                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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