                             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.




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