                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             JUL 27 1999
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 PATRICK PORTLEY-EL,

           Plaintiff-Appellant,
 v.                                                       No. 99-1028
 ARISTEDES ZAVARAS, JERRY                             (D.C. No. 96-Z-1851)
 GASKO, ROBERT FURLONG, JOHN                                (D. Colo.)
 REILLY,

           Defendants-Appellees.


                              ORDER AND JUDGMENT          *




Before ANDERSON, KELLY and BRISCOE, Circuit Judges.


       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Plaintiff Bro. Patrick Portley-El, a state inmate appearing pro se and in

forma pauperis, appeals from the district court’s dismissal of his claims filed


       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e   et seq .,

the Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. § 2000bb           et

seq ., and 42 U.S.C. § 1983. We exercise jurisdiction pursuant to 28 U.S.C.

§ 1291 and affirm.

                                            I.

      Portley-El is a male African American and a practicing member of the

Moorish Science Temple of America, a religious sect of the Muslim faith. In

1995, Portley-El approached the warden of the Colorado prison where he was

incarcerated and requested to be excused from work on October 16, 1995, in

recognition of the Million Man March being held in Washington, D.C. Portley-El

maintained this date was a holy day because the march had been organized by

Reverend Louis Farrakhan, who many Muslims apparently consider to be a

messenger of Allah. Portley-El’s request was denied on the grounds that the

march was “social-political” in nature and not a religious holiday. Prison

officials advised Portley-El he was free to fast and pray on his own, but he would

not be given the day off work.

      On the actual day of the march, Portley-El wore his fez to work as an act of

faith in honor of the purported holy day. According to prison authorities, this was

the first time Portley-El had worn such headgear. The supervising correctional

officer felt the fez posed a potential security threat and ordered Portley-El to


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remove it from his head. Portley-El then filed the instant lawsuit. Adopting the

report and recommendation of the magistrate, the district court granted summary

judgment to defendants.

                                           II.

       Portley-El alleges race and religious discrimination in violation of Title

VII, RFRA, and 42 U.S.C. § 1983. We address each in turn.

       Title VII Claims

       The court properly dismissed Portley-El’s Title VII claims because Title

VII applies only to discrimination of employees by employers.       Williams v.

Meese , 926 F.2d 994, 997 (10th Cir. 1991). Portley-El is not an “employee” for

purposes of Title VII.   Id. “Although his relationship with defendants may

contain some elements commonly present in an employment relationship, it arises

from plaintiff’s having been convicted and sentenced to imprisonment in the

defendants’ correctional institution. The primary purpose of their association is

incarceration, not employment.”     Id. (internal alterations and quotations omitted.)

       RFRA Claims

       Portley-El’s RFRA claims also must fail. The Supreme Court declared

RFRA unconstitutional as applied to the states in    City of Boerne v. Flores , 521

U.S. 507 (1997). Therefore, RFRA is inapplicable to the states and unavailable to

Portley-El either as a jurisdictional basis, or as a source of relief for his claims.


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       Section 1983 Claims

       In his § 1983 claims, Portley-El first challenges defendants’ refusal to give

him the day of the Million Man March off of work. Even assuming, arguendo,

that observance of the march outside the work environment was a central tenet of

Portley-El’s faith, the Supreme Court has held unequivocally that prison

authorities are not required to excuse inmates from work as long as their decision

is grounded in legitimate penological objectives.         See O’Lone v. Estate of

Shabazz , 482 U.S. 342, 350-53 (1987) (even if prison regulation rendered

inmate’s ability to practice a component of his faith impossible, regulation does

not contravene First Amendment as long as it serves a legitimate penal objective).

There is evidence in the record that accommodating Portley-El’s request to be

given this day off of work would have posed serious staffing and security

dilemmas for the prison.      See R. Vol. I, Doc. 39, Exh. B at 3-4. We thus conclude

the district court properly granted summary judgment on this claim.

       Portley-El next contends prison officials violated his First Amendment

rights by refusing to allow him to wear a fez at work. Because such religious

headgear may be used to conceal drugs, weapons, or other contraband, and may

spark internal violence among prisoners, the wearing of such headgear poses a

potential security threat and restricting its wear is entirely appropriate.    See

Butler-Bey v. Frey , 811 F.2d 449, 451 (8th Cir. 1987) (rejecting inmate’s claim


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that prohibition on wearing of fez violates First Amendment);       see also Young v.

Lane , 922 F.2d 370, 375-76 (7th Cir. 1991) (finding regulation disallowing

yarmulkes outside of cell was justified by security concerns);     Benjamin v.

Coughlin , 905 F.2d 571, 578-79 (2d Cir. 1990) (holding prohibition on wearing of

crowns does not run afoul of First Amendment).

                                            III.

       The judgment of the district court is AFFIRMED. The mandate shall issue

forthwith.

                                                   Entered for the Court

                                                   Mary Beck Briscoe
                                                   Circuit Judge




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