Filed: May 24, 2016
Latest Update: Mar. 02, 2020
Summary: 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
Summary: 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 ..
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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.
DUNCAN, Circuit Judge:
Lisa Kerr appeals the district court’s order granting
Appellees’ motion to dismiss her civil action pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). 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 post in protest over differences with her
supervising teacher. Kerr was unable to resolve these
differences with the Marshall administration and did not return
to her student-teaching post. She was not awarded credit for
2
EDF 677, and she received neither her MAT nor her teaching
license.
On March 14, 2014, after unsuccessfully pursuing
reconsideration through Marshall’s internal 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 of Marshall’s College of Education; and David
Pittenger, the Dean of Marshall’s Graduate Studies
(collectively, "Appellees").
B.
We set forth the relevant facts as alleged in Kerr's
complaint. See Wag More Dogs, LLC v. Cozart, 680 F.3d 359,
364-65 (4th 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)
3
1.
EDF 677, the “culminating clinical experience for MAT
students,” requires “all day student teaching under direct
supervision in a public school setting.” E.R. 99. 2 The Marshall
Student-Teacher Handbook contains regulations by which
participants must abide. Participants must also follow “any
additional directives 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. Over the
course of the semester, student teachers are expected to
collaborate with their supervising classroom teachers 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 teacher is not solely responsible for 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
and the parents for promoting the best interests of their
students.” 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 becomes “a permanent part of the
student teacher’s record.” E.R. 100. 3 “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. Although the specific events of which
she complains began in November, Kerr also makes general
references to a lack of support on the Marshall side throughout
the semester.
3There are two other components for course credit, but
Kerr’s complaint contains no allegations with respect to them.
5
On the Marshall side, during the Fall 2013 Semester, Bailey
was Marshall’s EDF 677 Coordinator, and Southard was the
Marshall supervisor for students enrolled in EDF 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
advice.” Id. 4
On the classroom side, Kerr’s complaint focuses on her
relationship with her supervising classroom teacher, Kuhn. The
gist of Kerr’s complaint is that Kuhn did not support her
authority with the students. For example, according to Kerr,
students commented to her, “we don’t have to do the work you
give us. Mr. Kuhn’s going to give us a good grade anyway.”
E.R. 13. When Kerr approached Kuhn with her concerns, he
responded with “silence or cursory brush-offs.”
Id. Kerr
4
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.
6
claims that she did not notify Southard or Bailey of the student
comments or the resistance to her teaching because she had
“received no meaningful support from defendants Southard or
Bailey in response to prior requests.” Id. Despite these
issues, Kerr received positive student-teaching 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 teaching.” Id. At that point, neither Kuhn nor
Southard had completed Kerr’s Evaluation of Classroom
Performance. The next day, Bailey--in her capacity as EDF 677
Coordinator--responded to the message and a meeting was set for
December 5, 2013.
7
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.” E.R. 14. During the meeting, Bailey
read allegations against Kerr 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 to Kerr, she was notified that “her only
opportunity to be heard would occur during ‘the appeal
process.’” E.R. 16. Kerr sought to persuade the 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
8
Appellees Southard and Bailey. They upheld the denial of
credit, and Kerr moved to the second step.
Appellees Eagle and Heaton, both Deans of 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
address the evidence and arguments Kerr had presented. E.R. 18. 5
Appellee Pittenger, the Dean of Graduate Studies at
Marshall, heard Kerr’s final appeal. Kerr submitted an
additional appeal statement that included 20 exhibits.
Pittenger nevertheless upheld Kerr’s grade of “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 Court for the Southern District of West
Virginia. 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; (3) the tort of outrage
5 The complaint does not allege the contents of the “new
false statements.”
9
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 to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The
district court referred the motion to a magistrate judge for the
submission of proposed findings and recommendations (“PF&R”)
pursuant to 28 U.S.C. § 636(b)(1)(B). The 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. The district
10
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
review, we address each of Kerr’s arguments in turn.
A.
We review de novo a district court's application of
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. Wag More
Dogs, LLC v. Cozart, 680 F.3d at 364–65. 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). A
11
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: Kerr’s complaint fails whether or not it is
liberally construed. We note that Kerr’s arguments are not
always a model of clarity. 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 first consider Kerr's argument that “[t]he District
Court erred in giving the Complaint short shrift because
Plaintiff is acting pro se,” Appellant’s Br. at 17, and applied
12
an “inverse-Iqbal” standard, id. at 15. 6 Kerr seems particularly
troubled by the fact that her civil action was referred to a
magistrate judge pursuant to the district court’s standing
order, claiming that there is “zero authority . . . for
subjecting non-post-conviction actions to pre-screening.” See
id. at 18. 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).
13
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 court reviewed de novo each of the magistrate
judge’s findings and recommendations to which Kerr objected.
See 28 U.S.C. § 636(b)(1)(C). 8 In doing so, the district court
also considered the fact that Kerr was a pro se plaintiff and
afforded her pleadings a liberal construction. District Court
Opinion at *5 (citing Estelle v. Gamble, 429 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 district court’s reasoning
8As 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.
14
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 all claims against MUBG on sovereign
immunity grounds. 10 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. Thus, sovereign immunity
barred all claims against MUBG. Id. at 11. Kerr does not
contest the district court’s finding that MUBG is an “arm of the
state.” Instead, Kerr argues that her claims fall into an
exception to sovereign immunity because the “[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.
15
implied ‘anti-gay exceptions’ to Title IX cannot survive
Obergefell and Bostic.” 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
11Kerr 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)
16
the well-pleaded facts in the 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.
17
alternative, that the 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)). Even if the complaint had
alleged statements capable of 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 state-
law 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 U.S. 64, 78 (1938). A successful claim for
defamation under West Virginia law requires proof of
“(1) defamatory statements; (2) a nonprivileged communication to
a third party; (3) falsity; (4) reference to the plaintiff;
(5) at least negligence on the part of the publisher; and
(6) resulting injury.” 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,
18
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)). As the West Virginia Supreme Court has
noted, “[a] statement of opinion which does not contain a
provably false assertion of fact is entitled to full
constitutional protection.” 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 numerous areas which had
19
previously . . . been evaluated as positive.” E.R. 15. 12 Thus,
we consider whether, under West Virginia law, statements in an
academic evaluation that an individual is “dishonest,”
“unethical,” “unqualified to become a 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 would reach when considering [the
plaintiff’s] behavior.”
Id. at 887. 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.
20
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’
statements would still be protected by qualified privilege. 13
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 a qualified privilege is a
question of law for the courts. Syl. Pt. 8,
id. (citations
omitted). 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).
21
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 state a claim for defamation, a complaint must plausibly
allege, among other facts, that Appellees published the
statements to individuals who did not have a “legitimate
interest” in them.
With respect to publication, Kerr’s complaint alleges that
Kuhn “communicated [the statements] to defendants Southard,
Bailey, and MUBG,” and that Southard at least negligently
“ratified, adopted and (on information and 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
22
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. The evaluations
are automatically placed in students’ 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.
23
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.
24
(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 requires proof of four elements:
“(1) existence of a contractual or business relationship or
expectancy; (2) an intentional act of interference by a party
outside that relationship or expectancy; (3) proof that the
interference caused the harm sustained; and (4) damages.” Syl.
Pt. 1, C.W. Dev., Inc. v. Structures, Inc. of W. 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 expectation that she would be a gainfully employed
teacher after receiving her MAT and teacher certification.
Because Kerr’s expectation of employment was mere speculation,
25
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 complaint in no way alleges that Kerr had completed
the 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 with which any of the
Appellees could have interfered. 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 the tort of outrage--also
26
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 the “outrageous” standard
required by West Virginia law. 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 on a “case-by-case basis,” Hines v. Hills Dep't
Stores, Inc.,
454 S.E.2d 385, 390 (W. Va. 1994) (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
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 complaint alleges that the Appellees engaged in
reckless or intentional conduct by “causing [the] 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 academic credit, her degree, and her teacher
certification. E.R. 22. Kerr also claims that Eagle’s threat
to provide Kuhn’s evaluation to potential employers constituted
the tort of outrage. We agree with the district court that
Appellees’ conduct does not rise to the “exacting” standard
imposed by West Virginia law. 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
28
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, Southard, Bailey, and Eagle when they
“depriv[ed] her of protected property interests in academic
credit, graduation, certification and prospective employment
without notice or opportunity to be heard.” 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] to [Appellees’] professional academic judgment,”
because there was no evidence the decision was arbitrary or
capricious. 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 that academic
evaluations, unlike disciplinary evaluations, are subject to an
“arbitrary and capricious” standard and should not be upset
unless the decision “did not involve the exercise of
professional judgment.” Id. at *20 (citation and quotation
marks omitted).
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
Kerr argues on appeal that the district court erred in
“ruling that universities have a Due Process right to establish
and withhold procedural protections on a whim.” Appellant’s Br.
at 21. As a preliminary matter, we note that the district court
did not make this holding in dismissing Kerr’s due process
claim. 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).
30
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 of life, liberty, or
property, by governmental action.’” 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. He must have more
than a unilateral expectation of it. 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. For procedural due process claims, “the deprivation
by state 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.” Zinermon v. Burch, 494 U.S. 113,
125 (1990) (citations and internal quotation marks omitted).
31
Substantive due process claims, however, deal with the
reasonableness of the governmental decision. 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 interest of “academic credit, graduation,
certification, and prospective employment” that she claims
triggered her due process protections. The complaint is clear
that Kerr was weeks away from receiving her MAT when she
notified Marshall that she would not return to her EDF 677
student-teaching assignment. Although Kerr told Marshall that
she believed she had 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 evaluation as well as a portfolio and oral
presentation. And because Kerr did not complete the
requirements for EDF 677 credit (and therefore graduation and
teacher certification), she did not allege that she had the
32
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. Kerr’s allegations
also establish that she in fact had shortcomings in the
classroom: students were disengaged, refused to take her
direction, and claimed they did not have to do the work she
assigned. Kerr also readily admits that she left her student-
teaching placement on November 19, 2013, and made it clear,
unilaterally, that she would not return. 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 did not consider this to be an option. Kerr’s
allegations are clear that, for her, the incident with Kuhn
“undermined any professional training or experience that [Kerr]
33
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. She presented
her argument to five different Marshall 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 arbitrary and capricious, much less that it
“shock[ed] the conscience,” as would be required to state a
34
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 § 1983 claims for a violation of her equal
protection rights--against Appellees MUBG, Southard, 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. We
address each argument in turn.
35
i.
Kerr’s first equal protection claim arises from allegations
that Marshall discriminated against her on the basis of her
sexual orientation. The district court dismissed this claim,
holding that 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 that Defendants’ treatment of [Kerr] differed
from similarly situated students.” District Court Opinion
at *22. 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, the only fact alleged that relates to
discrimination is that Bailey and Southard had knowledge of
Kerr’s sexual orientation. Based on the 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.” U.S. Const., amend. XIV,
36
§ 1. This does not forbid states from classifying individuals
at 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
in August 2013. Thus, Kerr’s equal protection claim for
intentional discrimination fails. 18
ii.
Kerr also alleges that the decision of Appellees MUBG,
Southard, Bailey, Eagle, Heaton, and Pittenger to 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 action constituted “irrational and wholly
arbitrary” discrimination of that individual. Vill. of
Willowbrook v. Olech, 528 U.S. 562, 565 (2000). In other words,
there must be “no rational basis for the difference in
treatment.” 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. See District Court Opinion
18 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
at *23-24. 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. Kerr’s claim is that MUBG and Kuhn violated FLSA by
failing to pay Kerr the federally-mandated minimum wage for
Kerr’s role as a de facto substitute teacher during Kuhn’s
absences from the classroom. 19 Because Kerr did not receive any
payment for substitute teaching and did not ultimately earn
academic credit, the complaint contends that Kuhn and 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 Kuhn’s control over the
19 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
conditions under which [Kerr] worked at the school, or that
Defendant Kuhn held the authority to terminate her student
teaching position.” District Court Opinion at *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 employer-
employee relationship, and the employee bears the burden of
alleging and proving the existence of that 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 include those with managerial responsibilities 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 Henderson, 41 F.3d at 570).
40
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., 172 F.3d 132, 139 (2d Cir. 1999) (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 employer-
employee relationship here.
Kuhn had no power to hire and fire Kerr. Kerr was assigned
to Kuhn’s classroom, and Kuhn would have had to request a
reassignment--just like Kerr was required to do by the
Handbook--if Kuhn wanted Kerr dismissed. Further, the complaint
does not allege that Kuhn supervised and controlled Kerr’s work
schedule or the conditions of her employment in any way.
Rather, Kuhn supervised the implementation of the course
designed by Marshall under the guidelines set out by the
Handbook. 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
The fact that Kerr did not ultimately receive course credit
does not convert her truncated educational experience into
unpaid labor. 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
