Booth v. State of Maryland , 337 F. App'x 301 ( 2009 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
25
(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
26
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
27
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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