Professional Documents
Culture Documents
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
CONSORTIUM,
OSTEOPATHIC
POSTGRADUATE
TRAINING
INSTITUTE
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:
Before TRAXLER,
Judges.
Chief
Decided:
Judge,
and
KING
and
DUNCAN,
Circuit
the
Family
myriad
of
Residency
state
and
Program
federal
law
(the
Program),
claims
against
brought
the
Program,
Warren
Memorial
Hospital
(the
Hospital),
and
Dr.
of
her
claims
and,
shortly
thereafter,
granted
summary
I.
The facts are lengthy and somewhat involved.
of clarity, we divide them into three parts.
the Program.
We first describe
turn
first
to
the
Program,
which
consists
of
three
covered her R-1 year, which was to run from July 1, 2008 to June
30, 2009.
Education
(ACGME)
plays
role.
ACGME
has
signs
contracts,
with
its
residents
residents.
receive
In
separate
addition
documents
to
their
containing
about
influence
how
the
the
residency
Procedures
as
operates.
well.
ACGME
However,
guidelines
unlike
their
their
members
R-1
year
during
and
that
therefore
period.
They
Core
and
work
Specialty
with
work
different
primarily
faculty
at
the
Faculty
members
supervise
the
the
Program.
The
Core
Faculty
meets
regularly
to
focuses
on
instructing
residents
in
The Specialty
their
rotations.
All of
members
assess
the
residents
at
several
points
of
the
residents
should
be
marked
average.
The
The
four
taken.
may
months
to
improve
before
any
dismissal
action
is
appeal
any
disciplinary
action
to
subcommittee
of
the
faculty.
B.
Nigro
2008.
signed
the
Contract
with
the
Program
in
March
of
While it is
her
satisfactory.
assigned
as
claim
For
her
that
example,
advisor,
her
performance
Dr.
testified
Sherry
that
was
consistently
Whisenant,
Nigro
had
who
was
performed
poorly in medical school and that she received a very low score
on an exam administered during orientation.
Nigros
reviews
from
her
rotations
indicate
that
her
from her first rotations in the summer of 2008 describe her work
as
average;
Moving
into
Dr.
Dennehys
the
fall,
review
Nigro
was
received
not
entirely
mixed
positive.
reviews
in
her
Characteristics,
which
includes
nonsubstantive
lagging
behind
her
peers.
Cumulative
reviews
of
her
her
performance
intensive
care
unit
during
Nigros
(NICU)
in
rotation
December
in
2008.
the
Dr.
neonatal
Lee,
also reported that she was arriving before her shift, when there
January
2009,
after
her
NICU
rotation,
Nigro
took
survey from the ACGME that asked whether she had ever worked
seven consecutive days without one day off.
Nigro
which
claims
she
he
interpreted
told
as
her
to
request
respond
to
on
answer
untruthfully.
She
alleges
that
her
truthful
answer
on
this
February
2009,
there
was
growing
concern
among
the
Faculty that Nigro had made the wrong career choice and that she
was
exhibiting
performance
signs
review
on
of
depression.
February
4,
At
her
2009,
she
semiannual
received
an
Although Nigro
J.A.
Nigro
further
memorializing
sentence
her
stated,
claims
that
semiannual
it
is
when
she
performance
expected
that
saw
the
review,
barring
letter
the
last
unforeseen
J.A. 594.
Dennehy
added
language
addressing
some
of
the
more
serious
explanation for her shortcomings was that others did not like
9
her.
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.
this
meeting
Nigro
received
Letter
of
Concern,
which
At
also
He believed
that the best explanation was that Nigro has had problems
coping with the rigors of the program.
J.A. 1948.
Dr. Medcalf
25,
2009,
which
explained
that
she
had
shown
no
of
Concern.
credit
for
This
letter
proposed
the
rotations
that
that
Nigro
would
she
successfully
In response to Nigros
concerns.
subcommittee.
Nigro
claims
that
he
defamed
her
to
the
which
she
would
not
receive
credit
for
the
2008-09
counsel
wrote
Dennehys proposal.
the
subcommittee
asking
it
to
reconsider
so.
During
communications
surrounding
her
non-renewal
Nigro
to
termination.
7, 2009.
have
tell
Nigro
that
taping
could
lead
to
She
11
Her end-of-
Her
against
Dr.
Infliction
Dennehy,
of
VHS,
VCU
Emotional
and
Distress
the
Hospital;
against
Dr.
Procedure
12(b)(6)
on
January
20,
2011.
The
district
Due
Process,
Intentional
Intentional
Interference
Defamation Claim.
Infliction
with
of
Contract,
Emotional
and
Distress,
parts
of
her
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
plaintiffs.
those
facts
in
the
light
most
favorable
to
the
unwarranted
arguments.
Id. at 255.
inferences,
We also decline to
unreasonable
conclusions,
or
13
de
novo,
applying
the
same
legal
standards
as
the
Fed. R. Civ. P.
find that a reasonable jury could return a verdict for [the nonmoving party], then a genuine factual dispute exists and summary
judgment is improper.
III.
We consider Nigros 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
we
consider
her
constitutional
14
claims.
Finally,
we
A.
Nigros breach of contract claim rests on an alleged breach
of the Procedures, not of the Contract itself.
above,
the
Procedures
are
separate,
As discussed
unsigned
documents.
from
contract.
considering
the
Procedures
as
part
of
the
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 Nigros first argument, we agree with the
district
court
incorporation
integration
entire
that
of
provision
Procedures
the
clause
agreement
of
is
the
Procedures
clearly
between
the
integration
states
the
contract
3.2,
that
precludes
into
the
contract.
that
the
contract
parties.
which
responsibilities of resident.
clause
Moreover,
arguably
refers
J.A. 65.
to
the
The
is
the
the
only
references
the
duties
and
Accordingly, we do not
the
months[]
right
written
to
provide
Resident
notice.
J.A.
with
66.
less
than
four
Incorporating
the
provisions
Procedures,
governing
we
of
the
cannot
non-renewal
contract
read
because
the
incorporate
Procedures
doing
so
would
some
of
the
requirements
as
contravene
the
contract.
2.
Turning to her second argument--that Virginia law makes the
Procedures binding on the Program notwithstanding the Contracts
integration clause--we also find it unpersuasive.
Here, Nigro
relies
in
on
the
Virginia
Supreme
Courts
decision
Hercules
Dulany Foods, Inc. v. Ayers, 260 S.E.2d 196, 199-202 (Va. 1979)
16
employee
employees
morale
continued
are
binding
service).
In
offers
Hercules
accepted
by
Dulany,
the
and
The
new
procedures
in
those
cases
changed
the
accept
through
continued
employment.
We
therefore
We
motion
because
for
none
of
summary
the
judgment
allegedly
with
respect
defamatory
to
the
statements
an
actionable
statement
with
(3)
the
requisite
intent.
To be
Id.
In
interpreting
statements
are
Virginia
defamatory
law,
if
they
we
have
tend
explained
so
to
that
harm
the
Inc.,
marks
law
993
and
with
F.2d
1087,
citations
respect
to
1092
omitted).
Dennehys
Chapin v.
(4th
We
Cir.
will
allegedly
1993)
discuss
defamatory
claims
that
Dennehy
defamed
her
when
he
made
the
interest
in
learning
despite
3-4
months
of
6. Plaintiff
has
poor
time
management
with
respect
to
is
making
the
same
mistakes
repeatedly
after
to
leave
than
in
caring
for
the
medical
issues
presented.
Appellants Br. 34-36.
Statements (1), (4), (5), (6), and (8) are opinions and
therefore not actionable under Virginia law.
See
Chaves v.
not
of
an
amounting
action
to
for
fighting
words,
defamation.).
cannot
Nigro
form
attempts
the
to
861
(quotation
marks
and
alterations
19
omitted).
Id.
Nigros
But as the
provably
false
factual
connotation,
or
statements
Yeagle
person
v.
are
Collegiate
(footnote omitted).
opinions
Times,
and
497
therefore
S.E.2d
136,
not
defamatory.
137
(Va.
1998)
Nigro
ridiculous.
statements
resident.
vehicle
or
make
Chapin,
suggest
her
993
that
appear
F.2d
she
at
still
odious,
1092.
had
As
much
to
infamous,
or
alleged,
the
learn
as
allowing
the
resident
20
to
benefit
from
guidance
and
instruction.
For
this
reason,
none
of
these
statements
can
statement
(9)--Dennehys
claim
that
there
was
have disagreed does not render the statement that there was a
consensus
false.
Accordingly,
we
agree
with
the
district
on
Valley
Health
property
and
(2)
an
alleged
agree
with
the
district
court
that
these
It is
ensuring
that
residents
follow
21
Hospital
rules.
[A]n
However, the
may
be
defeated
if
the
plaintiff
proves
that
the
Id.
We
cannot
employees
were
assume,
not
without
genuinely
any
evidence,
concerned
about
that
the
be
liable
for
intentional
interference
with
contract
Fox v.
Deese, 362 S.E.2d 699, 708 (Va. 1987) (explaining that when an
employee acts within the scope of his employment, his employers
contract was also his contract, and he could not interfere with
it).
has
offered
explanation
of
how
Dr.
Dennehys
acts
We
therefore
outside
of
the
find
Nigros
scope
of
claim
his
that
Dennehy
employment
as
was
Program
claim
for
Intentional
Infliction
of
Emotional
must
be
so
outrageous
in
character,
and
so
extreme
in
omitted).
This
requirement
is
aimed
at
Ruth
v.
Fletcher,
377
S.E.2d
412,
413
(Va.
1989)
(internal
41-42.
She
analogizes
her
emotional
Appellants
disorder
to
the
out.
There,
the
complaint
alleged
that
teacher
fact,
prompted
teachers
in
Baird
Baird
to
public
suicide attempt.
inappropriate
on
we
found
attempt
both
to
humiliation
Id. at 465.
the
that
commit
of
Baird
the
Id. at 472.
teachers
suicide
and
increased
actions
that
the
after
the
plaintiffs
intentional
infliction
of
Ellison v.
St. Marys Hospital, 8 Va. Cir. 330 (Va. Cir. Ct. 1987) to be
24
more analogous.
conduct
such
criticizing
others,
saying
giving
that
termination,
as
that
that
employee
and
employees
employee
barring
an
choice
that
has
work
an
between
employee
from
in
front
attitude
of
problem,
resignation
hospital
and
grounds
Id. at 332.
The
concerns
medicine,
seem
where
particularly
the
warranted
consequences
of
poor
in
the
Id.
field
performance
of
are
potentially dire.
E.
Nigros 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
She relies
which
held
that
significant
departures
from
stated
officers
which
have
detrimental
reliance
may,
if
25
induced
reasonable
sufficiently
unfair
and
and
Id.
the
instance.
fits
subcommittee
to
craft
proposal
in
the
first
comfortably
solution.
within
the
parameters
of
formulating
new
did not err when it found that Nigros claims under 1983
failed to state a claim on which relief could be granted. 3
F.
Finally,
favor
of
the
the
district
court
Defendants
on
granted
judgment
claims
for
Nigros
summary
in
gender
initial
burden
of
proving
prima
facie
case
of
discriminatory
intent.
Karpel
v.
Inova
that
facie
membership
[a]bsent
case
in
of
a
direct
evidence,
discrimination
protected
under
class;
(2)
Health
Sys.
We have recently
the
Title
elements
VII
of
are:
satisfactory
(1)
job
from
protected class.
similarly
situated
employees
outside
the
cannot claim that the decisions about which she complains were
anything other than pre-termination decisions.
4
27
are
performance.
particularly
ill-equipped
to
evaluate
academic
In Regents
included
several
departed
from
any
accepted
be
satisfactory.
Although
Nigro
received
many
average
28
minimum
to
pass,
that
her
knowledge
lagged
behind
her
peers, and that she was unwilling to take responsibility for her
shortcomings.
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
facultys
determination
that
Nigro
performance
conclude
that
in
she
some
has
rotations
met
her
prima
facie
case
of
was
burden
deficient,
of
we
showing
cannot
that
she
discrimination,
we
affirm
the
IV.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
29