                                 UNPUBLISHED

                     UNITED STATES COURT OF APPEALS
                         FOR THE FOURTH CIRCUIT


                                 No. 10-2425


CLAUDINE NIGRO,

                  Plaintiff - Appellant,

           v.

VIRGINIA   COMMONWEALTH    UNIVERSITY/MEDICAL   COLLEGE   OF
VIRGINIA;   FRANCIS  X.   DENNEHY,   M.D.;  WARREN  MEMORIAL
HOSPITAL; VALLEY HEALTH SYSTEM,

                  Defendants – Appellees,

           and

APPALACHIAN      OSTEOPATHIC    POSTGRADUATE     TRAINING       INSTITUTE
CONSORTIUM,

                  Defendant.



Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg.  Glen E. Conrad, Chief
District Judge. (5:09-cv-00064-gec-bwc)


Argued:   May 16, 2012                               Decided:   June 21, 2012


Before TRAXLER,      Chief     Judge,   and   KING    and   DUNCAN,   Circuit
Judges.


Affirmed by unpublished opinion.        Judge Duncan wrote                  the
opinion, in which Chief Judge Traxler and Judge King joined.
ARGUED: Nicholas Hantzes, HANTZES & REITER, McLean, Virginia,
for Appellant.    Cathleen Patricia Welsh, LENHART & OBENSHAIN,
PC, Harrisonburg, Virginia, for Appellees.    ON BRIEF: Mark D.
Obenshain,   Andrew   S.  Baugher,  LENHART  &   OBENSHAIN,  PC,
Harrisonburg, Virginia, for Appellees Warren Memorial Hospital,
Valley Health System, and Francis X. Dennehy, M.D.; Sydney E.
Rab, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, Susan
T. Ferguson, VCU GENERAL COUNSEL'S OFFICE, Richmond, Virginia,
for Appellee Virginia Commonwealth University/Medical College of
Virginia.


Unpublished opinions are not binding precedent in this circuit.




                                2
DUNCAN, Circuit Judge:

       Claudine Nigro, a former medical resident in the Shenandoah

Valley      Family        Residency      Program     (the    “Program”),    brought    a

myriad      of    state     and    federal     law   claims   against   the   Program,

Valley Health System (“VHS”), VCU/Medical College of Virginia

(“VCU”),         Warren    Memorial      Hospital     (the    “Hospital”),    and     Dr.

Francis X. Dennehy (collectively, the “Defendants”), after she

was not permitted to advance to the second year of the Program.

The district court granted the Defendants’ motion to dismiss on

most   of    her     claims       and,   shortly     thereafter,    granted    summary

judgment on the rest.              For the reasons below, we affirm.



                                               I.

       The facts are lengthy and somewhat involved.                     For the sake

of clarity, we divide them into three parts.                       We first describe

the Program.          We next discuss Nigro’s tenure in the Program.

Finally, we detail the proceedings leading to this appeal.

                                               A.

       We    turn    first        to   the    Program,   which   consists     of   three

years: R-1, R-2, and R-3.                    Residents contract with the Program

for each year.             For example, Nigro’s contract (the “Contract”)

covered her R-1 year, which was to run from July 1, 2008 to June

30, 2009.          The residents’ contracts stipulate salary, certain

professional responsibilities, and the terms under which they

                                                3
may be renewed or terminated.                    The American Council for Graduate

Medical      Education          (“ACGME”)       also     plays    a     role.       ACGME          has

guidelines applicable to many aspects of the contracts that the

Program      signs     with       its     residents.             In     addition       to        their

contracts,         residents           receive       separate     documents         containing

additional procedures (the “Procedures”), which detail the finer

points    about      how        the    residency       operates.            ACGME   guidelines

influence      the     Procedures          as     well.          However,       unlike           their

contracts, neither the residents nor representatives from the

Program sign the Procedures.

       Residents in the Program rotate through several practices

in   their    R-1    year        and    therefore       work     with      different        faculty

members      during     that          period.          They    work        primarily        at     the

Hospital, which is owned by VHS.                         Throughout their rotations,

both     “Core”      and     “Specialty”          Faculty        members       supervise           the

residents and provide them with ongoing instruction, mentoring,

and evaluations.            The Core Faculty, in addition to teaching in

rotations, assists the Program Director, Dr. Francis Dennehy, in

running      the    Program.            The     Core    Faculty       meets     regularly           to

discuss the performance of individual residents and votes to

take action against underperforming residents.                                  The Specialty

Faculty      focuses       on    instructing         residents        in    their   rotations.

Each resident has a faculty advisor who reviews the resident’s



                                                 4
progress and proffers advice on any areas of concern.                   All of

the Program’s faculty members are professors at VCU.

     Faculty      members   assess   the    residents   at   several    points

during the year.         At the end of each rotation, the doctors

supervising that rotation fill out a standard form evaluating

the resident on several substantive criteria and various aspects

of professionalism.         These forms instruct the faculty that 80

percent    of    the   residents   should    be   marked   “average.”      The

residents’ contracts and the Procedures describe how the Program

typically deals with residents who perform below average.                  The

relevant provisions of Nigro’s contract follow.

     First, § 3.7, the only provision to speak of non-renewal,

provides that:

     When deciding not to renew Resident’s agreement, the
     Residency Program agrees to provide Resident with as
     much advance written notice of its decisions as may be
     reasonably permitted under the circumstances.   To the
     extent possible, the Residency Program will try to
     provide four months’ advance written notice before the
     end of the then-current term.   However, the Residency
     Program will not be bound by the foregoing and it
     reserves the right to provide Resident with less than
     four months[’] written notice.

J.A. 66.        Next, § 5 contemplates performance review policies.

Relevant to this appeal, it provides that:

     The Residency has a procedure whereby any resident
     terminated by the Residency for deficiencies in
     Clinical    Competence,    Technical   Skill, and/or
     Professional Behavior is granted due process.




                                      5
      Residents will be notified at least four months in
      advance through the winter semi-annual review process
      if promotion or reappointment is in jeopardy, unless
      behavior preventing reappointment occurs during the
      four months prior to the start of each academic year.

J.A. 68.    Finally, § 14 is an integration clause stating that:

      This agreement contains the final and entire agreement
      between the parties, and they shall not be bound by
      any terms, conditions, statements or representations,
      oral or written, not herein contained or contained in
      a written amendment to this Agreement executed by the
      parties hereto. This Agreement may be amended only by
      written agreement executed by the parties.


      The Procedures provide for a slightly different course for

dealing with underperforming residents.                          They specify that an

underperforming resident should first be placed on probation and

given    four    months    to    improve    before       any      dismissal      action   is

taken.     They further provide for a process by which a resident

may   appeal     any    disciplinary       action       to   a    subcommittee      of    the

faculty.

                                            B.

      Nigro     signed    the    Contract        with    the     Program    in    March   of

2008.     Nigro claims that she passed all of her rotations and

that she did a satisfactory job in each of them.                             While it is

correct that she technically passed every rotation, the record

contradicts      her     claim    that     her    performance        was    consistently

satisfactory.           For     example,    Dr.     Sherry        Whisenant,      who     was

assigned    as    her    advisor,     testified         that     Nigro     had   performed



                                            6
poorly in medical school and that she received a very low score

on an exam administered during orientation.

      Nigro’s     reviews    from    her       rotations     indicate       that   her

performance grew worse as the year went on.                  Most of the reviews

from her first rotations in the summer of 2008 describe her work

as   average;     Dr.   Dennehy’s    review      was   not    entirely      positive.

Moving     into   the   fall,     Nigro   received      mixed     reviews     in   her

pediatrics and family practice rotations, receiving several poor

marks on substantive criteria, but garnering positive reviews in

“Professional       Characteristics,”          which   includes      nonsubstantive

criteria such as appropriate dress.               The reviews from her ER and

internal medicine rotations were less consistent--some doctors

rated her “knowledge base” above average and others found her to

be   lagging      behind    her   peers.         Cumulative     reviews       of   her

performance in the fall of 2008 also describe her substantive

skills as being significantly below her peers.

      Some of Nigro’s faculty supervisors became very concerned

by   her   performance      during   Nigro’s       rotation     in    the    neonatal

intensive    care    unit   (“NICU”)      in    December     2008.     Dr.    Lee,   a

Specialty Faculty member overseeing that rotation, informed Dr.

Dennehy that Nigro was in danger of failing and did not seem

concerned about patient care.             According to Dr. Dennehy, Dr. Lee

also reported that she was arriving before her shift, when there



                                          7
was little to do, and using that as an excuse to leave early. 1

In the final comments section of his review, Lee said:

     This one is very hard.    In reality, she likely would
     have failed in a different year.    But there is great
     concern of Claudine returning to the NICU rotation for
     the sake of the staff . . . . Claudine passed more
     because her deficiencies cannot be corrected with
     another rotation in the NICU . . . . She met the
     barest minimum to this rotation but I do not believe
     she will be able to survive internship and/or
     residency without a change in her inner drive . . . .
     I did not have the heart to tell her about my belief
     that she may not make it through internship/residency.

J.A. 605.      Dr. Clawson, who also supervised Nigro during her

NICU rotation, echoed Dr. Lee’s assessment in his review.

     In   January     2009,   after   her     NICU     rotation,       Nigro   took   a

survey from the ACGME that asked whether she had ever worked

seven consecutive days without one day off.                       ACGME limits the

number of hours that residents are allowed to work in any given

week and requires residency programs to adhere to this limit as

a condition of their accreditation.                    Nigro reported that the

Program had once required her to work 12 consecutive days, which

is more than ACGME allows.            When she asked Dennehy about this

evaluation,    Nigro    claims    that       he   told      her   to    respond   “on

average,”     which    she    interpreted         as    a    request     to    answer




     1
       Nigro says that Dr. Dennehy’s allegation that she left
early is untrue and claims that Dr. Dennehy defamed her when he
repeated Dr. Lee’s alleged critique to others.



                                         8
untruthfully.         She    alleges     that   her    truthful      answer       on    this

survey influenced the faculty’s evaluations of her work.

       By    February      2009,    there   was     growing      concern     among       the

Faculty that Nigro had made the wrong career choice and that she

was    exhibiting        signs      of   depression.          At     her     semiannual

performance      review      on     February      4,   2009,       she     received      an

“Individual Improvement Plan” (the “IIP”), which required her to

seek counseling and to show greater empathy.                             Although Nigro

signed the IIP, someone wrote “not planning to do discuss with

pastor” next to the requirement that she seek counseling.                              J.A.

571.        Apparently, Nigro initially refused to comply with the

counseling requirement because she believed it to conflict with

her Christian faith.              She thus became the first resident in the

history of the Program to refuse to comply with an IIP.                                Nigro

states that she believed that Dr. Dennehy had no objection to

her use of her pastor as a counselor.

       Nigro     further      claims     that     when     she     saw      the     letter

memorializing        her     semiannual     performance          review,      the       last

sentence       stated,      “it     is   expected      that     barring      unforeseen

circumstances, she is likely to be promoted to R-2 at the end of

June.”       J.A. 594.        She claims that, unbeknownst to her, Dr.

Dennehy      added   language       addressing      some   of      the    more    serious

concerns from her NICU evaluations.                      He also noted that her

explanation for her shortcomings was that others did not like

                                            9
her.     The added language further said “[o]ur greatest concern is

the denial that there is anything wrong, when evaluations come

from so many levels and so many angles.”               J.A. 595.

       Dr. Dennehy, Dr. Whisenant, and the Chief Resident met with

Nigro on February 25, 2009, to discuss her lack of improvement

and the possibility that her Contract might not be renewed.                         At

this    meeting    Nigro    received     a   Letter   of   Concern,      which    also

explained that further failure to improve and fully comply with

her IIP would lead to the non-renewal.

       In response to the Letter of Concern, Nigro met with Dr.

Dana Medcalf for psychological evaluation on March 10, 2009.

Dr. Medcalf concluded that Nigro was not depressed.                      He believed

that the “best explanation” was that Nigro “has had problems

coping with the rigors of the program.”               J.A. 1948.         Dr. Medcalf

then suggested that Nigro needed further therapy to resolve her

difficulties.

       Nigro received a “Notice of Non-Renewal of Contract” on

March     25,     2009,    which      explained    that      she   had    shown    no

improvement in the areas identified in the February 25, 2009,

Letter    of    Concern.        This    letter    proposed     that   Nigro      would

receive     credit        for   the    rotations      that     she    successfully

completed, avoid probation or any other disciplinary notation on

her record, and receive help in finding placement with another

residency program.          In April, Nigro appealed her non-renewal to

                                          10
a subcommittee of attending physicians.                 In response to Nigro’s

appeal, Dr. Dennehy emailed the chair of the subcommittee about

his     concerns.       Nigro    claims     that   he    defamed      her   to     the

subcommittee.       A majority of the subcommittee voted to reverse

the decision of the Core Faculty.

      The subcommittee did not itself devise an alternative plan

for Nigro.       Instead, Dr. Dennehy, as director of the Program,

drafted one--recorded in a memorandum dated April 20, 2009--

under    which    she    would    not    receive     credit    for    the    2008-09

academic year, would be placed on probation, and would repeat

her R-1 year.       Nigro believed that the subcommittee violated its

procedures by allowing Dennehy to draft the alternative plan.

Her   counsel    wrote    the    subcommittee      asking     it     to   reconsider

Dennehy’s proposal.        The record does not reflect whether it did

so.

      During     communications        surrounding      her   non-renewal        Nigro

allegedly told one employee that she had recorded conversations

with physicians.         On April 3, 2009, another employee emailed

Dennehy    to    have   him     tell    Nigro   that    taping     could    lead    to

termination.        Dennehy forwarded the warning to Nigro on April

7, 2009.     Nigro, however, denied making any such recording.                     She

now considers the suggestion that she made any recordings to be

defamatory.



                                          11
     Nigro’s performance in the remaining months of her R-1 year

continued to cause concern.           For example, on June 20, 2009,

another doctor who supervised Nigro communicated to Dennehy that

Nigro was not ready to progress to the second year.             Her end-of-

year reviews are consistent with these sentiments.

     Nigro resigned from the Program on June 24, 2009.

                                      C.

     Nigro filed a complaint with the EEOC on June 25, 2009.

She received a right to sue letter on November 30, 2009, and

filed her first complaint in the United States District Court

for the Western District of Virginia on August 3, 2010.                    Her

Second Amended Complaint, filed on December 18, 2010 included

several claims against VHS, VCU, the Hospital, and Dr. Dennehy:

Breach of Contract against VHS and VCU; Denial of Due Process in

violation of 42 U.S.C. § 1983 against VHS, VCU and the Hospital;

Defamation    against   Dr.    Dennehy,    VHS,   VCU   and   the    Hospital;

Intentional    Infliction      of    Emotional    Distress     against     Dr.

Dennehy, VHS, and VCU; Intentional Interference with Contract

against Dr. Dennehy; Gender Discrimination in violation of Title

VII against VCU and the Hospital; and Retaliation in violation

of Title VII against VCU and the Hospital.

     The Defendants filed a motion to dismiss under Federal Rule

Civil   Procedure   12(b)(6)    on   January   20,   2011.     The    district

court dismissed Nigro’s claims for Breach of Contract, Denial of

                                      12
Due   Process,     Intentional       Infliction      of   Emotional      Distress,

Intentional      Interference    with        Contract,    and    parts    of    her

Defamation Claim.      It denied the motion to dismiss on her Title

VII claims and parts of her Defamation claims. 2

      The Defendants then filed a motion for summary judgment on

the remaining claims on September 30, 2011, which the district

court granted.



                                       II.

      Our review of the district court's ruling on a motion to

dismiss is de novo, accepting all well-pled facts as true and

construing    those   facts     in    the    light   most   favorable      to   the

plaintiffs.      Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,

591 F.3d 250, 253 (4th Cir. 2009).             However, “legal conclusions,

elements of a cause of action, and bare assertions devoid of

further factual enhancement fail to constitute well-pled facts

for Rule 12(b)(6) purposes.”           Id. at 255.        “We also decline to

consider   unwarranted    inferences,         unreasonable      conclusions,     or

arguments.”    Id. (quotation marks omitted).

      2
       Specifically, the district court found that VCU was
entitled to the dismissal of all of Nigro’s state-law and § 1983
claims on the basis of Eleventh Amendment immunity. On appeal,
Nigro has not argued that the district court erred in concluding
that VCU was immune on these claims.      Accordingly, her only
claim against VCU remaining in this appeal is for violating
Title VII.



                                        13
       We “review[] a district court’s decision to grant summary

judgment       de   novo,   applying   the    same   legal   standards   as   the

district court” and viewing “all facts and reasonable inferences

. . . in the light most favorable to the non-moving party.”

Pueschel v. Peters, 577 F.3d 558, 563 (4th Cir. 2008) (quotation

marks omitted).        Summary judgment is appropriate where “there is

no genuine dispute as to any material fact and the moving party

is entitled to judgment as a matter of law.”                   Fed. R. Civ. P.

56(a).        “If, after reviewing the record as a whole, however, we

find that a reasonable jury could return a verdict for [the non-

moving party], then a genuine factual dispute exists and summary

judgment is improper.”            Evans v. Techs. Applications & Serv.

Co., 80 F.3d 954, 959 (4th Cir. 1996).



                                       III.

       We consider Nigro’s claims in logical order, dealing first

with those that answer predicate questions for her other claims.

Accordingly, we first consider her claim for breach of contract.

Second, we discuss her claim for defamation.                   We next turn to

her claim for intentional interference with contract, followed

by her claim for intentional infliction of emotional distress.

Then     we    consider     her   constitutional     claims.      Finally,    we

consider her Title VII claims.



                                        14
                                                  A.

     Nigro’s breach of contract claim rests on an alleged breach

of the Procedures, not of the Contract itself.                                 As discussed

above,     the      Procedures              are    separate,       unsigned      documents.

Specifically, she argues that, under the Procedures, she was

entitled to four months’ notice before non-renewal and that she

should have first been placed on probation and given a chance to

improve.      The district court held that the integration clause

barred   it      from       considering           the   Procedures      as    part    of    the

contract.        On appeal, Nigro claims both that the integration

clause does not bar the consideration of the Procedures and that

even if it does, Virginia law independently prohibits employers

from violating any procedures distributed to their employees.

We find neither argument persuasive.

                                                  1.

     With respect to Nigro’s first argument, we agree with the

district      court         that      the     integration        clause      precludes      the

incorporation          of       the   Procedures          into   the      contract.         The

integration      clause          clearly      states      that   the    contract       is   the

entire   agreement           between        the    parties.        Moreover,         the    only

provision      of       the        contract        that    arguably         references      the

Procedures        is        §      3.2,       which       refers       to     “duties       and

responsibilities of resident.”                     J.A. 65.      Accordingly, we do not

find that the Procedures bound the Program to any particular

                                                  15
course of action when dealing with Nigro’s inadequacies as a

doctor.

     Moreover § 3.7, which deals specifically with non-renewal,

provides that the Program will try to give the resident four

months’ notice.         It goes on to say, however, that the Program

“reserves      the    right    to   provide      Resident    with    less    than   four

months[’]      written        notice.”        J.A.   66.       Incorporating        the

Procedures into the contract and applying them to non-renewal

would contradict the plain language of § 3.7.                       That is, even if

other     provisions     of     the    contract      incorporate       some    of   the

Procedures,      we    cannot       read   the    Procedures’       requirements     as

governing      non-renewal       because    doing     so    would    contravene      the

express provisions of § 3.7.                  We therefore find no breach of

contract.

                                           2.

    Turning to her second argument--that Virginia law makes the

Procedures binding on the Program notwithstanding the Contract’s

integration clause--we also find it unpersuasive.                       Here, Nigro

relies    on   the    Virginia      Supreme      Court’s    decision    in    Hercules

Powder Co. v. Brookfield, 53 S.E.2d 804 (Va. 1949), which holds

that a termination and severance policy distributed to existing

employees is a binding, unilateral contract offered to secure

continued service from those employees.                     Id. at 808; see also,

Dulany Foods, Inc. v. Ayers, 260 S.E.2d 196, 199-202 (Va. 1979)

                                           16
(relying on Hercules, and holding that memoranda circulated to

improve      employee    morale        are      binding        offers       accepted      by

employees’     continued     service).            In   Hercules       and    Dulany,     the

employees received the policies in question after they began

working.       The    new    procedures         in     those     cases       changed     the

employees’ terms of employment and effectively constituted new

contracts which the employees accepted by continuing to work.

Here, Nigro received the Procedures with her original Contract.

As such, the Procedures were not a superseding offer that Nigro

could      accept    through      continued        employment.              We   therefore

conclude that Virginia law does not create an independent basis

for Nigro’s breach of contract claim.

                                           B.

        Nigro claims that ten statements made by Dennehy and two

statements made by other Program employees are defamatory.                                We

agree with the district court’s grant of the Defendants’ motion

to dismiss with respect to the former and its grant of the

Defendants’     motion      for     summary     judgment       with   respect       to   the

latter     because    none     of    the     allegedly      defamatory           statements

qualify as such under Virginia law.

      “In Virginia, the elements of libel are (1) publication of

(2)   an    actionable   statement         with      (3)   the   requisite        intent.”

Jordan v. Kollman, 612 S.E.2d 203, 206 (Va. 2005).                                  “To be

actionable, the statement must be both false and defamatory.”

                                           17
Id.    In     interpreting      Virginia        law,    we    have       explained      that

statements     are     defamatory     if        they    “tend      so     to    harm     the

reputation of another as to lower him in the estimation of the

community or to deter third persons from associating or dealing

with him. . . . [D]efamatory words are those that make the

plaintiff appear odious, infamous, or ridiculous.”                              Chapin v.

Knight-Ridder,       Inc.,     993   F.2d       1087,     1092     (4th        Cir.    1993)

(quotation     marks     and    citations        omitted).          We    will        discuss

Virginia    law   with    respect     to    Dennehy’s         allegedly         defamatory

statements first, and then turn the other employees’ statements.

                                           1.

      Nigro    claims    that   Dennehy         defamed      her   when    he    made    the

following statements in various meetings and notices:

  1. “[Nigro] has not shown any improvement at the Front Royal

      Family Practice Clinic, since receiving the letter of non-

      renewal of contract.”

  2. “[Nigro] failed NICU.”

  3. “[Nigro] on a regular basis would leave the Clinic to go

      home early.”

  4. “There has been no evidence of improvement or intention to

      improve in weak areas.”

  5. “There is no change in apathetic/disinterested approach or

      demonstrated      interest     in    learning       despite        3-4    months     of

      discussion and coaching.”

                                           18
     6. “Plaintiff            has     poor    time      management      with     respect    to

        internal medicine rotation.”

     7. “Plaintiff           is     making   the     same   mistakes    repeatedly      after

        corrective instruction such as rough or painful Pap smear

        technique on GYN.”

     8. “Plaintiff has flattened affect, body language, disconnect

        from patient interaction and the appearance in many forms

        of being disinterested in doing food care for patients.”

     9. “There is faculty consensus that [Nigro] may be suffering

        from depression or poor career choice.”

 10.     “Dr. Nigro was more interested in getting tasks done in

         order         to    leave    than    in     caring   for    the    medical    issues

         presented.”

Appellant’s Br. 34-36.

       Statements (1), (4), (5), (6), and (8) are opinions and

therefore not actionable under Virginia law.                               See      Chaves v.

Johnson, 335 S.E.2d 97, 101 (Va. 1985) (“Pure expressions of

opinion,         not    amounting       to    ‘fighting       words,’      cannot   form    the

basis       of    an        action    for    defamation.”).          Nigro       attempts   to

circumvent this general rule by relying on Fuste v. Riverside

Healthcare Association, 575 S.E.2d 861 (Va. 2003), which held

that “defamatory words that prejudice a person in his or her

profession or trade are actionable as defamation per se.”                                   Id.

at    861    (quotation             marks    and   alterations       omitted).        Nigro’s

                                                   19
reliance is misplaced, however, because it assumes the matter at

issue--that statements of opinion can be defamatory.                             But as the

Virginia Supreme Court has explained, statements that do “not

contain      a   provably     false      factual       connotation,        or    statements

which cannot reasonably be interpreted as stating actual facts

about    a   person”      are   opinions      and       therefore       not     defamatory.

Yeagle    v.     Collegiate     Times,      497       S.E.2d   136,     137      (Va.   1998)

(footnote omitted).          Dennehy’s statements regarding Nigro’s lack

of progress and apparent disinterest are expressions of opinion

because they are based on his perceptions of her performance and

cannot be proven false.

     Statements (2), (3), and (7) are not sufficiently harmful

to be defamatory.          We acknowledge that statement (2)--that Nigro

failed NICU--is technically false, despite Dr. Lee’s statement

that she would have failed in a different year and that part of

why she passed was because the rotation did not want her back.

Nonetheless, looking to our precedent in Chapin, we do not find

any of these statements defamatory because we cannot conclude

that they would “deter third persons from associating or dealing

with”     Nigro      or     make    her      “appear          odious,        infamous,       or

ridiculous.”         Chapin,       993    F.2d     at    1092.        As     alleged,    the

statements       suggest    that      she   still       had    much     to      learn   as    a

resident.        The very point of residency is to serve as a training

vehicle      allowing     the   resident         to    benefit    from       guidance    and

                                            20
instruction.          For   this    reason,      none   of   these    statements       can

prejudice her in her profession so as to be actionable per se,

nor do they satisfy Chapin’s test.

     Finally,        statement      (9)--Dennehy’s        claim      that    there     was

faculty consensus that she was suffering from depression or a

poor career choice--is not defamatory because it is true, as

borne out by the fact that the faculty voted unanimously not to

renew her contract.             That some non-voting faculty members may

have disagreed does not render the statement that there was a

“consensus”     false.        Accordingly,        we    agree   with       the   district

court that Nigro failed to state a claim for defamation against

Dennehy.

                                            2.

     Turning to allegedly defamatory statements made by other

Program employees--(1) an alleged statement that Nigro “tapped

telephones      on     Valley      Health    property”       and     (2)    an     alleged

statement that Nigro “recorded conversations on Valley Health

property”--we         agree     with    the       district      court       that     these

statements are not defamatory.                   As the Virginia Supreme Court

has explained,         “[c]ommunications between persons on a subject

in which the persons have an interest or duty” are privileged.

Larimore v. Blaylock, 528 S.E.2d 119, 121 (Va. 2000).                               It is

indisputable that employees running the Program have an interest

in   ensuring        that   residents       follow      Hospital     rules.         “[A]n

                                            21
employer, or his proper representatives, [must] be permitted to

discuss freely with an employee, or his chosen representatives,

charges affecting his employment which have been made against

the employee to the employer.”                  Id. (quoting Chesapeake Ferry

Co. v. Hudgins, 156 S.E. 429, 441 (Va. 1931)).                     “However, the

privilege attaching to such occasions is a qualified privilege

which    may    be    defeated      if    the    plaintiff    proves      that   the

defamatory statement was made maliciously.”                 Id.

     Even reading the evidence in the light most favorable to

Nigro, she forecasts no evidence of malice with respect to these

statements.          We    cannot   assume,      without    any   evidence,      that

hospital      employees      were   not    genuinely       concerned   about      the

Hospital’s policy on taping.              Since Nigro failed to show that

there was a question of material fact on this issue, we find

that summary judgment is appropriate.

                                          C.

     Nigro has sued Dennehy alone for intentional interference

with contract.            Normally, an employee of a contracting party

cannot   be    liable      for   intentional      interference     with    contract

unless he acts outside of his scope of employment.                          Fox v.

Deese, 362 S.E.2d 699, 708 (Va. 1987) (explaining that when an

employee acts within the scope of his employment, his employer’s

“contract was also his contract, and he could not interfere with

it”).      To make this claim, Nigro has pled that Dennehy was

                                          22
acting outside of the scope when he “caused [the Hospital] to

issue the Notice of Non-renewal in violation of the procedures

and later caused, through improper methods the issuance of the

April 20 Memorandum which left [Nigro] with no option but to

leave the Program.”                 Appellant’s Br. 43-44; Reply Br. 15-16.

Nigro    has   offered         no     explanation      of    how   Dr.    Dennehy’s      acts

toward her differ from or exceed his responsibilities as Program

Director.         We   therefore        find    Nigro’s       claim   that     Dennehy      was

acting      outside      of     the    scope    of     his     employment         as   Program

Director to be an “unreasonable conclusion” that we need not

credit.      See Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.

2008).      For this reason, her claim for intentional interference

with contract must fail.

                                               D.

      Nigro’s       claim       for     Intentional         Infliction       of    Emotional

Distress similarly lacks merit.                     The Virginia Supreme Court has

explained that to support such a claim, the conduct complained

of   must    be    “so    outrageous       in       character,     and    so      extreme   in

degree, as to go beyond all possible bounds of decency, and to

be regarded as atrocious, and utterly intolerable in a civilized

community.”         Russo v. White, 400 S.E.2d 160, 162 (Va. 1991)

(quotation        marks       omitted).        “This        requirement      is    aimed    at

limiting frivolous suits and avoiding litigation in situations

where only bad manners and mere hurt feelings are involved.”

                                               23
Ruth    v.    Fletcher,      377     S.E.2d      412,    413    (Va.     1989)       (internal

quotation marks omitted).                Nigro argues the Defendants knew that

she had “an emotional disorder due to the rigors of the program”

and that despite knowing this, “they proceeded to take an action

which would obviously inflict emotional insult.”                              Appellant’s

Br.    41-42.       She     analogizes      her       “emotional     disorder”         to   the

clinical depression suffered by the plaintiff in Baird v. Rose,

192 F.3d 462 (4th Cir. 1999).                    The facts of Baird do not bear

this    out.        There,         the   complaint        alleged      that      a     teacher

“intentionally attempted to humiliate Baird, a child, knowing

that she was suffering from clinical depression.”                             Id. at 472.

In    fact,    in   Baird     we    found     both      that   the   teacher’s         actions

prompted      Baird    to     attempt       to     commit      suicide    and        that   the

teacher’s       public      humiliation          of   Baird     increased        after      the

suicide attempt.           Id. at 465.        We held that summary judgment was

inappropriate         on    the     plaintiff’s         intentional       infliction         of

emotional distress claim because we could not say “as a matter

of law, that the allegations in Baird’s complaint do not allege

facts so outrageous as to exceed the bounds of decent society.”

Id. at 472-73.             The actions challenged here are both markedly

different and significantly more benign.

       Since Nigro claims that she is not depressed, but rather

struggling with the rigors of the program, we find                               Ellison v.

St. Mary’s Hospital, 8 Va. Cir. 330 (Va. Cir. Ct. 1987) to be

                                              24
more analogous.          There, a Virginia trial court explained that

conduct    such    as    criticizing          an      employee’s       work    in    front    of

others,    saying       that    that       employee      has    an     attitude        problem,

giving     that     employee          a      choice      between        resignation          and

termination,      and    barring          that    employee      from    hospital        grounds

were not sufficiently outrageous to give rise to a claim for

intentional infliction of emotional distress.                           Id. at 332.          The

court further warned that to make such allegations “actionable

would be to create chaos in the work place” because employees

are criticized about their job performance “every day.”                                      Id.

Such   concerns      seem       particularly           warranted       in     the    field    of

medicine,       where    the     consequences            of     poor     performance         are

potentially dire.

                                                 E.

       Nigro’s claims against VCU, VHS, the Hospital and Dennehy

under 42 U.S.C. § 1983 for violation of her Due Process rights

also     lack   merit.          Nigro        argues      that    allowing       Dennehy       to

formulate the April 20, 2009, Probation Notice was a prejudicial

departure from the residency program’s Procedures.                                  She relies

on Jones v. Board of Governors of U.N.C., 704 F.2d 713 (4th Cir.

1983),    which     held       that    “significant           departures        from    stated

procedures of government and even from isolated assurances by

governmental       officers           which       have    induced           reasonable       and

detrimental       reliance            may,       if      sufficiently          unfair        and

                                                 25
prejudicial, constitute procedural due process violations.”                     Id.

at 717.        Even assuming that the Procedures entitled her to a

particular process--a conclusion that we rejected in her breach

of contract claim--we find no prohibition in the Procedures that

would preclude Dr. Dennehy, as Director, from formulating an

alternative plan.          Nor does Nigro convincingly point to one.

The relevant language says that the “subcommittee is free to

uphold or reject the Residency Director’s recommendations, or to

formulate a new solution.”           By its terms, the language does not

require       the   subcommittee    to   craft   a    proposal   in   the   first

instance.       The delegation of that responsibility to Dr. Dennehy

fits       comfortably   within    the   parameters    of   formulating     a   new

solution.       Seeing no prohibition, explicit or otherwise, against

allowing the Director to craft a new plan, we find that allowing

it does not violate the Procedures.              In sum, the district court

did not err when it found that Nigro’s claims under § 1983

failed to state a claim on which relief could be granted. 3


       3
          Nigro makes several additional arguments in which she
alleges that she was entitled to an impartial decision maker
and, therefore, that Dennehy’s involvement in the Program’s
decision not to renew her contract and subsequent decision to
put her on probation and have her repeat her R-1 year violates
her due process rights because he was not an impartial
decisionmaker.      She cites no support for this claim, perhaps
because this circuit has explained that pre-termination hearings
need not be held before an impartial decision maker. Crocker v.
Fluvanna Cnty. Bd. of Pub. Welfare, 859 F.2d 14, 17 (4th Cir.
1988).      Since Nigro was never terminated from the Program, she
(Continued)
                                         26
                                                 F.

        Finally,      the      district     court       granted      summary    judgment       in

favor       of     the      Defendants          on     Nigro’s       claims     for     gender

discrimination and retaliation under Title VII.                             Since Nigro did

not raise retaliation in her opening brief, 4 she has forfeited

that claim.

       In this circuit, “[u]nder Title VII, the plaintiff bears

the     initial          burden       of   proving       a     prima        facie     case     of

discrimination by raising an inference that the defendant acted

with       discriminatory           intent.”          Karpel    v.    Inova     Health       Sys.

Servs., 134 F.3d 1222, 1227 (4th Cir. 1998).                            We have recently

explained        that     “[a]bsent        direct      evidence,      the    elements    of     a

prima      facie    case       of    discrimination       under      Title     VII   are:     (1)

membership          in     a        protected        class;    (2)     satisfactory           job

performance; (3) adverse employment action; and (4) different

treatment          from     similarly        situated          employees       outside        the

protected class.”               Coleman v. Md. Court of Appeals, 626 F.3d




cannot claim that the decisions about which she complains were
anything other than pre-termination decisions.
       4
       Moreover, at oral argument, Nigro’s counsel declined to
pursue any suggestion that Nigro was retaliated against for
falsifying her hours on the ACGME survey.    As such an action—
even assuming it occurred--would not make out a Title VII claim,
we do not address it further.



                                                 27
187, 190 (4th Cir. 2010).         Nigro’s claim fails because she has

not demonstrated that her performance was satisfactory. 5

     As we reiterated in our recent decision in Halpern v. Wake

Forest University Health Sciences, 669 F.3d 454 (4th Cir. 2012),

“courts     are   particularly    ill-equipped    to    evaluate      academic

performance.”     Id. at 463 (quotation marks omitted).             In Regents

of University of Michigan v. Ewing, 474 U.S. 214 (1985), the

Supreme Court explained:

     When judges are asked to review the substance of a
     genuinely academic decision . . . they should show
     great respect for the faculty’s professional judgment.
     Plainly, they may not override it unless it is such a
     substantial departure from accepted academic norms as
     to   demonstrate   that  the   person   or   committee
     responsible did not actually exercise professional
     judgment.

Id. at 225 (footnote omitted); see also Halpern, 669 F.3d at

462-63 (citing Ewing).         Nigro has not alleged that the faculty,

which     included   several     women,   departed     from   any     accepted

academic norms as to demonstrate that it was not exercising its

professional judgment when it voted unanimously not to renew her

contract.     The record supports reading this vote as evidence

that the faculty did not believe her performance as a resident

to   be   satisfactory.        Although   Nigro   received    many     average


     5
       Because we base our decision on this prong, we need not
address Nigro’s contention that a similarly situated male was
treated more favorably.



                                     28
evaluations, significant concerns were expressed that she did

not appear to care about her patients, that she was doing the

bare    minimum      to    pass,      that    her      knowledge     lagged    behind   her

peers, and that she was unwilling to take responsibility for her

shortcomings.         Indeed, most of her best marks were for non-

substantive criteria, such as appropriate dress.                             We note, for

example, that her evaluations from her NICU rotation say that

she passed only because the department did not want her back.

Since    we    must       view    the     faculty’s       determination       that   Nigro

performed unsatisfactorily with considerable deference, Halpern,

669 F.3d at 462-63, and the record contains ample evidence that

her    performance         in    some   rotations        was    deficient,     we    cannot

conclude      that    she       has   met     her      burden   of   showing    that    she

performed her job satisfactorily.                        Since Nigro has failed to

state    a    prima       facie    case      of    discrimination,      we    affirm    the

district court’s grant of summary judgment on this claim.



                                              IV.

        For the foregoing reasons, we affirm the judgment of the

district court.

                                                                                 AFFIRMED




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