Lisa Kerr v. Marshall University Board
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 2:14-cv-12333. [999831281]. [15-1473]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1473
LISA MARIE KERR,
Plaintiff – Appellant,
v.
MARSHALL UNIVERSITY BOARD OF GOVERNORS; GENE BRETT KUHN;
JUDITH SOUTHARD; SANDRA BAILEY; TERESA EAGLE; LISA HEATON,
and; DAVID PITTENGER,
Defendants - Appellees.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston.
Thomas E. Johnston,
District Judge. (2:14-cv-12333)
Argued:
March 22, 2016
Decided:
May 24, 2016
Before GREGORY and DUNCAN, Circuit Judges, and Richard L.
VOORHEES, United States District Judge for the Western District
of North Carolina, sitting by designation.
Affirmed by published opinion. Judge Duncan wrote the opinion,
in which Judge Gregory and Judge Voorhees joined.
ARGUED: Lisa Marie Kerr, Charleston, West Virginia, Appellant
Pro Se. Andrew Patrick Ballard, ANSPACH MEEKS ELLENBERGER LLP,
Huntington, West Virginia, for Appellees.
ON BRIEF: John A.
Hess, ANSPACH MEEKS ELLENBERGER LLP, Huntington, West Virginia,
for Appellees.
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DUNCAN, Circuit Judge:
Lisa
Appellees’
Kerr
appeals
motion
to
the
district
dismiss
her
court’s
civil
order
action
granting
pursuant
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
to
Because
we conclude that the district court properly determined both
that sovereign immunity bars Kerr’s claims against the Marshall
University Board of Governors (“MUBG”), and that the allegations
in Kerr’s pro se complaint against the other Appellees fail to
state a claim upon which relief can be granted, we affirm.
I.
A.
After
practicing
law
for
more
than
fifteen
years,
Kerr
enrolled in Marshall University’s Master of Arts in Teaching
(“MAT”) program to obtain a West Virginia teaching license.
A
student-teaching practicum, EDF 677, is a required component of
the MAT program.
In the fall of 2013, Kerr was a student in EDF 677.
A few
weeks before the end of the semester, however, Kerr left her
student-teaching
supervising
post
teacher.
in
protest
Kerr
was
over
differences
unable
to
with
resolve
her
these
differences with the Marshall administration and did not return
to her student-teaching post.
She was not awarded credit for
2
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EDF
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677,
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and
she
received
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neither
her
MAT
nor
her
teaching
license.
On
March
reconsideration
14,
2014,
through
after
unsuccessfully
Marshall’s
internal
pursuing
grade-appeals
process, Kerr filed a complaint in the Southern District of West
Virginia.
The complaint named as defendants MUBG; Gene Kuhn,
Kerr’s supervising teacher in EDF 677; Judith Southard, Kerr’s
Marshall supervisor
for
EDF
677;
Sandra
Bailey,
the
EDF
677
Program Coordinator at Marshall; Teresa Eagle and Lisa Heaton,
both
Deans
Pittenger,
of
Marshall’s
the
Dean
College
of
of
Education;
Marshall’s
and
Graduate
David
Studies
(collectively, "Appellees").
B.
We
set
complaint.
364-65
(4th
forth
the
relevant
facts
as
alleged
in
Kerr's
See Wag More Dogs, LLC v. Cozart, 680 F.3d 359,
Cir.
2012).
To
provide
context
to
Kerr’s
allegations, we also draw on the Marshall University MAT and
Post Bac Programs Student Teacher Handbook (the “Student-Teacher
Handbook" or “Handbook”), on which Kerr’s complaint relies and
which is integral to her complaint. 1
1
In ruling on a motion to dismiss for failure to state a
claim, courts may rely on evidence that is extraneous to the
complaint without converting the motion to one for summary
judgment--provided that the evidence’s authenticity is not
challenged and the evidence is “integral to and explicitly
(Continued)
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1.
EDF
677,
students,”
the
“culminating
requires
“all
day
clinical
student
supervision in a public school setting.”
Student-Teacher
Handbook
participants must abide.
additional
directives
contains
experience
teaching
for
under
E.R. 99. 2
MAT
direct
The Marshall
regulations
by
which
Participants must also follow “any
given
by
the
[Marshall
supervisor],”
E.R. 106, who serves as the student teacher’s “primary Marshall
contact” for any student-teaching issues, E.R. 12.
course
of
collaborate
the
with
semester,
their
student
teachers
supervising
are
classroom
Over the
expected
teachers
to
and
Marshall supervisors to improve their lesson planning, lesson
presentation, and classroom management.
As the above arrangement suggests, the student teacher does
not have exclusive control of the classroom.
For example, the
student
for
teacher
is
not
solely
responsible
determining
grades, and the supervising classroom teacher retains ultimate
responsibility “to the school administration, the school board,
relied on in the complaint.”
Am. Chiropractic Ass’n v. Trigon
Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004) (citation
omitted).
Kerr has not challenged the authenticity of the
Handbook.
2
Citations to the “E.R.” refer to the electronic record
compiled by the district court.
The joint appendix filed by
Kerr in this case is incomplete, and we therefore rely on the
electronic record for factual citations.
4
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parents
students.”
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for
the
promoting
best
interests
of
their
E.R. 114.
EDF 677 participants receive a grade of “Credit” or “No
Credit”
based
in
part
on
an
“Evaluation
of
Classroom
Performance” by the student’s supervising classroom teacher and
Marshall
supervisor,
which
student teacher’s record.”
becomes
“a
E.R. 100. 3
permanent
part
of
the
“Students must receive a
score of at least ‘Basic’ on all competencies to receive credit
for the course.”
Id.
The Handbook prescribes the attendance policy:
“Students
are required to be present every day,” but are allowed one to
three
absences
for
documented
illnesses.
E.R.
116.
“If
absences total more than three days, students will be required
to complete an extended experience or return in a subsequent
semester” to complete the missed time.
Id.
2.
Kerr’s teaching experience deteriorated over the course of
the Fall 2013 Semester.
she
complains
began
in
Although the specific events of which
November,
Kerr
also
makes
general
references to a lack of support on the Marshall side throughout
the semester.
3
There are two other components for course credit, but
Kerr’s complaint contains no allegations with respect to them.
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On the Marshall side, during the Fall 2013 Semester, Bailey
was
Marshall’s
Marshall
EDF
supervisor
677
for
Coordinator,
students
and
enrolled
Southard
in
EDF
was
the
677.
The
complaint alleges that at the beginning of the semester, on or
around August 2013, Bailey and Southard learned that Kerr is
homosexual.
Kerr
claims
that
“each
time
[she]
requested
academic or professional support” during the Fall 2013 Semester,
she
was
“stonewalled”
by
Bailey
and
Southard.
E.R.
12.
Southard “routinely ignored” Kerr’s emails, and the two Marshall
University employees gave “antagonistic, perfunctory, dismissive
and even dishonest” responses to Kerr’s “reasonable requests for
Id. 4
advice.”
On
the
classroom
side,
Kerr’s
complaint
focuses
on
her
relationship with her supervising classroom teacher, Kuhn.
The
gist
her
of
Kerr’s
complaint
is
authority with the students.
that
Kuhn
did
not
support
For example, according to Kerr,
students commented to her, “we don’t have to do the work you
give us.
E.R.
13.
responded
Mr. Kuhn’s going to give us a good grade anyway.”
When
with
Kerr
approached
“silence
or
Kuhn
cursory
4
with
her
brush-offs.”
concerns,
Id.
he
Kerr
The complaint does not identify any specific instances of
Kerr’s attempts to contact Bailey or Southard prior to
November 19, 2013, and it does not detail any of the Marshall
employees’ responses to any of Kerr’s possible requests for
support.
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claims that she did not notify Southard or Bailey of the student
comments
or
“received
Bailey
no
in
issues,
the
resistance
meaningful
response
Kerr
to
received
to
her
support
prior
teaching
from
defendants
requests.”
positive
because
Id.
she
Southard
Despite
student-teaching
had
or
these
evaluations
until November 2013.
On November 19, 2013, however, Kerr discovered the grades
Kuhn had entered into the online grade book.
In Kerr’s view,
Kuhn had inflated the grades to such an extent as to amount “to
a ‘free pass’ not to do the work Ms. Kerr assigned.”
Id.
At
this point, Kerr decided to report her concerns to her Marshall
supervisor.
Kerr sent an email to Southard and Kuhn, “advis[ing]” the
two
that
(1)
Kuhn’s
“conduct
had
seriously
undermined
the
professional relationship”; (2) “in the exercise of her best
professional judgment, [Kerr] would suspend further interaction
with
[Kuhn]
pending
follow-up
from
Marshall”;
and
(3)
she
understood that “she had fully satisfied the requirements for
student
Southard
teaching.”
had
Performance.
Id.
completed
At
that
Kerr’s
point,
neither
Evaluation
of
Kuhn
nor
Classroom
The next day, Bailey--in her capacity as EDF 677
Coordinator--responded to the message and a meeting was set for
December 5, 2013.
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At the December 5, 2013, meeting, Kerr met with Bailey and
Eagle, a Dean of Marshall University’s College of Education.
Bailey
and
Eagle
informed
Kerr
“that
she
would
be
denied
academic credit for her student teaching experience, would not
receive her master’s degree, and would not be recommended for
teacher certification.”
read
allegations
E.R. 14.
against
Kerr
During the meeting, Bailey
from
“statements
provided
by
Mr. Kuhn and Ms. Southard,” of which Kerr complains she had no
prior knowledge.
Id.
Kerr was handed documents that included
Kuhn’s evaluation, which Kerr read and attempted to dispute, but
she was told that the statements were “dispositive” against her.
Id.
According
opportunity
to
process.’”
E.R.
to
Kerr,
she
be
heard
would
16.
Kerr
was
notified
occur
sought
to
that
during
persuade
“her
‘the
the
only
appeal
Marshall
administration to reconsider its decision, but, on December 15,
2013, the grade was “entered into [Kerr’s] permanent academic
record.”
Id.
3.
Marshall provides an internal, three-step appeals process
to MAT students who are dissatisfied with a given grade.
The
grade is reviewed first by course staff, then by the Deans of
the College of Education, and finally by the Dean of Graduate
Studies.
Kerr
submitted
a
24-page
appeal
statement
with
supporting exhibits at the first stage of her appeal, before
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Southard
and
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Bailey.
They
upheld
the
Deans
denial
of
of
credit, and Kerr moved to the second step.
Appellees
Eagle
and
Heaton,
both
Marshall’s
College of Education, decided the second step of Kerr’s appeal.
The complaint alleges that, in refusing to change Kerr’s grade
of “No Credit,” Eagle and Heaton relied on “new false statements
plainly contradicted by Marshall’s own records” and failed to
E.R. 18. 5
address the evidence and arguments Kerr had presented.
Appellee
Marshall,
additional
Pittenger
Pittenger,
heard
Kerr’s
appeal
the
Dean
final
that
upheld
Graduate
appeal.
statement
nevertheless
of
Kerr
included
Kerr’s
grade
Studies
at
submitted
an
20
of
exhibits.
“No
Credit,”
stating that Kerr had raised her complaints about Kuhn too late
in the semester for Marshall to address them in the manner Kerr
desired.
C.
On March 14, 2014, Kerr filed a complaint in the United
States
District
Virginia.
Court
for
the
Southern
District
of
West
The complaint raises seven claims: (1) defamation
against Appellees MUBG, Kuhn, Southard, and Bailey; (2) tortious
interference with a business expectancy against Appellees MUBG,
Kuhn,
Southard,
Bailey,
and
Eagle;
5
(3)
the
tort
of
outrage
The complaint does not allege the contents of the “new
false statements.”
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against Appellees MUBG, Kuhn, Southard, Bailey, and Eagle; (4) a
violation of Kerr’s due process rights under 42 U.S.C. § 1983
against
Appellees
MUBG,
Southard,
Bailey,
and
Eagle;
(5)
a
violation of Kerr’s equal protection rights pursuant to § 1983,
on the basis of Kerr's sexual orientation, against Appellees
MUBG,
Southard,
Bailey,
Eagle,
Heaton,
and
Pittenger;
(6)
a
violation of Kerr’s equal protection rights under § 1983, as a
“class of one,” against Appellees MUBG, Southard, Bailey, Eagle,
Heaton, and Pittenger; and (7) a violation of the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. §§ 201-219, against Appellees
MUBG and Kuhn.
Kerr seeks compensatory damages against MUBG and
the individual Appellees and injunctive relief against MUBG.
Appellees
moved
to
dismiss
Kerr’s
action
pursuant
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
to
The
district court referred the motion to a magistrate judge for the
submission
pursuant
to
of
28
proposed
U.S.C.
findings
and
§ 636(b)(1)(B).
recommendations
The
(“PF&R”)
magistrate
judge
reviewed the complaint and the parties’ memoranda of law and
recommended that the district court grant Appellees’ motion to
dismiss in its entirety.
See Kerr v. Marshall Univ. Bd. of
Governors, No. 2:14-CV-12333, 2015 WL 1405540, at *30 (S.D.W.
Va. Feb. 4, 2015) (“Magistrate Judge’s Report”).
Kerr objected
to all but one of the magistrate judge’s proposed findings and
to all of the magistrate judge’s recommendations.
10
The district
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court, reviewing the PF&R in light of those objections, granted
Appellees’ motion to dismiss.
Kerr v. Marshall Univ. Bd. of
Governors, No. 2:14-CV-12333, 2015 WL 1405537, at *26 (S.D.W.
Va.
Mar.
26,
2015)
(“District
Court
Opinion”).
This
appeal
followed.
II.
On appeal, Kerr argues that the district court erred in
granting Appellees’ motion to dismiss.
Kerr claims that the
district court erred by submitting her claim to a magistrate
judge
for
PF&R,
that
MUBG
was
not
entitled
to
sovereign
immunity, and that her complaint plausibly alleged each of her
seven
claims.
After
setting
out
the
relevant
standard
of
application
of
review, we address each of Kerr’s arguments in turn.
A.
We
review
de
novo
a
district
court's
sovereign immunity, S.C. Wildlife Fed'n v. Limehouse, 549 F.3d
324, 332 (4th Cir. 2008), and dismissal for failure to state a
claim, Clatterbuck, 708 F.3d at 554.
In our review of a 12(b)(6) dismissal, we accept as true
the factual allegations set forth in the complaint.
Dogs, LLC v. Cozart, 680 F.3d at 364–65.
Wag More
In order to state a
claim, those “[f]actual allegations must be enough to raise a
right to relief above the speculative level.”
Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted).
11
A
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complaint must therefore allege “enough facts to state a claim
to relief that is plausible on its face.”
Id. at 570.
In
reviewing the motion, “we are not bound by the legal conclusions
drawn in the complaint.”
Adcock v. Freightliner LLC, 550 F.3d
369, 374 (4th Cir. 2008) (citing Dist. 28, United Mine Workers
of Am., Inc. v. Wellmore Coal Corp., 609 F.2d 1083, 1085–86 (4th
Cir. 1979)).
We are mindful of our obligation to liberally construe a
pro se complaint.
See Jehovah v. Clarke, 798 F.3d 169, 176
(4th Cir. 2015) (citing Jackson v. Lightsey, 775 F.3d 170, 178
(4th
Cir.
2014)).
Although
this
court
has
not
determined
whether a pro se plaintiff who is also an attorney receives the
benefit of this liberal construction, we need not decide that
issue
here:
liberally
Kerr’s
complaint
construed.
We
fails
note
always a model of clarity.
that
whether
Kerr’s
or
not
arguments
it
are
is
not
Out of an abundance of caution, on
these facts, and in accordance with the liberal construction we
afford a pro se complainant, we construe Kerr’s arguments as
best we can given the thrust of her appeal.
B.
We
Court
first
erred
consider
in
giving
Kerr's
the
argument
Complaint
that
short
“[t]he
shrift
District
because
Plaintiff is acting pro se,” Appellant’s Br. at 17, and applied
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an “inverse-Iqbal” standard, id. at 15. 6
Kerr seems particularly
troubled by the fact that her civil action was referred to a
magistrate
order,
judge
claiming
pursuant
that
to
there
the
is
district
“zero
court’s
authority
.
standing
.
subjecting non-post-conviction actions to pre-screening.”
id. at 18.
.
for
See
We hold that the district court demonstrably did not
give Kerr’s complaint “short shrift.”
First, as the PF&R indicates, the district court assigned
Kerr’s complaint to the magistrate judge pursuant to 28 U.S.C.
§ 636(b)(1)(B).
Magistrate
Judge’s
Report
at
*1.
Section 636(b) permits a district court to assign any pretrial
matter to a magistrate judge. 7
Kerr is correct that two of the
three categories of matters that may be referred to a magistrate
6
As part of Kerr’s “inverse-Iqbal” argument, she claims the
district
court
made
“trial-like
determinations
(with
no
evidence!) of whether [Appellees] actually committed each tort
alleged, rather than confining itself to evaluation of the
Complaint’s allegations for pleading sufficiency.”
Appellant’s
Br. at 17.
In doing so, Kerr asserts that the district court
found various facts that are contradicted by Kerr’s complaint.
We construe this part of Kerr’s argument to be a substantive
challenge to the dismissal of the claims related to each
contested fact. We address those arguments below.
7
For non-dispositive motions--the resolution of which could
not result in the end of the lawsuit--a district court may
direct the magistrate judge to make a final ruling on the
matter. See 28 U.S.C. § 636(b)(1)(A). For dispositive motions,
however, a magistrate judge may only render a final decision
with the parties’ consent.
See id. § 636(c)(1).
But even
without the parties’ consent, the district court may refer a
dispositive matter--like a motion to dismiss--to a magistrate
judge for PF&R. Id. § 636(b)(1)(B).
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judge for PF&R pursuant to § 636(b)(1)(B) relate to prisoner
litigation.
But she is incorrect that this means the district
court lacked the authority to refer her matter to a magistrate
judge or that the magistrate judge somehow treated her action
analogously to prisoner litigation.
Moreover, the district court accurately stated and applied
the proper standard of review of the magistrate judge’s PF&R.
In its memorandum opinion and order dismissing Kerr’s complaint,
the
district
judge’s
court
findings
reviewed
and
de
novo
recommendations
See 28 U.S.C. § 636(b)(1)(C). 8
each
to
of
which
the
magistrate
Kerr
objected.
In doing so, the district court
also considered the fact that Kerr was a pro se plaintiff and
afforded her pleadings a liberal construction.
Opinion
at
*5
(citing
Estelle
v.
Gamble,
429
District Court
U.S.
97,
106
(1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978)).
Contrary to Kerr’s argument, the district court did not
merely “adopt the bulk of the Magistrate’s Proposed Findings and
Recommendation.”
See
Appellant’s
Br.
at
18.
Rather,
the
district court conducted an exhaustive review of the magistrate
judge’s
PF&R.
In
fact,
the
8
district
court’s
reasoning
As Kerr objected to all but one of the magistrate judge’s
proposed findings and to all of the magistrate judge’s
recommendations, the district court engaged essentially in a de
novo review.
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substantively differs from the PF&R with respect to a number of
Kerr’s
claims. 9
We
hold
that
the
district
court
properly
referred Appellees' motion to dismiss to a magistrate judge, and
the referral and review process did not prejudice Kerr in any
way.
C.
Next, we address Kerr’s argument that the district court
erred
in
dismissing
immunity grounds. 10
all
claims
against
MUBG
on
sovereign
In doing so, the district court found MUBG
to be an “arm of the state” for purposes of sovereign immunity
and held that no exception to state sovereign immunity applied.
District
Court
Opinion
at
*9-11.
barred all claims against MUBG.
Thus,
sovereign
Id. at 11.
immunity
Kerr does not
contest the district court’s finding that MUBG is an “arm of the
state.”
exception
Instead,
to
Kerr
sovereign
argues
that
immunity
her
claims
because
the
fall
into
an
“[j]udicially
9
Compare, e.g., District Court Opinion at *26 (holding Kerr
did not sufficiently allege Kuhn is an “employer” under FLSA),
with Magistrate Judge’s Report at *30 (recommending that the
district court dismiss the FLSA claim because “section 213(a)(1)
of the FLSA specifically excludes a ‘teacher in elementary or
secondary schools’ from the minimum wage and maximum hour
requirements”).
10
Kerr did not seek injunctive relief against any Appellee
except for MUBG.
Thus, in dismissing all claims against MUBG,
the district court dismissed all of Kerr’s claims for injunctive
relief.
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‘anti-gay
exceptions’
Obergefell and Bostic.”
Pg: 16 of 42
to
Title
IX
cannot
survive
Appellant’s Br. at 27.
Kerr alleges that her equal protection rights were violated
on the basis of her sexual orientation.
We need not reach the
merits of the argument, however, because as Kerr acknowledges,
her
complaint
makes
no
mention
of
Title
IX
as
a
basis
for
liability or relief, or as an exception to sovereign immunity.
See Appellant’s Br. at 28.
We agree with the district court
that, “[w]hile the Court liberally construes Plaintiff’s claims,
it will not fundamentally rewrite the causes of action provided
in the Complaint.”
District Court Opinion at *10.
In short,
even liberally construed, Kerr’s complaint does not present this
legal issue.
D.
We turn next to Kerr’s argument that the district court
erred in its decision to dismiss all of Kerr’s claims against
the remaining Appellees for failure to state a claim upon which
relief could be granted. 11
As we explain below, on the basis of
11
Kerr only explicitly challenges the dismissal of her
defamation claim, her § 1983 due process claim, and her two
§ 1983 equal protection claims.
However, Kerr also challenges
various findings of fact that relate to her other claims.
In
light of Kerr’s pro se status, we review the dismissal of all
seven of her claims for relief.
The “findings of fact” Kerr contests are the following:
(1) the statements Kuhn made about Kerr in the evaluation were
(Continued)
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well-pleaded
facts
in
the
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complaint
and
the
Handbook
on
which the complaint relies, we are constrained to disagree.
1.
We begin with Kerr’s claim for defamation against Appellees
MUBG, Kuhn, Southard, and Bailey.
We note that the allegedly
defamatory statements, which Kuhn made in connection with his
evaluation of Kerr’s student teaching, underlie most of Kerr’s
claims.
The district court found that the complaint’s “general
assertions”
that
Kuhn’s
statements
included
“‘false’
accusations,” without any additional information or context, did
not provide any indication that Kuhn’s statements were not based
on opinion.
District Court Opinion at *12.
On appeal, Kerr
argues that the district court erred in determining that the
statements Kuhn made about Kerr in his evaluation of her were
“opinions” not capable of defamatory meaning.
Appellees contend
that the district court properly determined that the statements
were
not
capable
of
a
defamatory
meaning,
and
in
the
“not false or defamatory”; (2) Kerr had no valid business
expectancy sufficient to state a claim for the tort of
intentional interference with business expectancy; (3) Appellees
did not engage in extreme or outrageous conduct sufficient to
state a claim for the tort of outrage; (4) Kerr’s “whole action
is a trivial dispute over a grade”; (5) the statements Kuhn made
about Kerr in the evaluation “constituted genuine academic
discretion”; (6) Appellants acted rationally and in good faith;
and (7) Kuhn was not an “employer” for purposes of Kerr’s FLSA
claim. Appellant’s Br. at 16.
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alternative,
Filed: 05/24/2016
that
the
Pg: 18 of 42
statements
were
protected
by
qualified
privilege.
As we explain below, we agree with the district court that
all of the specific statements were “solely opinion along the
lines of the statements found to be non-factual by the Supreme
Court of Appeals of West Virginia.”
Id. (citing Hupp v. Sasser,
490 S.E.2d 880, 887 (W. Va. 1997)).
alleged
statements
capable
of
Even if the complaint had
defamatory
meaning,
the
claim
would still fail because the statements alleged are privileged.
i.
Under
the
familiar
Erie
doctrine,
we
apply
state
substantive law and federal procedural law when reviewing statelaw claims.
See Hartford Fire Ins. Co. v. Harleysville Mut.
Ins. Co., 736 F.3d 255, 261 n.3 (4th Cir. 2013); Erie R. Co. v.
Tompkins,
304
defamation
U.S.
under
64,
78
West
(1938).
Virginia
A
law
successful
claim
for
requires
proof
of
“(1) defamatory statements; (2) a nonprivileged communication to
a
third
(5) at
party;
least
(3)
falsity;
negligence
(6) resulting injury.”
on
(4)
the
reference
part
of
to
the
the
plaintiff;
publisher;
and
Syl. Pt. 5, Belcher v. Wal-Mart Stores,
Inc., 568 S.E.2d 19, 22 (W. Va. 2002) (citing Syl. Pt. 1, Crump
v. Beckley Newspapers, Inc., 320 S.E.2d 70, 74 (W. Va. 1983)).
In other words,
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to have a defamation claim, a plaintiff must show that
false and defamatory statements were made against him,
or relating to him, to a third party who did not have
a reasonable right to know, and that the statements
were made at least negligently on the part of the
party making the statements, and resulted in injury to
the plaintiff.
Bine v. Owens, 542 S.E.2d 842, 846 (W. Va. 2000).
Whether a statement is capable of a defamatory meaning is a
matter of law for the court to decide.
Syl. Pt. 6, Belcher, 568
S.E.2d at 22 (citing Syl. Pt. 6, Long v. Egnor, 346 S.E.2d 778,
779 (W. Va. 1986)).
noted,
“[a]
provably
As the West Virginia Supreme Court has
statement
false
of
assertion
constitutional protection.”
opinion
of
which
fact
does
is
not
entitled
contain
to
a
full
Syl. Pt. 3, Hupp, 490 S.E.2d at 882
(quoting Syl. Pt. 4, Maynard v. Daily Gazette Co., 447 S.E.2d
293, 294 (W. Va. 1994)).
This inquiry is context-specific.
Id.
at 887.
Kerr’s complaint alleges that Kuhn’s evaluation contained
three types of defamatory language: (1) “[f]alse accusations of
dishonest and unethical conduct against Ms. Kerr”; (2) “[d]irect
statements by both defendants Kuhn and Southard that Ms. Kerr
was unqualified to become a teacher”; and (3) “[e]valuations of
Ms. Kerr
as
‘unsatisfactory’
in
19
numerous
areas
which
had
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previously . . . been evaluated as positive.”
E.R. 15. 12
Thus,
we consider whether, under West Virginia law, statements in an
academic
evaluation
an
“unqualified
“unethical,”
that
individual
to
become
is
a
“dishonest,”
teacher,”
and
“unsatisfactory,” are capable of defamatory meaning.
In
Hupp
v.
Sasser,
the
West
Virginia
Supreme
Court
of
Appeals considered statements made by the Dean of West Virginia
University’s School of Journalism that a graduate assistant was
“unprofessional” and that the graduate assistant’s behavior was
“unacceptable.”
490 S.E.2d at 884.
The West Virginia Supreme
Court held that those statements were not capable of defamatory
meaning, even if they “might not reflect the same conclusion
that
other
individuals
plaintiff’s] behavior.”
would
reach
Id. at 887.
when
considering
[the
Because those statements
were “clearly not provably false,” they were protected.
Id.
Here, statements that Kerr was “unqualified” and performed
“unsatisfactory[ily]” are analogous to those the West Virginia
12
In her complaint, Kerr represents that the alleged
statements would “be subsequently provided in full to the Court
under seal to avoid unnecessary publication.”
E.R. 15.
Appellees filed the evaluation in a motion to seal, but the
district court did not consider the evaluation in ruling on the
contemporaneously filed motion to dismiss.
The district court
determined only whether it could consider the extrinsic evidence
appended to the motion to dismiss itself.
See District Court
Opinion at *8.
We need not decide whether it would have been
erroneous for the district court to consider the documents
appended to the motion to seal without converting the motion to
dismiss into a motion for summary judgment.
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Supreme Court rejected in Hupp.
Although Kerr might disagree
with them, Kuhn’s statements are “clearly not provably false.”
See id.
To the extent that the first category of statements
expressed
Kuhn’s
judgment
that
Kerr
is
“dishonest
and
unethical,” those statements would also be opinions not capable
of defamatory meaning under Hupp.
ii.
Even if the complaint had plausibly alleged that Appellees
had made statements capable of defamatory meaning, Appellees’
still be protected by qualified privilege. 13
statements would
Under West Virginia law, any defamation claim must be based on a
“non privileged communication to a third party.”
Syl. Pt. 5,
Belcher, 568 S.E.2d at 22 (citing Syl. Pt. 1, Crump, 320 S.E.2d
at 74).
Like determining whether a statement is capable of
defamatory meaning, at least “in the absence of controversy as
to
the
facts,”
the
existence
of
question of law for the courts.
omitted).
a
qualified
privilege
is
a
Syl. Pt. 8, id. (citations
We evaluate that privilege here on the bases of the
facts alleged in Kerr’s complaint and the Handbook’s policies,
and we
hold
that
the
statements
were
protected
by
qualified
privilege.
13
In our review, we may affirm on any grounds supported by
the record, notwithstanding the reasoning of the district court.
United States v. Moore, 709 F.3d 287, 293 (4th Cir. 2013).
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The Supreme Court of West Virginia has explained that
[q]ualified privileges are based upon the public
policy that true information be given whenever it is
reasonably necessary for the protection of one's own
interests, the interests of third persons or certain
interests of the public. A qualified privilege exists
when a person publishes a statement in good faith
about a subject in which he has an interest or duty
and limits the publication of the statement to those
persons who have a legitimate interest in the subject
matter; however, a bad motive will defeat a qualified
privilege defense.
Syl. Pt. 9, id. at 27 (quoting Syl. Pt. 4, Dzinglski v. Weirton
Steel Corp., 445 S.E.2d 219, 221 (W. Va. 1994)).
Importantly,
the non-existence of qualified privilege is an essential element
of a defamation claim under West Virginia law.
Thus, in order
to
must
state
allege,
a
claim
among
statements
to
for
other
defamation,
facts,
individuals
a
that
who
did
complaint
plausibly
Appellees
published
not
a
have
the
“legitimate
interest” in them.
With respect to publication, Kerr’s complaint alleges that
Kuhn
“communicated
Bailey,
and
“ratified,
MUBG,”
adopted
[the
and
and
statements]
that
(on
to
Southard
information
defendants
at
and
least
Southard,
negligently
belief)
actively
solicited defendant Kuhn’s false and defamatory statements . . .
and communicated them to defendants MUBG and Bailey.”
E.R. 19.
Further, Kerr contends that Bailey ratified the statement and
communicated it to MUBG, which also ratified Kuhn’s statements
before it “communicated them to Ms. Kerr’s prospective employers
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and other members of the public, as part of Ms. Kerr’s permanent
academic record.”
Id.
Although the complaint accuses Southard, Bailey, and Eagle
of “ratifying” Kuhn’s statements, the complaint never alleges
that
the
statements
were
published
outside
of
the
Marshall
administration, much less “to a third party who did not have a
reasonable right to know.”
See Belcher, 568 S.E.2d. at 26.14
The Handbook belies any argument that putting the evaluation in
Kerr’s permanent academic record constituted publication to a
third party without a reasonable right to know.
are
automatically
placed
in
students’
The evaluations
permanent
academic
records, but students must consent to having their evaluations
14
Kerr alleges that Bailey “personally and unequivocally
ratified” Kuhn’s statement when Bailey “confronted Ms. Kerr with
false allegations from the Kuhn Statement” and sarcastically
asked, “[y]ou cannot seriously expect that we would give you a
degree or recommend you for certification when you have done
these things?”
E.R. 15-16.
The complaint therefore only
alleges that Bailey communicated the statement to Eagle and
Kerr, not to a third party without a reasonable right to know.
The complaint alleges that a “ratification” of Kuhn’s
statements by Southard was included with the papers presented to
Kerr at the December 5, 2013 meeting with Bailey and Eagle. It
does not allege that this “ratification” was ever disclosed to a
third party outside of the Marshall administration, other than
to Kerr.
In her complaint, Kerr alleges that Appellee Eagle
“threatened
to
disclose
the
Kuhn
Statement
directly
to
Ms. Kerr’s prospective employers if Ms. Kerr followed up on the
appeal.”
Id. at 16.
However, the complaint does not allege
that Eagle actually disclosed Kuhn’s statements to anyone
outside of the Marshall administration, other than to Kerr.
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made available to potential employers.
Kerr therefore does not
plausibly allege that any third parties without a reasonable
right to know had access to her academic record.
Here, the Handbook readily establishes that Kuhn had a duty
to review Kerr’s integrity, professionalism, and competence in
Kerr’s student teaching evaluation and that his candor would
benefit the public interest.
Given that Kerr was pursuing her
teaching license, and given Kuhn’s position as her supervising
classroom teacher, it was “reasonably necessary” to ensure that
the middle-school Social Studies students in West Virginia were
taught by qualified educators.
Thus, the district court did not
err in dismissing Kerr’s defamation claim. 15
2.
The district court also dismissed Kerr’s second claim--for
tortious interference with business expectancy against Appellees
MUBG,
Kuhn,
Southard,
Bailey,
and
Eagle.
On
appeal,
Kerr
contends that “the District Court erred by factually finding
15
The fact that the complaint alleges the statements are
false does not by itself defeat qualified privilege.
See
Belcher, 568 S.E.2d. at 27. Indeed, even if the statements were
capable of a defamatory meaning, qualified privilege immunizes
statements that are later proven to be false, as long as the
statements are made in good faith. Id. While a showing of bad
faith can defeat a defense of qualified privilege, the
statements would still need to be published to a third party
without a reasonable right to know in order to be actionable as
defamation.
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(contrary to the Complaint) that . . . [Kerr] had no valid
expectancy of employment.”
Appellant’s Br. at 16.
We disagree.
Under West Virginia law, a claim for tortious interference
with
business
expectancy
“(1) existence
of
a
requires
contractual
proof
or
of
four
business
elements:
relationship
or
expectancy; (2) an intentional act of interference by a party
outside
that
relationship
or
expectancy;
(3)
proof
that
interference caused the harm sustained; and (4) damages.”
Pt.
1,
C.W.
Dev.,
Inc.
v.
Structures,
Inc.
of
W.
the
Syl.
Virginia,
408 S.E.2d 41, 42 (W. Va. 1991) (quoting Syl. Pt. 2, Torbett v.
Wheeling Dollar Sav. & Trust Co., 314 S.E.2d 166, 167 (W. Va.
1983)).
While no written contract is required for a claim for
tortious interference, the complaint must still allege that the
interference caused the harm sustained.
Kerr claims that she “had been invited and encouraged to
apply for two teaching positions,” that Kerr had applied for one
of those positions, and that Kerr “expected to be interviewed as
soon as she graduated from Marshall and received her teaching
certification.”
E.R. 20-21.
Kerr claims that Kuhn’s statements
in his evaluation of her performance--which Southard, Bailey,
and Eagle included in her permanent academic record--interfered
with her
teacher
expectation
after
that
receiving
she
her
would
MAT
and
be
a
gainfully
teacher
employed
certification.
Because Kerr’s expectation of employment was mere speculation,
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however, she has not plausibly alleged that the interference
could have caused the harm sustained.
According
to
the
allegations
of
the
complaint
itself,
Kerr’s supposed business expectancy was but a subjective hope.
As the complaint notes, Kerr was still “weeks away” from earning
her MAT and teaching license and did not have the ability to
gain employment as a teacher at the time the statements were
made.
the
The complaint in no way alleges that Kerr had completed
course
requirements
of
EDF
677,
let
alone
all
of
the
requirements to become a teacher, by November 2013, when the
conduct at issue occurred.
Even accepting Kerr’s statement in
her November 19, 2013, email that she understood that she had
“fully
satisfied
the
requirements
for
student
teaching,”
E.R. 13, the complaint does not allege that she completed the
other requirements for EDF 677 credit.
More to the point, Kerr did not have an existing offer for
employment
or
reasonable
expectation
Appellees could have interfered.
with
which
any
of
the
She had not been offered an
interview for the job to which she applied, and she had not even
applied to the other.
Accordingly, the district court properly
dismissed Kerr’s claim for tortious interference.
3.
We turn next to Kerr’s contention that the district court
erred
in
dismissing
her
claim
for
26
the
tort
of
outrage--also
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known as intentional infliction of emotional distress--against
Appellees MUBG, Kuhn, Southard, Bailey, and Eagle.
The district
court held that Kerr failed to state an outrage claim because
the
conduct
alleged
did
not
meet
required by West Virginia law.
the
“outrageous”
standard
District Court Opinion at *15.
Kerr argues on appeal that the district court erred in finding
Appellants had not acted outrageously.
Under West Virginia law, the tort of outrage requires proof
of four elements:
(1) that the defendant's conduct was atrocious,
intolerable, and so extreme and outrageous as to
exceed the bounds of decency; (2) that the defendant
acted with the intent to inflict emotional distress,
or
acted
recklessly
when
it
was
certain
or
substantially certain emotional distress would result
from his conduct; (3) that the actions of the
defendant caused the plaintiff to suffer emotional
distress;
and,
(4)
that
the
emotional
distress
suffered by the plaintiff was so severe that no
reasonable person could be expected to endure it.
Syl. Pt. 3, Travis v. Alcon Labs., Inc., 504 S.E.2d 419, 421
(W. Va.
1998)
“Whether
conduct
may
reasonably
be
considered
outrageous is a legal question,” Syl. Pt. 4., id., which courts
determine
Stores,
on
Inc.,
a
“case-by-case
454
S.E.2d
basis,”
385,
390
Hines
(W.
v.
Va.
Hills
1994)
Dep't
(citing
Restatement (Second) of Torts § 46).
In
order
for
the
“outrageous”
standard
to
be
met,
the
conduct must be “so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to
27
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be regarded as atrocious and utterly intolerable in a civilized
community.”
Harless v. First Nat. Bank in Fairmont, 289 S.E.2d
692, 705 (W. Va. 1982) (quoting Restatement (Second) of Torts
§ 46, cmt. d.).
The conduct must be more than “merely annoying,
harmful of one’s rights or expectations, uncivil, mean-spirited,
[] negligent . . . . [or] overzealous.”
Hines, 454 S.E.2d
at 391 (citing Courtney v. Courtney, 413 S.E.2d 418, 423 (W. Va.
1991)).
The
reckless
complaint
or
alleges
intentional
that
conduct
the
by
Appellees
“causing
engaged
[the]
in
false
and
misleading statements” in Kuhn’s evaluation to be included in
Kerr’s permanent academic record and by “denying or conspiring
to
deny”
Kerr
certification.
academic
credit,
E.R. 22.
her
degree,
and
her
teacher
Kerr also claims that Eagle’s threat
to provide Kuhn’s evaluation to potential employers constituted
the tort of outrage.
Appellees’
conduct
does
We agree with the district court that
not
imposed by West Virginia law.
rise
to
the
“exacting”
standard
See District Court Opinion at *15
(citation omitted).
While the allegations in the complaint do not depict the
Marshall administration as particularly kind or sympathetic in
their interactions with Kerr, the complaint does not identify
any behavior that was “beyond all possible bounds of decency.”
Kuhn’s unflattering comments notwithstanding, Kerr did fail to
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complete her student teaching assignment.
On these facts, we
hold that the district court properly dismissed Kerr’s claim of
outrage.
4.
Kerr contends that her due process rights were violated by
Appellees
MUBG,
“depriv[ed]
her
Southard,
of
Bailey,
protected
property
credit,
graduation,
certification
without
notice
opportunity
or
and
to
and
Eagle
when
interests
in
prospective
be
heard.”
they
academic
employment
E.R.
23. 16
Procedurally, the district court determined that Kerr was given
all the process she was due; substantively, the district court
“defer[red]
because
to
there
capricious.
[Appellees’]
was
no
professional
evidence
the
academic
decision
was
judgment,”
arbitrary
or
District Court Opinion at *20. 17
16
The district court considered Kerr to have raised both a
procedural and substantive due process claim, “assum[ing]-without deciding--that [Kerr] has plausibly pled a protected
property interest.”
District Court Opinion at *17 (citation
omitted).
17
In doing so, the district court reasoned
evaluations, unlike disciplinary evaluations, are
“arbitrary and capricious” standard and should
unless
the
decision
“did
not
involve
the
professional judgment.”
Id. at *20 (citation
marks omitted).
that academic
subject to an
not be upset
exercise
of
and quotation
In the academic setting, courts have drawn a distinction
between disciplinary and academic evaluations, see, e.g., Clark
v. Whiting, 607 F.2d 634, 643-44 (4th Cir. 1979), the latter of
which requires less procedural protection. This court has noted
(Continued)
29
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Kerr
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argues
on
appeal
Pg: 30 of 42
that
the
district
court
erred
in
“ruling that universities have a Due Process right to establish
and withhold procedural protections on a whim.”
at 21.
did
Appellant’s Br.
As a preliminary matter, we note that the district court
not
make
claim.
this
holding
in
dismissing
Kerr’s
due
process
We construe Kerr’s argument to be that the district
court erred in assuming that Kerr had a property interest in the
continuation of academic endeavors and determining that she was
nevertheless given all the process that was due.
This argument,
too, fails.
We
do
not
believe
that
Kerr
alleged
even
the
protected
property interest that she argues this court should recognize.
Even if there were a protected property interest in “academic
credit, graduation, certification and prospective employment,”
the
complaint
does
not
plausibly
allege
that
Kerr
had
a
legitimate claim of entitlement to that property interest, even
construed
liberally.
Even
still,
Marshall
provided
ample
process through its tripartite appeals process, and the record
contains ample justification for Marshall’s decision.
that “[i]n the context of due-process challenges . . . a court
should defer to a school’s professional judgement regarding a
student’s academic or professional qualifications.”
Halpern v.
Wake Forest Univ. Health Scis., 669 F.3d 454, 462 (4th Cir.
2012).
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In order to state a claim for a violation of due process,
“a plaintiff must allege sufficient facts to support a finding
that
the
[plaintiff
was]
‘deprived
property, by governmental action.’”
of
life,
liberty,
or
Equity in Athletics, Inc.
v. Dep’t of Educ., 639 F.3d 91, 109 (4th Cir. 2011) (quoting
Beverati v. Smith, 120 F.3d 500, 502 (4th Cir. 1997)).
The
Fourteenth Amendment does not create a property interest itself,
rather the property interest “must be created or defined by an
independent source.”
Id. (citations omitted).
For a property
interest in a certain government benefit, “a person must have
more than an abstract need or desire for it.
than a unilateral expectation of it.
He must have more
He must, instead, have a
legitimate claim of entitlement to it.”
Mallette v. Arlington
Cty. Emps.’ Supplemental Ret. Sys. II, 91 F.3d 630, 634 (4th
Cir. 1996) (quoting Bd. Of Regents v. Roth, 408 U.S. 564, 577
(1972)).
Both
substantive
and
procedural
due
process
rights
are
triggered by a legitimate claim of entitlement to a property
interest.
by
state
For procedural due process claims, “the deprivation
action
of
a
constitutionally
protected
interest
in
life, liberty, or property is not in itself unconstitutional;
what is unconstitutional is the deprivation of such an interest
without due process of law.”
125
(1990)
(citations
and
Zinermon v. Burch, 494 U.S. 113,
internal
31
quotation
marks
omitted).
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Substantive
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due
process
Pg: 32 of 42
claims,
however,
deal
reasonableness of the governmental decision.
with
the
Where executive
action is concerned, a violation of an individual’s substantive
due process rights exists only when the official action is “so
egregious, so outrageous, that it may fairly be said to shock
the contemporary conscience.”
Hawkins v. Freeman, 195 F.3d 732,
738 (4th Cir. 1999) (quoting Cty. of Sacramento v. Lewis, 523
U.S. 833, 847 n.8 (1998)).
Here, Kerr did not have a legitimate claim of entitlement
to
the
property
certification,
interest
and
of
“academic
prospective
employment”
triggered her due process protections.
that
Kerr
notified
was
weeks
Marshall
away
that
she
from
she
believed
she
had
that
graduation,
she
claims
The complaint is clear
receiving
would
student-teaching assignment.
credit,
not
her
return
to
MAT
her
when
she
EDF
677
Although Kerr told Marshall that
completed
the
student
teaching
requirements, Kerr’s complaint does not allege that she did so.
Importantly, Kerr does not allege that she had completed any of
the three components of her EDF 677 grade, which included her
student
teaching
presentation.
evaluation
And
as
because
well
Kerr
as
a
did
portfolio
not
and
oral
complete
the
requirements for EDF 677 credit (and therefore graduation and
teacher
certification),
she
did
32
not
allege
that
she
had
the
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legitimate claim of entitlement to the due process she argues
she was denied.
Regardless,
Marshall
provided
Kerr--as
a
student
with
a
grade complaint--the process she was entitled to, as outlined in
the Handbook.
Under the Handbook, Kerr was not entitled to
abandon her student teaching and also expect to earn credit in
the course.
Indeed, the EDF 677 attendance policy is strict,
and Kerr does not allege that her absences were excused by any
of the Handbook’s approved reasons.
By Kerr’s own admission,
she received scores of “Unsatisfactory” across numerous metrics,
which itself precludes credit in EDF 677.
also
establish
classroom:
that
she
students
in
were
fact
had
disengaged,
Kerr’s allegations
shortcomings
refused
the
take
to
in
her
direction, and claimed they did not have to do the work she
assigned.
teaching
Kerr also readily admits that she left her studentplacement
unilaterally,
that
on
November
she
2013,
not
would
19,
and
return.
made
it
clear,
Attendance
and
classroom instruction are both required as part of EDF 677.
To
the
extent
that
Kuhn
or
Southard
would
have
been
required to implement an improvement plan for Kerr if she had
stayed in the program, the allegations in the complaint reveal
that
Kerr
allegations
did
are
not
consider
clear
that,
this
for
to
her,
be
the
an
option.
incident
Kerr’s
with
Kuhn
“undermined any professional training or experience that [Kerr]
33
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might further gain in defendant Kuhn’s classroom” and that she
considered herself to have completed the course requirements.
E.R. 13.
Kerr therefore did not return for the final weeks of
her student-teaching assignment.
Furthermore, Kerr was given ample opportunity to challenge
her grade using Marshall’s internal processes.
her
argument
to
five
different
Marshall
She presented
administrators,
including the Dean of Marshall’s Graduate Studies.
With respect
to three of those five administrators--including Pittenger, the
final decision-maker--the complaint does not allege that they
harbor any resentment against Kerr for any reason, or even that
they had interacted with Kerr outside of the appeals process.
After Kerr’s three appeals to Marshall, her grade of “No Credit”
stood
because
her
complaints
about
Kuhn,
even
if
they
were
legitimate, were raised too late for Marshall to take corrective
action during the Fall 2013 Semester.
The multi-tiered internal
appeals process was sufficient to protect Kerr’s procedural due
process rights, and this court should not upset the decision
absent an indication that the substance of Marshall’s decision
was arbitrary and capricious.
The
complaint,
read
in
light
of
the
Handbook,
does
not
plausibly allege that the decision to award Kerr a grade of “No
Credit”
was
“shock[ed]
arbitrary
the
and
conscience,”
capricious,
as
34
would
be
much
less
required
to
that
state
it
a
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claim for a violation of Kerr’s substantive due process rights.
Marshall had multiple rational reasons to award a grade of “No
Credit” to Kerr.
Kerr received “Unsatisfactory” marks on her
evaluation, left her student-teaching placement early, and never
requested reassignment to complete her coursework before the end
of
the
semester.
The
district
court
therefore
properly
dismissed Kerr’s due process claim.
5.
Kerr’s
protection
§ 1983
claims
rights--against
for
a
Appellees
violation
MUBG,
of
her
Southard,
equal
Bailey,
Eagle, Heaton, and Pittenger--include both a sexual-orientation
discrimination theory and a “class-of-one” theory.
On appeal,
Kerr argues that the district court “erred by creating a broad
‘academic discretion’ loophole in Constitutional mandates that
can
be
invoked
on
12(b)(6).”
Appellant’s
Br.
at
24.
We
construe Kerr’s argument to be that the district court erred by
(1) finding that Kerr failed to allege discriminatory intent
required
for
her
equal
protection
violation
on
a
sexual
orientation discrimination theory, and (2) by holding that, in
an academic setting, it is not possible to state a claim for an
equal protection violation under a “class of one” theory.
address each argument in turn.
35
We
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i.
Kerr’s first equal protection claim arises from allegations
that
Marshall
discriminated
sexual orientation.
holding
that
against
her
on
the
basis
of
her
The district court dismissed this claim,
Kerr’s
complaint
failed
to
make
“specific
allegations as to when or how each individual Defendant learned
of [Kerr’s] sexual orientation” and was “completely devoid of
any
allegation
from
similarly
at *22.
that
Defendants’
situated
treatment
students.”
of
[Kerr]
District
differed
Court
Opinion
On appeal, Kerr argues that she herself could represent
both the person discriminated against and the similarly situated
individual
by
alleging
how
she
was
treated
before
and
after
Appellees discovered her sexual orientation.
Although Kerr complains that Appellees Eagle, Heaton, and
Pittenger
violated
her
equal
protection
rights,
there
is
no
allegation of overt discriminatory animus on the part of any
Appellee.
Rather,
discrimination
Kerr’s
sexual
is
the
that
only
Bailey
fact
and
orientation.
alleged
Southard
Based
that
had
on
the
relates
to
knowledge
of
complaint’s
allegations, the district court properly dismissed Kerr’s equal
protection claim for intentional discrimination.
The
Equal
Protection
Clause
of
the
Fourteenth
Amendment
declares that “[n]o State shall . . . deny to any person . . .
the equal protection of the laws.”
36
U.S. Const., amend. XIV,
Appeal: 15-1473
§ 1.
at
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Pg: 37 of 42
This does not forbid states from classifying individuals
all;
rather
it
“keeps
governmental
decisionmakers
from
treating differently persons who are in all relevant respects
alike.”
Nordlinger v. Hahn, 505 U.S. 1, 10 (1992).
This court
has noted,
[t]o succeed on an equal protection claim, a plaintiff
must first demonstrate that he has been treated
differently from others with whom he is similarly
situated and that the unequal treatment was the result
of intentional or purposeful discrimination.
Once
this showing is made, the court proceeds to determine
whether the disparity in treatment can be justified
under the requisite level of scrutiny.
Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001).
Absent
knowledge
of
Kerr’s
sexual
orientation,
Eagle,
Heaton, and Pittenger could not have intentionally discriminated
against Kerr on that basis.
Further, the complaint does not
allege any interactions with Bailey and Southard before they
learned
of
Kerr’s
sexual
orientation,
much
less
interactions
that stand in contradistinction to how Appellants treated Kerr
after
the
discovery.
Although
the
complaint
alleges
that
Southard and Bailey knew Kerr is homosexual, it does not allege
that Bailey and Southard ever dealt with Kerr before they knew
her
sexual
orientation:
the
complaint
alleges
that
the
two
learned of this fact at the beginning of the Fall 2013 Semester,
37
Appeal: 15-1473
in
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August
Filed: 05/24/2016
2013.
Thus,
Pg: 38 of 42
Kerr’s
equal
protection
claim
for
intentional discrimination fails. 18
ii.
Kerr
Southard,
also
alleges
Bailey,
that
Eagle,
the
decision
Heaton,
and
of
Appellees
Pittenger
to
MUBG,
deny
her
credit for EDF 677 constituted an equal protection violation
under a “class-of-one” theory.
An equal protection violation
can be stated under this theory if it can be shown that the
government’s
arbitrary”
action
constituted
discrimination
of
“irrational
that
individual.
Willowbrook v. Olech, 528 U.S. 562, 565 (2000).
there
must
treatment.”
be
“no
rational
and
basis
for
the
wholly
Vill.
of
In other words,
difference
in
Willis v. Town of Marshall, N.C., 426 F.3d 251, 263
(4th Cir. 2005).
Kerr
challenges
the
district
court’s
holding
that
the
Supreme Court’s decision in Engquist v. Or. Dep’t of Agric.,
553 U.S. 591, 609 (2008) (holding that a “class of one” equal
protection
theory
does
not
apply
in
the
context
of
public
employment), precludes a “class-of-one” equal protection claim
in the public-education setting.
18
See District Court Opinion
For the same reason, we need not address the question of
whether a plaintiff can represent both the similarly situated
person and the person denied equal protection for purposes of
stating
an
equal
protection
claim
for
intentional
discrimination.
38
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at *23-24.
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Pg: 39 of 42
As we have explained above, the complaint, read in
light of the Handbook, does not plausibly allege conduct from
which we could conclude Appellees lacked any rational basis for
giving Kerr a grade of “No Credit” in EDF 677.
We therefore
need not decide whether a “class of one” equal protection theory
is possible in the public education setting and hold that the
district court did not err in dismissing this claim.
6.
Finally,
Kerr
argues
that
the
district
court
erred
in
finding that Kuhn was not an “employer” for purposes of Kerr’s
FLSA claim.
failing
Kerr’s
to
role
Kerr’s claim is that MUBG and Kuhn violated FLSA by
pay
as
Kerr
a
the
de
federally-mandated
facto
substitute
absences from the classroom. 19
payment
academic
for
substitute
credit,
the
minimum
teacher
wage
during
for
Kuhn’s
Because Kerr did not receive any
teaching
complaint
and
did
contends
not
that
ultimately
Kuhn
and
earn
MUBG
violated FLSA.
In
holding
Kuhn
was
not
an
“employer”
under
FLSA,
the
district court noted that the complaint “utterly fail[ed] to
allege
any
indicia
of
Defendant
19
Kuhn’s
control
over
the
The complaint contends that “Kuhn absented himself from
his classroom on a regular basis without providing another
supervising teacher, thus leaving Ms. Kerr responsible for his
classroom duties in excess of 50% of the student teaching
placement.” E.R. 28. If Kuhn were an “employer” under FLSA, he
would be liable for any unpaid wages.
39
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conditions
Defendant
teaching
Filed: 05/24/2016
under
Kuhn
which
held
[Kerr]
the
position.”
Pg: 40 of 42
worked
authority
District
at
to
Court
the
school,
terminate
Opinion
or
her
at
that
student
*26.
The
district court therefore granted Appellees’ motion to dismiss
Kerr’s FLSA claim.
Id.
We are compelled to agree.
FLSA conditions liability on the existence of an employeremployee
alleging
relationship,
and
and
proving
the
the
employee
existence
bears
of
that
the
burden
of
relationship.
Benshoff v. City of Virginia Beach, 180 F.3d 136, 140 (4th Cir.
1999) (citing Davis v. Food Lion, 792 F.2d 1274, 1276 (4th Cir.
1986)).
FLSA defines “employer” as “any person acting directly
or indirectly in the interest of an employer in relation to an
employee and includes a public agency.”
29 U.S.C. § 203(d).
Employers
responsibilities
include
those
with
managerial
and
“substantial control of the terms and conditions of the work
of . . . employees.”
Falk v. Brennan, 414 U.S. 190, 195 (1973).
To determine whether the employer-employee relationship exists,
courts apply the “economic reality” test.
Schultz, 466 F.3d
at 304 (citing Henderson v. Inter–Chem Coal Co., 41 F.3d 567,
570 (10th Cir. 1994)).
The economic reality test focuses on “whether the worker
‘is economically dependent on the business to which he renders
service or is, as a matter of economic [reality], in business
for
himself.’”
Id.
(quoting
40
Henderson,
41
F.3d
at
570).
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Relevant factors include “whether the alleged employer (1) had
the power to hire and fire the employees, (2) supervised and
controlled employee work schedules or conditions of employment,
(3)
determined
the
rate
and
method
of
payment,
and
(4) maintained employment records.”
Herman v. RSR Sec. Servs.
Ltd.,
1999)
172
F.3d
132,
139
(2d
Cir.
(quoting
Carter
v.
Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d. Cir. 1984)), modified
by Zheng v. Liberty Apparel Co. Inc., 355 F.3d 61 (2d Cir.
2003).
Although no one factor is dispositive, not a single
factor weighs in favor of finding the existence of an employeremployee relationship here.
Kuhn had no power to hire and fire Kerr.
to
Kuhn’s
classroom,
reassignment--just
and
like
Kuhn
Kerr
would
was
have
Kerr was assigned
had
required
Handbook--if Kuhn wanted Kerr dismissed.
to
to
request
do
by
a
the
Further, the complaint
does not allege that Kuhn supervised and controlled Kerr’s work
schedule
or
Rather,
Kuhn
designed
by
Handbook.
the
conditions
supervised
Marshall
the
under
of
her
employment
implementation
the
guidelines
of
set
in
any
the
way.
course
out
by
the
As Kerr was an unpaid student teacher, Kuhn could not
have determined the rate and method of her payment.
Finally,
even though Kuhn produced Kerr’s evaluation, he did not maintain
her records.
Instead, he reported her progress to Marshall, who
kept Kerr’s academic record, in line with Handbook policy.
41
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The fact that Kerr did not ultimately receive course credit
does
not
convert
unpaid labor.
her
truncated
educational
experience
into
Given the economic reality of Kerr’s position as
a student teacher, the district court properly determined that
Kuhn was not an “employer” under FLSA and dismissed Kerr’s final
claim.
III.
For the foregoing reasons, the judgment of the district
court granting Appellees’ motion to dismiss is
AFFIRMED.
42
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