employ-
ment action; and (4) similarly situated individuals outside his
protected class were treated more favorably, or other circum-
14
Although Mr. Berry questions the adequacy of the Department’s rea-
sons for limiting his speech, he does not allege that they are pretexts for
other concerns.
4900 BERRY v. DEP’T OF SOCIAL SERVICES
stances surrounding the adverse employment action give rise
to an inference of discrimination.” Peterson, 358 F.3d at 603.
If Mr. Berry meets his burden of establishing a prima facie
case, then under the McDonnell Douglas approach, the
Department must offer a legitimate nondiscriminatory reason
for denying him use of the Red Bluff Room. Bodett, 366 F.3d
at 744. Mr. Berry would then be entitled to show that the
Department’s given reason is a pretext. McDonnell Douglas,
411 U.S. at 804.
Mr. Berry’s disparate-treatment claim is not persuasive.
First, the evidence does not support his contention that simi-
larly situated employees were treated differently. The only
evidence in the record concerning the use of the Red Bluff
Room by a social organization of employees was that a group
held a first meeting to organize a “Relay for Life” walk to
raise money for cancer research. The Department, however,
determined that this was a nonbusiness-related activity and
prohibited the group from using the Red Bluff Room. This is
exactly what happened to Mr. Berry. The Department deter-
mined that because Mr. Berry’s use was not business related,
he could not use the Red Bluff Room.
Second, even if we accept — as the district court did —
that Mr. Berry has established the prima facie elements for his
disparate treatment-claim as it relates to prayer meetings, the
Department has presented a legitimate nondiscriminatory rea-
son for not allowing him to use the Red Bluff Room, and Mr.
Berry has not shown that this reason was a pretext. The
Department declined to allow Mr. Berry to use the Red Bluff
Room for prayer meetings, and appears not to have allowed
other employees to use the room for nonbusiness-related
activities, because it does not want to convert the room from
a nonpublic to a public forum. This is a legitimate nondis-
criminatory reason. See May v. Evansville-Vanderburgh Sch.
Corp., 787 F.2d 1105, 1111 (7th Cir. 1986) (affirming a ban
on religious meetings by teachers on school property before
school opened).
BERRY v. DEP’T OF SOCIAL SERVICES 4901
[12] Thus, Mr. Berry’s effort to meet the fourth prong of
a disparate-treatment claim rests solely on the Department
allowing birthday parties and baby showers in the conference
room. We do not think that permitting such business-related
social functions supports either an inference that similarly sit-
uated individuals were treated more favorably or an inference
of discrimination. As we have previously stated, we perceive
a difference between business-related social functions and
religious meetings. (See Part III.C, supra.) As long as the dis-
tinction is reasonable, it appears that is all that the Supreme
Court requires. Cornelius, 473 U.S. at 808 (“The Govern-
ment’s decision to restrict access to a nonpublic forum need
only be reasonable; it need not be the most reasonable or the
only reasonable limitation.” (emphasis in original)). Further-
more, there is no suggestion that other employees (other than
the Relay for Life group) have been granted use of the Red
Bluff Room for a use similar to that sought by Mr. Berry.
Finally, the Department makes a reasonable argument that
opening up the Red Bluff Room to religious meetings by all
employees who requested such a meeting would be an undue
hardship. Indeed, in Forbes, the Supreme Court noted that
“the prospect of cacophony” that might result from allowing
all who sought to participate in a nonpublic forum might well
force the closure of the forum. 523 U.S. at 681. The Red Bluff
Room is not a public forum, and we do not read the applicable
Supreme Court decisions as requiring that the Department
choose either to allow Mr. Berry to hold prayer meetings or
to discontinue allowing business-related social functions in
the conference room.15
15
In her plurality opinion in Kokinda, Justice O’Connor observed:
If anything, the Service’s generous accommodation of some
types of speech testifies to its willingness to provide as broad a
forum as possible, consistent with its postal mission. The dissent
would create, in the name of the First Amendment, a disincentive
for the Government to dedicate its property to any speech activi-
ties at all.
4902 BERRY v. DEP’T OF SOCIAL SERVICES
[13] In sum, the record reflects that: (1) the Department
declined to allow Mr. Berry to use the Red Bluff Room for
prayer meetings for a legitimate nondiscriminatory reason, to
maintain the room as a nonpublic forum; (2) Mr. Berry has
not shown that this reason was a pretext for some discrimina-
tory reason; and (3) Mr. Berry has not shown that other
employees who sought to use the conference room for similar
purposes were allowed to do so.16 Accordingly, we agree with
the district court that Mr. Berry’s claim of disparate treatment
is not supported by the record.
V
Public employers such as the Department face the difficult
task of charting a course between infringing on employees’
rights to the free exercise of their religions under the First
Amendment and violating the Establishment Clause of the
First Amendment by appearing to endorse their employees’
religious expressions. The Pickering balancing test resolves
these sometime conflicting constitutional rights by recogniz-
ing the legitimacy of the interests asserted by both sides. It
provides a chart by which a public employer may navigate a
safe course. We hold that the Department did so. While it
allowed employees to discuss religion among themselves, it
avoided the shoals of the Establishment Clause by forbidding
them from discussing religion with its clients. Similarly, the
Department allowed employees to display religious items,
except where their viewing by the Department’s clients might
497 U.S. at 733. Similarly, in this case, the Department could respond to
Mr. Berry’s concerns by forbidding the use of the conference room for
birthday parties and baby showers rather than allowing additional uses of
the room.
16
Although not addressed by the parties, we assume that the April 1,
2001 letter from the Director to Mr. Berry informing him that he could not
use the Red Bluff Room meets the “adverse employment action” prong of
a disparate treatment claim. See Peterson, 358 F.3d at 603.
BERRY v. DEP’T OF SOCIAL SERVICES 4903
imply endorsement thus evading the reef of the Establishment
Clause. The Department did not prohibit its employees from
holding prayer meetings in the common break room or out-
side, but declined to open the Red Bluff Room to employee
social or religious meetings as such use might convert the
conference room into a public forum. We conclude that these
restrictions were reasonable and the Department’s reasons for
imposing them outweigh any resulting curtailment of Mr.
Berry’s rights under the First Amendment of the United States
Constitution or Title VII of the Civil Rights Act of 1964. The
district court’s grant of summary judgment to the Department
and the denial of summary judgment to Mr. Berry are
AFFIRMED.