Weeks v. Union Camp Corp

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
WALTER M. WEEKS, SR.,
Plaintiff-Appellant,
v.
UNION CAMP CORPORATION; MARK
WATKINS; DIANA BELL; TAFT
GAYMON,
Defendants-Appellees,
No. 98-2814
and
AUNDRE HUNTER; FRANK ADAMS;
FELECIA M. HUNTER,
Defendants.
STATE OF SOUTH CAROLINA HUMAN
AFFAIRS COMMISSION,
Movant.
MARK WEBSTER,
Plaintiff-Appellant,
v.
UNION CAMP CORPORATION; MARK
WATKINS; DIANA BELL; TAFT
GAYMON,
Defendants-Appellees,
No. 98-2815
and
AUNDRE HUNTER; FRANK ADAMS;
FELECIA M. HUNTER,
Defendants.
STATE OF SOUTH CAROLINA HUMAN
AFFAIRS COMMISSION,
Movant.
Appeals from the United States District Court
for the District of South Carolina, at Columbia.
Joseph F. Anderson, Jr., District Judge.
(CA-97-174-3-17,
CA-97-214-3-17)
Argued: April 7, 2000
Decided: June 7, 2000
Before WILLIAMS, MICHAEL, and KING,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion. Judge King wrote a
concurring and dissenting opinion.
_________________________________________________________________
2
COUNSEL
ARGUED: James Lewis Mann Cromer, CROMER & MABRY,
Columbia, South Carolina, for Appellant. James Lynn Werner,
ELLZEY & BROOKS, L.L.C., Columbia, South Carolina, for Appel-
lees. ON BRIEF: Benjamin M. Mabry, CROMER & MABRY,
Columbia, South Carolina; James G. Felder, FELDER, PRICKETT &
MCGEE, St. Matthews, South Carolina, for Appellant. Nicole P. Can-
tey, ELLZEY & BROOKS, L.L.C., Columbia, South Carolina, for
Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Walter Weeks and Mark Webster filed suit in the United States
District Court for the District of South Carolina against their former
employer, Union Camp Corporation (Union Camp), and their former
managers,1 alleging violations of the Wiretap Act, reverse discrimina-
tion under Title VII of the Civil Rights Act of 1964, and state law
claims of defamation and invasion of privacy all arising from Union
Camp's decision to fire them based upon a conversation that was
recorded by another employee, Aundre Hunter.2 The district court
granted Union Camp's motion for summary judgment. As to their
_________________________________________________________________
1 The individual managers are Mark Watkins, Diana Bell, Taft Gay-
mon, and Frank Adams. Webster and Weeks later withdrew their claims
against all defendants for civil conspiracy and negligence. They also dis-
missed all claims against Adams. For convenience, this opinion will refer
to the remaining claims against these individuals collectively with the
claims against Union Camp.
2 Hunter was a defendant in this case until the claims and counterclaims
between Hunter, Webster, and Weeks were settled prior to this appeal.
3
Wiretap Act claim, Weeks and Webster argue that the district court
erred because there was a triable issue of fact as to whether Union
Camp knew or had reason to know that the tape recording was inten-
tional. They also argue that the district court erred in granting sum-
mary judgment as to their Title VII claim and state law claims. For
the reasons that follow, we affirm.
I.
Weeks, Webster, Hunter, and Patrick Lyle were co-workers on the
same job team at Union Camp. Hunter is a black male, while Weeks,
Webster, and Lyle are white males. On April 11, 1996, Hunter
became unhappy after his job team gave him a partially unfavorable
peer review, under which it decided that Hunter"need[ed] improve-
ment" in the "Contributions To The Team And Department" category.
(J.A. at 247.) Hunter believed that his race played a role in his nega-
tive peer review. On April 12, 1996, Hunter reported Weeks and
Webster for reading magazines on the job. Hunter believed that Web-
ster threatened to "slap the s*** out of [Hunter]" in response to the
incident.3 (J.A. at 211.)
Either on the same day or the next day, Webster, Weeks, and Lyle
convened in the break room and engaged in a discussion about
Hunter. Unbeknownst to them, Hunter's duffle bag was in the room
with a tape recorder that was recording their conversation. Hunter
claims that he inadvertently taped their conversation by accidentally
switching the recorder "on" when he removed his jacket from the bag
shortly before Webster, Weeks, and Lyle entered the room.4 During
_________________________________________________________________
3 At deposition, Hunter was contradictory as to whether he actually
heard Webster say anything to that effect. Hunter testified that he did not
actually hear Webster make the comment, but that he instead interpreted
Webster's body language as threatening, and, thus, imputed that state-
ment to Webster. He later testified that "Mr. Webster did make a com-
ment with regards to kicking the s*** out of me." (J.A. at 221.)
4 The district court, after examining the tape recorder and the bag's
contents, noted that "[t]he bag contained several hard objects." (J.A. at
559.) These hard objects included slabbing knives, safety glasses, a tape
measure, a notebook, a back support belt, and a master lock, as well as
the minicassette tape recorder. Hunter claims that he carried the tape
recorder with him to record what was said during team meetings.
4
the conversation, Webster, Weeks, and Lyle apparently can be heard
making racial and arguably threatening comments about and toward
Hunter.5
On May 6, 1996, Hunter filed a charge of discrimination with the
South Carolina Human Affairs Commission (SCHAC). 6 Union Camp
began to investigate this charge but it still did not know about the
tape. In September 1996, Wanda Nixon, who worked for SCHAC,
called Diana Bell, Union Camp's Human Resources Manager, and
informed her about the tape. Nixon told Bell that"Hunter had
informed [Nixon] that he accidentally turned it on" and that Nixon
believed Hunter's representation that the taping was inadvertent. (J.A.
at 532.)
Union Camp, upon learning of the tape, consulted outside counsel
to determine whether it could listen to the tape. Counsel advised
Union Camp that it could listen to the tape if it was inadvertently
recorded. Relying upon Nixon's statement that the taping was inad-
vertent, as well as Hunter's representation that the taping was an acci-
dent, Union Camp decided to listen to the tape.
After hearing the tape, Union Camp brought in Weeks, Webster,
and Lyle and asked them about the conversation. Union Camp told
them that it had a witness to the conversation, but did not disclose that
the "witness" was the tape. Weeks, Webster, and Lyle denied making
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5 The tape was of poor quality, and Union Camp had to enhance the
tape in order to discern what Webster, Weeks, and Lyle said. Webster,
Weeks, and Lyle's conversation included statements such as: "He got a
needs improvement; he's trying to get us back";"Black b*stard"; "I
guess I'm a n*gger lover, too"; "Damn black ones"; "Andre's got a g*d
damn shotgun for us . . . break out a damn oozie"; and "Eddie said, ``Shut
your black a** us [sic].'" (J.A. at 188-93.)
6 This charge alleged employment discrimination under Title VII, based
upon Hunter's negative peer review. It also alleged, without mentioning
the tape recording, that "[o]n April 12, 1996, I became aware of racial
slurs and physical threats directed at me," and that "I am aware that my
white co-workers stated that I was a black b*stard and n*gger lover dur-
ing a casual conversation regarding my peer review. I received negative
comments on this review by these same co-workers." (J.A. at 235.)
5
many of the statements attributed to them. On December 6, 1996,
Union Camp again met with Weeks, Webster, and Lyle, and gave
them an opportunity to hear the tape. This time, they admitted to sev-
eral of the statements. On December 27, 1996, Union Camp fired
Weeks, Webster, and Lyle for racial harassment, dishonesty in their
initial responses to the inquiry, and making physical threats against
Hunter. Shortly thereafter, Union Camp explained the incident to its
other employees in an attempt to quell rumors concerning the inci-
dent. Although Union Camp informed all of its employees about the
incident, it identified Webster, Weeks, and Lyle by name only to
those employees who were on the same job team as Webster, Weeks,
and Lyle.
In January 1997, Webster and Weeks filed suit against Union
Camp, Hunter, and other individual managers alleging violations of
the Wiretap Act, reverse discrimination under Title VII, defamation,
invasion of privacy, civil conspiracy, and negligence.7 On July 28,
1998, the district court granted summary judgment in favor of Union
Camp, concluding that there was no evidence that Union Camp knew
or had any reason to know, when it used the tape, that Hunter had
intentionally recorded the conversation. It also concluded that Union
Camp's statements to its employees were privileged for purposes of
defamation, that there was no evidence that Webster and Weeks were
similarly situated with Hunter for purposes of Title VII, and that there
was no evidence of "serious mental injury" for purposes of invasion
of privacy. On August 25, 1998, the district court denied Webster and
Weeks's motion for reconsideration, and on November 6, 1998, the
district court entered an order disposing of the case after Webster and
Weeks settled all of the claims and counterclaims that remained with
respect to Hunter. On December 3, 1998, Webster and Weeks filed
a joint notice of appeal.
On appeal, Webster and Weeks argue that the issue of whether
Union Camp knew or had reason to know that Hunter intentionally
recorded their conversation for purposes of the Wiretap Act is a jury
question, and that they offered sufficient circumstantial evidence to
raise a triable issue of fact as to that issue. They also argue that the
_________________________________________________________________
7 Lyle also filed suit against Union Camp and others, but he later settled
his claims.
6
district court erred in granting summary judgment in favor of Union
Camp as to their Title VII reverse discrimination claim because,
although Webster and Weeks did not engage in similar misconduct as
Hunter, Hunter's misconduct was comparably serious, and, therefore,
they were similarly situated with Hunter for purposes of Title VII.
Finally, Webster and Weeks argue that Union Camp exceeded its
privilege with respect to their defamation claim and that they showed
sufficient mental harm to support their invasion of privacy claim. We
address each issue in turn.
II.
Federal Rule of Civil Procedure 56 provides that summary judg-
ment is appropriate if "the pleadings, depositions, answers to interrog-
atories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law." Fed.
R. Civ. P. 56(c). A dispute of material fact "is``genuine' . . . if the evi-
dence is such that a reasonable jury could return a verdict for the non-
moving party." Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
When a moving party supports its motion with affidavits, the non-
moving party cannot rest on its allegations, but instead must set forth
specific facts showing that there is a genuine issue for trial. See id.
at 248-50. "We review a grant of summary judgment de novo, apply-
ing the same standard as the district court." Baber v. Hospital Corp.
of America, 977 F.2d 872, 874 (4th Cir. 1992). We view the evidence
submitted by the parties in the light most favorable to the nonmoving
party. See id. at 875.
III.
Webster and Weeks first argue that there is ample circumstantial
evidence to raise a triable issue of fact for the jury as to whether
Union Camp knew or had reason to know that Hunter intentionally
recorded their conversation when Union Camp used the recording
against them. For the reasons that follow, we affirm the district
court's grant of summary judgment dismissing Webster and Weeks's
Wiretap Act claim.
7
Section 2511 of Title 18 of the United States Code prohibits any
person from "intentionally intercept[ing] .. . any wire, oral, or elec-
tronic communication." 18 U.S.C.A. § 2511(1)(a) (West Supp. 1999).
It also prohibits persons from intentionally using intercepted commu-
nications if they know, or have reason to know,"that the information
was obtained through the interception of a wire, oral, or electronic
communication in violation of this subsection." 18 U.S.C.A.
§ 2511(1)(d) (West Supp. 1999).8 Section 2520 provides that "any
person whose wire, oral, or electronic communication is intercepted,
disclosed, or intentionally used in violation of this chapter may in a
civil action recover from the person or entity which engaged in that
violation such relief as may be appropriate." 18 U.S.C.A. § 2520(a)
(West Supp. 1999).
"To be liable [for unlawful disclosure or use of intercepted commu-
nications under § 2511], the appellees would have to have known, or
have had reason to know, that [the individual who made the record-
ing] had a criminal or tortious motive in creating the tapes." Bast v.
Cohen, Dunn & Sinclair, PC, 59 F.3d 492, 495 (4th Cir. 1995). Thus,
in order to establish liability, a plaintiff must show that the "defendant
kn[ew] (1) the information used or disclosed came from an inter-
cepted communication, and (2) sufficient facts concerning the circum-
stances of the interception such that the defendant could, with
presumed knowledge of the law, determine that the interception was
prohibited in light of [the statute]." Thompson v. Dulaney, 970 F.2d
744, 749 (10th Cir. 1992). "Although a defendant may be presumed
to know the law, to establish use and disclosure liability under Title
III [of the Act], a defendant must be shown to have been aware of the
factual circumstances that would violate the statute." Id. (internal cita-
tions omitted); see also United States v. Wuliger, 981 F.2d 1497, 1504
(6th Cir. 1992) (directing the district court to examine factors "to be
considered with other circumstantial evidence in determining whether
_________________________________________________________________
8 Likewise, 18 U.S.C.A. § 2511(1)(c) (West Supp. 1999) applies to any
person who
intentionally discloses, or endeavors to disclose, to any other
person the contents of any wire, oral, or electronic communica-
tion, knowing or having reason to know that the information was
obtained through the interception of a wire, oral, or electronic
communication in violation of this subsection.
8
one has reason to know a fact"). A plaintiff"cannot overcome sum-
mary judgment merely by showing that it was reasonably foreseeable
that the interception occurred illegally." Nix v. O'Malley, 160 F.3d
343, 349 (6th Cir. 1998) (internal quotation marks omitted).
In the present case, there is no direct evidence that Union Camp
actually knew that Hunter intentionally recorded the conversation at
the time it used the recording; to this day, Hunter maintains that he
accidentally recorded the conversation. Thus, we are left to determine
whether Webster and Weeks have raised a triable issue of fact that
Union Camp had reason to know, notwithstanding Hunter's state-
ments, that the recording was intentional.9 See id. (stating that an
unrebutted affidavit that the defendant did not believe that a recording
was illegal was relevant, but not dispositive, to the question of
whether he had reason to know that the interception was illegal).
Webster and Weeks rely primarily upon Wuliger to argue that
Union Camp could not have plausibly believed Hunter's or Nixon's
representations that Hunter inadvertently recorded the conversation,
and that Union Camp should have investigated more carefully before
listening to the recording. Wuliger involved an attorney who was con-
victed of using recordings, made by his client, of the client's wife
without her knowledge after the client had falsely informed the attor-
ney that the wife had consented to the recordings. See Wuliger, 981
F.2d at 1500. The attorney challenged his conviction partly on the
ground that the district court erred in instructing the jury that reason-
able foreseeability could satisfy the "reason to know" standard. The
Sixth Circuit agreed and stated that reasonable foreseeability "is only
a factor to be considered with other circumstantial evidence in deter-
mining whether one has reason to know a fact." Id. at 1504. The
Wuliger court rejected, however, the attorney's argument that his
position as an attorney required him to believe his client's assertion
that the wife had consented to the recording. See id. at 1505. In doing
so, the Wuliger court noted that "an attorney's professional duties
may be a factor in determining whether there is reason to know that
recorded information, given by the client, was illegally obtained.
_________________________________________________________________
9 For purposes of this analysis, we, like the district court, will assume
that Hunter intentionally recorded the conversation.
9
Although an attorney must not turn a blind eye to the obvious, he
should be able to give his clients the benefit of the doubt." Id.Webster and Weeks argue that Union Camp, like the attorney in
Wuliger, turned a blind eye to the obvious when it failed to investi-
gate the plausibility of Hunter's explanation. They correctly note that
Union Camp was aware, when it listened to the recording, that Hunter
had complained about his peer evaluation;10 that Hunter had recently
reported Webster and Weeks for reading magazines on the job,
prompting Webster to allegedly threaten Hunter; and that Hunter did
not immediately inform Union Camp about the recording. They main-
tain that, given these circumstances, Union Camp should not have
relied blindly upon Hunter's explanation, but, rather, that it should
have tried harder to verify Hunter's story, perhaps by physically
examining the tape recorder.
Unlike the attorney in Wuliger, however, Union Camp did not sim-
ply rely upon Hunter's bald assertion that the taping was inadvertent.
Union Camp first became aware of the tape from SCHAC, which
informed it, through Nixon, that it believed that Hunter was telling the
truth. Indeed, SCHAC, as an independent and objective investigative
body, had already listened to the recording before contacting Union
Camp about its existence. Union Camp also questioned Hunter, who
consistently maintained that the recording was accidental, just as he
did before SCHAC. In light of these undisputed facts, we cannot say
that Union Camp turned a "blind eye to the obvious," Wuliger, 981
F.2d at 1505, or that it had reason to know that Hunter had intention-
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10 Union Camp was aware that Hunter blamed Webster and Weeks for
the peer evaluation as early as May 6, 1996, when Hunter filed his
SCHAC complaint. The SCHAC complaint does not mention the record-
ing but it does refer to the conversation that, as it turns out, was recorded.
Hunter alleged in the SCHAC complaint that, based upon the conversa-
tion, he became aware that co-workers made racial slurs and physical
threats, and that "[he] received negative comments on [the peer review]
by these same co-workers." (J.A. at 235.) The SCHAC complaint, how-
ever, suggests that Hunter blamed Webster and Weeks because of the
conversation, and not that Hunter recorded the conversation because he
blamed Webster and Weeks. Consequently, the SCHAC complaint, by
itself, would not have alerted Union Camp that Hunter had a motive to
record the conversation.
10
ally recorded the conversation. Union Camp relied upon information
supplied by an objective investigative body -- information that Union
Camp had no reason to question and that Union Camp could not eas-
ily ignore -- in deciding to use the tape. Bell knew that Nixon was
offering access to the tape and that Nixon believed that Hunter was
telling the truth. Bell "made the decision to follow instructions from
[SCHAC]" because Bell had "no reason to doubt [Hunter]" and
SCHAC "is a state agency handling the investigation" for Hunter.
(J.A. at 430.) Finally, Union Camp did not blindly follow Nixon's
representations; it asked Hunter to confirm the circumstances of the
recording. We agree with the district court that, in the face of
SCHAC's statements and Union Camp's own conversations with
Hunter following SCHAC's statements, Union Camp did not act
improperly.11 Viewing the facts and reasonable inferences in the light
most favorable to Webster and Weeks, we do not believe that a jury
could conclude that Union Camp was aware, at the time it used the
recording, of sufficient facts to allow it to determine -- beyond, per-
haps, speculative guesswork -- that the recording was unlawful.
Accordingly, we affirm the district court's grant of summary judg-
ment in favor of Union Camp as to Webster and Weeks's Wiretap Act
claim.12
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11 The dissent insists that "[t]he evidence of Hunter's intent is so pow-
erful that Union Camp could ignore it only at the company's peril." Post
at 22. To say that Union Camp was "willfully blind," however, is to
ignore Union Camp's reasonable decision to credit SCHAC's representa-
tions in the absence of any directly contradictory evidence, as well as
Union Camp's independent attempts to question Hunter. Indeed, Union
Camp's true peril would have been to ignore evidence of potentially seri-
ous misconduct, offered by an investigative body, on the basis of little
more than conjecture as to Hunter's motives. Finally, the dissent suggests
that our decision stands for the proposition that"three blind mice are
more apt than one to discover the cheese." Post at 22. We decline, how-
ever, to assume the role of the farmer's wife, cutting off Union Camp's
tail with a carving knife fashioned from the questionable conclusion that
its investigation was inadequate.
12 Union Camp also argues that Weeks and Webster's settlement with
Hunter, which resulted in the voluntary dismissal of their Wiretap Act
claim against Hunter, precludes their Wiretap Act claim against Union
Camp under the doctrine of res judicata. In light of our disposition of the
underlying Wiretap Act claim against Union Camp, however, we do not
address whether res judicata applies in the present case.
11
IV.
Webster and Weeks next argue that the district court erred in grant-
ing summary judgment in favor of Union Camp as to their Title VII
reverse discrimination claim. They argue that there is ample evidence
that they, as white males, were treated less favorably than Hunter
because they were fired for misconduct that was comparably serious
to misconduct for which Hunter was not disciplined. Webster and
Weeks maintain that although Hunter's alleged misconduct was not
similar in nature to their misconduct, it was similar in seriousness,
and, thus, they were similarly situated for purposes of Title VII. We
disagree.
To establish a prima facie case of disparate discipline under Title
VII, a plaintiff generally must show that (1) he engaged in prohibited
conduct similar to that of a person of another race, and (2) that disci-
plinary measures enforced against the plaintiff were more severe than
those enforced against the other person. See Taylor v. Virginia Union
Univ., 193 F.3d 219, 234 (4th Cir. 1999), cert. denied, 120 S. Ct.
1243 (2000). The defendant may then offer a non-discriminatory rea-
son for the disparity, which then triggers the plaintiff's obligation to
rebut the proffered explanation. See Cook v. CSX Transp. Corp., 988
F.2d 507, 511 (4th Cir. 1993). In determining similarity for the pur-
poses of this test, Webster and Weeks must show"that the prohibited
conduct in which [they] engaged was comparable in seriousness to
misconduct of employees outside the . . . class." Id.Although Webster and Weeks correctly argue that Title VII does
not require exact identity between their conduct and Hunter's con-
duct, see id. at 511 (discussing the "need to compare only discipline
imposed for like offenses in sorting out claims of disparate discipline
under Title VII and of the reality that the comparison will never
involve precisely the same set of work-related offenses occurring over
the same period of time and under the same sets of circumstances"),
Webster and Weeks have failed to show that their conduct was com-
parably serious to Hunter's.13 The most serious, and comparable, of
_________________________________________________________________
13 Some courts use a "background circumstances" test in reverse dis-
crimination cases to determine whether the defendant is "that unusual
12
Hunter's actions is his alleged dishonesty with respect to the recording.14
However, even if we assume that Hunter lied about the accidental
nature of the recording, there is no evidence that Union Camp actually
knew that Hunter was lying. As discussed above, Union Camp has
never had any concrete evidence that Hunter was dishonest. Indeed,
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employer who discriminates against the majority." Parker v. Baltimore
& O.R.R. Co., 652 F.2d 1012, 1017 (D.C. Cir. 1981); see also Mills v.
Health Care Serv. Corp., 171 F.3d 450, 457 (7th Cir. 1999); Duffy v.
Wolle, 123 F.3d 1026, 1036-37 (8th Cir. 1997); Reynolds v. School Dist.
No. 1, 69 F.3d 1523, 1534 (10th Cir. 1995); Notari v. Denver Water
Dep't, 971 F.2d 585, 588-89 (10th Cir. 1992); Murray v. Thistledown
Racing Club, Inc., 770 F.2d 63, 66-67 (6th Cir. 1985). The Third Circuit
recently rejected this test in favor of a standard under which
a plaintiff who brings a "reverse discrimination" suit under Title
VII should be able to establish a prima facie case in the absence
of direct evidence of discrimination by presenting sufficient evi-
dence to allow a reasonable fact finder to conclude (given the
totality of the circumstances) that the defendant treated plaintiff
less favorably than others because of his race, color, religion,
sex, or national origin.
Iadimarco v. Runyon, 190 F.3d 151, 163 (3d Cir. 1999) (internal quota-
tion marks omitted). We have not taken a position on this issue. See
Lucas v. Dole, 835 F.2d 532, 534 (4th Cir. 1987) ("Although the D.C.
Circuit has imposed a higher prima facie burden on majority plaintiffs,
we expressly decline to decide at this time whether a higher burden
applies."). Regardless of which standard we apply to the present case,
however, we conclude that Webster and Weeks have failed to raise a tri-
able issue of fact that they were similarly situated with Hunter so as to
implicate Title VII.
14 Union Camp's stated reasons for firing Webster and Weeks were that
Webster and Weeks made statements that were arguably racist and
threatening to Hunter; and that Webster and Weeks"were less than forth-
coming" about those statements when Union Camp initially asked about
them, only to change their answers when Union Camp confronted them
with the tape. Webster and Weeks argue that Hunter's conduct is compa-
rably serious because he allegedly lied about the inadvertent nature of the
recording, refused to play the tape without his attorney present, was once
thirty minutes late to a meeting, and once cursed at a manager during a
later meeting.
13
to this day, Hunter has continuously maintained his innocence. By
contrast, Webster and Weeks initially denied making the statements
in the recording and then later admitted to making several of those
statements. Union Camp, therefore, had at least some hard evidence
of dishonesty and inconsistency by Webster and Weeks in responding
to the investigation. Consequently, Union Camp clearly had a reason-
able basis for distinguishing between Webster, Weeks, and Hunter
because the evidence available with respect to Hunter was signifi-
cantly different than that which was available against Webster and
Weeks.15 Because Hunter was not similarly situated with Webster and
Weeks, we affirm the district court's grant of summary judgment in
favor of Union Camp with respect to Webster and Weeks's Title VII
reverse discrimination claim.
V.
Webster and Weeks next argue that Union Camp defamed them
when it told its employees about their firing. Webster and Weeks
assert that the district court should have allowed their state law defa-
mation claim, as well as the defense of privilege, to go to the jury. We
agree with the district court that Webster and Weeks failed to raise
a triable issue of fact as to these issues.
Under South Carolina law, a plaintiff can recover for defamation
"if he can show that the statement (1) had a defamatory meaning; (2)
was published with actual or implied malice; (3) was false; (4) was
published by the defendant; (5) concerned the plaintiff; and (6)
resulted in presumed damages or special damages to the plaintiff."
Parker v. Evening Post Publ'g Co., 452 S.E.2d 640, 644 (S.C. Ct.
App. 1994). Under South Carolina law, communications between
officers, or agents of the same corporation generally enjoy a qualified
privilege. See Bell v. Evening Post Publ'g Co. , 459 S.E.2d 315, 317
(S.C. Ct. App. 1995). The elements of a qualified privilege are "good
faith, an interest to be upheld, a statement limited in its scope to this
purpose, a proper occasion, and publication in a proper manner and
to proper parties only." Id. "One publishing defamatory words under
_________________________________________________________________
15 Moreover, the nature of Webster and Weeks's infractions -- espe-
cially the racial component and the apparent physical threats involved --
likewise set their infractions apart from Hunter's alleged infractions.
14
a qualified or conditional privilege is only liable upon proof of
express malice." Fulton v. Atlantic Coast Line R. Co., 67 S.E.2d 425,
429 (S.C. 1951). "Actual malice means that appellant acted with ill-
will towards the plaintiff, or that it acted recklessly or wantonly,
meaning with conscious indifference toward plaintiff's rights." Pad-
gett v. Sun News, 292 S.E.2d 30, 34 (S.C. 1982) (internal quotation
marks omitted). To establish malice, however,
[i]t is not necessary that evidence must be offered of malig-
nity or illwill, nor that those facts should be found. The
time, place, and other circumstances of the preparation and
publication of defamatory charges, as well as the language
of the publication itself, are admissible evidence to show
that the false charge was made with malice.
Fulton, 67 S.E.2d at 429. Moreover, "[w]here the person exceeds his
privilege and the communication complained of goes beyond what the
occasion demands that he should publish, and is unnecessarily defam-
atory of plaintiff, he will not be protected." Id. Consequently, "[t]he
employer-employee privilege does not protect unnecessary defama-
tion." Moshtaghi v. The Citadel, 443 S.E.2d 915, 920 (S.C. Ct. App.
1994). "While abuse of the conditional privilege is ordinarily an issue
reserved for the jury, in the absence of a controversy as to the facts
. . . it is for the court to say in a given instance whether or not the
privilege has been abused or exceeded." Woodward v. South Carolina
Farm Bureau Ins. Co., 282 S.E.2d 599, 601 (S.C. 1981) (internal cita-
tions omitted).
Union Camp's statement to its employees regarding the termination
of Webster and Weeks was conditionally privileged because it
occurred within the context of a communication between agents of the
same corporation; there is no evidence that anyone outside of Union
Camp was present when Union Camp informed its employees of
Webster and Weeks's termination. Moreover, there was a common
interest to be upheld because rumors were emerging among the
employees that Union Camp needed to quell. The only issue, there-
fore, is whether Union Camp exceeded its privilege by disclosing the
information in an improper manner or with malice. Compare Bell,
459 S.E.2d at 317 (deciding, as a matter of law, that Evening Post did
not act with malice or exceed its privilege because there was no evi-
15
dence that Evening Post acted in anything other than"a proper effort
to protect its business interests and employees" in investigating sexual
harassment), and Woodward, 282 S.E.2d at 601 (finding abuse of
privilege where a letter, sent in the context of settlement negotiations,
"gratuitously volunteered" the "obviously unnecessary" statement that
a doctor who treated the claimant "often overtreats his patients").
In the present case, David Fary, who made the announcement to
Union Camp employees, testified at deposition that Union Camp
decided to make the announcement because
there was a great uncertainty within the organization as to
where things stood, what had happened to three people, peo-
ple were aware of conflicts within the teams, that we felt it
appropriate at that point in time to try to share some clarify-
ing information and to let the teams know where things
stood, where we were moving forward from here and that
type thing.
(J.A. at 551.) Fary based his statement upon an outline that his law-
yers gave him.16 Bell testified that Fary informed each "team" sepa-
rately and that he only identified Weeks and Webster in his statement
to ``B' team because that was the team of which they were members.
Based upon Bell and Fary's undisputed testimony, we have no dif-
ficulty concluding that Union Camp did not exceed its privilege.
Union Camp needed to explain the circumstances of the incident to
quell rumors and uncertainty that was emerging among its employees.
_________________________________________________________________
16 Based upon Fary's handwritten notes from the ``B' team meeting, it
appears that he intended to discuss "the issues involved," "why it took so
long," and "learning from the situation." (J.A. at 554.) He appears to
have told them that "much of it should be considered confidential," that
Union Camp "conducted a very thorough investigation" and that "it has
been concluded that [Webster, Weeks, and Lyle] were involved in . . .
harassment and physical threats. This information was obtained from a
taped conversation . . . and was part of a harassment complaint brought
by a fellow employee. The three are no longer employed based on
harassment and physical threats and less than full disclosure of their
knowledge of the situation." (J.A. at 554.)
16
In doing so, Union Camp limited the scope of information it gave to
its employees by revealing Webster and Weeks's identities only to
members of ``B' team, who had a distinct interest in understanding
what happened to their fellow team members. Webster and Weeks
have not offered any evidence to suggest that Union Camp had any
motive beyond addressing these rumors, that Fary revealed their
names to anyone other than members of ``B' team, or that Fary
revealed more information than necessary to resolve the situation.
Because there is no evidence that Union Camp exceeded its privilege
or that it acted with malice, we affirm the district court's grant of
summary judgment on this issue.
VI.
Finally, Webster and Weeks argue that Union Camp invaded their
privacy by using Hunter's illegally recorded tape. The district court,
in disposing of this issue, stated that "Plaintiffs have failed to meet
their burden under this cause of action. Plaintiffs have produced no
evidence that the defendants' use of the tape caused them ``serious
mental injury,' and the court must therefore dismiss this cause of
action." (J.A. at 567.) For the reasons that follow, we affirm the dis-
trict court on this issue.
Under South Carolina law, a cause of action for invasion of privacy
comes in three forms: wrongful appropriation of personality, wrong-
ful publicizing of private affairs, and wrongful intrusion into private
affairs. See Snakenberg v. Hartford Casualty Ins. Co., 383 S.E.2d 2,
5 (S.C. Ct. App. 1989). It is the latter form of the action, wrongful
intrusion into private affairs, upon which Webster and Weeks base
their claim. A wrongful intrusion claim requires an (1) intrusion; (2)
into that which is private; (3) that is substantial and unreasonable
enough to be legally cognizable; and (4) intentional.17 See id. Notably,
_________________________________________________________________
17 "For purposes of civil liability, an act is intentional if (1) it is done
willingly; and either (2) the actor desires the result of his conduct, what-
ever the likelihood of that result happening; or (3) the actor knows or
ought to know the result will follow from his conduct, whatever his
desire may be as to that result." Snakenberg v. Hartford Casualty Ins.
Co., 383 S.E.2d 2, 6 (S.C. Ct. App. 1989).
17
[i]n order to constitute an invasion of privacy, the defen-
dant's conduct must be of a nature that would cause mental
injury to a person of ordinary feelings and intelligence in the
same circumstances. The law protects normal sensibilities,
not heightened sensitivity, however genuine. Whether the
conduct in question meets this test is, in the first instance,
a question of law for the court.
Id. (internal citations omitted). "When a plaintiff bases an action for
invasion of privacy on ``intrusion' alone, bringing forth no evidence
of public disclosure, it is incumbent upon him to show a blatant and
shocking disregard of his rights, and serious mental or physical injury
or humiliation to himself resulting therefrom." Rycroft v. Gaddy, 314
S.E.2d 39, 43 (S.C. Ct. App. 1984).
Webster and Weeks have failed to point to any evidence of serious
mental harm.18 Indeed, our own examination of the record reveals that
Webster and Weeks's only evidence of serious mental injury appears
in the form of identical affidavits, filed by each, stating that "the state-
ments made by Dave Fary to the workforce at Union Camp about the
termination of the deponent have caused the deponent severe mental
damages including distress, embarrassment, humiliation, mental
anguish, and depression." (J.A. at 158, 133.) These conclusory affida-
vits, by themselves, are not enough to create a triable issue of fact.
See Evans v. Technologies Applications & Serv. Co., 80 F.3d 954,
962 (4th Cir. 1996) ("[S]ummary judgment affidavits cannot be con-
clusory."). Because Webster and Weeks have failed to offer sufficient
evidence to support their allegation of serious mental injury, we
affirm the district court's grant of summary judgment on this issue.
_________________________________________________________________
18 In their briefs, Webster and Weeks argue simply that "[i]t should be
obvious to any reasonable person that such an offense against one's pri-
vacy occurring in a society which places such an enormous value on this
liberty would cause humiliation and mental injury in any person of ordi-
nary sensibilities." (Reply Br. at 29.) This conclusory assertion, absent
other evidence, is simply insufficient to defeat summary judgment.
18
VII.
In conclusion, Webster and Weeks have failed to raise a triable
issue of fact that Union Camp knew or had reason to know that
Hunter intentionally recorded Webster and Weeks's conversation.
Thus, the district court properly granted summary judgment in favor
of Union Camp with respect to Webster and Weeks's Wiretap Act
claims.
Webster and Weeks have also failed to raise a genuine issue of
material fact that they are similarly situated with Hunter under Title
VII, or that Union Camp exceeded its privilege in disclosing their
identities and explaining their firings to members of their job team.
Finally, Webster and Weeks have failed to offer evidence of serious
mental injury sufficient to sustain their invasion of privacy claim. For
these reasons, we affirm the district court's grant of summary judg-
ment on these claims.
AFFIRMED
KING, Circuit Judge, concurring in part and dissenting in part:
I agree that the district court correctly entered summary judgment
for Union Camp insofar as the plaintiffs' action is premised on
alleged violations of Title VII or the law of South Carolina. I there-
fore join in those portions of the majority's opinion affirming the
judgment below with regard to the reverse discrimination and state-
law claims.
I respectfully disagree, however, with the majority's conclusion
that summary judgment was warranted for Union Camp on the plain-
tiffs' claim under the Wiretap Act. Accordingly, I dissent from Part
III of the majority's opinion.
I.
A.
It is the rare case that begets a penitent eavesdropper; far more
often, the alleged interloper is unwilling to admit that he has inten-
19
tionally intercepted a private conversation. This case is no different:
Hunter steadfastly denies having activated his tape recorder on pur-
pose, and there is no direct evidence to refute his protestations of
innocence.
The circumstantial evidence of Hunter's culpable intent, however,
is overwhelming. Indeed, had Hunter been prosecuted and convicted
of criminally violating the Wiretap Act, see 18 U.S.C. § 2511(4), the
evidence would plainly have been sufficient to sustain the jury's ver-
dict. Consider the following circumstances surrounding the taping of
the plaintiffs' conversation:
(1) Hunter's possession of the tape recorder . Hunter explained
that the recorder was a birthday gift from his wife, used only to tape
end-of-shift meetings that occurred infrequently, i.e., about four times
per year. It appears that no such meeting was scheduled near the time
of the events in question, as Hunter could not recall when he had last
used the recorder;
(2) The timing. The taping occurred within thirty-six hours of two
major incidents involving Hunter and the plaintiffs, beginning with
the volatile aftermath of the peer evaluation and concluding with
Hunter's complaint that the plaintiffs were reading magazines on the
job (which itself culminated in Webster's vague threat of physical
violence);
(3) The motive. Hunter blamed his unsatisfactory evaluation on
the plaintiffs and Lyle, and the district court found that Union Camp
was aware of Hunter's animus. J.A. 560;
(4) The opportunity. Webster testified that he brought his lunch
"90-95 percent of the time," a habit of which his co-workers were
bound to be aware. The most logical alternative to walking to the
plant cafeteria was eating in the break room, where Hunter had placed
his duffel bag;
(5) The setup. Hunter made a point of opening the door to the
break room and telling the plaintiffs that he was going to the cafeteria
(and thus leaving their presence);
20
(6) Hunter's past behavior. Hunter was prone to preserving
records of job-related incidents for later reference, as evidenced by
the list of perceived wrongs he produced at his peer evaluation;
(7) Hunter's actions regarding the tape. Although Hunter met
with company representatives on a number of occasions following the
break room episode, the tape's existence was not revealed to Union
Camp until nearly five months after the fact, and only then by a third
party. Indeed, even Hunter's close friend and co-worker, Frank
Adams, did not learn of the tape until after this lawsuit was filed.
Hunter's efforts at concealment strongly suggest that he had some-
thing to hide, namely that he had acted inappropriately and unlawfully
by surreptitiously recording the plaintiffs' conversation;
(8) The implausibility of Hunter's explanation. It strains the lim-
its of credulity to accept the premise that a tape recorder button can
be "accidentally" pressed down just by removing a jacket from a duf-
fel bag. Even granting the possibility, it is highly unlikely that -- of
all the buttons that could be activated-- it would be the "Record"
button that was. Moreover, if the recording were truly an accident, it
seems probable that Hunter would not have listened to the tape, but
would have simply rewound it.
In short, if a prosecutor were attempting to convince a criminal jury
beyond a reasonable doubt that Hunter intended to record the plain-
tiffs' conversation, she would be delighted to have such a solid case.
Were Hunter convicted, that same prosecutor would lose precious lit-
tle sleep worrying that we might reverse the jury's verdict under
Glasser v. United States, 315 U.S. 60, 80 (1942), as unsupported by
substantial evidence.
Of course, this is not a criminal case, and it is not a proceeding
against Hunter. But Union Camp is liable to the plaintiffs for using
or disclosing the contents of the clandestine recording -- a criminal
act abhorrent to civilized custom -- if it reasonably should have
known of its alleged nature. Union Camp clearly had every reason to
know, but the plaintiffs need only demonstrate at the outset that it was
more likely than not that Hunter made the recording intentionally.
Once Hunter's culpability has been proved to the jury's satisfaction,
it could then proceed to the ultimate issue of what Union Camp
21
should have known -- which also is subject to proof by a mere pre-
ponderance of the evidence.
B.
The evidence of Hunter's intent is so powerful that Union Camp
could ignore it only at the company's peril. The majority, however,
sanctions Union Camp's willful blindness by permitting it to rely
solely on (1) the opinion of the state's case agent, whose remarkable
talent for divining the truth is nowhere documented; and (2) the repre-
sentations of Hunter himself, who can hardly be thought a disinter-
ested witness. See ante at 10-11. Needless to say, I am not comforted
by the majority's apparent conclusion that three blind mice are more
apt than one to discover the cheese.
II.
If a jury were to find that Union Camp disclosed or otherwise used
the contents of the tape recording "having reason to know that the
information was obtained" in violation of the Wiretap Act, see 18
U.S.C. §§ 2511(1)(c)-(d), we would be compelled to affirm its verdict
unless "reasonable persons could reach no other conclusion" than that
embraced by the majority today. Spicer v. Virginia Dep't of Correc-
tions, 66 F.3d 705, 711 (4th Cir. 1995) (en banc) (quoting Coates v.
Daugherty, 973 F.2d 290, 293 (1992)). In light of the evidence before
us, I submit that a verdict in the plaintiffs' favor would be considera-
bly more than reasonable; it would be sensible.
22