Anthony v. Ward ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1932
CALVIN ANTHONY,
Plaintiff - Appellee,
v.
ROBERT WARD; CHARLES SHEPPARD, in their individual
capacities,
Defendants – Appellants,
and
SOUTH CAROLINA DEPARTMENT OF CORRECTIONS,
Defendant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Margaret B. Seymour, District
Judge. (3:05-cv-01636-MBS)
Argued: May 12, 2009 Decided: July 7, 2009
Before NIEMEYER and MICHAEL, Circuit Judges, and Frederick P.
STAMP, Jr., Senior United States District Judge for the Northern
District of West Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: William L. Howard, Sr., YOUNG, CLEMENT & RIVERS, LLP,
Charleston, South Carolina, for Appellants. J. Lewis Mann
Cromer, CROMER & MABRY, Columbia, South Carolina, for Appellee.
ON BRIEF: Stephen L. Brown, YOUNG, CLEMENT & RIVERS, LLP,
Charleston, South Carolina, for Appellants.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Defendants Robert Ward and Charles Sheppard, officials
in the South Carolina Department of Corrections (SCDC or the
Department), appeal a judgment based on a jury award of $510,000
to plaintiff Calvin Anthony, the former warden of Lee
Correctional Institution, for civil conspiracy under South
Carolina law. According to Anthony, Ward and Sheppard conspired
for personal and malicious reasons to force his termination from
the Department. On appeal Ward and Sheppard raise numerous
challenges to trial and post-trial proceedings. Because we
conclude that there is no reversible error, we affirm the
judgment.
I.
We recite the facts in the light most favorable to
Anthony, the prevailing party. See Lack v. Wal-Mart Stores,
Inc., 240 F.3d 255, 258 (4th Cir. 2001). From 1999 until his
involuntary retirement from the Department in 2004, Anthony was
the warden at Lee Correctional Institution, a maximum security
prison in South Carolina. Anthony, who is African-American,
began working for the Central Correctional Institution at SCDC
in 1978. He was promoted through the ranks and attained his
wardenship at Lee in 1999. Anthony received excellent reviews
as a warden from 1999 until 2002 and was named Warden of the
3
Year in 2002. In 2002 defendant Ward, the Director of
Operations for SCDC, became Anthony’s supervisor and thereafter
Anthony did not receive evaluations.
Anthony initially drew Ward’s ire following a hostage
situation that occurred at Lee in late October 2003, during
Anthony’s tenure at that institution. At the time of the
hostage incident, Laurie Bessinger was the Director of Security
and Training at SCDC. Bessinger had been a candidate for Ward’s
job as Director of Operations. After Bessinger was passed over
for the Operations Director position, he was placed under the
supervision of defendant Charles Sheppard, the Inspector General
for SCDC, with whom Bessinger had an acrimonious relationship.
Even before the hostage situation Sheppard sought to undermine
and discredit Bessinger, soliciting information from Bessinger’s
subordinates to accomplish that goal.
Both Ward and Sheppard voiced strong disapproval of
Bessinger’s handling of the hostage situation at Lee, and Ward
went so far as to ask Jon Ozmint, the Director of SCDC, to
“relieve” Bessinger the night of the incident. J.A. 1067.
Anthony, as the warden of Lee, was responsible for compiling an
After Action Report about what had occurred that night. After
Anthony gave Ward a draft of the report, Ward asked Anthony to
“put some negative things in” the report about Bessinger, J.A.
4
155, including things that were untrue. Anthony refused and
thereafter Ward’s attitude toward him changed.
Sheppard’s dislike for Anthony stemmed from Anthony’s
role in the grievance process of Rickie Harrison, an African-
American warden at Kershaw Correctional Institution who was
demoted by Ward in 2002. The events leading to Harrison’s
demotion began with a surprise “shakedown” (or inspection) of
Kershaw. In Harrison’s eighteen years of experience as a
warden, this was the only shakedown that had occurred without
the warden receiving prior notification. Sheppard was
Harrison’s interviewer during the investigation following the
shakedown and ultimately recommended Harrison’s demotion. After
Harrison’s demotion, Sheppard handled both the investigation of
Harrison’s grievance and acted as the lawyer for the SCDC at the
grievance hearing, which was an unprecedented action for the
Inspector General. Sheppard initially subpoenaed Anthony to
testify at the grievance hearing, but after Anthony made pre-
hearing statements to Sheppard and others in the Department that
he believed Harrison was the victim of racial discrimination,
Sheppard declined to call Anthony as a witness.
Like Harrison’s demotion, Anthony’s termination from
SCDC resulted from an unannounced shakedown of his institution.
In the spring of 2003 Sheppard placed an investigator, Karen
Hair, at Lee. Hair reported directly to Sheppard, and Anthony
5
had no knowledge of the nature of Hair’s investigative
activities prior to the shakedown. At 6 a.m. on January 29,
2004, Anthony received a call from Ward informing him that a
shakedown of Lee was about to commence. As with the shakedown
at Kershaw, but unlike any other shakedown Anthony (or
Bessinger) could remember, Anthony was given no advance warning
of the event. Ward participated directly in the shakedown.
The shakedown targeted the boiler room at Lee. The
inspection revealed a significant number of items in the boiler
room that were classified by Ward and Sheppard as contraband,
including unaccounted for computer parts, televisions, cameras,
a scanner and various bulk food items. The inspection also
revealed a number of other irregularities in the boiler room,
including inmates working without supervision, possible access
to outside phone lines and the Internet, and video surveillance
cameras being used to monitor entry and exit from the room.
There were four levels of oversight of the boiler room
below Anthony on the prison’s organizational chart, and Anthony
himself was never linked to any of the problems that occurred in
the boiler room. Anthony inspected the boiler room regularly,
including within the month prior to the shakedown, but had not
observed anything out of the ordinary. During his inspections
he checked mainly for cleanliness and sanitation, and not to see
whether there were unauthorized computers in the room.
6
Regarding unsupervised inmates, there were identical
memoranda dating from 1996 and 2000 and posted on the walls in
the boiler room that authorized inmates to work in the room with
minimal supervision from the courtyard officer in the event that
the officer with direct supervision over the boiler room needed
to attend to business outside the room. The former memorandum
predated Anthony’s wardenship, but the latter was signed by
Anthony and the four other employees with direct supervisory
responsibility over the boiler room.
In April 2004, slightly over two months after the
shakedown, Anthony made a decision to pursue the Teacher and
Employee Retention Initiative (TERI) -- a program through which
qualified employees are permitted to retire early, begin
receiving their retirement, and at the same time return to work
for a substantial fraction of their original pay. Anthony
informed Ward about his decision to “accept the retirement
opportunity,” and Ward told him that he was “approved and to
plan to return.” J.A. 201-02. Ward also informed Anthony at
that time that the investigation was over: “don’t worry about
it, go back to your institution and run your institution,
because that’s over with.” J.A. 202.
On June 16, 2004, Anthony’s immediate supervisor, Carl
Fredericks, handed Anthony a corrective action charging him with
gross negligence (for permitting inmates to work unsupervised in
7
the boiler room) and falsification of documents (specifically,
documents signed by Anthony in which he stated that he had
inspected the maintenance area of Lee, in which the boiler room
was located, and failed to detect any of the irregularities
discovered during the shakedown). Anthony maintained that he
never falsified any documents. He talked with Sheppard after
receiving the corrective action, and Sheppard told him to “think
about retiring.” J.A. 253. On June 22, 2004, Anthony met with
Ward and was informed that if he had not already put in his
retirement papers, he would have been terminated. He was
permitted to retire in lieu of termination.
Anthony then filed this action in federal district
court for the District of South Carolina. He sued Ward and
Sheppard in their individual capacities alleging that they
conspired to force him out of his job at Lee. His complaint
also included a claim against the Department itself alleging
that he was discriminated against on the basis of his race in
violation of Title VII of the 1991 Civil Rights Act. The case
went to trial and the jury returned a verdict in SCDC’s favor on
the Title VII discrimination claim and in Anthony’s favor on the
civil conspiracy claim. The jury awarded Anthony $510,000 in
damages against Ward and Sheppard in their individual
capacities. Ward and Sheppard appeal.
8
II.
Ward and Sheppard first contend that the district
court erred in refusing their proposed jury instructions on the
intracorporate conspiracy doctrine. We review jury instructions
for abuse of discretion. Johnson v. MBNA Am. Bank, NA, 357 F.3d
426, 432 (4th Cir. 2004); see also S. Atl. Ltd. P’ship of Tenn.
v. Riese, 284 F.3d 518, 530 (4th Cir. 2002). “The test of the
adequacy of jury instructions is whether the jury charge,
construed as a whole, adequately states the controlling legal
principle without misleading or confusing the jury.” Chaudhry
v. Gallerizzo, 174 F.3d 394, 408 (4th Cir. 1999). “An error of
law constitutes an abuse of discretion.” A Helping Hand, LLC v.
Balt. County, Md., 515 F.3d 356, 370 (4th Cir. 2008). However,
“[w]e will not set aside a jury verdict based on an
instructional error ‘unless the erroneous instruction seriously
prejudiced the challenging party’s case.’” Willingham v.
Crooke, 412 F.3d 553, 560 (4th Cir. 2005) (quoting College Loan
Corp. v. SLM Corp., 396 F.3d 588, 595 (4th Cir. 2005)).
Under South Carolina law “[a] civil conspiracy . . .
consists of three elements: (1) a combination of two or more
persons, (2) for the purpose of injuring the plaintiff, (3)
which causes him special damage.” Lee v. Chesterfield Gen.
Hosp., Inc., 344 S.E.2d 379, 382 (S.C. Ct. App. 1986). South
Carolina courts have recognized an exception to civil conspiracy
9
liability when all the alleged members of a conspiracy are
agents of a single corporate entity and act on behalf of the
corporation: a so-called intracorporate conspiracy. See
McMillan v. Oconee Mem. Hosp., Inc., 626 S.E.2d 884, 886-87
(S.C. 2006); Anderson v. S. Ry. Co., 77 S.E.2d 350, 351 (S.C.
1953).
The intracorporate conspiracy doctrine in South
Carolina draws its origins from Goble v. American Railway
Express Co., where the state Supreme Court indicated that “it is
impossible to conceive that a conspiracy between a corporation
and its agents may be established by the act of such agents
alone.” 115 S.E. 900, 903 (S.C. 1923). More recently, the
South Carolina Court of Appeals held that although “a
corporation, as a legal person in contemplation of law, cannot
conspire with itself,” “the agents of a corporation are legally
capable, as individuals, of conspiracy among themselves or with
third parties.” Lee, 344 S.E.2d at 383.
The district court below interpreted the above cases
as distinguishing between two types of civil conspiracies: (1)
principal-agent conspiracies and (2) conspiracies between agents
of a corporation. Based on its reading of South Carolina case
law, the court concluded that the intracorporate conspiracy
doctrine in South Carolina only applies to principal-agent
conspiracies. Because the facts of this case placed it
10
“squarely within” the latter context, the district court
concluded that an instruction on civil conspiracy was
unwarranted. J.A. 2071.
Defendants, in contrast, assert that immunity for
intracorporate conspiracy only ceases to apply when agents or
employees of a corporation step outside the course and scope of
their employment and act as individuals rather than as agents of
the corporation. Defendants argue that the district court erred
in refusing a jury instruction on “whether or not [Defendants]
were acting for the interest of their employer and in the course
and scope of their employment.” Appellants’ Br. at 16.
According to defendants, the scope of employment question is
“quintessentially a factual issue” and must therefore be
resolved by the jury. Appellants’ Reply Br. at 4.
In McMillan the South Carolina Supreme Court indicated
that scope of employment was relevant to the intracorporate
conspiracy doctrine, holding that “no conspiracy can exist if
the conduct challenged is a single act by a single corporation
acting exclusively through its own directors, officers, and
employees, each acting within the scope of his employment.” 626
S.E.2d at 887 (emphasis added). Other courts have similarly
held scope of employment to be relevant under the doctrine. See
Garza v. City of Omaha, 814 F.2d 553, 556 (8th Cir. 1987)
(“While it is true that a corporation cannot conspire with
11
itself, an intracorporate conspiracy may be established where
individual defendants are also named and those defendants act
outside the scope of their employment for personal reasons.”)
(emphasis added); McAndrew v. Lockheed Martin Corp., 206 F.3d
1031, 1036 (11th Cir. 2000) (“Simply put, under the doctrine, a
corporation cannot conspire with its employees, and its
employees, when acting in the scope of their employment, cannot
conspire among themselves.”) (emphasis added). Our circuit has
recognized a similar “personal stake exception,” holding that
(under Virginia’s civil conspiracy law) “the intracorporate
immunity doctrine does not apply where a corporate officer has
an independent personal stake in achieving the corporation's
illegal objectives.” ePlus Tech., Inc. v. Aboud, 313 F.3d 166,
179 (4th Cir. 2002) (internal quotations omitted).
The jury verdict form in this case failed to
explicitly address whether Ward and Sheppard were acting within
the scope of their employment, and they made a timely objection
before the district court. We conclude, however, that even if
the district court erred in failing to give the requested
instruction, the error was not seriously prejudicial when
considered in light of the record as a whole.
The verdict form specifically required the jury to
find that Ward and Sheppard had entered into an agreement “for
12
the purpose of injuring [Anthony].” J.A. 2007 (emphasis added).
The jury was also instructed that:
With respect to the second element [of civil
conspiracy], the plaintiff must prove by a
preponderance of the evidence that Mr. Ward and Mr.
Sheppard specifically intended to injure the
plaintiff. The primary purpose of the alleged
agreement or conspiracy must be to injure the
plaintiff. Mere speculation about a party’s motives
with respect to certain conduct does not constitute
proof of conspiracy.
J.A. 1965. Further, there was ample evidence adduced at trial
that Ward’s and Sheppard’s actions toward Anthony were
personally, rather than professionally, motivated. Anthony
provided evidence that Ward disliked him, not for any
professionally relevant reason, but because he had refused to
accommodate Ward’s request that he alter his After Action Report
to make it more unfavorable to Bessinger. Similarly, Anthony’s
refusal to testify negatively about Warden Harrison during
Sheppard’s handling of Harrison’s grievance hearing motivated
Sheppard to act against Anthony’s interests. Defendants’
decisions to act contrary to longstanding custom, for example by
declining to give Anthony advance notice of the January 2004
shakedown of Lee, is similarly suggestive of a personal, rather
than a professional, motive. And finally, Anthony introduced
considerable evidence at trial that wardens at other
institutions in which security lapses were discovered that were
comparable to those at Lee, but against whom defendants did not
13
bear any personal grudge, were permitted to continue working or
participate in the TERI program.
In sum, the finding of a specific intent to injure
Anthony, coupled with the evidence that defendants had a
personal stake in injuring plaintiff, leads us to conclude the
error in this case was not seriously prejudicial. Thus,
although the district court erred in refusing to give the
requested scope of employment instruction, we conclude that this
error does not necessitate a new trial.
III.
Ward and Sheppard next contend that the district court
erred in failing to charge the jury on immunity from suit under
the South Carolina Tort Claims Act (SCTCA). We review a court’s
failure to give a requested jury instruction under the abuse of
discretion standard described above.
S.C. Code Ann. § 15-78-70 provides that:
(a) This chapter constitutes the exclusive remedy
for any tort committed by an employee of a
governmental entity. An employee of a governmental
entity who commits a tort while acting within the
scope of his official duty is not liable therefor
except as expressly provided in subsection (b).
(b) Nothing in this chapter may be construed to
give an employee of a governmental entity immunity
from suit and liability if it is proved that the
employee’s conduct was not within the scope of his
official duties or that it constituted actual fraud,
14
actual malice, intent to harm, or a crime involving
moral turpitude.
S.C. Code Ann. § 15-78-70(a), (b) (2005). Under S.C. Code Ann.
§ 15-78-30: “‘Scope of official duty’ or ‘scope of state
employment’ means (1) acting in and about the official business
of a governmental entity and (2) performing official duties.”
S.C. Code Ann. § 15-78-30(i) (2005).
Defendants argue that the desire to terminate an
employee cannot constitute intent to harm because “any time a
supervising government employee participates in sanctioning an
employee, they, by definition, intend to do that employee ‘harm’
in the general sense of the word.” Appellants’ Br. at 20.
Consequently, defendants say, “intent to harm” under the SCTCA
“must require a malicious or personal motivation in order for
the exception to become operable.” Id. Defendants note that
malice or intent to harm must be “proved” under § 15-78-70(b),
and they contend that mere allegations are therefore
insufficient.
The district court concluded that the SCTCA is not
intended to protect state employees from liability for
intentional torts, noting that “irrespective of whether
Defendants Ward and Sheppard acted outside the scope of their
official duty, they are not immune from suit under the SCTCA
15
because their conduct was proven to be intentionally tortious.”
J.A. 2079. The court determined that
it was not necessary . . . to give additional charges
to the jury regarding intent to harm because the
elements of civil conspiracy, an intentional tort,
already encompass such intent. The jury’s finding
that Defendants had civilly conspired against
Plaintiff was sufficient to remove from the purview of
the SCTCA’s protected class of government employees.
Id. We agree. The jury was specifically required to find that
defendants intentionally injured Anthony in order to award
damages on the civil conspiracy claim: namely, that Ward and
Sheppard entered into an agreement “for the purpose of injuring
Plaintiff.” J.A. 2007. The jury was also instructed that it
must find Anthony had proved by a preponderance of the evidence
that defendants “specifically intended to injure the plaintiff”
and that this was “[t]he primary purpose of the alleged
agreement or conspiracy.” J.A. 1965. The district court
therefore did not abuse its discretion in refusing to include an
additional jury instruction on scope of employment under the
SCTCA.
IV.
Ward and Sheppard further contend that they were
entitled to judgment as a matter of law based on Anthony’s
failure to allege and prove special damages or, in the
alternative, that the district court erred in failing to
16
adequately charge the jury on special damages as an element of
civil conspiracy. Specifically, defendants contend that Anthony
neither alleged 1 nor proved damages under the civil conspiracy
claim over and above those alleged for the race discrimination
claim.
A.
In reviewing whether plaintiff has proved special
damages, we view the evidence in the light most favorable to the
plaintiff as the non-moving party, drawing all reasonable
inferences in his favor without weighing the evidence or
credibility of the witnesses. Baynard v. Malone, 268 F.3d 228,
234-35 (4th Cir. 2001) (“The question is whether a jury, viewing
the evidence in the light most favorable to [the non-moving
party], could have properly reached the conclusion reached by
this jury.”). “We must reverse if a reasonable jury could only
rule in favor of [the movant]; if reasonable minds could differ,
we must affirm.” Id. at 235.
1
Defendants devote much of their briefing to arguing that
the damages sought in the race discrimination and civil
conspiracy claims were largely overlapping and therefore Anthony
failed to adequately allege special damages. This argument was
not raised before trial and is therefore untimely. On a motion
for judgment as a matter of law, the relevant question is not
whether Anthony adequately alleged special damages but whether
he proved special damages at trial.
17
As noted above, the third element of a civil
conspiracy in South Carolina is that the defendants’ agreement
to injure the plaintiff “causes special damages.” Pye v. Estate
of Fox, 633 S.E.2d 505, 511 (S.C. 2006). According to Pye,
“[b]ecause the quiddity of a civil conspiracy claim is the
damage resulting to the plaintiff, the damages alleged must go
beyond the damages alleged in other causes of action.” Id. In
Todd v. South Carolina Farm Bureau Mutual Insurance Co., the
South Carolina Supreme Court held that “[w]here the particular
acts charged as a conspiracy are the same as those relied on as
the tortious act or actionable wrong, plaintiff cannot recover
damages for such act or wrong, and recover likewise on the
conspiracy to do the act or wrong.” 278 S.E.2d 607, 611 (1981)
(quoting 15A C.J.S. Conspiracy § 33 (1967), at 718). The
plaintiff in Todd had brought five causes of action, including
four tort claims and a fifth claim for “conspiracy to so damage
the plaintiff.” 278 S.E.2d at 608. As the court pointed out,
“[t]he fifth cause of action simply takes all the prior
allegations and alleges that the acts were done in furtherance
of a conspiracy among the defendants. Damages are then sought
for injury resulting from the conspiracy.” Id. at 611. The
court held that “[t]he trial judge erred by overruling the
demurrer to the conspiracy cause of action in the complaint,
18
since Todd can recover no additional damages for the alleged
fifth cause of action.” Id.The case law makes clear that the concern is with a
plaintiff receiving a double recovery. See Kuznik v. Bees Ferry
Assocs., 538 S.E.2d 15, 31 (S.C. Ct. App. 2000) (“An action for
civil conspiracy will not lie if a plaintiff has obtained relief
through other avenues.”). Here, because the jury only awarded
damages on one of the two claims in this case, there is no
possibility that plaintiff received an impermissible double
recovery. See Peoples Fed. Sav. & Loan Ass’n of S.C. v. Res.
Planning Corp., 596 S.E.2d 51, 60 (S.C. 2004) (“The damages
alleged in [plaintiff’s] breach of fiduciary duty and conspiracy
claims are similar. However, since the referee directed the
verdict in favor of [defendant] on [plaintiff’s] breach of
fiduciary duty claim, [defendant] is not twice subject to
payment for damages for the same act. There is no error.”).
Defendants failed to challenge the adequacy of Anthony’s
complaint prior to trial, and the jury awarded damages on only
one of Anthony’s two claims. Consequently, any deficiency in
the complaint was harmless; defendants are not entitled to
judgment as a matter of law based on a failure to prove special
damages.
19
B.
Ward and Sheppard also contend that the trial court
erred in refusing their requests “to elaborate sufficiently to
allow the jury, as laymen, to understand the element of special
damages as it applies to a cause of action for civil
conspiracy.” Appellants’ Br. at 27-28. Defendants argue that
the trial court’s instructions on the special damages
requirement were misleading and confusing because they led the
jury to believe that if Anthony was awarded no damages under the
discrimination claim, any damages awarded under a civil
conspiracy claim would necessarily satisfy the special damages
requirement. Defendants fail, however, to indicate what
alternative language they believe should have been used. 2
On the issue of special damages, the judge instructed
the jury as follows:
With respect to the third element [of civil
conspiracy], plaintiff must prove special damages.
And special damages are damages for losses that are
2
We also note that defendants’ counsel never made any
argument based on the distinction between general and special
damages. South Carolina case law is clear that damages in a
civil conspiracy action must not duplicate those alleged in
other causes of action. South Carolina courts have been less
clear about what additional specific limitations might exist
with respect to damages that may be recovered on a civil
conspiracy claim. See Gynecology Clinic, Inc. v. Cloer, 514
S.E.2d 592, 593 (S.C. 1999) (citing Charles v. Texas Co., 18
S.E.2d 719, 726-29 (S.C. 1942) (discussing available damages in
context of unlawful conspiracy)).
20
not natural and proximate -- that are not the natural
and proximate result of the injury. The plaintiff
must sufficiently state and claim special damages.
This element is an important element in the tort
of civil conspiracy because it requires a showing of
the damage resulting to plaintiff from an overt act
done pursuant to the alleged conspiracy.
The damage alleged must go beyond the damages
alleged in other causes of action. In other words,
plaintiff must prove that he had incurred damages
greater or different from the damages arising from his
discrimination claim.
Different damages are damages over and above the
damages he alleged he suffered from the other claim.
Damages allegedly resulting from the conspiracy must
not overlap with or be subsumed by the damages
allegedly resulting due to the race discrimination
claim.
J.A. 1965-66.
We disagree with defendants that these instructions
misstate the relationship between damages recoverable for the
race discrimination and civil conspiracy claims. See Pye, 633
S.E.2d at 511. The jury was instructed that damages for the
civil conspiracy must be different from those for the race
discrimination claim and that it must not award damages on the
civil conspiracy claim if it concluded that these damages were
merely duplicative of those in the race discrimination claim.
See Peoples Fed. Sav. & Loan, 596 S.E.2d at 60. This is
correct. We therefore conclude that the district court did not
abuse its discretion with respect to the special damages
instruction.
21
V.
Ward and Sheppard next contend that they are entitled
to judgment as a matter of law based on Anthony’s failure to
prove a “combination” between defendants and because the jury
verdict was contrary to the weight of the evidence presented.
As explained above in part IV.A, “[w]e must reverse if a
reasonable jury could only rule in favor of [the movant]; if
reasonable minds could differ, we must affirm.” Baynard v.
Malone, 268 F.3d at 235.
Under South Carolina law “[a] conspiracy is actionable
only if overt acts pursuant to the common design proximately
cause damage to the plaintiff.” A Fisherman’s Best, Inc. v.
Recreational Fishing Alliance, 310 F.3d 183, 195 (4th Cir. 2002)
(citing First Union Nat’l Bank of S.C. v. Soden, 511 S.E.2d 372,
383 (S.C. Ct. App. 1998)). However, “[c]ivil conspiracy is an
act which is, by its very nature, covert and clandestine and
usually not susceptible of proof by direct evidence.” First
Union, 511 S.E.2d at 383. Consequently, “[c]onspiracy may be
inferred from the very nature of the acts done, the relationship
of the parties, the interests of the alleged conspirators and
other circumstances.” Island Car Wash, Inc. v. Norris, 358
S.E.2d 150, 153 (S.C. Ct. App. 1987) (noting also that “concert
of action, amounting to a conspiracy, may be shown by
circumstantial as well as direct evidence”).
22
Defendants claim that Anthony introduced “no evidence
of any combination or agreement between Appellants Ward and
Sheppard.” Appellants’ Br. at 30. They claim that “[t]here was
no testimony that [Defendants] had any discussions, meetings or
other communications regarding the investigation into the
discrepancies in [Anthony’s] official reports, or played any
role in making the decision as to the appropriate level of
discipline to be recommended to Director Ozmint.” Id. at 30-31.
In response, Anthony contends that “[t]he nature of
the acts committed and the relationship of Ward and Sheppard
itself is evidence of conspiracy.” Appellee’s Br. at 33.
According to Anthony, “[t]here were numerous times that Ward and
Sheppard met in discussion of Anthony, and Ward and Sheppard
acted together, in concert, in a course of action that was
contrary to the normal policy and procedure at SCDC, but which
furthered their own personal objective to harm Anthony.” Id.
We agree with Anthony that the jury heard sufficient
evidence at trial regarding motive, opportunity, and concerted
action from which to conclude that defendants reached an
agreement to harm Anthony and committed civil conspiracy. With
regard to motive, as discussed above in part II, Anthony
provoked the enmity of both defendants by failing to cooperate
with their efforts to discredit other employees in the
Department. Anthony believed these efforts were inappropriate
23
and refused to be complicit. Regarding opportunity, despite
attempting to downplay the connection between himself and
Sheppard, Ward conceded at trial that he had a “professional
friendship” with Sheppard and that the two men ate lunch
together “a couple days a week.” J.A. 1052. Ward also
testified that he spoke with Sheppard about Laurie Bessinger’s
actions during the hostage situation at Lee. And Sheppard
admitted forwarding to Ward an email he received from Inspector
Hair about concerns over activities in the boiler room at Lee.
The jury also heard testimony regarding adverse
actions taken by the defendants against other SCDC employees
they disliked. Bessinger testified that the defendants acted in
a concerted manner to force his own retirement by working
together to discredit him. According to Bessinger, Sheppard
initiated conversations with employees under Bessinger’s direct
supervision to try to elicit information which could be used to
undermine and discredit Bessinger. Ward admitted that he asked
Ozmint to “relieve” Bessinger on the night of the hostage
situation. J.A. 1067. And Associate Warden Pridgen testified
that on the night of the hostage incident Ward complained to him
about Bessinger being a problem: “Bessinger’s trying to run
everything. But if you tell anybody, I’m going to tell them you
are lying.” J.A. 476.
24
Harrison, for his part, testified that Sheppard
deviated from Department custom by personally serving as both
investigator and then lawyer in Harrison’s grievance hearing,
which resulted in Harrison’s demotion from warden of Kershaw.
Sheppard served these roles despite the existence of a separate
Office of General Counsel which acts as counsel for SCDC.
In Anthony’s case, Ward admitted deviating from
standard SCDC policy in failing to inform Anthony about the
shakedown of Lee in January 2004, and he participated directly
in the shakedown. John Near, the Human Resources Director for
SCDC, testified that he does not know of any other warden who
has ever been terminated or refused rehire because of an
inspection-related issue. Warden Harrison also testified that
he had never known of a warden losing his job either because of
contraband found in an institution (absent firsthand involvement
by the warden), or for failure to make inspections. Ultimately,
we must conclude that reasonable minds could differ regarding
the existence of a common design by Ward and Sheppard to harm
Anthony. See Baynard, 268 F.3d at 235. Sufficient evidence was
presented in this case for the jury to find that defendants
conspired to bring about the forced retirement of Anthony. The
jury verdict must therefore stand.
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VI.
Defendants further contend that the district court
erred in failing to charge the jury on the employment-at-will
doctrine. Again, as explained above in part II, we review jury
instructions for abuse of discretion.
Under South Carolina law “[a]t-will employment is
generally terminable by either party at any time, for any reason
or for no reason at all.” Prescott v. Farmers Tel. Coop., Inc.,
516 S.E.2d 923, 925 (S.C. 1999). South Carolina recognizes only
three exceptions to this general rule: (1) an employee has
recourse against his employer for termination in violation of
public policy; (2) an at-will employee may not be terminated for
exercising constitutional rights; and (3) an employee has a
cause of action against an employer who contractually alters the
at-will relationship and terminates the employee in violation of
the contract. Nelson v. Charleston County Parks & Recreation
Comm’n, 605 S.E.2d 744, 746 (S.C. Ct. App. 2004). The South
Carolina Supreme Court has held that “an at-will employee may
not maintain a civil conspiracy action against her employer.”
Angus v. Burroughs & Chapin Co., 628 S.E.2d 261, 262 (S.C. 2006)
(citing Ross v. Life Ins. Co. of Va., 259 S.E.2d 814, 815 (S.C.
1979)).
Ward and Sheppard argue that Anthony was an at-will
employee and that, to the extent that defendants were acting
26
within the scope of their employment, they are protected by the
employment-at-will doctrine. Anthony counters that he was not
terminated by SCDC but was instead refused rehire under South
Carolina’s TERI program. More important, Anthony points out
that neither defendant actually had the power to terminate him;
that power resided in Jon Ozmint, the Director of SCDC. Ward
merely had the power to make a recommendation to Ozmint
regarding what action SCDC should take; Sheppard lacked even
this power. Because we agree with Anthony that his civil
conspiracy claim is not against his employer, the employment-at-
will doctrine is inapplicable. The district court did not abuse
its discretion in failing to instruct the jury on the doctrine.
VII.
Finally, defendants urge this court to consider the
combined effect of the errors committed by the district court
and claim that the cumulative effect of the errors occurring
during trial mandates a remand for a new trial. See Beck v.
Haik, 377 F.3d 624, 644-45 (6th Cir. 2004). Although this court
has yet to determine whether the cumulative error doctrine
applies in the civil context, cf. United States v. Martinez, 277
F.3d 517, 532-34 (4th Cir. 2002) (applying the cumulative error
doctrine in the criminal context), we need not make this
determination in order to resolve this case. Assuming without
27
deciding that such a doctrine is appropriate in the civil
context, see Beck, 377 F.3d at 644-45 (adopting cumulative error
doctrine in civil context), overruled on other grounds by Adkins
v. Wolever, 554 F.3d 650 (6th Cir. 2009) (en banc); Frymire-
Brinati v. KPMG Peat Marwick, 2 F.3d 183, 188 (7th Cir. 1993)
(same); Malek v. Fed. Ins. Co., 994 F.2d 49, 55 (2d Cir. 1993)
(same); Hendler v. United States, 952 F.2d 1364, 1383 (Fed. Cir.
1991) (same); Gordon Mailloux Enters., Inc. v. Firemen’s Ins.
Co. of Newark, 366 F.2d 740, 742 (9th Cir. 1966) (same), but see
SEC v. Infinity Group Co., 212 F.3d 180, 196 (3d Cir. 2000)
(noting rejection of cumulative error doctrine in civil
context), reversal would nevertheless be inappropriate in this
case. The only error that occurred in this case was that the
jury was not specifically asked to find that defendants acted
outside the scope of their employment when they injured Anthony.
As explained above, because we conclude that his error was not
prejudicial, the cumulative error doctrine does nothing to alter
this conclusion.
* * *
For the foregoing reasons, the judgment is
AFFIRMED.
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