Nigro v. Virginia Commonwealth University/Medical College , 492 F. App'x 347 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2425
CLAUDINE NIGRO,
Plaintiff - Appellant,
v.
VIRGINIA COMMONWEALTH UNIVERSITY/MEDICAL COLLEGE OF
VIRGINIA; FRANCIS X. DENNEHY, M.D.; WARREN MEMORIAL
HOSPITAL; VALLEY HEALTH SYSTEM,
Defendants – Appellees,
and
APPALACHIAN OSTEOPATHIC POSTGRADUATE TRAINING INSTITUTE
CONSORTIUM,
Defendant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. Glen E. Conrad, Chief
District Judge. (5:09-cv-00064-gec-bwc)
Argued: May 16, 2012 Decided: June 21, 2012
Before TRAXLER, Chief Judge, and KING and DUNCAN, Circuit
Judges.
Affirmed by unpublished opinion. Judge Duncan wrote the
opinion, in which Chief Judge Traxler and Judge King joined.
ARGUED: Nicholas Hantzes, HANTZES & REITER, McLean, Virginia,
for Appellant. Cathleen Patricia Welsh, LENHART & OBENSHAIN,
PC, Harrisonburg, Virginia, for Appellees. ON BRIEF: Mark D.
Obenshain, Andrew S. Baugher, LENHART & OBENSHAIN, PC,
Harrisonburg, Virginia, for Appellees Warren Memorial Hospital,
Valley Health System, and Francis X. Dennehy, M.D.; Sydney E.
Rab, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, Susan
T. Ferguson, VCU GENERAL COUNSEL'S OFFICE, Richmond, Virginia,
for Appellee Virginia Commonwealth University/Medical College of
Virginia.
Unpublished opinions are not binding precedent in this circuit.
2
DUNCAN, Circuit Judge:
Claudine Nigro, a former medical resident in the Shenandoah
Valley Family Residency Program (the “Program”), brought a
myriad of state and federal law claims against the Program,
Valley Health System (“VHS”), VCU/Medical College of Virginia
(“VCU”), Warren Memorial Hospital (the “Hospital”), and Dr.
Francis X. Dennehy (collectively, the “Defendants”), after she
was not permitted to advance to the second year of the Program.
The district court granted the Defendants’ motion to dismiss on
most of her claims and, shortly thereafter, granted summary
judgment on the rest. For the reasons below, we affirm.
I.
The facts are lengthy and somewhat involved. For the sake
of clarity, we divide them into three parts. We first describe
the Program. We next discuss Nigro’s tenure in the Program.
Finally, we detail the proceedings leading to this appeal.
A.
We turn first to the Program, which consists of three
years: R-1, R-2, and R-3. Residents contract with the Program
for each year. For example, Nigro’s contract (the “Contract”)
covered her R-1 year, which was to run from July 1, 2008 to June
30, 2009. The residents’ contracts stipulate salary, certain
professional responsibilities, and the terms under which they
3
may be renewed or terminated. The American Council for Graduate
Medical Education (“ACGME”) also plays a role. ACGME has
guidelines applicable to many aspects of the contracts that the
Program signs with its residents. In addition to their
contracts, residents receive separate documents containing
additional procedures (the “Procedures”), which detail the finer
points about how the residency operates. ACGME guidelines
influence the Procedures as well. However, unlike their
contracts, neither the residents nor representatives from the
Program sign the Procedures.
Residents in the Program rotate through several practices
in their R-1 year and therefore work with different faculty
members during that period. They work primarily at the
Hospital, which is owned by VHS. Throughout their rotations,
both “Core” and “Specialty” Faculty members supervise the
residents and provide them with ongoing instruction, mentoring,
and evaluations. The Core Faculty, in addition to teaching in
rotations, assists the Program Director, Dr. Francis Dennehy, in
running the Program. The Core Faculty meets regularly to
discuss the performance of individual residents and votes to
take action against underperforming residents. The Specialty
Faculty focuses on instructing residents in their rotations.
Each resident has a faculty advisor who reviews the resident’s
4
progress and proffers advice on any areas of concern. All of
the Program’s faculty members are professors at VCU.
Faculty members assess the residents at several points
during the year. At the end of each rotation, the doctors
supervising that rotation fill out a standard form evaluating
the resident on several substantive criteria and various aspects
of professionalism. These forms instruct the faculty that 80
percent of the residents should be marked “average.” The
residents’ contracts and the Procedures describe how the Program
typically deals with residents who perform below average. The
relevant provisions of Nigro’s contract follow.
First, § 3.7, the only provision to speak of non-renewal,
provides that:
When deciding not to renew Resident’s agreement, the
Residency Program agrees to provide Resident with as
much advance written notice of its decisions as may be
reasonably permitted under the circumstances. To the
extent possible, the Residency Program will try to
provide four months’ advance written notice before the
end of the then-current term. However, the Residency
Program will not be bound by the foregoing and it
reserves the right to provide Resident with less than
four months[’] written notice.
J.A. 66. Next, § 5 contemplates performance review policies.
Relevant to this appeal, it provides that:
The Residency has a procedure whereby any resident
terminated by the Residency for deficiencies in
Clinical Competence, Technical Skill, and/or
Professional Behavior is granted due process.
5
Residents will be notified at least four months in
advance through the winter semi-annual review process
if promotion or reappointment is in jeopardy, unless
behavior preventing reappointment occurs during the
four months prior to the start of each academic year.
J.A. 68. Finally, § 14 is an integration clause stating that:
This agreement contains the final and entire agreement
between the parties, and they shall not be bound by
any terms, conditions, statements or representations,
oral or written, not herein contained or contained in
a written amendment to this Agreement executed by the
parties hereto. This Agreement may be amended only by
written agreement executed by the parties.
The Procedures provide for a slightly different course for
dealing with underperforming residents. They specify that an
underperforming resident should first be placed on probation and
given four months to improve before any dismissal action is
taken. They further provide for a process by which a resident
may appeal any disciplinary action to a subcommittee of the
faculty.
B.
Nigro signed the Contract with the Program in March of
2008. Nigro claims that she passed all of her rotations and
that she did a satisfactory job in each of them. While it is
correct that she technically passed every rotation, the record
contradicts her claim that her performance was consistently
satisfactory. For example, Dr. Sherry Whisenant, who was
assigned as her advisor, testified that Nigro had performed
6
poorly in medical school and that she received a very low score
on an exam administered during orientation.
Nigro’s reviews from her rotations indicate that her
performance grew worse as the year went on. Most of the reviews
from her first rotations in the summer of 2008 describe her work
as average; Dr. Dennehy’s review was not entirely positive.
Moving into the fall, Nigro received mixed reviews in her
pediatrics and family practice rotations, receiving several poor
marks on substantive criteria, but garnering positive reviews in
“Professional Characteristics,” which includes nonsubstantive
criteria such as appropriate dress. The reviews from her ER and
internal medicine rotations were less consistent--some doctors
rated her “knowledge base” above average and others found her to
be lagging behind her peers. Cumulative reviews of her
performance in the fall of 2008 also describe her substantive
skills as being significantly below her peers.
Some of Nigro’s faculty supervisors became very concerned
by her performance during Nigro’s rotation in the neonatal
intensive care unit (“NICU”) in December 2008. Dr. Lee, a
Specialty Faculty member overseeing that rotation, informed Dr.
Dennehy that Nigro was in danger of failing and did not seem
concerned about patient care. According to Dr. Dennehy, Dr. Lee
also reported that she was arriving before her shift, when there
7
was little to do, and using that as an excuse to leave early. 1
In the final comments section of his review, Lee said:
This one is very hard. In reality, she likely would
have failed in a different year. But there is great
concern of Claudine returning to the NICU rotation for
the sake of the staff . . . . Claudine passed more
because her deficiencies cannot be corrected with
another rotation in the NICU . . . . She met the
barest minimum to this rotation but I do not believe
she will be able to survive internship and/or
residency without a change in her inner drive . . . .
I did not have the heart to tell her about my belief
that she may not make it through internship/residency.
J.A. 605. Dr. Clawson, who also supervised Nigro during her
NICU rotation, echoed Dr. Lee’s assessment in his review.
In January 2009, after her NICU rotation, Nigro took a
survey from the ACGME that asked whether she had ever worked
seven consecutive days without one day off. ACGME limits the
number of hours that residents are allowed to work in any given
week and requires residency programs to adhere to this limit as
a condition of their accreditation. Nigro reported that the
Program had once required her to work 12 consecutive days, which
is more than ACGME allows. When she asked Dennehy about this
evaluation, Nigro claims that he told her to respond “on
average,” which she interpreted as a request to answer
1
Nigro says that Dr. Dennehy’s allegation that she left
early is untrue and claims that Dr. Dennehy defamed her when he
repeated Dr. Lee’s alleged critique to others.
8
untruthfully. She alleges that her truthful answer on this
survey influenced the faculty’s evaluations of her work.
By February 2009, there was growing concern among the
Faculty that Nigro had made the wrong career choice and that she
was exhibiting signs of depression. At her semiannual
performance review on February 4, 2009, she received an
“Individual Improvement Plan” (the “IIP”), which required her to
seek counseling and to show greater empathy. Although Nigro
signed the IIP, someone wrote “not planning to do discuss with
pastor” next to the requirement that she seek counseling. J.A.
571. Apparently, Nigro initially refused to comply with the
counseling requirement because she believed it to conflict with
her Christian faith. She thus became the first resident in the
history of the Program to refuse to comply with an IIP. Nigro
states that she believed that Dr. Dennehy had no objection to
her use of her pastor as a counselor.
Nigro further claims that when she saw the letter
memorializing her semiannual performance review, the last
sentence stated, “it is expected that barring unforeseen
circumstances, she is likely to be promoted to R-2 at the end of
June.” J.A. 594. She claims that, unbeknownst to her, Dr.
Dennehy added language addressing some of the more serious
concerns from her NICU evaluations. He also noted that her
explanation for her shortcomings was that others did not like
9
her. The added language further said “[o]ur greatest concern is
the denial that there is anything wrong, when evaluations come
from so many levels and so many angles.” J.A. 595.
Dr. Dennehy, Dr. Whisenant, and the Chief Resident met with
Nigro on February 25, 2009, to discuss her lack of improvement
and the possibility that her Contract might not be renewed. At
this meeting Nigro received a Letter of Concern, which also
explained that further failure to improve and fully comply with
her IIP would lead to the non-renewal.
In response to the Letter of Concern, Nigro met with Dr.
Dana Medcalf for psychological evaluation on March 10, 2009.
Dr. Medcalf concluded that Nigro was not depressed. He believed
that the “best explanation” was that Nigro “has had problems
coping with the rigors of the program.” J.A. 1948. Dr. Medcalf
then suggested that Nigro needed further therapy to resolve her
difficulties.
Nigro received a “Notice of Non-Renewal of Contract” on
March 25, 2009, which explained that she had shown no
improvement in the areas identified in the February 25, 2009,
Letter of Concern. This letter proposed that Nigro would
receive credit for the rotations that she successfully
completed, avoid probation or any other disciplinary notation on
her record, and receive help in finding placement with another
residency program. In April, Nigro appealed her non-renewal to
10
a subcommittee of attending physicians. In response to Nigro’s
appeal, Dr. Dennehy emailed the chair of the subcommittee about
his concerns. Nigro claims that he defamed her to the
subcommittee. A majority of the subcommittee voted to reverse
the decision of the Core Faculty.
The subcommittee did not itself devise an alternative plan
for Nigro. Instead, Dr. Dennehy, as director of the Program,
drafted one--recorded in a memorandum dated April 20, 2009--
under which she would not receive credit for the 2008-09
academic year, would be placed on probation, and would repeat
her R-1 year. Nigro believed that the subcommittee violated its
procedures by allowing Dennehy to draft the alternative plan.
Her counsel wrote the subcommittee asking it to reconsider
Dennehy’s proposal. The record does not reflect whether it did
so.
During communications surrounding her non-renewal Nigro
allegedly told one employee that she had recorded conversations
with physicians. On April 3, 2009, another employee emailed
Dennehy to have him tell Nigro that taping could lead to
termination. Dennehy forwarded the warning to Nigro on April
7, 2009. Nigro, however, denied making any such recording. She
now considers the suggestion that she made any recordings to be
defamatory.
11
Nigro’s performance in the remaining months of her R-1 year
continued to cause concern. For example, on June 20, 2009,
another doctor who supervised Nigro communicated to Dennehy that
Nigro was not ready to progress to the second year. Her end-of-
year reviews are consistent with these sentiments.
Nigro resigned from the Program on June 24, 2009.
C.
Nigro filed a complaint with the EEOC on June 25, 2009.
She received a right to sue letter on November 30, 2009, and
filed her first complaint in the United States District Court
for the Western District of Virginia on August 3, 2010. Her
Second Amended Complaint, filed on December 18, 2010 included
several claims against VHS, VCU, the Hospital, and Dr. Dennehy:
Breach of Contract against VHS and VCU; Denial of Due Process in
violation of 42 U.S.C. § 1983 against VHS, VCU and the Hospital;
Defamation against Dr. Dennehy, VHS, VCU and the Hospital;
Intentional Infliction of Emotional Distress against Dr.
Dennehy, VHS, and VCU; Intentional Interference with Contract
against Dr. Dennehy; Gender Discrimination in violation of Title
VII against VCU and the Hospital; and Retaliation in violation
of Title VII against VCU and the Hospital.
The Defendants filed a motion to dismiss under Federal Rule
Civil Procedure 12(b)(6) on January 20, 2011. The district
court dismissed Nigro’s claims for Breach of Contract, Denial of
12
Due Process, Intentional Infliction of Emotional Distress,
Intentional Interference with Contract, and parts of her
Defamation Claim. It denied the motion to dismiss on her Title
VII claims and parts of her Defamation claims. 2
The Defendants then filed a motion for summary judgment on
the remaining claims on September 30, 2011, which the district
court granted.
II.
Our review of the district court's ruling on a motion to
dismiss is de novo, accepting all well-pled facts as true and
construing those facts in the light most favorable to the
plaintiffs. Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,
591 F.3d 250, 253 (4th Cir. 2009). However, “legal conclusions,
elements of a cause of action, and bare assertions devoid of
further factual enhancement fail to constitute well-pled facts
for Rule 12(b)(6) purposes.” Id. at 255. “We also decline to
consider unwarranted inferences, unreasonable conclusions, or
arguments.” Id. (quotation marks omitted).
2
Specifically, the district court found that VCU was
entitled to the dismissal of all of Nigro’s state-law and § 1983
claims on the basis of Eleventh Amendment immunity. On appeal,
Nigro has not argued that the district court erred in concluding
that VCU was immune on these claims. Accordingly, her only
claim against VCU remaining in this appeal is for violating
Title VII.
13
We “review[] a district court’s decision to grant summary
judgment de novo, applying the same legal standards as the
district court” and viewing “all facts and reasonable inferences
. . . in the light most favorable to the non-moving party.”
Pueschel v. Peters, 577 F.3d 558, 563 (4th Cir. 2008) (quotation
marks omitted). Summary judgment is appropriate where “there is
no genuine dispute as to any material fact and the moving party
is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). “If, after reviewing the record as a whole, however, we
find that a reasonable jury could return a verdict for [the non-
moving party], then a genuine factual dispute exists and summary
judgment is improper.” Evans v. Techs. Applications & Serv.
Co., 80 F.3d 954, 959 (4th Cir. 1996).
III.
We consider Nigro’s claims in logical order, dealing first
with those that answer predicate questions for her other claims.
Accordingly, we first consider her claim for breach of contract.
Second, we discuss her claim for defamation. We next turn to
her claim for intentional interference with contract, followed
by her claim for intentional infliction of emotional distress.
Then we consider her constitutional claims. Finally, we
consider her Title VII claims.
14
A.
Nigro’s breach of contract claim rests on an alleged breach
of the Procedures, not of the Contract itself. As discussed
above, the Procedures are separate, unsigned documents.
Specifically, she argues that, under the Procedures, she was
entitled to four months’ notice before non-renewal and that she
should have first been placed on probation and given a chance to
improve. The district court held that the integration clause
barred it from considering the Procedures as part of the
contract. On appeal, Nigro claims both that the integration
clause does not bar the consideration of the Procedures and that
even if it does, Virginia law independently prohibits employers
from violating any procedures distributed to their employees.
We find neither argument persuasive.
1.
With respect to Nigro’s first argument, we agree with the
district court that the integration clause precludes the
incorporation of the Procedures into the contract. The
integration clause clearly states that the contract is the
entire agreement between the parties. Moreover, the only
provision of the contract that arguably references the
Procedures is § 3.2, which refers to “duties and
responsibilities of resident.” J.A. 65. Accordingly, we do not
find that the Procedures bound the Program to any particular
15
course of action when dealing with Nigro’s inadequacies as a
doctor.
Moreover § 3.7, which deals specifically with non-renewal,
provides that the Program will try to give the resident four
months’ notice. It goes on to say, however, that the Program
“reserves the right to provide Resident with less than four
months[’] written notice.” J.A. 66. Incorporating the
Procedures into the contract and applying them to non-renewal
would contradict the plain language of § 3.7. That is, even if
other provisions of the contract incorporate some of the
Procedures, we cannot read the Procedures’ requirements as
governing non-renewal because doing so would contravene the
express provisions of § 3.7. We therefore find no breach of
contract.
2.
Turning to her second argument--that Virginia law makes the
Procedures binding on the Program notwithstanding the Contract’s
integration clause--we also find it unpersuasive. Here, Nigro
relies on the Virginia Supreme Court’s decision in Hercules
Powder Co. v. Brookfield, 53 S.E.2d 804 (Va. 1949), which holds
that a termination and severance policy distributed to existing
employees is a binding, unilateral contract offered to secure
continued service from those employees. Id. at 808; see also,
Dulany Foods, Inc. v. Ayers, 260 S.E.2d 196, 199-202 (Va. 1979)
16
(relying on Hercules, and holding that memoranda circulated to
improve employee morale are binding offers accepted by
employees’ continued service). In Hercules and Dulany, the
employees received the policies in question after they began
working. The new procedures in those cases changed the
employees’ terms of employment and effectively constituted new
contracts which the employees accepted by continuing to work.
Here, Nigro received the Procedures with her original Contract.
As such, the Procedures were not a superseding offer that Nigro
could accept through continued employment. We therefore
conclude that Virginia law does not create an independent basis
for Nigro’s breach of contract claim.
B.
Nigro claims that ten statements made by Dennehy and two
statements made by other Program employees are defamatory. We
agree with the district court’s grant of the Defendants’ motion
to dismiss with respect to the former and its grant of the
Defendants’ motion for summary judgment with respect to the
latter because none of the allegedly defamatory statements
qualify as such under Virginia law.
“In Virginia, the elements of libel are (1) publication of
(2) an actionable statement with (3) the requisite intent.”
Jordan v. Kollman, 612 S.E.2d 203, 206 (Va. 2005). “To be
actionable, the statement must be both false and defamatory.”
17
Id. In interpreting Virginia law, we have explained that
statements are defamatory if they “tend so to harm the
reputation of another as to lower him in the estimation of the
community or to deter third persons from associating or dealing
with him. . . . [D]efamatory words are those that make the
plaintiff appear odious, infamous, or ridiculous.” Chapin v.
Knight-Ridder, Inc., 993 F.2d 1087, 1092 (4th Cir. 1993)
(quotation marks and citations omitted). We will discuss
Virginia law with respect to Dennehy’s allegedly defamatory
statements first, and then turn the other employees’ statements.
1.
Nigro claims that Dennehy defamed her when he made the
following statements in various meetings and notices:
1. “[Nigro] has not shown any improvement at the Front Royal
Family Practice Clinic, since receiving the letter of non-
renewal of contract.”
2. “[Nigro] failed NICU.”
3. “[Nigro] on a regular basis would leave the Clinic to go
home early.”
4. “There has been no evidence of improvement or intention to
improve in weak areas.”
5. “There is no change in apathetic/disinterested approach or
demonstrated interest in learning despite 3-4 months of
discussion and coaching.”
18
6. “Plaintiff has poor time management with respect to
internal medicine rotation.”
7. “Plaintiff is making the same mistakes repeatedly after
corrective instruction such as rough or painful Pap smear
technique on GYN.”
8. “Plaintiff has flattened affect, body language, disconnect
from patient interaction and the appearance in many forms
of being disinterested in doing food care for patients.”
9. “There is faculty consensus that [Nigro] may be suffering
from depression or poor career choice.”
10. “Dr. Nigro was more interested in getting tasks done in
order to leave than in caring for the medical issues
presented.”
Appellant’s Br. 34-36.
Statements (1), (4), (5), (6), and (8) are opinions and
therefore not actionable under Virginia law. See Chaves v.
Johnson, 335 S.E.2d 97, 101 (Va. 1985) (“Pure expressions of
opinion, not amounting to ‘fighting words,’ cannot form the
basis of an action for defamation.”). Nigro attempts to
circumvent this general rule by relying on Fuste v. Riverside
Healthcare Association, 575 S.E.2d 861 (Va. 2003), which held
that “defamatory words that prejudice a person in his or her
profession or trade are actionable as defamation per se.” Id.
at 861 (quotation marks and alterations omitted). Nigro’s
19
reliance is misplaced, however, because it assumes the matter at
issue--that statements of opinion can be defamatory. But as the
Virginia Supreme Court has explained, statements that do “not
contain a provably false factual connotation, or statements
which cannot reasonably be interpreted as stating actual facts
about a person” are opinions and therefore not defamatory.
Yeagle v. Collegiate Times, 497 S.E.2d 136, 137 (Va. 1998)
(footnote omitted). Dennehy’s statements regarding Nigro’s lack
of progress and apparent disinterest are expressions of opinion
because they are based on his perceptions of her performance and
cannot be proven false.
Statements (2), (3), and (7) are not sufficiently harmful
to be defamatory. We acknowledge that statement (2)--that Nigro
failed NICU--is technically false, despite Dr. Lee’s statement
that she would have failed in a different year and that part of
why she passed was because the rotation did not want her back.
Nonetheless, looking to our precedent in Chapin, we do not find
any of these statements defamatory because we cannot conclude
that they would “deter third persons from associating or dealing
with” Nigro or make her “appear odious, infamous, or
ridiculous.” Chapin, 993 F.2d at 1092. As alleged, the
statements suggest that she still had much to learn as a
resident. The very point of residency is to serve as a training
vehicle allowing the resident to benefit from guidance and
20
instruction. For this reason, none of these statements can
prejudice her in her profession so as to be actionable per se,
nor do they satisfy Chapin’s test.
Finally, statement (9)--Dennehy’s claim that there was
faculty consensus that she was suffering from depression or a
poor career choice--is not defamatory because it is true, as
borne out by the fact that the faculty voted unanimously not to
renew her contract. That some non-voting faculty members may
have disagreed does not render the statement that there was a
“consensus” false. Accordingly, we agree with the district
court that Nigro failed to state a claim for defamation against
Dennehy.
2.
Turning to allegedly defamatory statements made by other
Program employees--(1) an alleged statement that Nigro “tapped
telephones on Valley Health property” and (2) an alleged
statement that Nigro “recorded conversations on Valley Health
property”--we agree with the district court that these
statements are not defamatory. As the Virginia Supreme Court
has explained, “[c]ommunications between persons on a subject
in which the persons have an interest or duty” are privileged.
Larimore v. Blaylock, 528 S.E.2d 119, 121 (Va. 2000). It is
indisputable that employees running the Program have an interest
in ensuring that residents follow Hospital rules. “[A]n
21
employer, or his proper representatives, [must] be permitted to
discuss freely with an employee, or his chosen representatives,
charges affecting his employment which have been made against
the employee to the employer.” Id. (quoting Chesapeake Ferry
Co. v. Hudgins, 156 S.E. 429, 441 (Va. 1931)). “However, the
privilege attaching to such occasions is a qualified privilege
which may be defeated if the plaintiff proves that the
defamatory statement was made maliciously.” Id.Even reading the evidence in the light most favorable to
Nigro, she forecasts no evidence of malice with respect to these
statements. We cannot assume, without any evidence, that
hospital employees were not genuinely concerned about the
Hospital’s policy on taping. Since Nigro failed to show that
there was a question of material fact on this issue, we find
that summary judgment is appropriate.
C.
Nigro has sued Dennehy alone for intentional interference
with contract. Normally, an employee of a contracting party
cannot be liable for intentional interference with contract
unless he acts outside of his scope of employment. Fox v.
Deese, 362 S.E.2d 699, 708 (Va. 1987) (explaining that when an
employee acts within the scope of his employment, his employer’s
“contract was also his contract, and he could not interfere with
it”). To make this claim, Nigro has pled that Dennehy was
22
acting outside of the scope when he “caused [the Hospital] to
issue the Notice of Non-renewal in violation of the procedures
and later caused, through improper methods the issuance of the
April 20 Memorandum which left [Nigro] with no option but to
leave the Program.” Appellant’s Br. 43-44; Reply Br. 15-16.
Nigro has offered no explanation of how Dr. Dennehy’s acts
toward her differ from or exceed his responsibilities as Program
Director. We therefore find Nigro’s claim that Dennehy was
acting outside of the scope of his employment as Program
Director to be an “unreasonable conclusion” that we need not
credit. See Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.
2008). For this reason, her claim for intentional interference
with contract must fail.
D.
Nigro’s claim for Intentional Infliction of Emotional
Distress similarly lacks merit. The Virginia Supreme Court has
explained that to support such a claim, the conduct complained
of must be “so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to
be regarded as atrocious, and utterly intolerable in a civilized
community.” Russo v. White, 400 S.E.2d 160, 162 (Va. 1991)
(quotation marks omitted). “This requirement is aimed at
limiting frivolous suits and avoiding litigation in situations
where only bad manners and mere hurt feelings are involved.”
23
Ruth v. Fletcher, 377 S.E.2d 412, 413 (Va. 1989) (internal
quotation marks omitted). Nigro argues the Defendants knew that
she had “an emotional disorder due to the rigors of the program”
and that despite knowing this, “they proceeded to take an action
which would obviously inflict emotional insult.” Appellant’s
Br. 41-42. She analogizes her “emotional disorder” to the
clinical depression suffered by the plaintiff in Baird v. Rose,
192 F.3d 462 (4th Cir. 1999). The facts of Baird do not bear
this out. There, the complaint alleged that a teacher
“intentionally attempted to humiliate Baird, a child, knowing
that she was suffering from clinical depression.” Id. at 472.
In fact, in Baird we found both that the teacher’s actions
prompted Baird to attempt to commit suicide and that the
teacher’s public humiliation of Baird increased after the
suicide attempt. Id. at 465. We held that summary judgment was
inappropriate on the plaintiff’s intentional infliction of
emotional distress claim because we could not say “as a matter
of law, that the allegations in Baird’s complaint do not allege
facts so outrageous as to exceed the bounds of decent society.”
Id. at 472-73. The actions challenged here are both markedly
different and significantly more benign.
Since Nigro claims that she is not depressed, but rather
struggling with the rigors of the program, we find Ellison v.
St. Mary’s Hospital, 8 Va. Cir. 330 (Va. Cir. Ct. 1987) to be
24
more analogous. There, a Virginia trial court explained that
conduct such as criticizing an employee’s work in front of
others, saying that that employee has an attitude problem,
giving that employee a choice between resignation and
termination, and barring that employee from hospital grounds
were not sufficiently outrageous to give rise to a claim for
intentional infliction of emotional distress. Id. at 332. The
court further warned that to make such allegations “actionable
would be to create chaos in the work place” because employees
are criticized about their job performance “every day.” Id.Such concerns seem particularly warranted in the field of
medicine, where the consequences of poor performance are
potentially dire.
E.
Nigro’s claims against VCU, VHS, the Hospital and Dennehy
under 42 U.S.C. § 1983 for violation of her Due Process rights
also lack merit. Nigro argues that allowing Dennehy to
formulate the April 20, 2009, Probation Notice was a prejudicial
departure from the residency program’s Procedures. She relies
on Jones v. Board of Governors of U.N.C., 704 F.2d 713 (4th Cir.
1983), which held that “significant departures from stated
procedures of government and even from isolated assurances by
governmental officers which have induced reasonable and
detrimental reliance may, if sufficiently unfair and
25
prejudicial, constitute procedural due process violations.” Id.
at 717. Even assuming that the Procedures entitled her to a
particular process--a conclusion that we rejected in her breach
of contract claim--we find no prohibition in the Procedures that
would preclude Dr. Dennehy, as Director, from formulating an
alternative plan. Nor does Nigro convincingly point to one.
The relevant language says that the “subcommittee is free to
uphold or reject the Residency Director’s recommendations, or to
formulate a new solution.” By its terms, the language does not
require the subcommittee to craft a proposal in the first
instance. The delegation of that responsibility to Dr. Dennehy
fits comfortably within the parameters of formulating a new
solution. Seeing no prohibition, explicit or otherwise, against
allowing the Director to craft a new plan, we find that allowing
it does not violate the Procedures. In sum, the district court
did not err when it found that Nigro’s claims under § 1983
failed to state a claim on which relief could be granted. 3
3
Nigro makes several additional arguments in which she
alleges that she was entitled to an impartial decision maker
and, therefore, that Dennehy’s involvement in the Program’s
decision not to renew her contract and subsequent decision to
put her on probation and have her repeat her R-1 year violates
her due process rights because he was not an impartial
decisionmaker. She cites no support for this claim, perhaps
because this circuit has explained that pre-termination hearings
need not be held before an impartial decision maker. Crocker v.
Fluvanna Cnty. Bd. of Pub. Welfare, 859 F.2d 14, 17 (4th Cir.
1988). Since Nigro was never terminated from the Program, she
(Continued)
26
F.
Finally, the district court granted summary judgment in
favor of the Defendants on Nigro’s claims for gender
discrimination and retaliation under Title VII. Since Nigro did
not raise retaliation in her opening brief, 4 she has forfeited
that claim.
In this circuit, “[u]nder Title VII, the plaintiff bears
the initial burden of proving a prima facie case of
discrimination by raising an inference that the defendant acted
with discriminatory intent.” Karpel v. Inova Health Sys.
Servs., 134 F.3d 1222, 1227 (4th Cir. 1998). We have recently
explained that “[a]bsent direct evidence, the elements of a
prima facie case of discrimination under Title VII are: (1)
membership in a protected class; (2) satisfactory job
performance; (3) adverse employment action; and (4) different
treatment from similarly situated employees outside the
protected class.” Coleman v. Md. Court of Appeals, 626 F.3d
cannot claim that the decisions about which she complains were
anything other than pre-termination decisions.
4
Moreover, at oral argument, Nigro’s counsel declined to
pursue any suggestion that Nigro was retaliated against for
falsifying her hours on the ACGME survey. As such an action—
even assuming it occurred--would not make out a Title VII claim,
we do not address it further.
27
187, 190 (4th Cir. 2010). Nigro’s claim fails because she has
not demonstrated that her performance was satisfactory. 5
As we reiterated in our recent decision in Halpern v. Wake
Forest University Health Sciences, 669 F.3d 454 (4th Cir. 2012),
“courts are particularly ill-equipped to evaluate academic
performance.” Id. at 463 (quotation marks omitted). In Regents
of University of Michigan v. Ewing, 474 U.S. 214 (1985), the
Supreme Court explained:
When judges are asked to review the substance of a
genuinely academic decision . . . they should show
great respect for the faculty’s professional judgment.
Plainly, they may not override it unless it is such a
substantial departure from accepted academic norms as
to demonstrate that the person or committee
responsible did not actually exercise professional
judgment.
Id. at 225 (footnote omitted); see also Halpern, 669 F.3d at
462-63 (citing Ewing). Nigro has not alleged that the faculty,
which included several women, departed from any accepted
academic norms as to demonstrate that it was not exercising its
professional judgment when it voted unanimously not to renew her
contract. The record supports reading this vote as evidence
that the faculty did not believe her performance as a resident
to be satisfactory. Although Nigro received many average
5
Because we base our decision on this prong, we need not
address Nigro’s contention that a similarly situated male was
treated more favorably.
28
evaluations, significant concerns were expressed that she did
not appear to care about her patients, that she was doing the
bare minimum to pass, that her knowledge lagged behind her
peers, and that she was unwilling to take responsibility for her
shortcomings. Indeed, most of her best marks were for non-
substantive criteria, such as appropriate dress. We note, for
example, that her evaluations from her NICU rotation say that
she passed only because the department did not want her back.
Since we must view the faculty’s determination that Nigro
performed unsatisfactorily with considerable deference, Halpern,
669 F.3d at 462-63, and the record contains ample evidence that
her performance in some rotations was deficient, we cannot
conclude that she has met her burden of showing that she
performed her job satisfactorily. Since Nigro has failed to
state a prima facie case of discrimination, we affirm the
district court’s grant of summary judgment on this claim.
IV.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
29