Claudine Nigro v. VCU/Medical College of VA

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 5:09-cv-00064-gec-bwc. Copies to all parties and the district court/agency. [998880010]. [10-2425]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-2425

CLAUDINE NIGRO,
Plaintiff - Appellant,
v.
VIRGINIA
COMMONWEALTH
UNIVERSITY/MEDICAL
COLLEGE
OF
VIRGINIA;
FRANCIS
X.
DENNEHY,
M.D.;
WARREN
MEMORIAL
HOSPITAL; VALLEY HEALTH SYSTEM,
Defendants – Appellees,
and
APPALACHIAN
CONSORTIUM,

OSTEOPATHIC

POSTGRADUATE

TRAINING

INSTITUTE

Defendant.

Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg.
Glen E. Conrad, Chief
District Judge. (5:09-cv-00064-gec-bwc)

Argued:

May 16, 2012

Before TRAXLER,
Judges.

Chief

Decided:

Judge,

and

KING

and

June 21, 2012

DUNCAN,

Circuit

Affirmed by unpublished opinion.
Judge Duncan wrote
opinion, in which Chief Judge Traxler and Judge King joined.

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ARGUED: Nicholas Hantzes, HANTZES & REITER, McLean, Virginia,
for Appellant.
Cathleen Patricia Welsh, LENHART & OBENSHAIN,
PC, Harrisonburg, Virginia, for Appellees.
ON BRIEF: Mark D.
Obenshain,
Andrew
S.
Baugher,
LENHART
&
OBENSHAIN,
PC,
Harrisonburg, Virginia, for Appellees Warren Memorial Hospital,
Valley Health System, and Francis X. Dennehy, M.D.; Sydney E.
Rab, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, Susan
T. Ferguson, VCU GENERAL COUNSEL'S OFFICE, Richmond, Virginia,
for Appellee Virginia Commonwealth University/Medical College of
Virginia.

Unpublished opinions are not binding precedent in this circuit.

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DUNCAN, Circuit Judge:
Claudine Nigro, a former medical resident in the Shenandoah
Valley

Family

myriad

of

Residency

state

and

Program

federal

law

(the

“Program”),

claims

against

brought

the

a

Program,

Valley Health System (“VHS”), VCU/Medical College of Virginia
(“VCU”),

Warren

Memorial

Hospital

(the

“Hospital”),

and

Dr.

Francis X. Dennehy (collectively, the “Defendants”), after she
was not permitted to advance to the second year of the Program.
The district court granted the Defendants’ motion to dismiss on
most

of

her

claims

judgment on the rest.

and,

shortly

thereafter,

granted

summary

For the reasons below, we affirm.

I.
The facts are lengthy and somewhat involved.
of clarity, we divide them into three parts.
the Program.

For the sake

We first describe

We next discuss Nigro’s tenure in the Program.

Finally, we detail the proceedings leading to this appeal.
A.
We

turn

first

to

the

years: R-1, R-2, and R-3.
for each year.

Program,

which

consists

of

three

Residents contract with the Program

For example, Nigro’s contract (the “Contract”)

covered her R-1 year, which was to run from July 1, 2008 to June
30, 2009.

The residents’ contracts stipulate salary, certain

professional responsibilities, and the terms under which they
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may be renewed or terminated.
Medical

Education

(“ACGME”)

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The American Council for Graduate
also

plays

a

role.

ACGME

has

guidelines applicable to many aspects of the contracts that the
Program

signs

contracts,

with

its

residents

residents.

receive

In

separate

addition

documents

to

their

containing

additional procedures (the “Procedures”), which detail the finer
points

about

influence

how

residency

Procedures

the

the

as

operates.

well.

ACGME

However,

guidelines

unlike

their

contracts, neither the residents nor representatives from the
Program sign the Procedures.
Residents in the Program rotate through several practices
in

their

members

R-1

year

during

and

that

therefore

period.

They

Hospital, which is owned by VHS.
both

“Core”

and

work

“Specialty”

with

faculty

primarily

work

different

at

the

Throughout their rotations,

Faculty

members

supervise

the

residents and provide them with ongoing instruction, mentoring,
and evaluations.

The Core Faculty, in addition to teaching in

rotations, assists the Program Director, Dr. Francis Dennehy, in
running

the

Program.

The

Core

Faculty

meets

regularly

to

discuss the performance of individual residents and votes to
take action against underperforming residents.
Faculty

focuses

on

instructing

residents

in

The Specialty
their

rotations.

Each resident has a faculty advisor who reviews the resident’s

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progress and proffers advice on any areas of concern.

All of

the Program’s faculty members are professors at VCU.
Faculty

members

during the year.

assess

the

residents

at

several

points

At the end of each rotation, the doctors

supervising that rotation fill out a standard form evaluating
the resident on several substantive criteria and various aspects
of professionalism.
percent

of

the

These forms instruct the faculty that 80

residents

should

be

marked

“average.”

The

residents’ contracts and the Procedures describe how the Program
typically deals with residents who perform below average.

The

relevant provisions of Nigro’s contract follow.
First, § 3.7, the only provision to speak of non-renewal,
provides that:
When deciding not to renew Resident’s agreement, the
Residency Program agrees to provide Resident with as
much advance written notice of its decisions as may be
reasonably permitted under the circumstances.
To the
extent possible, the Residency Program will try to
provide four months’ advance written notice before the
end of the then-current term.
However, the Residency
Program will not be bound by the foregoing and it
reserves the right to provide Resident with less than
four months[’] written notice.
J.A. 66.

Next, § 5 contemplates performance review policies.

Relevant to this appeal, it provides that:
The Residency has a procedure whereby any resident
terminated by the Residency for deficiencies in
Clinical
Competence,
Technical
Skill,
and/or
Professional Behavior is granted due process.

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Residents will be notified at least four months in
advance through the winter semi-annual review process
if promotion or reappointment is in jeopardy, unless
behavior preventing reappointment occurs during the
four months prior to the start of each academic year.
J.A. 68.

Finally, § 14 is an integration clause stating that:

This agreement contains the final and entire agreement
between the parties, and they shall not be bound by
any terms, conditions, statements or representations,
oral or written, not herein contained or contained in
a written amendment to this Agreement executed by the
parties hereto. This Agreement may be amended only by
written agreement executed by the parties.
The Procedures provide for a slightly different course for
dealing with underperforming residents.

They specify that an

underperforming resident should first be placed on probation and
given

four

taken.
may

months

to

improve

before

any

dismissal

action

is

They further provide for a process by which a resident

appeal

any

disciplinary

action

to

a

subcommittee

of

the

March

of

faculty.
B.
Nigro
2008.

signed

the

Contract

with

the

Program

in

Nigro claims that she passed all of her rotations and

that she did a satisfactory job in each of them.

While it is

correct that she technically passed every rotation, the record
contradicts

her

satisfactory.
assigned

as

claim
For

her

that

example,

advisor,

her

performance

Dr.

testified

Sherry

6

that

was

consistently

Whisenant,

who

Nigro

had

was

performed

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poorly in medical school and that she received a very low score
on an exam administered during orientation.
Nigro’s

reviews

from

her

rotations

performance grew worse as the year went on.

indicate

that

her

Most of the reviews

from her first rotations in the summer of 2008 describe her work
as

average;

Moving

into

Dr.

Dennehy’s

the

fall,

review

Nigro

was

received

not

entirely

mixed

positive.

reviews

in

her

pediatrics and family practice rotations, receiving several poor
marks on substantive criteria, but garnering positive reviews in
“Professional

Characteristics,”

which

criteria such as appropriate dress.

includes

nonsubstantive

The reviews from her ER and

internal medicine rotations were less consistent--some doctors
rated her “knowledge base” above average and others found her to
be

lagging

behind

her

peers.

Cumulative

reviews

of

her

performance in the fall of 2008 also describe her substantive
skills as being significantly below her peers.
Some of Nigro’s faculty supervisors became very concerned
by

her

performance

intensive

care

unit

during

Nigro’s

(“NICU”)

in

rotation

December

in

2008.

the
Dr.

neonatal
Lee,

a

Specialty Faculty member overseeing that rotation, informed Dr.
Dennehy that Nigro was in danger of failing and did not seem
concerned about patient care.

According to Dr. Dennehy, Dr. Lee

also reported that she was arriving before her shift, when there

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was little to do, and using that as an excuse to leave early. 1
In the final comments section of his review, Lee said:
This one is very hard.
In reality, she likely would
have failed in a different year.
But there is great
concern of Claudine returning to the NICU rotation for
the sake of the staff . . . . Claudine passed more
because her deficiencies cannot be corrected with
another rotation in the NICU . . . . She met the
barest minimum to this rotation but I do not believe
she will be able to survive internship and/or
residency without a change in her inner drive . . . .
I did not have the heart to tell her about my belief
that she may not make it through internship/residency.
J.A. 605.

Dr. Clawson, who also supervised Nigro during her

NICU rotation, echoed Dr. Lee’s assessment in his review.
In

January

2009,

after

her

NICU

rotation,

Nigro

took

a

survey from the ACGME that asked whether she had ever worked
seven consecutive days without one day off.

ACGME limits the

number of hours that residents are allowed to work in any given
week and requires residency programs to adhere to this limit as
a condition of their accreditation.

Nigro reported that the

Program had once required her to work 12 consecutive days, which
is more than ACGME allows.
evaluation,
average,”

Nigro
which

claims
she

When she asked Dennehy about this
that

he

interpreted

1

told
as

a

her

to

request

respond
to

“on

answer

Nigro says that Dr. Dennehy’s allegation that she left
early is untrue and claims that Dr. Dennehy defamed her when he
repeated Dr. Lee’s alleged critique to others.

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untruthfully.

She

alleges

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that

her

truthful

answer

on

this

survey influenced the faculty’s evaluations of her work.
By

February

2009,

there

was

growing

concern

among

the

Faculty that Nigro had made the wrong career choice and that she
was

exhibiting

performance

signs

review

on

of

depression.

February

4,

At

her

2009,

she

semiannual
received

an

“Individual Improvement Plan” (the “IIP”), which required her to
seek counseling and to show greater empathy.

Although Nigro

signed the IIP, someone wrote “not planning to do discuss with
pastor” next to the requirement that she seek counseling.
571.

J.A.

Apparently, Nigro initially refused to comply with the

counseling requirement because she believed it to conflict with
her Christian faith.

She thus became the first resident in the

history of the Program to refuse to comply with an IIP.

Nigro

states that she believed that Dr. Dennehy had no objection to
her use of her pastor as a counselor.
Nigro

further

memorializing
sentence

her

stated,

claims

that

semiannual
“it

is

when

she

performance

expected

that

saw

the

review,
barring

letter

the

last

unforeseen

circumstances, she is likely to be promoted to R-2 at the end of
June.”

J.A. 594.

Dennehy

added

She claims that, unbeknownst to her, Dr.

language

addressing

concerns from her NICU evaluations.

some

of

the

more

serious

He also noted that her

explanation for her shortcomings was that others did not like
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The added language further said “[o]ur greatest concern is

the denial that there is anything wrong, when evaluations come
from so many levels and so many angles.”

J.A. 595.

Dr. Dennehy, Dr. Whisenant, and the Chief Resident met with
Nigro on February 25, 2009, to discuss her lack of improvement
and the possibility that her Contract might not be renewed.
this

meeting

Nigro

received

a

Letter

of

Concern,

which

At
also

explained that further failure to improve and fully comply with
her IIP would lead to the non-renewal.
In response to the Letter of Concern, Nigro met with Dr.
Dana Medcalf for psychological evaluation on March 10, 2009.
Dr. Medcalf concluded that Nigro was not depressed.

He believed

that the “best explanation” was that Nigro “has had problems
coping with the rigors of the program.”

J.A. 1948.

Dr. Medcalf

then suggested that Nigro needed further therapy to resolve her
difficulties.
Nigro received a “Notice of Non-Renewal of Contract” on
March

25,

2009,

which

explained

that

she

had

shown

no

improvement in the areas identified in the February 25, 2009,
Letter
receive

of

Concern.

credit

This

for

letter

proposed

the

rotations

that

that

Nigro

would

she

successfully

completed, avoid probation or any other disciplinary notation on
her record, and receive help in finding placement with another
residency program.

In April, Nigro appealed her non-renewal to
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a subcommittee of attending physicians.

In response to Nigro’s

appeal, Dr. Dennehy emailed the chair of the subcommittee about
his

concerns.

subcommittee.

Nigro

claims

that

he

defamed

her

to

the

A majority of the subcommittee voted to reverse

the decision of the Core Faculty.
The subcommittee did not itself devise an alternative plan
for Nigro.

Instead, Dr. Dennehy, as director of the Program,

drafted one--recorded in a memorandum dated April 20, 2009-under

which

she

would

not

receive

credit

for

the

2008-09

academic year, would be placed on probation, and would repeat
her R-1 year.

Nigro believed that the subcommittee violated its

procedures by allowing Dennehy to draft the alternative plan.
Her

counsel

wrote

Dennehy’s proposal.

the

subcommittee

asking

it

to

reconsider

The record does not reflect whether it did

so.
During

communications

surrounding

her

non-renewal

Nigro

allegedly told one employee that she had recorded conversations
with physicians.
Dennehy

to

termination.
7, 2009.

have

On April 3, 2009, another employee emailed
him

tell

Nigro

that

taping

could

lead

to

Dennehy forwarded the warning to Nigro on April

Nigro, however, denied making any such recording.

She

now considers the suggestion that she made any recordings to be
defamatory.

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Nigro’s performance in the remaining months of her R-1 year
continued to cause concern.

For example, on June 20, 2009,

another doctor who supervised Nigro communicated to Dennehy that
Nigro was not ready to progress to the second year.

Her end-of-

year reviews are consistent with these sentiments.
Nigro resigned from the Program on June 24, 2009.
C.
Nigro filed a complaint with the EEOC on June 25, 2009.
She received a right to sue letter on November 30, 2009, and
filed her first complaint in the United States District Court
for the Western District of Virginia on August 3, 2010.

Her

Second Amended Complaint, filed on December 18, 2010 included
several claims against VHS, VCU, the Hospital, and Dr. Dennehy:
Breach of Contract against VHS and VCU; Denial of Due Process in
violation of 42 U.S.C. § 1983 against VHS, VCU and the Hospital;
Defamation
Intentional

against

Dr.

Infliction

Dennehy,
of

VHS,

VCU

Emotional

and

Distress

the

Hospital;

against

Dr.

Dennehy, VHS, and VCU; Intentional Interference with Contract
against Dr. Dennehy; Gender Discrimination in violation of Title
VII against VCU and the Hospital; and Retaliation in violation
of Title VII against VCU and the Hospital.
The Defendants filed a motion to dismiss under Federal Rule
Civil

Procedure

12(b)(6)

on

January

20,

2011.

The

district

court dismissed Nigro’s claims for Breach of Contract, Denial of
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Due

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Process,

Intentional

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Intentional
Interference

Defamation Claim.

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Infliction
with

of

Contract,

Emotional
and

Distress,

parts

of

her

It denied the motion to dismiss on her Title

VII claims and parts of her Defamation claims. 2
The Defendants then filed a motion for summary judgment on
the remaining claims on September 30, 2011, which the district
court granted.

II.
Our review of the district court's ruling on a motion to
dismiss is de novo, accepting all well-pled facts as true and
construing
plaintiffs.

those

facts

in

the

light

most

favorable

to

the

Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,

591 F.3d 250, 253 (4th Cir. 2009).

However, “legal conclusions,

elements of a cause of action, and bare assertions devoid of
further factual enhancement fail to constitute well-pled facts
for Rule 12(b)(6) purposes.”
consider

unwarranted

arguments.”

Id. at 255.

inferences,

“We also decline to

unreasonable

conclusions,

or

Id. (quotation marks omitted).

2

Specifically, the district court found that VCU was
entitled to the dismissal of all of Nigro’s state-law and § 1983
claims on the basis of Eleventh Amendment immunity. On appeal,
Nigro has not argued that the district court erred in concluding
that VCU was immune on these claims.
Accordingly, her only
claim against VCU remaining in this appeal is for violating
Title VII.

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We “review[] a district court’s decision to grant summary
judgment

de

novo,

applying

the

same

legal

standards

as

the

district court” and viewing “all facts and reasonable inferences
. . . in the light most favorable to the non-moving party.”
Pueschel v. Peters, 577 F.3d 558, 563 (4th Cir. 2008) (quotation
marks omitted).

Summary judgment is appropriate where “there is

no genuine dispute as to any material fact and the moving party
is entitled to judgment as a matter of law.”
56(a).

Fed. R. Civ. P.

“If, after reviewing the record as a whole, however, we

find that a reasonable jury could return a verdict for [the nonmoving party], then a genuine factual dispute exists and summary
judgment is improper.”

Evans v. Techs. Applications & Serv.

Co., 80 F.3d 954, 959 (4th Cir. 1996).

III.
We consider Nigro’s claims in logical order, dealing first
with those that answer predicate questions for her other claims.
Accordingly, we first consider her claim for breach of contract.
Second, we discuss her claim for defamation.

We next turn to

her claim for intentional interference with contract, followed
by her claim for intentional infliction of emotional distress.
Then

we

consider

her

constitutional

consider her Title VII claims.

14

claims.

Finally,

we

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A.
Nigro’s breach of contract claim rests on an alleged breach
of the Procedures, not of the Contract itself.
above,

the

Procedures

are

separate,

As discussed

unsigned

documents.

Specifically, she argues that, under the Procedures, she was
entitled to four months’ notice before non-renewal and that she
should have first been placed on probation and given a chance to
improve.
barred

The district court held that the integration clause
it

from

contract.

considering

the

Procedures

as

part

of

the

On appeal, Nigro claims both that the integration

clause does not bar the consideration of the Procedures and that
even if it does, Virginia law independently prohibits employers
from violating any procedures distributed to their employees.
We find neither argument persuasive.
1.
With respect to Nigro’s first argument, we agree with the
district

court

incorporation
integration
entire

that

of

provision
Procedures

the

clause

agreement
of
is

the

Procedures

clearly
between

the
§

integration

states
the

contract
3.2,

that

precludes

into

the

contract.

that

the

contract

parties.

which

responsibilities of resident.”

clause

Moreover,

arguably
refers

J.A. 65.

to

the
The

is

the

the

only

references

the

“duties

and

Accordingly, we do not

find that the Procedures bound the Program to any particular
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course of action when dealing with Nigro’s inadequacies as a
doctor.
Moreover § 3.7, which deals specifically with non-renewal,
provides that the Program will try to give the resident four
months’ notice.
“reserves

the

months[’]

It goes on to say, however, that the Program

right

written

to

provide

Resident

notice.”

J.A.

with

than

four

Incorporating

66.

less

the

Procedures into the contract and applying them to non-renewal
would contradict the plain language of § 3.7.
other

provisions

Procedures,
governing

we

of

the

cannot

non-renewal

contract

read
because

express provisions of § 3.7.

the

incorporate

Procedures’

doing

That is, even if

so

would

some

of

the

requirements

as

contravene

the

We therefore find no breach of

contract.
2.
Turning to her second argument--that Virginia law makes the
Procedures binding on the Program notwithstanding the Contract’s
integration clause--we also find it unpersuasive.

Here, Nigro

relies

in

on

the

Virginia

Supreme

Court’s

decision

Hercules

Powder Co. v. Brookfield, 53 S.E.2d 804 (Va. 1949), which holds
that a termination and severance policy distributed to existing
employees is a binding, unilateral contract offered to secure
continued service from those employees.

Id. at 808; see also,

Dulany Foods, Inc. v. Ayers, 260 S.E.2d 196, 199-202 (Va. 1979)
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(relying on Hercules, and holding that memoranda circulated to
improve

employee

employees’

morale

continued

are

binding

service).

In

offers

Hercules

accepted

by

Dulany,

the

and

employees received the policies in question after they began
working.

The

new

procedures

in

those

cases

changed

the

employees’ terms of employment and effectively constituted new
contracts which the employees accepted by continuing to work.
Here, Nigro received the Procedures with her original Contract.
As such, the Procedures were not a superseding offer that Nigro
could

accept

through

continued

employment.

We

therefore

conclude that Virginia law does not create an independent basis
for Nigro’s breach of contract claim.
B.
Nigro claims that ten statements made by Dennehy and two
statements made by other Program employees are defamatory.

We

agree with the district court’s grant of the Defendants’ motion
to dismiss with respect to the former and its grant of the
Defendants’
latter

motion

because

for

none

of

summary
the

judgment

allegedly

with

respect

defamatory

to

the

statements

qualify as such under Virginia law.
“In Virginia, the elements of libel are (1) publication of
(2)

an

actionable

statement

with

(3)

the

requisite

intent.”

Jordan v. Kollman, 612 S.E.2d 203, 206 (Va. 2005).

“To be

actionable, the statement must be both false and defamatory.”
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In

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interpreting

statements

are

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Virginia

defamatory

law,
they

if

we

have

“tend

explained

so

to

that

harm

the

reputation of another as to lower him in the estimation of the
community or to deter third persons from associating or dealing
with him. . . . [D]efamatory words are those that make the
plaintiff appear odious, infamous, or ridiculous.”
Knight-Ridder,
(quotation
Virginia

Inc.,

marks

law

993

and

with

F.2d

1087,

citations

respect

to

1092

omitted).
Dennehy’s

Chapin v.

(4th
We

Cir.
will

allegedly

1993)
discuss

defamatory

statements first, and then turn the other employees’ statements.
1.
Nigro

claims

that

Dennehy

defamed

her

when

he

made

the

following statements in various meetings and notices:
1. “[Nigro] has not shown any improvement at the Front Royal
Family Practice Clinic, since receiving the letter of nonrenewal of contract.”
2. “[Nigro] failed NICU.”
3. “[Nigro] on a regular basis would leave the Clinic to go
home early.”
4. “There has been no evidence of improvement or intention to
improve in weak areas.”
5. “There is no change in apathetic/disinterested approach or
demonstrated

interest

in

learning

discussion and coaching.”
18

despite

3-4

months

of

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6. “Plaintiff

has

poor

Pg: 19 of 29

time

management

with

respect

to

internal medicine rotation.”
7. “Plaintiff

is

making

the

same

mistakes

repeatedly

after

corrective instruction such as rough or painful Pap smear
technique on GYN.”
8. “Plaintiff has flattened affect, body language, disconnect
from patient interaction and the appearance in many forms
of being disinterested in doing food care for patients.”
9. “There is faculty consensus that [Nigro] may be suffering
from depression or poor career choice.”
10.

“Dr. Nigro was more interested in getting tasks done in
order

to

leave

than

in

caring

for

the

medical

issues

presented.”
Appellant’s Br. 34-36.
Statements (1), (4), (5), (6), and (8) are opinions and
therefore not actionable under Virginia law.

See

Chaves v.

Johnson, 335 S.E.2d 97, 101 (Va. 1985) (“Pure expressions of
opinion,
basis

not

of

an

amounting
action

to

for

‘fighting

words,’

defamation.”).

cannot

Nigro

form

attempts

the
to

circumvent this general rule by relying on Fuste v. Riverside
Healthcare Association, 575 S.E.2d 861 (Va. 2003), which held
that “defamatory words that prejudice a person in his or her
profession or trade are actionable as defamation per se.”
at

861

(quotation

marks

and

alterations
19

omitted).

Id.

Nigro’s

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reliance is misplaced, however, because it assumes the matter at
issue--that statements of opinion can be defamatory.

But as the

Virginia Supreme Court has explained, statements that do “not
contain

a

provably

false

factual

connotation,

or

statements

which cannot reasonably be interpreted as stating actual facts
about

a

Yeagle

person”

v.

are

Collegiate

(footnote omitted).

opinions
Times,

and

497

therefore

S.E.2d

not
137

136,

defamatory.
(Va.

1998)

Dennehy’s statements regarding Nigro’s lack

of progress and apparent disinterest are expressions of opinion
because they are based on his perceptions of her performance and
cannot be proven false.
Statements (2), (3), and (7) are not sufficiently harmful
to be defamatory.

We acknowledge that statement (2)--that Nigro

failed NICU--is technically false, despite Dr. Lee’s statement
that she would have failed in a different year and that part of
why she passed was because the rotation did not want her back.
Nonetheless, looking to our precedent in Chapin, we do not find
any of these statements defamatory because we cannot conclude
that they would “deter third persons from associating or dealing
with”

Nigro

ridiculous.”
statements
resident.
vehicle

or

make

Chapin,

suggest

her
993

that

“appear
F.2d

she

at

still

odious,
1092.

had

infamous,

As

much

to

or

alleged,

the

learn

as

a

The very point of residency is to serve as a training

allowing

the

resident
20

to

benefit

from

guidance

and

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instruction.

For

this

Pg: 21 of 29

reason,

none

of

these

statements

can

prejudice her in her profession so as to be actionable per se,
nor do they satisfy Chapin’s test.
Finally,

statement

(9)--Dennehy’s

claim

that

there

was

faculty consensus that she was suffering from depression or a
poor career choice--is not defamatory because it is true, as
borne out by the fact that the faculty voted unanimously not to
renew her contract.

That some non-voting faculty members may

have disagreed does not render the statement that there was a
“consensus”

false.

Accordingly,

we

agree

with

the

district

court that Nigro failed to state a claim for defamation against
Dennehy.
2.
Turning to allegedly defamatory statements made by other
Program employees--(1) an alleged statement that Nigro “tapped
telephones

on

Valley

Health

property”

and

(2)

an

alleged

statement that Nigro “recorded conversations on Valley Health
property”--we

agree

with

the

statements are not defamatory.
has explained,

district

court

that

these

As the Virginia Supreme Court

“[c]ommunications between persons on a subject

in which the persons have an interest or duty” are privileged.
Larimore v. Blaylock, 528 S.E.2d 119, 121 (Va. 2000).

It is

indisputable that employees running the Program have an interest
in

ensuring

that

residents

follow
21

Hospital

rules.

“[A]n

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employer, or his proper representatives, [must] be permitted to
discuss freely with an employee, or his chosen representatives,
charges affecting his employment which have been made against
the employee to the employer.”

Id. (quoting Chesapeake Ferry

Co. v. Hudgins, 156 S.E. 429, 441 (Va. 1931)).

“However, the

privilege attaching to such occasions is a qualified privilege
which

may

be

defeated

if

the

plaintiff

defamatory statement was made maliciously.”

proves

that

the

Id.

Even reading the evidence in the light most favorable to
Nigro, she forecasts no evidence of malice with respect to these
statements.
hospital

We

cannot

employees

were

assume,
not

Hospital’s policy on taping.

without

genuinely

any

evidence,

concerned

about

that
the

Since Nigro failed to show that

there was a question of material fact on this issue, we find
that summary judgment is appropriate.
C.
Nigro has sued Dennehy alone for intentional interference
with contract.
cannot

be

Normally, an employee of a contracting party

liable

for

intentional

interference

with

contract

unless he acts outside of his scope of employment.

Fox v.

Deese, 362 S.E.2d 699, 708 (Va. 1987) (explaining that when an
employee acts within the scope of his employment, his employer’s
“contract was also his contract, and he could not interfere with
it”).

To make this claim, Nigro has pled that Dennehy was
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acting outside of the scope when he “caused [the Hospital] to
issue the Notice of Non-renewal in violation of the procedures
and later caused, through improper methods the issuance of the
April 20 Memorandum which left [Nigro] with no option but to
leave the Program.”
Nigro

has

offered

Appellant’s Br. 43-44; Reply Br. 15-16.
no

explanation

of

how

Dr.

Dennehy’s

acts

toward her differ from or exceed his responsibilities as Program
Director.
acting

We

therefore

outside

of

the

find

Nigro’s

scope

of

claim

his

that

Dennehy

employment

as

was

Program

Director to be an “unreasonable conclusion” that we need not
credit.

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

2008).

For this reason, her claim for intentional interference

with contract must fail.
D.
Nigro’s

claim

for

Intentional

Distress similarly lacks merit.

Infliction

of

Emotional

The Virginia Supreme Court has

explained that to support such a claim, the conduct complained
of

must

be

“so

outrageous

in

character,

and

so

extreme

in

degree, as to go beyond all possible bounds of decency, and to
be regarded as atrocious, and utterly intolerable in a civilized
community.”
(quotation

Russo v. White, 400 S.E.2d 160, 162 (Va. 1991)
marks

omitted).

“This

requirement

is

aimed

at

limiting frivolous suits and avoiding litigation in situations
where only bad manners and mere hurt feelings are involved.”
23

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v.

Filed: 06/21/2012

Fletcher,

377

S.E.2d

quotation marks omitted).

Pg: 24 of 29

412,

413

(Va.

1989)

(internal

Nigro argues the Defendants knew that

she had “an emotional disorder due to the rigors of the program”
and that despite knowing this, “they proceeded to take an action
which would obviously inflict emotional insult.”
Br.

41-42.

She

analogizes

her

“emotional

Appellant’s

disorder”

to

the

clinical depression suffered by the plaintiff in Baird v. Rose,
192 F.3d 462 (4th Cir. 1999).
this

out.

There,

the

The facts of Baird do not bear

complaint

alleged

that

a

teacher

“intentionally attempted to humiliate Baird, a child, knowing
that she was suffering from clinical depression.”
In

fact,

prompted
teacher’s

in

Baird

Baird

to

public

suicide attempt.
inappropriate

on

we

found

attempt

both
to

humiliation
Id. at 465.
the

that

commit
of

Baird

the

Id. at 472.

teacher’s

suicide

and

increased

actions

that

the

after

the

We held that summary judgment was

plaintiff’s

intentional

infliction

of

emotional distress claim because we could not say “as a matter
of law, that the allegations in Baird’s complaint do not allege
facts so outrageous as to exceed the bounds of decent society.”
Id. at 472-73.

The actions challenged here are both markedly

different and significantly more benign.
Since Nigro claims that she is not depressed, but rather
struggling with the rigors of the program, we find

Ellison v.

St. Mary’s Hospital, 8 Va. Cir. 330 (Va. Cir. Ct. 1987) to be
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more analogous.

There, a Virginia trial court explained that

conduct

such

criticizing

others,

saying

giving

that

termination,

as

that

employee
and

employee’s

employee

that

an

has

a

barring

choice
that

work

an

between

employee

from

in

front

attitude

of

problem,

resignation
hospital

and

grounds

were not sufficiently outrageous to give rise to a claim for
intentional infliction of emotional distress.

Id. at 332.

The

court further warned that to make such allegations “actionable
would be to create chaos in the work place” because employees
are criticized about their job performance “every day.”
Such

concerns

medicine,

seem

where

particularly

the

warranted

consequences

of

poor

in

the

Id.

field

performance

of
are

potentially dire.
E.
Nigro’s claims against VCU, VHS, the Hospital and Dennehy
under 42 U.S.C. § 1983 for violation of her Due Process rights
also

lack

merit.

Nigro

argues

that

allowing

Dennehy

to

formulate the April 20, 2009, Probation Notice was a prejudicial
departure from the residency program’s Procedures.

She relies

on Jones v. Board of Governors of U.N.C., 704 F.2d 713 (4th Cir.
1983),

which

held

that

“significant

departures

from

stated

procedures of government and even from isolated assurances by
governmental

officers

which

have

detrimental

reliance

may,

if
25

induced

reasonable

sufficiently

unfair

and
and

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prejudicial, constitute procedural due process violations.”
at 717.

Id.

Even assuming that the Procedures entitled her to a

particular process--a conclusion that we rejected in her breach
of contract claim--we find no prohibition in the Procedures that
would preclude Dr. Dennehy, as Director, from formulating an
alternative plan.

Nor does Nigro convincingly point to one.

The relevant language says that the “subcommittee is free to
uphold or reject the Residency Director’s recommendations, or to
formulate a new solution.”
require

the

instance.
fits

subcommittee

to

craft

a

proposal

in

the

first

The delegation of that responsibility to Dr. Dennehy

comfortably

solution.

By its terms, the language does not

within

the

parameters

of

formulating

a

new

Seeing no prohibition, explicit or otherwise, against

allowing the Director to craft a new plan, we find that allowing
it does not violate the Procedures.

In sum, the district court

did not err when it found that Nigro’s claims under § 1983
failed to state a claim on which relief could be granted. 3

3

Nigro makes several additional arguments in which she
alleges that she was entitled to an impartial decision maker
and, therefore, that Dennehy’s involvement in the Program’s
decision not to renew her contract and subsequent decision to
put her on probation and have her repeat her R-1 year violates
her due process rights because he was not an impartial
decisionmaker.
She cites no support for this claim, perhaps
because this circuit has explained that pre-termination hearings
need not be held before an impartial decision maker. Crocker v.
Fluvanna Cnty. Bd. of Pub. Welfare, 859 F.2d 14, 17 (4th Cir.
1988).
Since Nigro was never terminated from the Program, she
(Continued)
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F.
Finally,
favor

of

the

the

district

court

Defendants

on

granted

judgment

claims

for

Nigro’s

summary

discrimination and retaliation under Title VII.

in

gender

Since Nigro did

not raise retaliation in her opening brief, 4 she has forfeited
that claim.
In this circuit, “[u]nder Title VII, the plaintiff bears
the

initial

burden

of

proving

a

prima

facie

case

of

discrimination by raising an inference that the defendant acted
with

discriminatory

intent.”

Karpel

v.

Inova

Servs., 134 F.3d 1222, 1227 (4th Cir. 1998).
explained
prima

that

facie

membership

“[a]bsent

case
in

of
a

direct

evidence,

discrimination
protected

under

class;

(2)

Health

Sys.

We have recently

the
Title

elements
VII

of

are:

satisfactory

a

(1)
job

performance; (3) adverse employment action; and (4) different
treatment

from

protected class.”

similarly

situated

employees

outside

the

Coleman v. Md. Court of Appeals, 626 F.3d

cannot claim that the decisions about which she complains were
anything other than pre-termination decisions.
4

Moreover, at oral argument, Nigro’s counsel declined to
pursue any suggestion that Nigro was retaliated against for
falsifying her hours on the ACGME survey.
As such an action—
even assuming it occurred--would not make out a Title VII claim,
we do not address it further.

27

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187, 190 (4th Cir. 2010).

Pg: 28 of 29

Nigro’s claim fails because she has

not demonstrated that her performance was satisfactory. 5
As we reiterated in our recent decision in Halpern v. Wake
Forest University Health Sciences, 669 F.3d 454 (4th Cir. 2012),
“courts

are

performance.”

particularly

ill-equipped

to

evaluate

Id. at 463 (quotation marks omitted).

academic
In Regents

of University of Michigan v. Ewing, 474 U.S. 214 (1985), the
Supreme Court explained:
When judges are asked to review the substance of a
genuinely academic decision . . . they should show
great respect for the faculty’s professional judgment.
Plainly, they may not override it unless it is such a
substantial departure from accepted academic norms as
to
demonstrate
that
the
person
or
committee
responsible did not actually exercise professional
judgment.
Id. at 225 (footnote omitted); see also Halpern, 669 F.3d at
462-63 (citing Ewing).
which

included

several

Nigro has not alleged that the faculty,
women,

departed

from

any

accepted

academic norms as to demonstrate that it was not exercising its
professional judgment when it voted unanimously not to renew her
contract.

The record supports reading this vote as evidence

that the faculty did not believe her performance as a resident
to

be

satisfactory.

Although

5

Nigro

received

many

average

Because we base our decision on this prong, we need not
address Nigro’s contention that a similarly situated male was
treated more favorably.

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evaluations, significant concerns were expressed that she did
not appear to care about her patients, that she was doing the
bare

minimum

to

pass,

that

her

knowledge

lagged

behind

her

peers, and that she was unwilling to take responsibility for her
shortcomings.

Indeed, most of her best marks were for non-

substantive criteria, such as appropriate dress.

We note, for

example, that her evaluations from her NICU rotation say that
she passed only because the department did not want her back.
Since

we

must

view

the

faculty’s

determination

that

Nigro

performed unsatisfactorily with considerable deference, Halpern,
669 F.3d at 462-63, and the record contains ample evidence that
her

performance

conclude

that

in

she

some
has

rotations

met

her

performed her job satisfactorily.
state

a

prima

facie

case

of

was

burden

deficient,
of

we

showing

cannot

that

she

Since Nigro has failed to

discrimination,

we

affirm

the

district court’s grant of summary judgment on this claim.

IV.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED

29