*1 supports trial finding record

Dijan organizers and Marzullo were or lead activity

ers of a criminal within meaning 3Bl.l(a).

of Section

IV. granted

Marzullo was leave to file a brief

pro issues, se in which he raised several

some of which were addressed his attor-

ney’s brief and have been considered above.

We have reviewed the additional issues Mar-

zullo raised his brief and find none of them

to have merit.

V. given,

For the reasons we affirm the con- Dijan

victions of and Marzullo and their sen-

tences. BROWN, Appellant,

Isaiah COUNTY, Iowa, Municipal

POLK Cor-

poration; Ray Sears, Former County;

Administrator for Polk Supervisors, Appellees. Board of

No. 93-3313.

United States Appeals, Court of

Eighth Circuit. April

Submitted 1994.

Decided Oct. 1994.

Rehearing Granted; En Banc Opinion and

Judgment Vacated Nov. *2 Supervisors,

Board and his super former visor, County (col Ray Administrator Sears lectively County). alleged County violated Title terminating VII him *3 because of his race and religion. his Brown also brought § 42 U.S.C. alleging claims County Polk violated his First Amendment rights of expression freedom of and freedom Following trial, a bench the dis trict court held Brown failed to Polk show County violated Title VII or 42 U.S.C. § 1983. Brown v. County, (S.D.Iowa 1993). appeals Brown and we affirm. explained

The district court the facts of detail, this case in id. at and we only will summarize them here. Brown was promoted to ISD director in In 1986. this capacity, responsible Brown was planning and organizing County’s process- data ing operations and supervising fifty about processing data employees. Ray Sears, supervisor, immediate reviewed performance annually. Brown’s evaluations were mixed and reflected Sears’s concern about scheduling and departmental morale. command, Under Brown’s the ISD was far behind schedule. The mismanage- significant was so County hired an outside consultant to review the department. The consultant recommended a departmental total restructuring, which in- eliminating volved positions eleven lay- twenty-five off employees. There was a rift in the ISD between the Wright, Robert A. Moines, IA, Jr. Des employees who born-again Christians (Nathan argued W. Stephen Kellum and M. like Brown employees and the who were not. Crampton, Tupelo, MS, brief), on the for Beginning Brown had held Bible appellant. study meetings employees with before work Godwin, Moines, Mark IA, Des argued, for in the Polk County building. Administration appellee. study The Bible stopped, later group but the still pray met to or talk in Brown’s office. FAGG, HANSEN, Before and MORRIS Those who were born-again Christians ARNOLD, SHEPPARD Judges. Circuit Brown believed would terminate during them the restructuring they because did not share FAGG, Judge. Circuit his faith. After hearing rumor, this Brown Isaiah Brown is a black man who describes departmental held a meeting and told the himself as a born-again Christian. After employees he would not consider employ- County terminated employment his ee’s views making when the termi- director of Information Services nation decisions. After the restructuring, Department (ISD), brought Brown ac Brown met with the rehired employees in against tion Polk the Polk May Referring 1990. study, his Bible ability freely. they to exercise his employees should work Id. told the sloth- the Bible directed and hard as

ful. challenging the district court’s decision County did that Polk not violate First Department Personnel rights, dispute Amendment Brown does complaints in received Administrator findings, the district court’s factual but at inappropriate about summer 1990 tacks the district request, the ISD. At Sears’s activities Ford, Citing conclusions. Hall investigat- Manager County Labor Relations (D.C.Cir.1988), report manager’s complaints. ed the case, only Brown asserts he need show his per- prayer meetings, Brown held stated *4 employment on compro was conditioned the counseling, had sec- religious and his formed right. mise of a constitutional Brown seems type study the retary Bible notes. Based on speech to assert his free exercise free in report, writing reprimanded Sears Brown Later, rights argues are absolute. Brown 1990, ordering to end his use July in Brown to overcome First his Amendment religious a support of resources to rights, government the must it a show had organization. compelling it used interest and the least re officefor Sears later visited Brown’s When achieving compelling of strictive means its development committee systems a review v. the interest. Thomas Review Bd. Ind. of religious objects. meeting, Sears saw some Div., 707, 718, 101 Employment Sec. 450 U.S. According him “take Sears told (strict (1981) 1425, 1432, 624 S.Ct. 67 L.Ed.2d your your away things on wall and on standard). Thus, scrutiny we must decide may be considered offensive desk legal apply public which standards a em complied pro- employees.” Brown without ployee’s speech free free claims. want- test. Brown testified because he legal controlling The standard comply, he his Bible from a ed to removed speech Although free claim is clear. it. and asked about desk drawer Sears government employees relinquish do not said, goes, “That too.” Because Sears Sears speech rights a their free condition of keep the entire ISD free of told employment, public the First Amendment is materials, employee also religious another not a license for interference with the personal religious items. Brown’s removed functioning workplace. of Connick v. management problems continued. In De- 138, 140, 1684, Myers, 461 103 U.S. S.Ct. 1990, investigated again the ISD was cember 1686, (1983); 708 see Grantham 75 L.Ed.2d explicit sexually personal material and after 21 Trickey, v. F.3d 292 games employees’ com- were on discovered government’s legitimate regu interest puters. public employees lating speech greater for is Connick, Noting County’s duty general than for citizens. See to ensure govern religious 1686. The remain neutral about U.S. at 103 S.Ct. at administrators matters, strong avoiding ment has a the district court balanced Brown’s work, employee speech First of with against Amendment interference First relationships, employee’s personnel and the prohibition on the establish- Amendment’s McPherson, job performance. Rankin ment of and the free exercise 2891, 2899, 378, 388, 107 co-employees. of The district court U.S. (1987). regula free free L.Ed.2d 315 To decide what concluded neither the exercise nor employee’s is protected public re- tion of a constitu expression guarantees a ligious activity tionally permissible, court balances on time or with Coun- on. employee’s ty case-by-case interest as at 1315-16. The basis facilities. public commenting items on matters district court further held the removed citizen government’s type symbolic and the interest as ex- concern did not constitute the Amendment, promoting public servic pression protected by employer in efficient the First Educ., Pickering v. 391 U.S. es. Board and Brown failed to show the removal 20 L.Ed.2d from his inhibited his 88 S.Ct. items office Kennett, City operations outweighs Shands Brown’s interest in ex (8th Cir.1993), cert. pressing F.2d de beliefs to his subor — — nied, -, 114 S.Ct. Finally, if dinates at work. reli even L.Ed.2d-(1994). balancing This accom gious items removed from Brown’s office public employer’s dual role modates the symbolic expression, protected provider public government and a service balancing applies same and defeats entity operating under the First Amend Brown.

ment’s constraints. We now consider the standard Brown’s reliance on Hall for an absolute applicable to Brown’s free exercise claim. speech right misplaced. Brown selec- Supreme long recognized Court has quotes language stating tively general distinction between freedom individual employment cannot condition religious belief freedom individual compromise right. of a constitutional Roy, conduct. Bowen v. Hall, very at 262. next 693, 699, 2147, 2151-52, 90 L.Ed.2d sentence, however, the court in Hall ex- Clause, Under the Free Exercise plained principle gov- is limited absolute, an individual’s freedom belief is *5 legitimate ernment’s op- interest efficient but an individual’s freedom of conduct not. is erations. Id. at 263. Brown’s failure to words, Id. In other individuals do not have acknowledge legitimate this limitation is the an right practice absolute to their chosen pervading flaw basic his First Amendment they please. Rushton v. Nebras arguments. Dist., (8th 562, ka Pub. Power 564 Having controlling identified the stan Cir.1988). .however, Beyond point, this dard, we turn to the merits of Brown’s free Supreme law is less clear. The Court has speech County claim. Brown asserts Polk legal analysis never governing identified a right speech by to directing violated his free employment whether an adverse in action him from prayer stating to refrain and fringes public employee’s right a to ex free Christian beliefs. We think Brown reads ercise Although apply Pick we a County’s broadly. directive too ering balancing analysis in the context reprimand stop written directed Brown to public employees speech, and free it un is using County support resources to analysis clear applies what in the context of promote religious organization, a and to en public employees and free exercise of reli sure the work environment was free reli gion. Brown believes the district court gious proselytizing, witnessing, and counsel general have a scrutiny should used strict ing. language encompass This does not analysis. private prayers, or Brown’s activi County ties time property. off right to free reli exercise of * speech gion asserts his is a matter of right. is a fundamental constitutional public concern, Robison, but 361, 14, we need not decide this v. Johnson 415 U.S. 375 n. preliminary 1160, 14, issue. Because the district court 94 S.Ct. n. 1169 39 L.Ed.2d 389 (1974). rule, balanced the interests of general governmental Brown and Polk As a presumed speech the court regulation action or that burdens fundamen public was a matter of concern. tal rights strictly See Con- constitutional is scrutinized. nick, 149, Commerce, 461 at at Michigan U.S. 103 S.Ct. 1691. Austin v. Chamber of weighing 652, 666, 1391, 1400-01, After interests 494 110 U.S. (1990). district court concluded Polk pass 108 L.Ed.2d 652 To constitu muster, did not violate Brown’s regulation free tional the action or must rights. agree. narrowly We Under Brown’s leader a compelling tailored serve ship, significant was having prob governmental ISD Ap interest. Id. Courts of morale, inefficiency, lems with employee peals applied general scrutiny have strict general mismanagement, problems and these test public employees’ claims that their public were related to speech. employers’ infringed actions their have case, interest in efficient rights expres fundamental constitutional

409 See, Picciano, e.g., Langlotz v. 683 ees. and intimate association. association sive (E.D.Va.1988), 1558, 1041, Sharrett, F.Supp. aff'd, 1048 905 v. McCabe See Cir.1990) (4th Cir.1994) cases). opin (unpublished (11th Despite F.2d 1530 (discussing Kent, ion); however, Supreme Spratt rule, v. general (W.D.Mich.1985), aff'd, 810 F.2d strictly public em scrutinize does Court Cir.1986) (6th opinion), (unpublished cert. on certain fundamental restrictions ployers’ denied, 107 S.Ct. public employees. As 480 U.S. rights of constitutional (1987). Supreme This is the test that the explained, already have examining applied in Brown’s See when district court ease. special analysis uses Court F.Supp. at 1315-16. employee expression. public restrictions Supreme Court supra at 407-408. The See view, analy- Pickering In our modified analysis for review special also has devised general appropriate is than a strict sis more public employment decisions ing adverse To scrutiny analysis in this the extent ease. patronage reasons. See political made for Pickering viewed as more that the Burns, 96 S.Ct. Elrod public employer than deferential Finkel, Branti 49 L.Ed.2d general scrutiny analysis, we see no strict speech or to defer when fundamental reason political but not affiliation are involved scrutiny analy free are stake. applied the when have strict We McCabe, Pickering’s, F.3d governmen at 1567. ratio- challenges to free exercise sis employer public employment nale—that the con action outside tal Arkansas, special regulating its em- has a v. State E.g., Murphy text. Cir.1988) (8th disruption 1039, 1041 (reviewing ployees’ to avoid the behavior *6 public functions—applies to free exercise School challenge to Arkansas Home exercise Act). speech rights. See id. any challenge of well free In the absence standard, applied Pickering have scrutiny applied the at 1568. Courts we once strict in analysis the context cases public employees outside to decide whether standard rights, involving association liber- drug- expressive exemption an should receive rights. id. ty rights, free exercise See at religious grounds. testing program on eases); (discussing Langlotz, 683 Rushton, the other 844 F.2d at 563-64. On F.Supp. Application of the modified hand, recognized regulations at 1048. have we Pickering analysis in case takes into this limiting rights are reviewed fundamental potential of Brown’s disruptive public account the deferentially applied to more when workplace, in the ordinary free conduct open exercise employees applied than when Comm’rs, McCabe, at consid- best v. Board Police citizens. Crain (8th Cir.1990). County faced between ers the tension Polk religion and promoting establishing not or employees In the context of state inhibiting practice. thus conclude We not right to free claiming infringement of their applied court the the district applied a religion, courts have exercise analysis free claim. to Brown’s exercise analysis to for Pickering account modified County violat Polk Brown contends duty under the Establishment the state’s by restricting Exercise not the Free Clause employees ensure its do en ed Clause to Again, right profess. religion to believe courage promote over other his or one County’s directive. Polk religion nonreligion. over Brown misreads religions any or Brown, County sought to Polk reprimanding County Allegheny v. American Civil See conduct, 593-94, only not his belief. Union, 492 109 limit Liberties (1989) weighed competing The district court County and Brown and Polk duty). bal interests of (explaining These courts state’s County violate did not public employee’s free exercise concluded ance the restricting right by his exercise avoid Es free rights against the duties to state’s proper County time and protect religious conduct on Clause violations and tablishment F.Supp. ty. 832 at 1315-16. Given public employ religious other beliefs ability County’s avoid Establishment his religion duties to inhibited exercise his protect freely. F.Supp. key Clause violation and find 1816. This employees Indeed, other than clearly is not erroneous. Brown supervisor fifty Brown’s status as em protest not did Sears’s instruction or other ployees, and the adverse effects of Brown’s born-again Christianity wise indicate his re workplace, agree in the conduct quired keep him to in Bible his desk and with the district court balance objects Although on his desk and walls. County’s tips interests in Polk favor under in the instruction to remove Brown’s Bible presented in circumstances this case. particular may have been overzealous and offensive, supported the district court’s find scrutiny ap if Even a strict ing simply inquiry. ends free exercise contends, County plies as Brown had an Having failed to show the removal substan compelling restricting overriding tially religious practice, burdened his workplace: practices avoid requirement did establish the threshold ance of an Establishment Clause violation. for a free exercise violation. by Goodall v. Sch. Goodall Stafford Bd., Be claim, equal protection As his many employees cause Brown administered finding Brown attacks the district court’s director, as the ISD’s needed subjected he to disparate was not treat him to neutral towards in exercising beliefs. See workplace County’s to maintain'the neutrali id. This attack is meritless. The ty. Spratt, at 600-01. We policy applied County employees, to all reject Brown’s assertion that Polk just Brown. We thus conclude the district did use least restrictive means properly rejected court U.S.C. accomplishing legitimate goal. Brown’s § 1983 claims. largely assertion based on his mischarac- turn argu- We now to Brown’s Title VII County’s policy. terization of Polk Finding ments. no direct evidence of racial Brown also contends Polk Coun animus, antireligious F.Supp. at ty violated Free Exercise Clause ask 1313 & n. court applied district *7 religious him to remove the items from three-step analysis Douglas of McDonnell religious his office. The removal of the items Green, 792, Corp. 1817, v. 411 U.S. 93 S.Ct. implicate from office does not Brown’s the (1973), 668 36 L.Ed.2d to racial Brown’s Clause, a Free Exercise however. To show religious discrimination claims. Brown con- violation, religious adherent applied tends the district court should have initially prove challenged govern must the the mixed motives test of Price Waterhouse substantially mental action burdens the Hopkins, 228, 1775, v. 490 109 S.Ct. 104 religious practice. adherent’s v. Hernandez (1989), L.Ed.2d 268 because there was direct Commissioner, 680, 699, 490 U.S. 109 S.Ct. antireligious evidence of and racial animus on 2136, 2148-49, view, part. Polk In Brown’s the Murphy, (governmental 852 F.2d at 1041 reprimand written and Sears’s to instruction sincerely action must interfere with held reli objects remove the Brown’s office show beliefs). gious The burden must be more improper motive. Brown’s contention fails inconvenience; than an the burden must rise two for reasons. pressuring level the adherent to forbids, First, commit an act religion 'pre the or Brown misunderstands his ev- venting engaging identiary the adherent from in con burden. The Price Waterhouse that requires. duct the faith applies only plaintiff produces Graham v. test if the Commissioner, (9th 844, directly 822 F.2d “evidence that reflects the use of an Cir.1987), sub illegitimate challenged nom. Hernandez v. Com criterion in the deci aff'd missioner, 699, 680, 2136, 490 U.S. sion.” Stacks v. Southwestern Bell Yellow (1989). Here, Inc., (8th Cir.1993) 200, 104 Pages, L.Ed.2d 766 the 996 F.2d 202 (the curiam); district prove (per court found Brown did not the see id. at n. 1 201 term removal of the only plain items from his office “direct evidence” means that the

4H Iowa, showing specific F.Supp. it. v. Polk present 832 tiff must evidence 1993). 1305, 1316, (S.D.Iowa discriminatory n. 22 It and the 1316 animus link between North, decision); county’s decided the v. GTE nevertheless that action challenged Parton 150, (8th Cir.1992) Inc., (plain was not unconstitutional. court also F.2d 153 971 today County may lawfully holds employer “actually on that must show relied” tiff employees making employ any order one “cease ground in adverse improper decision). activity agree the that could be considered to be We with district reli- witnessing, gious proselytizing, or produce evidence counsel- court that Brown did ing” workplace. I cannot directly based subscribe to shows conclusions, nor religion or his these court’s failure termination on his Brown’s give scope and dimension Mr. race. religious expression. Second, tried because this case was merits, we need concern ourself I. Douglas or with whether McDonnell applies. Kientzy I that it is well believe established Price Waterhouse test 1051, Corp., right religion Douglas free exercise is McDonnell Cir.1993). See, (8th Instead, only right. e.g., fundamental Johnson Ro need bison, 1160, 415 U.S. n. S.Ct. review ultimate factual issue whether County intentionally discriminated n. That case, being or must demon against Brown on the basis of race Inc., id.; compelling Empiregas, strate a state interest before it Finley v. compelling can inhibit that After exercise. While interests, beauty, may mainly trial, like well lie the district court found bench beholder, eye pressed is of the one hard inadequate performance was the reason to find such interest here. his termination. 832 county’s ultimate identification of We conclude district court’s avoiding a finding not discriminate violation of Establishment that Polk did sufficiently im- religion compelling Clause violation as against Brown on his race based Henry permissibly neutrality shifts the fulcrum clearly is See Tuttle v. erroneous. (8th Co., simply much far in one It Cir. too direction. J. Kaiser review). 1990) (standard Having not an to allow indi establishment reviewed signifi display issue, viduals to items of ultimate we need not consider offices, partly finding cance in their because this is attack on the district court’s (see part county not an action on the of the not have accommo-- could Kurtzman, expres Lemon v. dated Brown’s activities *8 (1971)); and there is hardship. sion without undue argument in a colorable that Bible F.Supp. at 1314. even (even by govern a desk a desk owned argu- all We have considered of Brown’s ment) separation wall of that breaches the rejected Accordingly, and them. ments government must maintained and be between affirm district court. Besides, if it an establishment merely to of religion of allow these kinds ARNOLD, SHEPPARD Circuit MORRIS activities, county complete would have a Judge, dissenting part. in that, say this lawsuit: It could it answer to today The court holds that legally compelled was to issue the relevant Iowa, may lawfully employ- order of its one unnecessary directive, rendering thus it to that to remove from his office all items ees “interest” that divine some so-called and, religious faith more manifest his even county had at stake. incredibly, may him to direct remove (and in might, in the an The district One abstract Bible from his desk drawer. ' case), heavy- sympathize with the defen charitably appropriate court characterized easy overzealous,” always and that it is “arguably dants the sense handedness as Scylla by being to steer a correct course between confessed to “somewhat troubled” i—i Charybdis Religion of the Clauses. But quoting directly, hostility exhibits a to reli county has not qualified claimed immuni gion by government that our Constitution ty, perhaps of because its blind inability to quite clearly prohibits. It would seem to any Free Exercise interests whatever at require no argument'that speech to forbid here, position stake completely, consonant “that could be considered” is not unfeeling

with its disregard of Mr. Brown’s narrowly tailored to the aim of prohibiting rights and of its own duties under the Consti harassment. If Mr. Brown asked someone tution. Nor do I think that county could church, to attend his instance, for sup one have if succeeded it qualified had claimed poses that that “could be prose considered” immunity. seems to have been lytizing; prohibition but its runs of afoul bent giving government on sanction to the Free Likewise, Exercise Clause. a state attitude religion that is simply place out of ment to the effect that one’s was the office. certainly Citizens are free to important in one’s life “could be considered” and, course, believe this statutory absent witnessing; yet to forbid it regulation contrary, give effect would be unconstitutional. principle that voluntary their associations. they What are not free to do is to enlist the The court directly does not address these aid of government in imposing such restric arguments, but seems to indicate that tions on fellow workers. The conduct of the desire to avoid establishing religion provides defendants here seems to egregious me so a sufficient complete excuse for a prohibition obviously illegal as almost to furnish any activity that “could be considered direct evidence of an anti-Christian animus religious.” above, As I indicated that hold on part. Brown, their Mr. moreover, has ing strikes the balance between the Religion asked for declaratory judgment that way Clauses in a that order unconstitutional, relevant trenches was unconstitu a claim is, course, tionally ground subject occupied being defeat the Free Ex by qualified ed See, immunity. e.g., ercise Wood v. Clause. Our recently court occa had Strickland, 314-15 n. 95 sion explore boundary between the 996-97 n. L.Ed.2d two clauses Good Sports Club News/Good Malik (9th 335 n. 4 v. School District City Ladue, Cir.1994); Zieba, Mumford (8th Cir.1994), in which the court held that allowing a religious organization premises use school did not amount to II. an establishment of religion. Id. at 1510. may

One for the concede sake of argument The court concluded that merely permitting has a right or duty to express someone a religious view was not ensure that workplace harass establishment religion, noting that behavior any nature. But “there is a crucial difference govern between interference with activity that the endorsing religion, which the discharge of duty entails must be rea forbids; Establishment Clause and private sonably related to that discharge and must speech endorsing religion, which the Free narrowly tailored to its achievement. *9 Speech and Free Enterprise pro Clauses Thomas v. Review Board Indiana Em tect.” Id. at 1509 (quoting Westside Com ployment Sec., 707, 718, munity Bd. Ed. v. Mergens, 496 1425, 1432, L.Ed.2d Here, 226, 251, 110 2356, 2372-73, 110 S.Ct. there was attempt least to confine the (1991)) (plurality opinion J.). prohibition by O’Connor, to harassing or intimidating succinctly, speech, More as Justice narrowly to O’Connor prohibited define indicat ed, activity. Instead, id. at County baldly “[t]he direct ed Mr. proposition Brown to [governments] “cease any activity that that do not en could be considered prosely everything they dorse fail to censor is not tizing, witnessing, or counseling” (emphasis complicated.” Mr. Brown is here, speaking supplied). order, This which the court avoids not Polk County.

III. MONTGOMERY, Debtor. George C. In re about this unsettling to me is most What the court approach that antiseptic is the case MONTGOMERY, Appellant, George C. as proceeds It its resolution. takes apolitical of an application though a routine scientifically ineluct- RYAN, Appellee. yield a could Norah arithmetic this case dispute that solution able No. 94-1385. of constitutional modes presents. Given rightly quite the court by which Appeals, Court United States necessarily bound, had the court itself deems Eighth Circuit. balancing act to sort of some engage in Sept. 1994. Submitted (It is, clear. much is case. So decide outside moreover, think difficult 6, Oct. Decided useful- utility: right’s A governed a world econom- welfare ness, in the abstract at least scope that sense, may influence well

ics nuisance that the amount give to it and to tolerate compelled feel

we will

exercise.) produced the tradition But took one that Rights was Bill of

our govern- healthy suspicion

seriously, and a respect for individual a robust

ment and gave that values

autonomy this real- It is shape and texture. tradition it, act on

ization, unwillingness to tbie court’s missing from to be to me

seems subjected to “balanc- being

opinion. After “in- “weighing,” the identification

ing” and “tests,” Mr.

terests,” application shuffle, lost in the simply rights are reduced “prong,” and some

impaled on They merely expendable desiderata.

level of weight given to be their

ought instead proper constitu- expressions of critical boundary the state between

tional

individual. of the district so much reverse

I would rejected Mr. judgment

court’s other and affirm claims

Free Exercise he from which judgment

parts of the

appeals.