The opinion
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JONATHAN F. BOOTH,
Plaintiff-Appellant,
v.
STATE OF MARYLAND, DEPARTMENT OF
PUBLIC SAFETY AND CORRECTIONAL
SERVICES; LAMONT W. FLANAGAN, No. 02-1657
Commissioner; WILLIAM JEDNORSKI,
Warden; GEORGE CHILDS, Chief of
Security; HERBERT H. AIKEN;
MICHAEL A. JOINER,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, District Judge.
(CA-02-160-JFM)
Argued: February 25, 2003
Decided: April 30, 2003
Before LUTTIG, TRAXLER, and KING, Circuit Judges.
Affirmed in part, reversed in part, and remanded by published opin-
ion. Judge Traxler wrote the opinion, in which Judge Luttig and Judge
King joined.
COUNSEL
ARGUED: John B. Stolarz, STOLARZ & BRICKER, Baltimore,
Maryland, for Appellant. Glenn Todd Marrow, Assistant Attorney
2 BOOTH v. STATE OF MARYLAND
General, DEPARTMENT OF PUBLIC SAFETY AND CORREC-
TIONAL SERVICES, Baltimore, Maryland, for Appellees. ON
BRIEF: J. Joseph Curran, Jr., Attorney General of Maryland,
DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL
SERVICES, Baltimore, Maryland, for Appellees.
OPINION
TRAXLER, Circuit Judge:
Jonathan F. Booth, a uniformed correctional officer employed by
the State of Maryland, filed this action against the State and five of
its employees after he was subjected to disciplinary action for wearing
his hair in dreadlocks in violation of his employer’s dress code and
grooming policy. Booth alleged religious and racial discrimination, in
violation of 42 U.S.C.A. § 1981 (West 1994) and 42 U.S.C.A. § 1983
(West Supp. 2002), and Articles 24 and 36 of the Maryland Declara-
tion of Rights, as well as a state law claim for defamation. The district
court granted the defendants’ motion for summary judgment and
denied the plaintiff’s motion for summary judgment. See Booth v.
Maryland, 207 F. Supp. 2d 394 (D. Md. 2002). We affirm in part,
reverse in part, and remand.
I.
Booth is an African-American male employed as a uniformed cor-
rectional officer with Maryland’s Department of Public Safety and
Correctional Services, Division of Pretrial Detention and Services
(the "Division"). He is assigned to work at the Baltimore Central
Booking and Intake Center in Baltimore, Maryland.
The Division has in place a dress code and grooming policy,
referred to as DCD 50-43, which sets forth permissible hairstyles for
male and female uniformed personnel. Relevant to this litigation, the
policy provides as follows:
a. Hair shall be neatly groomed. Hair in front shall be
groomed so that it does not fall below the band of the
BOOTH v. STATE OF MARYLAND 3
properly worn uniform headgear. Hair on the back of
the head may not extend further than one quarter inch
onto the collar. Hair on the side of the head may touch
but shall not extend onto the collar. In no case shall the
bulk, length, or height of the [hair], interfere with
proper wearing of authorized uniform headgear, emer-
gency equipment, or styled to impair the employee’s
vision. The length[,] bulk, or appearance of hair shall
not be excessive, ragged, or unkept.
b. (Females) Buns, braids and ponytails shall be permitted
on top of the head or back of the head, in a neat manner,
provided they do not interfere with the proper wearing
of authorized uniform headgear or emergency equip-
ment and do not extend below the collar. Braids and
ponytails not secured to the top of the head shall meet
length standards outlined in [a].
c. Only traditional (i.e., historically acceptable for mili-
tary/law enforcement uniformed personnel), haircuts
shall be permitted.
J.A. 93-94. Booth’s hairstyle does not comport with DCD 50-43
because he wears dreadlocks. He alleges that he is "a practicing mem-
ber of the Rastafarian religion, a bona fide religious organization," of
which "[t]he growing and wearing of dreadlocks is a tenet." J.A. 16.
According to Booth, dreadlocks are regarded by Rastafari as "a sign
of their African identity," as well as "a religious vow of their separa-
tion from the wider society." J.A. 16. Thus, Booth has chosen to wear
his hair in dreadlocks, which he characterizes as "short, braided, and
worn close to the scalp." J.A. 16.
In November 2001, following a number of requests by his
employer that he cut his hair to comply with DCD 50-43, Booth
advised his superiors that his Rastafarian religion required him to
wear his hair in dreadlocks and requested a reasonable accommoda-
tion to wear his hair in accordance with his religious beliefs. How-
ever, Booth was denied his request for a religious exemption to the
policy and was informed that progressive discipline would be
imposed if he did not comply with the policy. Booth refused to do so
4 BOOTH v. STATE OF MARYLAND
and, over the next month, was subjected to progressive disciplinary
measures for his continuous violation of the policy. In addition to
DCD 50-43, Booth alleges that he was cited for the violation of two
sections of the Division’s Standards of Conduct and Internal Disci-
plinary Process, which require an employee to "set a positive example
in his/her overall appearance and grooming" and to "maintain a
proper appearance." J.A. 17.
Faced with the choice of complying with DCD 50-43 or incurring
escalated disciplinary measures, Booth filed suit in Maryland state
court against the State of Maryland, the Commissioner of the Depart-
ment of Public Safety and Correctional Services, and four of his supe-
riors assigned to the Baltimore Central Booking and Intake Center.
Booth asserted a claim under 42 U.S.C.A. § 1983 that the defendants’
application of the grooming policy to him violated his constitutional
right to practice his religion under the First and Fourteenth Amend-
ments, a claim under 42 U.S.C.A. § 1981 that the defendants enforced
the grooming policy against him in a discriminatory fashion because
he is an African-American, concomitant discrimination claims under
Articles 24 and 36 of the Maryland Declaration of Rights, and a state
law claim for defamation. The case was removed to district court and
the parties filed cross-motions for summary judgment. Booth appeals
the district court’s decision denying his motion for summary judg-
ment and granting the defendants’ motion for summary judgment.
II.
The Free Exercise Clause of the First Amendment, applicable to
the states through the Fourteenth Amendment, forbids the adoption of
laws designed to suppress religious beliefs or practices unless justi-
fied by a compelling governmental interest and narrowly tailored to
meet that interest. See Church of the Lukumi Babalu Aye, Inc. v. City
of Hialeah, 508 U.S. 520, 531 (1993); Hines v. S.C. Dep’t of Correc-
tions, 148 F.3d 353, 357 (4th Cir. 1998) (noting that the Free Exercise
Clause "forbids state governments from adopting laws designed to
suppress religious beliefs or practices"). The Free Exercise Clause,
however, "does not relieve an individual of the obligation to comply
with a valid and neutral law of general applicability on the ground
that the law proscribes (or prescribes) conduct that his religion pre-
scribes (or proscribes)." Employment Div., Dep’t of Human Res. v.
BOOTH v. STATE OF MARYLAND 5
Smith, 494 U.S. 872, 879 (1990) (internal quotation marks omitted).
"[A] law that is neutral and of general applicability need not be justi-
fied by a compelling governmental interest even if the law has the
incidental effect of burdening a particular religious practice." Church
of Lukumi, 508 U.S. at 531; see American Life League, Inc. v. Reno,
47 F.3d 642, 654 (4th Cir. 1995) (noting that such a law "does not
offend the Free Exercise Clause, even if the law has an incidental
effect on religious practice"). The inquiry into a Free Exercise chal-
lenge, however, does not "end with the text of the laws at issue."
Church of Lukumi, 508 U.S. at 534.
The Free Exercise Clause, like the Establishment Clause,
extends beyond facial discrimination. The Clause forbids
subtle departures from neutrality and covert suppression of
particular religious beliefs. Official action that targets reli-
gious conduct for distinctive treatment cannot be shielded
by mere compliance with the requirement of facial neutral-
ity. The Free Exercise Clause protects against governmental
hostility which is masked as well as overt. The Court must
survey meticulously the circumstances of governmental cat-
egories to eliminate, as it were, religious gerrymanders.
Id. at 534 (internal citations and quotation marks omitted).
Booth asserts that DCD 50-43, as applied to him, violates his free-
dom to exercise his religion guaranteed by the First Amendment.
More particularly, Booth alleges that the defendants violated his First
Amendment rights by refusing his request for an accommodation to
wear his hair in modified dreadlocks, that the request was not unrea-
sonable because similarly situated females are allowed to wear their
hair braided and substantially longer than the dreadlocks he wears,
and that the defendants have not enforced the policy against approxi-
mately thirteen similarly-situated employees who have violated the
policy but who have not been disciplined. Additionally, Booth points
to evidence which demonstrates that the defendants have granted reli-
gious exemptions from DCD 50-43 to one Jewish employee, allowing
him to wear a long beard and peyos (long sideburns), and one Sikh
employee, allowing him to wear a turban and long beard. See Booth,
207 F. Supp. 2d at 397 n.5 (noting that "[a]lthough the rules do not
provide explicitly for religious exemptions, the defendants have
6 BOOTH v. STATE OF MARYLAND
granted them in the past because they believed they were required to
do so pursuant to Title VII").
In their motion for summary judgment, the defendants asserted that
the grooming policy passed constitutional scrutiny because the policy
is facially neutral and rationally related to the Division’s goals of pro-
moting safety, uniformity, discipline, and esprit de corps among the
correctional staff at the facility. The district court agreed, noting that
there was "no indication, either from their language or effect, that the
rules that Booth challenge[d] as violative of his rights were targeted
at Rastafarians or members of other religious groups," id. at 397, and
that they were "rationally related to the division’s legitimate interests
in public safety, discipline and esprit de corps," id. at 398.
We agree, insofar as this holding goes. Indeed, Booth readily
acknowledges to us that the policy does not discriminate on its face.
DCD 50-43 is applicable to all uniformed correctional staff of the
Division, regardless of race or religious affiliation. There is no evi-
dence that the Division developed the policy to regulate or prohibit
religious activities, including Booth’s practice of Rastafarianism, and
the defendants presented persuasive evidence that DCD 50-43 was
likely adopted for the neutral secular purposes of promoting public
safety, discipline, and esprit de corps.
The district court erred, however, in ending the inquiry here.
Booth’s claim is that the facially neutral policy is being applied in a
discriminatory manner because the Division has granted religious
exemptions to others who were similarly situated to him. At a mini-
mum, Booth presented at least some evidence that the legitimate secu-
lar purposes underlying the policy have been abandoned in a manner
that favors other religions over his religion and, therefore, that the
policy has been applied to him in an unconstitutional manner.
The district court, however, appears to have been under the belief
that Booth’s § 1983 claim, to the extent it alleged disparate applica-
tion of the policy to him based upon his religious beliefs, was pre-
empted by Title VII of the Civil Rights Act of 1964, 42 U.S.C.A.
§§ 2000e to 2000e-17 (West 1994 & Supp. 2002). The district court
noted Booth’s argument that "the defendants’ failure to consistently
enforce its policy demonstrates that the defendants’ stated legitimate
BOOTH v. STATE OF MARYLAND 7
reasons are not their real reasons for the policy, but are only pretext
for their discrimination against him." Id. at 398 n.7. However, the dis-
trict court summarily ruled that "[t]his argument might be persuasive
if Booth was pursuing a Title VII discrimination claim, but he is not."
Id. At another point, the district court noted that any targeting of
Booth based on his religious beliefs would be based on the "defen-
dants’ allegedly discriminatory enforcement of the [policy] against
him," but stated that "[s]uch a claim of discriminatory enforcement
[must] be based on Title VII, not the First Amendment." Id. at 397
n.4 (internal citation omitted); see also id. at 397-98 n.5 (noting that
"Booth has not brought a failure to accommodate claim pursuant to
Title VII so I will not consider whether it would be an undue hardship
for the defendants to grant him an accommodation. For the purpose
of this motion, I will assume that there are no religious exemptions
to the hairstyle policy."); id. at 398 n.6 (stating that the defendants’
"alleged failure to consistently enforce the rule against other employ-
ees does not qualify as a secular exemption. These employees enjoy
no greater protection under the terms of the rule than does Booth. All
of them are still subject to discipline for its violation. This allegedly
inconsistent enforcement of the rule might form part of the basis of
a prima facie case of religious discrimination pursuant to Title VII,
but Booth has not made such a claim."). In sum, it appears that the
district court implicitly ruled that Booth had not made an "as applied"
challenge to the defendants’ application of the policy to him because
such a challenge can only be brought under Title VII. This was error.
In Keller v. Prince George’s County, 827 F.2d 952, 957 (4th Cir.
1987), a panel of this circuit first considered the question of "whether
Congress intended in adopting § 2 of the Equal Employment Opportu-
nity Act of 1972 to make Title VII the exclusive remedy for public
sector employment discrimination in violation of constitutional safe-
guards." After observing that Title VII was silent on the question and
that the legislative history indicated that it was not so intended, the
panel held that Title VII does not preclude a public sector employee
from bringing a § 1983 action based on alleged violations of the
Equal Protection Clause. See id. at 963; cf. Zombro v. Baltimore City
Police Dep’t, 868 F.2d 1364, 1370 (4th Cir. 1989) (noting our cir-
cuit’s previous recognition of "the validity of § 1983 actions [brought
by public sector employees] predicated on race, sex, or religious dis-
crimination or an infringement of specific First Amendment rights").
8 BOOTH v. STATE OF MARYLAND
Several years later, in Beardsley v. Webb, 30 F.3d 524, 526-27 (4th
Cir. 1994), a separate panel reaffirmed Keller’s holding, rejecting a
claim that the Civil Rights Act of 1991, which allowed the recovery
of damages and provided for trial by jury, impliedly intended to make
Title VII the exclusive remedy for a public employee’s claim of
employment discrimination. Nor have we been alone in this view of
the interplay between § 1983 and Title VII in public sector employee
cases. See, e.g., Thigpen v. Bibb County, Ga., Sheriff’s Dep’t, 223
F.3d 1231, 1239 (11th Cir. 2000) (A "section 1983 claim predicated
on the violation of a right guaranteed by the Constitution — here, the
right to equal protection of the laws — can be pleaded exclusive of
a Title VII claim."); Annis v. County of Westchester, 36 F.3d 251,
254-55 (2d Cir. 1994) (same).
Shortly after our decision in Beardsley was issued, however, a sep-
arate panel of our court, in a footnote, declined to consider a public
sector employee’s sex discrimination claim under § 1983. See Hughes
v. Bedsole, 48 F.3d 1376, 1383 n.6 (4th Cir. 1995). Without citation
to either Keller or Beardsley, the panel stated that the plaintiff could
not "bring an action under § 1983 for violation of her Fourteenth
Amendment rights because [she] originally could have instituted a
Title VII cause of action." Id. This footnote, in turn, has led several
district courts to erroneously conclude that it must follow Hughes,
instead of Keller, either because Hughes is a more recent decision by
this court or because the plaintiff in Hughes, unlike the plaintiff in
Keller, did not bring a Title VII claim along with a Section 1983
claim. See, e.g., Shelton v. Richmond Public Schools, 186 F. Supp. 2d
646, 650-51 (E.D. Va. 2002); Brown v. Housing Auth. of Calvert
County, 150 F. Supp. 2d 856, 862 (D. Md. 2001);* Burtnick v.
McLean, 953 F. Supp. 121, 123 (D. Md. 1997).
It is quite settled that a panel of this circuit cannot overrule a prior
panel. Only the en banc court can do that. See Bell v. Jarvis, 236 F.3d
149, 159 (4th Cir. 2000) (en banc) (citing Jones v. Angelone, 94 F.3d
900, 905 (4th Cir. 1996)). And, we are unpersuaded that the viability
*On appeal, the plaintiff in Brown did not challenge the district court’s
dismissal of his claims brought under § 1983. See Brown v. Housing
Auth. of Calvert County, 26 Fed. Appx. 339, 2002 WL 191577 at **1
(4th Cir. 2002) (unpublished).
BOOTH v. STATE OF MARYLAND 9
of a § 1983 claim hinges upon whether a plaintiff pleads a Title VII
claim alongside it. See Thigpen, 223 F.3d at 1239 (holding that
"[a]lthough discrimination claims against municipal employers are
often brought under both Title VII and the equal protection clause
(via section 1983), the two causes of action nonetheless remain dis-
tinct. Plaintiffs’ section 1983 equal protections claims, therefore, are
not barred by Plaintiffs’ failure to plead Title VII claims."); Annis, 36
F.3d at 255 (holding "that an employment discrimination plaintiff
alleging the violation of a constitutional right may bring suit under
§ 1983 alone, and is not required to plead concurrently a violation of
Title VII"). Because this panel is bound to follow the decisions in
Keller and Beardsley, we reverse and remand Booth’s § 1983 claim
to the district court for further proceedings. Our resolution of the First
Amendment claim necessarily requires us also to reverse the district
court’s grant of summary judgment as to Counts I and IV, which
request declaratory and injunctive relief, and Counts V and VI, which
allege concomitant state constitutional claims of religious discrimina-
tion under Articles 24 and 36 of the Maryland Declaration of Rights.
III.
The district court also granted summary judgment to the defendants
on Booth’s claim of intentional racial discrimination in violation of
42 U.S.C.A. § 1981. In this claim, Booth alleges that he was discrimi-
nated against as an African-American because, while his superiors
have applied DCD 50-43 in an attempt to prohibit him from wearing
the hairstyle called for by the tenets of his Rastafarian religion, his
superiors have allowed white employees to wear their hair in lengths
which are violative of the same policy. The district court ruled that
it was "not possible to infer that any disparate discipline against
Booth was motivated by racial discrimination" because Booth’s evi-
dence demonstrated that "both white and African-American employ-
ees were treated differently than Booth" in this regard. Booth, 207 F.
Supp. 2d at 399 (citing Cook v. CSX Transp. Corp., 988 F.2d 507, 512
(4th Cir. 1993) ("The question confronting a judge . . . is whether the
record as a whole gives rise to a reasonable inference of racially dis-
criminatory conduct by the employer.")). We agree.
In support of his motion for summary judgment, Booth identified
thirteen employees who allegedly violated the grooming policy, but
10 BOOTH v. STATE OF MARYLAND
who were not disciplined. Booth does not identify the particular
employee’s race in each instance, but it is clear that at least four of
the seven male employees and three of the nine female employees
were African-Americans. Furthermore, Booth’s claim of racial dis-
crimination in reality rests upon his claim that the followers of the
Rastafarian religion are predominately African-Americans. Thus, the
factual basis behind Booth’s claim of racial discrimination is not in
any material respect different from that offered in support of his claim
of religious discrimination. Because Booth failed to demonstrate that
the defendants enforced DCD 50-43 against him in a discriminatory
fashion because he is African-American, we affirm the district court’s
grant of summary judgment to the defendants on Booth’s claim of
racial discrimination under § 1981.
IV.
We also affirm the district court’s grant of summary judgment to
the defendants on Booth’s defamation claim. Booth alleges that the
defendants defamed him by disseminating information that he had
violated DCD 50-43. However, in order to establish a prima facie
case of common law defamation under Maryland law, Booth was
required to "‘establish that the defendant[s] made a defamatory state-
ment to a third person; that the statement was false; that the defen-
dant[s] [were] legally at fault in making the statement; and that the
plaintiff thereby suffered harm.’" See Gohari v. Darvish, 767 A.2d
321, 327 (Md. 2001) (quoting Rosenberg v. Helinski, 616 A.2d 866,
871 (1992)). Summary judgment was appropriate, the district court
ruled, because "[r]egardless of the merits of the challenged rules, it
is true that Booth violated them." Booth, 207 F. Supp. 2d at 400.
Because Booth failed to present evidence that the defendants dissemi-
nated a false statement about him, he failed to establish a prima facie
case of defamation under Maryland law.
V.
For the foregoing reasons, the decision of the district court is
affirmed in part, reversed in part, and remanded.
AFFIRMED IN PART, REVERSED
IN PART, AND REMANDED