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 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 immunity
) 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.
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).