Booth v. State of Maryland

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-1748

JONATHAN F. BOOTH,

Plaintiff - Appellant,

v.

STATE OF MARYLAND, Department of Public Safety and
Correctional Services; JAMES V. PEGUESE, Warden,

Defendants - Appellees.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:05-cv-01972-RDB)

Argued: May 12, 2009 Decided: July 21, 2009

Before NIEMEYER and MICHAEL, Circuit Judges, and Frederick P.
STAMP, Jr., Senior United States District Judge for the Northern
District of West Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: John B. Stolarz, Baltimore, Maryland, for Appellant.
Michael O’Connor Doyle, OFFICE OF THE ATTORNEY GENERAL OF
MARYLAND, Baltimore, Maryland, for Appellees. ON BRIEF: Douglas
F. Gansler, Attorney General of Maryland, Baltimore, Maryland,
for Appellees.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Plaintiff-appellant Jonathan Booth filed suit under 42

U.S.C. § 1983 against his former employer, the State of

Maryland’s Department of Public Safety and Correctional Services

(the “Department”), and James V. Peguese, former Warden at the

Maryland House of Correction-Annex (“MHC-X”), asserting a

violation of the First Amendment of the United States

Constitution, breach of contract, and a violation of his right

to religious freedom under Article 36 of the Maryland

Declaration of Rights. 1 Thereafter, the plaintiff filed a second

action against the Department pursuant to Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e, alleging failure to

accommodate his religious briefs, disparate treatment, hostile

religious environment, and retaliation. These cases were

consolidated. Through several orders entered by the district

court, the defendants were granted summary judgment on numerous

claims, and the remaining claims were dismissed. For the

reasons that follow, we affirm.

I.

Booth is a practicing member of the Rastafarian religion.

In accordance with this religious organization’s tenets, he

1
This case was removed to the district court.

2
wears his hair in dreadlocks. In 2002, while employed as a

correctional officer with the Department’s Division of Pretrial

Detention and Services (“Pretrial Detention”), Booth filed suit

against the State of Maryland and various Department officials,

alleging that the Department violated his rights under the Free

Exercise Clause of the First Amendment and Maryland state law

for failure to remove his dreadlocks and conform with the

Department’s grooming policy by disciplining Booth. At the

time, the Department’s policy provided that only “traditional

(i.e. historically acceptable for military/law enforcement

uniformed personnel)” hair styles were permissible for male

correctional officers. Booth v. Maryland, 327 F.3d 377, 379

(4th Cir. 2003).

The district court granted summary judgment in favor of the

Department because the grooming standards were “rationally

related to [Pretrial Detention’s] legitimate interests in public

safety, discipline and espirit de corps.” Booth v. Maryland,

207 F. Supp. 2d 395, 398 (D. Md. 2002). This Court reversed.

Booth, 327 F.3d at 377. Holding that evidence in the record

showed that the Department had previously granted other officers

religious exemptions to the hair policy, this Court held that

the Department applied a facially neutral policy in an

unconstitutional manner. Id. at 381.

3
 The parties thereafter entered into a settlement agreement

in which the State of Maryland agreed to provide Booth a

religious accommodation from its grooming policy, promote him to

correctional officer sergeant, not retaliate, remove all

disciplinary actions taken against him in connection with his

dreadlocks, and transfer him to another facility. The agreement

further stated, however, that the Department was not prevented

from disciplining Booth if he engaged in misconduct under either

the Department’s Standards of Conduct or the Code of Maryland

Regulations. Thus, pursuant to the settlement agreement, Booth

was promoted to correctional officer sergeant and transferred to

MHC-X, where Warden Peguese was apprised of Booth’s religious

exemption.

In July 2004, Booth was promoted to an acting lieutenant

position. To be considered for actual promotion, however, an

individual was required to take the correctional lieutenant’s

promotional examination and receive a qualified score. Booth

did not take this examination, and in November 2004, he was

demoted to correctional sergeant. The parties dispute the

reason for Booth’s demotion.

Booth contends that subsequent to his demotion, he was

advised by other employees and his supervisor, Captain Theresa

Dorn, that he was demoted because Warden Peguese disliked his

hair. According to Booth, when he met with Warden Peguese to

4
discuss the possibility of being reinstated to the lieutenant

position, defendant Peguese stated that “sometimes you can win

the battle but lose the war,” which the plaintiff understood to

mean that although he prevailed in the earlier lawsuit, it did

not mean that the Department was going to abide by the religious

accommodation. Also during that meeting, Warden Peguese

allegedly stated that the Secretary of the Department would

never accept Booth as one of her supervisors because he did not

wear a short haircut, that this was a “white man’s world,” and

that the Booth had to live in it. J.A. 321. After this

meeting, Booth emailed Warden Peguese asking him for advice on

choosing between his religious beliefs and his career to which

Warden Peguese allegedly responded, “All is well, but the

decision is yours.” J.A. 850. Booth understood this email as

confirmation that he could regain the acting lieutenant position

if he removed his dreadlocks.

The defendants assert that Booth was demoted because he

performed the position of acting lieutenant unsatisfactorily.

Warden Peguese issued a written counseling record to Booth for

failing to take necessary corrective actions after noticing

trash on some of the tiers while making rounds. After observing

Booth giving special privileges to a lower-ranking female

officer, Major Warren, another supervisor, notified the

plaintiff that he needed to change his behavior. When Booth

5
failed to change his behavior, however, Major Warren recommended

that he be removed from the position of acting lieutenant.

Captain Dorn also verbally reprimanded Booth for taking long

lunches with the female officer and engaging in long

conversations and telephone calls with her. Furthermore,

Captain Dorn stated that Booth “was careless in his work and

inaccurate,” and that “most of the time [she] had to take stuff

back to him and have him do it over again.” J.A. 768. Major

Warren also stated that “after a certain time frame . . . you

expect him to be a little bit more independent, and he really

wasn’t showing that.” J.A. 936.

In February 2005, Warden Peguese placed MHC-X on lock down

status because of violence committed by several inmates. During

lock down, inmates are served meals through the food slots in

their cell doors and must eat their meals in their cells. On

February 28, 2005, Booth was assigned as officer-in-charge on

the 11:00 p.m. to 7:00 a.m. shift.

At approximately 1:00 a.m., Correctional Officer I

Olatilewa Olowe escorted Nurse Yvonne Henry to deliver medicine

to inmate Stefan Bell. Contrary to established procedure, Nurse

Henry left medication on the floor of Bell’s cell without

ensuring that he took it. Later that morning, Booth and

Correctional Officer I Deji Akinbobola served the inmates

breakfast. Again, contrary to established procedure to keep all

6
cell doors closed and feed inmates through the food slots, Booth

ordered the tier control center officer to open five cell doors

at a time so that food trays could be placed in the inmates’

cells. Booth did not notice anything wrong with Bell when he

placed breakfast in the inmate’s cell; nor did he observe Bell’s

medicine on the floor below the food slot. At approximately

8:15 a.m., however, another correctional officer discovered that

inmate Bell died sometime during the night.

After an investigation was undertaken, Warden Peguese

proposed that Booth be terminated from State service for

violating the State Personnel and Pensions Article of the

Maryland Annotated Code, the Code of Maryland Regulations, and

the Department’s Standards of Conduct. Two other officers, in

addition to Booth, were found to be at fault in the incident.

Officer Akinbobola was terminated for conduct that breached the

institution’s security. Officer Olowe offered his resignation,

which was later accepted. On March 29, 2005, the Secretary

affirmed Booth’s termination.

Booth appealed his termination and argued that security was

not breached because no inmates were released from their cells,

and opening cell doors to feed inmates during lock down was

allegedly a common practice at MHC-X. An administrative hearing

was held before an administrative law judge of the Maryland

Office of Administrative Hearings (“OAH”). The administrative

7
law judge affirmed Booth’s termination, concluding that he

engaged in conduct “that seriously threaten[ed] the safety of

the workplace,” breached the security of the institution, and

was “unsatisfactory,” “negligent,” and “insubordinat[e].” J.A.

310, 314-15.

Booth then filed a petition for judicial review of the

OAH’s decision in the Circuit Court of Baltimore City, which

affirmed the decision. The Court of Special Appeals of Maryland

affirmed the decision of the Circuit Court for Baltimore City,

and the Maryland Court of Appeals denied Booth’s petition for

writ of certiorari. The OAH also denied Booth’s motion for

revision and new trial with respect to the OAH decision.

Exhausting his administrative remedies, Booth filed a

complaint under 42 U.S.C. § 1983 (“first complaint”) in the

Circuit Court of Maryland for Baltimore City against the

Department and Warden Peguese, alleging a violation of the First

Amendment, breach of contract, and a violation of Article 36 of

the Maryland Declaration of Rights. Following removal to the

federal court for the District of Maryland, the district court

granted the defendants’ motion to dismiss as to Booth’s First

Amendment claim, but denied the motion as to the breach of

contract and Maryland constitutional claims.

Booth also filed a Title VII claim (“second complaint”)

alleging failure to accommodate, disparate treatment, hostile

8
religious environment, and retaliation against the Department.

The district court consolidated the two cases for review and

disposition, and the Department filed a motion to dismiss, or in

the alternative, a motion for summary judgment as to the Title

VII claim. Thereafter, the district court entered a verbal

order dismissing Booth’s failure to accommodate and disparate

treatment claims of the Title VII complaint. The district court

also entered judgment in favor of the defendants as to the

breach of contract and Maryland constitutional claims in the

first complaint, and the hostile work environment and

retaliation claims of the second complaint.

Booth appealed, raising several issues. We address these

issues in turn.

II.

We review de novo a district court’s grant of a motion to

dismiss. Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.

2008). We review a district court’s grant of summary judgment

de novo. Jennings v. Univ. of N.C., 482 F.3d 686, 694 (4th Cir.

2007) (en banc) (citing Hill v. Lockheed Martin Logistics Mgmt.,

Inc., 354 F.3d 277, 283 (4th Cir. 2004) (en banc)). We review a

denial of leave to amend the complaint for an abuse of

discretion. Franks v. Ross, 313 F.3d 184, 192 (4th Cir. 2002).

9
 III.

One issue in this case is that of preclusion, and whether

the OAH determination, upheld by the Maryland state court

system, precludes Booth from litigating his claims. The

defendants argue that the federal courts must give preclusive

effect to state court judgments so long as the litigant was

provided adequate procedural protections under the Fourteenth

Amendment of the United States Constitution and he had a “full

and fair opportunity to litigate” the claim in the state

proceeding. Kremer v. Chemical Constr. Corp., 456 U.S. 461, 462

(1982). Because Booth was provided ample process in the

administrative proceeding, had a “full and fair opportunity to

litigate” his claims at the OAH, and could have challenged his

termination on the same bases he raises in this action, the

defendants assert that he is now barred from re-litigating the

legality of his termination in this case.

Booth responds that even if there was a final judicial

determination against him, those proceedings are not binding in

this action because there is a significant difference between

Maryland’s Employee Merit System and the federal statutes upon

which this current action is based. In support, Booth cites to

Ross v. Commc’ns Satellite Corp., 759 F.2d 355 (4th Cir. 1985),

which held that an adjudication by the Maryland Employment

Security Administration did not preclude a Title VII action

10
because “while a Maryland administrative adjudicator is

concerned with forbidden conduct on the part of the employee,

Title VII directs the factfinder’s attention to a forbidden

motive on the part of the employer.” Id. at 362 (emphasis

included).

We hold that Booth is not barred from litigating his § 1983

and discrimination claims in this Court. The doctrine of

collateral estoppel, however, does bar the re-litigation of the

misconduct issue. This Court must look to the law of the state

where the judgment was entered to determine whether collateral

estoppel principles bar litigation in federal court. Kremer,

456 U.S. at 481-82. Collateral estoppel applies in a second

action to a determination of fact litigated in the first action,

even if the causes of action are different. MPC, Inc. v. Kenny,

367 A.2d 486 (Md. 1977). When there has been a final judgment

of a court on the merits in a previous proceeding, collateral

estoppel will apply. Institutional Mgmt. v. Cutler Computer,

451 A.2d 1224 (Md. 1982).

There is no indication that Booth raised § 1983 or

discrimination claims at his administrative hearing, a fact that

the defendants admit, and Booth does not contest. Furthermore,

the issues resolved by the OAH concerning whether Booth violated

§ 11-110(b)(2) of the State Personnel and Pensions Article, as

well as COMAR § 17.04.05.04B, are not identical to those § 1983

11
and discrimination claims in this action. As stated in Ross,

the former regulations focus on the forbidden conduct of the

employee, while the latter statutes direct this Court’s

attention to the forbidden motive on the part of the employer.

759 F.2d at 362. Thus, the principle of collateral estoppel

does not bar Booth from litigating his §1983 and discrimination

claims before this Court.

Nevertheless, collateral estoppel does bar the re-

litigation of whether Booth’s discharge was due to his

misconduct. A factual determination was made in the OAH

proceedings that Booth engaged in conduct that threatened the

safety of the workplace, breached the security of the

institution, and was both unsatisfactory and negligent. This

led to the administrative law judge’s findings that Booth was

terminated for misconduct. During both these proceedings and on

judicial review, Booth had a “full and fair opportunity” to

litigate this misconduct issue. See Harding v. Ramsay, Scarlett

& Co., Inc., 599 F. Supp. 180, 184 (D. Md. 1984) (“Because this

court has some question about the extent to which the racial

discrimination issue was litigated at the administrative hearing

. . . the doctrine of collateral estoppel will not bar the

litigation of the racial discrimination issue in this federal

forum . . . . The doctrine of collateral estoppel, however,

does bar the re-litigation of the misconduct issue.”).

12
 IV.

Booth argues that the district court improperly granted

summary judgment in favor of Warden Peguese on his § 1983 claim

because Booth’s demotion from the acting lieutenant position

constituted a violation of the Free Exercise Clause of the First

Amendment. 2 The district court held that Warden Peguese was

entitled to qualified immunity under the Eleventh Amendment

because he did not violate any clearly established

constitutional rights.

Title 42, United States Code, Section 1983 provides redress

for state action which deprives a citizen of a right, privilege

or immunity ensured by the Constitution or law of the United

States. See 42 U.S.C. § 1983. Under the doctrine of qualified

immunity, government officials are not subject to liability for

conduct that “does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.” See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). In

Saucier v. Katz, 533 U.S. 194, 201 (2001), the Supreme Court

established a rigid two-step sequence for determining a

defendant’s entitlement to qualified immunity. “First, a court

must decide whether the facts that a plaintiff has alleged . . .

2
Booth does not challenge the dismissal of this claim as to
the Department.

13
make out a violation of a constitutional right. Second, if the

plaintiff has satisfied this first step, the court must decide

whether the right at issue was ‘clearly established’ at the time

of the defendant’s allege misconduct.” Pearson v. Callahan, 129

S. Ct. 808, 815-16 (2009) (citing Saucier, 533 U.S. at 201)

(internal citations omitted)). Recently, however, the Supreme

Court has held that lower courts may decide on a case-by-case

basis whether to follow or to vary from the sequence set forth

in Saucier. See id. at 818.

That a defendant’s conduct is a constitutional violation

under clearly established law “does not require that the ‘very

action in question [have] been previously held unlawful[.]’”

Robles v. Prince George’s County, 302 F.3d 262, 270 (4th Cir.

2002) (quoting Wilson v. Layne, 526 U.S. 603, 615 (1999))

(internal citations and quotations omitted). Rather, the proper

inquiry is whether the unlawfulness of the conduct would have

been apparent to a reasonable officer under the circumstances in

light of pre-existing law. Saucier, 533 U.S. at 201-02; Wilson,

526 U.S. at 609. A law is “clearly established” when “the law

has ‘been authoritatively decided by the Supreme Court, the

appropriate United States Court of Appeals, or the highest court

of the state.’” Wilson v. Layne, 141 F.3d 111, 114 (4th Cir.

1998).

14
 Here, Booth has failed to identify any authority to support

his contention that the right to wear one’s hair in conformance

with one’s religious beliefs is a clearly established

constitutional right. Accordingly, this Court concludes that

Warden Peguese was entitled to qualified immunity because Booth

has not alleged conduct that constitutes a violation of any

clearly established right. The district court’s granting of

summary judgment as to Warden Peguese on this claim must

therefore be affirmed.

V.

Booth next argues that the district court erroneously

granted summary judgment in favor of the Department on his

breach of contract claim.

The settlement agreement provided (1) that Booth would be

transferred and promoted; (2) that he would “receive a religious

accommodation to [the] dress code policy of the Department”; and

(3) that the Department was not prevented “in any way” from

disciplining Booth if he engaged in misconduct under either the

Department’s Standards of Conduct or the Code of Maryland

Regulations. J.A. 123-24. That Booth was transferred and

promoted is not in dispute. Rather, Booth contests the second

two components of the settlement agreement by claiming that:

Captain Dorn told him that he was removed from the position of

15
acting lieutenant because of his dreadlocks; the Secretary would

never accept him as one of her supervisors; Warden Peguese told

him that the Secretary did not want her supervisors wearing

anything but short hair cuts; Warden Peguese’s email confirmed

that Booth had a choice to make about his hair; Booth’s

understanding of his meeting with Warden Peguese was that he

would be reinstated to the acting lieutenant position if he

removed his dreadlocks; and Booth offered to wear his hair under

a hat.

However, these facts fail to establish that the Department

did not provide Booth with a religious accommodation to the

dress code policy. Nor do these facts suggest that Booth was

terminated for reasons other than misconduct. Several

individuals, including Captain Dorn, Warden Peguese, and Major

Warren stated that Booth’s performance while serving as acting

lieutenant was unsatisfactory. Furthermore, the Department has

come forward, through the operation of collateral estoppel,

discussed above, with sufficient evidence to prove that Booth

was terminated for misconduct. See Harding, 599 F. Supp. at 185

(“In effect, the plaintiff, because [he] is collaterally

estopped by the state administrative agency and judicial ruling,

cannot ‘by the process of eliminating the legitimate reason [for

his discharge show] that the decision was governed by an

illegitimate one.’”) (citing Banerjee v. Board of Trustees, 648

16
F.2d 61, 63 (1st Cir. 1981)). Thus, this Court affirms the

district court’s holding that there was no breach of the

settlement agreement.

VI.

Booth also argues that the district court erred when it

dismissed his failure to accommodate claim because it did not

take into consideration that he was allegedly demoted from the

acting lieutenant position because of his dreadlocks.

To establish a prima facie religious accommodation claim, a

plaintiff must establish that: “‘(1) he or she has a bona fide

religious belief that conflicts with an employment requirement;

(2) he or she informed the employer of this belief; [and] (3) he

or she was disciplined for failure to comply with the

conflicting employment requirement.’” Chalmers v. Talon Co. of

Richmond, 101 F.3d 1012, 1019 (4th Cir. 1996) (quoting Philbrook

v. Ansonia Bd. of Educ., 757 F.2d 476, 481 (2d Cir. 1985)).

The first two elements are not in dispute in this case.

Furthermore, Booth’s conclusory statements that he was removed

from the acting lieutenant position for refusing to remove his

dreadlocks do not defeat the Department’s grant of summary

judgment on this claim. See Evans v. Techs. Applications &

Serv. Co., 80 F.3d 954, 959 (4th Cir. 1996) (“[The plaintiff’s]

own naked opinion, without more, is not enough to establish a

17
prima facie cause of [] discrimination.”) (internal citations

and quotations omitted). Ample evidence was provided that Booth

was demoted from acting lieutenant because of unsatisfactory

work performance and for giving preferential treatment to a

female subordinate. Thus, we find that the district court did

not err in granting summary judgment in favor of the Department

on Booth’s failure to accommodate claim.

VII.

Booth argues that the district court erred when it

dismissed his disparate treatment claim because other similarly

situated employees were not disciplined for opening cell doors

during lock down.

To establish a prima facie cause of disparate treatment as

to religion, a plaintiff must show that: (1) he is a member of a

protected class; (2) he suffered an adverse employment action;

(3) he was performing his job in a satisfactory manner; and (4)

his position remained open or was filled by similarly qualified

applicants outside the protected class. Holland v. Washington

Homes, Inc., 487 F.3d 208, 214 (4th Cir. 2007) (citing McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). If the

plaintiff establishes a prima facie case, the burden shifts to

the employer to produce evidence that the plaintiff was

terminated for a non-discriminatory reason. McDonnell Douglas,

18
411 U.S. at 802. Should the employer demonstrate a non-

discriminatory justification for the termination, the burden

then shifts back to the employee to show that the asserted

justification is merely a pretext. Id. at 803-05.

Booth cannot establish a prima facie case of disparate

treatment because sufficient evidence exists that he was

performing his job in an unsatisfactory manner. This Court

holds, as it has above, that the administrative law judge’s

determination, upheld by both the Circuit Court for Baltimore

City and the Court of Special Appeals, finding Booth’s

misconduct was the sole reason for termination from employment

is established as a matter of law. Thus, through collateral

estoppel principles, Booth cannot satisfy the third element in a

prima facie case of disparate treatment. We hold, therefore,

that the district court did not err in dismissing Booth’s

disparate treatment claim.

VIII.

Booth next argues that because he provided circumstantial

evidence that the Department retaliated against him for wearing

dreadlocks in accordance with his religious beliefs, the

district court erred in granting the Department’s motion for

summary judgment on his retaliation claim.

19
 A plaintiff must demonstrate the following to establish a

prima facie claim of retaliation under Title VII: (1) that he

engaged in protected activity; (2) that the employer took an

adverse action against him; and (3) that a causal connection

existed between the protected activity and the adverse action.

Matvia v. Bald Head Island Mgmt., 259 F.3d 261, 271 (4th Cir.

2001). “Protected activities fall into two distinct categories:

participation or opposition . . . . An employer may not

retaliate against an employee participating in an ongoing

investigation or proceeding under Title VII, nor may the

employer take adverse employment action against an employee for

opposing discriminatory practices in the workplace.” Laughlin

v. Metro Wash. Airports Auth., 149 F.3d 253, 259 (4th Cir.

1998). Opposition activity is defined as “utilizing informal

grievance procedures as well as staging informal protests and

voicing one’s opinion in order to bring attention to an

employer’s discriminatory activities.” Id. at 259.

In this case, Booth cannot prove that there is a causal

connection between the engaged protected activity (filing the

first lawsuit that resulted in a settlement agreement) and the

adverse employment action (his demotion from acting lieutenant).

Booth’s demotion occurred approximately nine months after his

initial lawsuit leading to the settlement agreement. The

temporal proximity, thus, is too remote to prove the causal

20
connection alone. See Mitchell v. Sec’y Veterans Affairs, 467

F. Supp. 2d 544, 554 (D.S.C. 2006 ) (“In order to prove a causal

connection based on temporal proximity alone, the time between

the protected activity and the adverse employment action must be

‘very close.’”)(emphasis included). Furthermore, there was

ample evidence that Booth was demoted from the position of

acting lieutenant because of his unsatisfactory work

performance. Once again, Booth’s conclusory statements that the

Department retaliated do not defeat the district court’s grant

of summary judgment in favor of the Department on this claim.

See Evans, 80 F.3d at 959.

IX.

Booth next argues that the district court erred in entering

judgment in favor of the Department on his hostile work

environment claim. Particularly, Booth alleges that his

demotion from the acting lieutenant position, on the basis that

his hair style did not meet the requirements of the position,

was sufficiently severe to establish a hostile environment.

To establish a hostile work environment claim under Title

VII, a plaintiff must prove the following four elements: (1)

unwelcome harassment; (2) that the harassment was based on the

plaintiff’s religious beliefs; (3) that the harassment was

sufficiently severe or pervasive to alter the conditions of

21
employment and create and abusive atmosphere; and (4) that there

is some basis for imposing liability on the employer. Gilliam

v. S.C. Dep’t of Juvenile Justice, 474 F.3d 134, 142 (4th Cir.

2007) (citing Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183-

184 (4th Cir. 2001)). The plaintiff must show that his

“workplace is permeated with discriminatory intimidation,

ridicule, and insult that is sufficiently severe or pervasive to

alter the conditions of [his] employment and create an abusive

working environment.” Harris v. Forklift Sys., 510 U.S. 17, 21

(citing Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65-67 (1986)).

In proving the third element, the plaintiff must show that the

work environment was both subjectively and objectively hostile.

EEOC v. Sunbelt Rentals, Inc., 521 F.3d 306 (4th Cir. 2008). A

court must examine the totality of the circumstances, including

“[t]he frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably interferes with

an employee’s work performance. Id. at 315 (citing Harris, 510

U.S. at 21).

Here, Booth has not established that the conduct was

sufficiently severe or pervasive to constitute a hostile work

environment based on his religion. While he claims that Warden

Peguese “created a situation wherein the Plaintiff’s hair style

was not acceptable and he could not be promoted without removing

22
his dreadlocks,” Booth can only draw this Court’s attention to a

few isolated instances where his hair was even discussed. J.A.

1174. The first incident allegedly occurred when Warden Peguese

told Booth that the Secretary would not allow a lieutenant to

wear dreadlocks. The second incident allegedly involves an

email response by Warden Peguese that stated, “No thanks your

hair has nothing to do with it.” J.A. 1175. These incidents

are not so “extreme [as] to amount to a change in the terms and

conditions of employment.” Faragher v. City of Boca Raton, 524

U.S. 775, 788 (1998).

Furthermore, after one conversation with Warden Peguese,

Booth emailed the Warden that he “enjoy[ed] communicating” and

that he “appreciate[d] you allowing me to correspondence [sic]

with you.” J.A. 1174. This email is certainly not indicative

of a hostile work environment under Title VII. Accordingly,

because the record lacks evidence that Booth suffered a

sufficiently severe or pervasive hostile work environment, we

find that the district court properly granted the Department’s

motion for summary judgment on this claim.

X.

Booth also argues that the district court improperly

granted summary judgment for the Department on his claim for

violation of Article 36 of the Maryland Declaration of Rights.

23
The district court held that because Booth’s claims under the

First Amendment to the United States Constitution failed, so too

must his claims under the Maryland Declaration of Rights.

Whether Article 36 of the Maryland Declaration of Rights

provides a private cause of action is undecided. Baird v.

Haith, 724 F. Supp. 367, 371 (D. Md. 1988) (“[T]here is no

indication in Maryland law that there is any private right of

action for damages under [Article 36].”). Nevertheless,

Maryland state courts have proceeded on the basis that even if

Article 36 does provide for a private cause of action, Article

36 and the First Amendment of the United States Constitution

have the same effect. See e.g. Stover v. Prince George’s

County, 752 A.2d 686, 695 (Md. App. 2000); Supermarkets Gen.

Corp. v. State of Maryland, 409 A.2d 250, 258 (Md. 1979).

“It is fundamental that state courts be left free and

unfettered by us in interpreting their state constitutions.”

Minnesota v. Nat’l Tea Co., 309 U.S. 551 (1940). Because the

Maryland state court system has proceeded to analyze Article 36

and the First Amendment of the United States Constitution under

the same requirements, this Court is not in a position now to

interpret the Maryland state constitution differently. Thus,

for the same reasons discussed in part IV of this opinion, this

Court finds that the district court did not err in granting the

24
Department’s motion for summary judgment on Booth’s Article 36

claim.

XI.

Finally, Booth argues that the district court abused its

discretion by denying his motion to amend the complaint to

include a count based upon a deprivation of the plaintiff’s

substantive due process rights under both the United States

Constitution and the Maryland Declaration of Rights when Warden

Peguese allegedly made false statements at the OAH hearing.

Federal Rule of Civil Procedure 15(a)(1)(A) states, in

pertinent part, that “[a] party may amend its pleading once as a

matter of course . . . before being served with a responsive

pleading.” If a party seeks to amend its pleading in all other

cases, it may only do so “with the opposing party’s written

consent or the court’s leave. The court should freely give

leave when justice so requires.” Fed. R. Civ. P. 15(a)(2).

Rule 15(a) grants the district court broad discretion concerning

motions to amend pleadings, and leave should be granted absent

some reason “such as undue delay, bad faith or dilatory motive

on the part of the movant, repeated failure to cure deficiencies

by amendments previously allowed, undue prejudice to the

opposing party by virtue of allowance of the amendment or

futility of the amendment.” Foman v. Davis, 371 U.S. 178, 182

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(1962); see also Ward Elec. Serv. v. First Commercial Bank, 819

F.2d 496, 497 (4th Cir. 1978); Gladhill v. Gen. Motors Corp.,

743 F.2d 1049, 1052 (4th Cir. 1984).

This Court notes that a circuit-split remains concerning

whether a party’s substantive due process rights are violated by

an arbitrary, capricious, and pretextual discharge. Compare

e.g. Gargiul v. Tompkins, 704 F.2d 661, 668 (2d Cir. 1983) (“If

[the plaintiff’s] lengthy suspension without pay resulted from

an arbitrary or capricious exercise of the Board’s power, her

due process rights were violated.”), and Thompson v. Bass, 616

F.2d 1259, 1267 (5th Cir. 1980) (finding that public employee

who had a property interest in continued employment could

establish a denial of substantive due process if termination was

the result of arbitrary or capricious action), with McKinney v.

Pate, 20 F.3d 1550, 1560 (11th Cir. 1994) (“[I]n non-legislative

cases, only procedural due process claims are available to

pretextually terminated employees. Thus, we conclude that our

prior decisions, which granted pretextually terminated employees

section 1983 causes of action premised on substantive due

process violations, are contrary to Supreme Court

jurisprudence.”), and Demesme v. Montgomery County Gov’t, 63 F.

Supp. 2d 678 (D. Md. 1999) (“Plaintiff alleges that he was

terminated in violation of the County’s personnel regulations.

Accordingly, his claim is not that the County was unable to

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terminate his employment, but rather that the method used was

improper. The Court will treat count one as alleging a

procedural due process violation.”).

We do not reach the merits of whether Booth’s proposed

amendment alleges a claim for violation of his substantive or

procedural due process rights. Even assuming, without deciding,

that a substantive due process right exists, this Court holds

that the district court did not abuse its discretion in denying

Booth’s motion to amend because the amendment would have been

futile. Booth alleges that Warden Peguese testified falsely

that violence was escalating in MHC-X, that there had been

assaults on the staff, and that he did not know the reason for

the violence which necessitated the lock down. This alleged

false testimony, however, is immaterial to the administrative

law judge’s finding that the facility was on lock down and that

Booth was required to follow lock down procedures in effect at

that time, which Booth failed to do. Thus, whether Warden

Peguese testified falsely concerning certain facts is inapposite

to the OAH and Maryland reviewing courts’ determination that

Booth’s termination was premised on his insubordination. Any

amendment to the complaint to assert a due process claim,

therefore, would only be futile.

For the same reasons, Booth’s putative claims under Article

19 and 24 of the Maryland Declaration of Rights also fail. See

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Pickett v. Sears, Roebuck & Co., 775 A.2d 1218, 1224 (Md. 2001)

(“This Court has interpreted Article 24 of the Maryland

Declaration of Rights and the Due Process clause of the

Fourteenth Amendment of the United States Constitution to be in

pari material . . .”); Durham v. Fields, 588 A.2d 352, 357 (Md.

App. 1991) (Article 19 and 24 “have long been equated with the

Federal due process clause and have been held to provide the

same, but no greater, rights and protection.”).

XII.

For the foregoing reasons, the judgment of the district

court is hereby

AFFIRMED.

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