Kerr v. Marshall University Board of Governors

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