UNPUBLISHED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.

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Affirmed by unpublished per curiam opinion. Judge King wrote a

concurring and dissenting opinion.

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 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 Appellees. ON BRIEF: Benjamin M. Mabry, CROMER & MABRY,

Columbia, South Carolina; James G. Felder, FELDER, PRICKETT &

MCGEE, St. Matthews, South Carolina, for Appellant. Nicole P. Cantey, ELLZEY & BROOKS, L.L.C., Columbia, South Carolina, for

Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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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 discrimination 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

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1 The individual managers are Mark Watkins, Diana Bell, Taft Gaymon, and Frank Adams. Webster and Weeks later withdrew their claims

against all defendants for civil conspiracy and negligence. They also dismissed 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 intentional. They also argue that the district court erred in granting summary 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] improvement" in the "Contributions To The Team And Department" category.

(J.A. at 247.) Hunter believed that his race played a role in his negative peer review. On April 12, 1996, Hunter reported Weeks and

Webster for reading magazines on the job. Hunter believed that Webster 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

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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 statement to Webster. He later testified that "Mr. Webster did make a comment 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 inadvertent, as well as Hunter's representation that the taping was an accident, 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 during 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 several 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 incident. 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

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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 judgment is appropriate if "the pleadings, depositions, answers to interrogatories, 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 evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).

When a moving party supports its motion with affidavits, the nonmoving 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, applying 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 electronic communication." 18 U.S.C.A. § 2511(1)(a) (West Supp. 1999).

It also prohibits persons from intentionally using intercepted communications 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 communications under § 2511], the appellees would have to have known, or

have had reason to know, that [the individual who made the recording] 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 intercepted communication, and (2) sufficient facts concerning the circumstances 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 citations 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

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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 communication, 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 summary 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 statements, 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 convicted of using recordings, made by his client, of the client's wife

without her knowledge after the client had falsely informed the attorney 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 reasonable 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 determining 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.

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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 investigate 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 maintain 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 simply 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 recording but it does refer to the conversation that, as it turns out, was recorded.

Hunter alleged in the SCHAC complaint that, based upon the conversation, 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, however, 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 easily 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, perhaps, speculative guesswork -- that the recording was unlawful.

Accordingly, we affirm the district court's grant of summary judgment 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 powerful 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 representations 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 serious 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, however, 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 granting 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 disciplinary 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 reason 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 purposes 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 conduct, 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 comparably serious to Hunter's.13 The most serious, and comparable, of

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13 Some courts use a "background circumstances" test in reverse discrimination 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 evidence 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 quotation 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 triable 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 forthcoming" 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 comparably 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 reasonable basis for distinguishing between Webster, Weeks, and Hunter

because the evidence available with respect to Hunter was significantly 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 defamation 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

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15 Moreover, the nature of Webster and Weeks's infractions -- especially 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 illwill towards the plaintiff, or that it acted recklessly or wantonly,

meaning with conscious indifference toward plaintiff's rights." Padgett 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 malignity 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 defamatory of plaintiff, he will not be protected." Id. Consequently, "[t]he

employer-employee privilege does not protect unnecessary defamation." 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 citations 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, therefore, 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, people were aware of conflicts within the teams, that we felt it

appropriate at that point in time to try to share some clarifying 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 lawyers gave him.16 Bell testified that Fary informed each "team" separately 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 difficulty 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 district court on this issue.

Under South Carolina law, a cause of action for invasion of privacy

comes in three forms: wrongful appropriation of personality, wrongful 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, whatever 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 defendant'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 statements 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 affidavits, 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 conclusory."). 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 privacy occurring in a society which places such an enormous value on this

liberty would cause humiliation and mental injury in any person of ordinary sensibilities." (Reply Br. at 29.) This conclusory assertion, absent

other evidence, is simply insufficient to defeat summary judgment.

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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 judgment 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 therefore join in those portions of the majority's opinion affirming the

judgment below with regard to the reverse discrimination and statelaw claims.

I respectfully disagree, however, with the majority's conclusion

that summary judgment was warranted for Union Camp on the plaintiffs' 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-

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tionally intercepted a private conversation. This case is no different:

Hunter steadfastly denies having activated his tape recorder on purpose, 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 verdict. 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);

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(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 something 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 limits of credulity to accept the premise that a tape recorder button can

be "accidentally" pressed down just by removing a jacket from a duffel 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 plaintiffs' conversation, she would be delighted to have such a solid case.

Were Hunter convicted, that same prosecutor would lose precious little 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 preponderance 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 representations of Hunter himself, who can hardly be thought a disinterested 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 Corrections, 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 considerably more than reasonable; it would be sensible.

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