UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-1391

MICHAEL L. SPENCE,

Plaintiff - Appellant,

v.

NCI INFORMATION SYSTEMS, INCORPORATED,

Defendant - Appellee.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Benson Everett Legg, Chief District 

Judge. (1:05-cv-03127-BEL)

Argued: December 10, 2010 Decided: March 15, 2011

Before MOTZ, GREGORY, and WYNN, Circuit Judges.

Affirmed by unpublished opinion. Judge Wynn wrote the opinion, 

in which Judge Motz and Judge Gregory joined.

ARGUED: Peter F. Axelrad, COUNCIL, BARADEL, KOSMERL & NOLAN, PA, 

Annapolis, Maryland, for Appellant. Kevin B. McCoy, KRUCHKO & 

FRIES, McLean, Virginia, for Appellee. ON BRIEF: John G. 

Kruchko, KRUCHKO & FRIES, McLean, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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WYNN, Circuit Judge:

In Maryland, an employer is not liable for disclosing 

information about a former employee’s job performance “unless it 

is shown by clear and convincing evidence that the employer . . 

. [a]cted with actual malice . . . or . . . intentionally or 

recklessly disclosed false information.”*

 In this appeal, 

Plaintiff Michael L. Spence alleges that his former supervisors 

made defamatory statements to his prospective employer. Because 

we conclude that Plaintiff failed to produce sufficient evidence 

that his former supervisors spoke with actual malice or 

intentionally or recklessly disclosed false information, we 

affirm the district court’s judgment.

I.

NCI Information Systems, Inc. (“NCI”) hired Plaintiff as a 

computer forensics specialist in March 2002. His primary job 

function was to examine NCI’s clients’ computers to determine if 

they were being used for improper purposes. When Plaintiff 

commenced work at NCI, his direct supervisor was Nanette Okuda. 

Okuda answered to Brad Sexton, who indirectly supervised 

Plaintiff. 

 * Md. Code Ann., Cts. & Jud. Proc. § 5-423 (West 2010).
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Okuda reviewed Plaintiff’s performance in May 2002. The 

review was generally favorable. Plaintiff received “fullyqualified” ratings, with scores between five and seven on a tenpoint scale, in various categories of his job performance. In 

the narrative portion of the performance review, Okuda wrote the 

following commendations: 

[Plaintiff] is very knowledgeable about computer 

forensics. . . . [H]e is the most knowledgeable on 

the use of the EnCase software being utilized for the 

gathering and reporting of computer forensics 

evidence. He is very precise in the execution of the 

forensics examination. He is conscientious and hardworking. . . . He is ready to assist coworkers . . . 

. He has established a rapport with all the personnel 

that work in the NNSA Cyber Forensics Center. . . . 

He is conscientious about keeping me informed about 

the day-to-day operations of the NNSA Cyber Forensics 

Center. He has an eagerness to learn as much as 

possible about the area of cyber forensics.

However, the remainder of the May 2002 performance review was 

not so favorable. Okuda noted that

[Plaintiff] does not recognize that his actions and 

words frequently have an adverse effect on NCI and the 

NNSA Cyber Forensics Center. For example, referring 

to himself as a member of the Nevada Cyber Crimes Task 

Force (NCCTF). . . . I have repeatedly reminded 

[Plaintiff] that our primary job is to support the 

NNSA Enterprise first and foremost. . . . 

Organization of the cases that he has worked and is 

currently working does not seem to be a priority. . . 

. His attention to detail other than forensics 

examination is lacking, such as the requirements for 

the monthly status reports, format of his personal 

case summary report, and assigning a case number and 

starting a folder for every case.
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The May 2002 performance review also contained a space for 

employee comments. Plaintiff complained that his salary did not 

reflect the industry standard for computer forensics 

specialists, and he requested “a salary adjustment in the range 

of $75,000-$85,000 per year.” Plaintiff also had multiple 

conversations about a salary increase with Sexton and nonmanagement employees at NCI. Sexton eventually became 

frustrated at having the same conversation and warned Plaintiff 

that “[h]aving conversations with anybody else [other than 

management] is not going to be productive.” 

At some point, Plaintiff discovered that his salary was 

lower than the salary paid to Holly Dale, the other computer 

forensics specialist at NCI. Based on the pay disparity, 

Plaintiff filed charges of discrimination and retaliation 

against NCI in the Nevada Equal Rights Commission (“NERC”) on 

July 16, 2002. The NERC transferred the case to the United 

States Equal Employment Opportunity Commission, which ultimately 

dismissed the charges and issued Plaintiff a right-to-sue 

letter. 

Meanwhile, NCI designed a Performance Improvement Plan 

(“PIP”) for Plaintiff on September 3, 2002. Between the May 

2002 performance review and the PIP, Okuda documented, 

consistent with NCI policy, numerous incidents in which 

Plaintiff was disrespectful and confrontational, disagreeable 
5

with female employees, or lacking necessary organizational 

skills. The PIP accordingly targeted these areas for 

improvement: 1) unprofessional behavior and interpersonal 

skills; 2) written communication; and 3) managing deadlines. 

The PIP established specific goals and objectives to improve 

each unsatisfactory area of job performance.

Near the beginning of October 2002, NCI hired Mike Sanders, 

who replaced Okuda as Plaintiff’s direct supervisor. Sanders 

had previously served in the Air Force and spent fourteen years 

as an investigator with the Air Force Office of Special 

Investigations (“AFOSI”). According to his deposition 

testimony, Sanders observed early on that Plaintiff “had 

significant issues with female employees,” particularly Dale. 

At the end of October 2002, Plaintiff attended a training 

seminar along with Sanders and Dale. On the first day of the 

seminar, Plaintiff made a remark about Dale, causing other 

attendees to laugh. Sanders “immediately yanked [Plaintiff] out 

of the class, took him outside the building near the air 

conditioner . . . and chewed his ass right there on the spot.” 

The next day, Dale and a few others were unable to participate 

in the seminar because their computers were hacked and their 

root passwords changed. On the third day, the same prank 

occurred, but Dale was the sole victim. Suspecting Plaintiff, 

Sanders asked the seminar administrator to investigate which 
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computer was responsible for the hacking. The administrator 

determined that Plaintiff was responsible, and Sanders 

terminated Plaintiff’s employment a few days later.

Thereafter, in 2003, Plaintiff applied for a computer 

forensics specialist position with the Air Force. The position 

required an extensive background investigation by AFOSI that 

consisted of a financial background check and interviews with 

the prospective employee’s former supervisors and neighbors. 

AFOSI therefore interviewed Okuda, Sexton, and Sanders about 

Plaintiff’s performance at NCI. 

On March 2, 2004, AFOSI issued a Report of Investigation 

(“ROI”) recommending that Plaintiff’s application be denied. 

The ROI contained summaries and paraphrased statements made by 

Plaintiff’s former supervisors. The ROI related Sanders’s 

interview as follows:

SANDERS would not recommend [Plaintiff] for any 

position related to computer forensics. [Plaintiff] 

lacked the ability to work with others and often 

failed to meet the requirements set forth by 

[Plaintiff’s] supervisors and customers. [Plaintiff] 

was not a violent person, but was often rude to coworkers and customers. SANDERS would not release 

specific information regarding the termination because 

he feared [Plaintiff] maintains a vindictive attitude, 

which [Plaintiff] would use to pursue civil action 

against his company. 

The ROI attributed the following statement to Okuda:

[Plaintiff] was not well liked within the workplace. 

[Plaintiff] was friendly with coworkers, but often 

lacked some of the social skills needed to 
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successfully complete the mission. [Plaintiff] 

maintained a good relationship with male employees, 

but possessed a disrespectful and somewhat 

chauvinistic attitude toward female employees, 

specifically his superiors. On one particular 

incident, [Plaintiff] initiated a fistfight with a 

male co-worker in the office. [Plaintiff] possesses a 

temper and could possibly be vindictive. [Plaintiff] 

had an eager attitude toward assigned tasks, but often 

worked outside certain guidelines and policies. 

During the seven months, [Plaintiff] was given a “get 

well” plan due to his poor performance, which 

[Plaintiff] routinely failed to meet the prescribed 

requirements. OKUDA related she would not recommend 

[Plaintiff] for a computer forensics position. 

Finally, the ROI contained this recitation of Sexton’s 

interview:

[Plaintiff] was completely unreliable, untrustworthy, 

and frequently failed to meet deadlines set forth by 

the management. SEXTON would not release specific 

information regarding the termination because he 

feared [Plaintiff] maintains a vindictive attitude, 

which [Plaintiff] would use to pursue civil litigation 

against his company. . . . SEXTON adamantly stated he 

would not recommend [Plaintiff] for any position, and 

[Plaintiff] is not welcome for a position with NCI in 

the future.

The ROI also documented as “potentially disqualifying” 

Plaintiff’s strained financial background and at least one 

unfavorable interview by a neighbor.

Plaintiff sued NCI for defamation and false light invasion 

of privacy based on the interview statements of Sanders, Okuda, 

and Sexton. The district court granted summary judgment for 

NCI, ruling that Plaintiff produced insufficient evidence of 
8

actual malice to overcome NCI’s conditional privilege under 

Maryland law. Plaintiff appeals.

II.

We review the district court’s grant of summary judgment de 

novo. Felty v. Graves-Humphreys Co., 818 F.2d 1126, 1127-28 

(4th Cir. 1987). 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.” 

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also

Fed. R. Civ. P. 56(c)(2). A genuine issue exists if “‘there is 

sufficient evidence favoring the nonmoving party for a jury to 

return a verdict for that party. If the evidence is merely 

colorable, or is not significantly probative, summary judgment 

may be granted.’” Felty, 818 F.2d at 1128 (quoting Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). 

Under Maryland caselaw, to prove a claim of defamation, a 

plaintiff must establish that: 1) the defendant made a 

defamatory statement to a third person; 2) the statement was 

false; 3) the defendant was legally at fault in making the 

statement; and 4) the plaintiff suffered harm. Rosenberg v. 

Helinski, 328 Md. 664, 675, 616 A.2d 866, 871 (1992). Maryland 
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recognizes a claim for false light invasion of privacy if 1) 

“‘the false light in which the other person was placed would be 

highly offensive to a reasonable person,’” and 2) “‘the actor 

had knowledge of or acted in reckless disregard as to the 

falsity of the publicized matter and the false light in which 

the other would be placed.’” Ostrzenski v. Seigel, 177 F.3d 

245, 252 (4th Cir. 1999) (quoting Bagwell v. Peninsula Reg’l 

Med. Ctr., 106 Md. App. 470, 513-14, 665 A.2d 297, 318 (1995)). 

Claims of defamation and false light against an employer 

are subject to a conditional privilege in Maryland. Bagwell, 

106 Md. App. at 513-14, 665 A.2d at 318-19. Maryland employers 

may generally disclose information about a former employee’s job 

performance to an inquiring prospective employer. Cts. & Jud. 

Proc. § 5-423(a); Happy 40, Inc. v. Miller, 63 Md. App. 24, 35, 

491 A.2d 1210, 1216 (1985) (“[W]here the defamatory publication 

is . . . in response to an inquiry and not volunteered, the 

defendant is afforded greater latitude in what he may say about 

the plaintiff without incurring liability.”). To overcome this 

conditional privilege, a plaintiff must prove by “clear and 

convincing evidence that the employer” either “acted with actual 

malice” or “intentionally or recklessly disclosed false 

information.” Cts. & Jud. Proc. § 5-423(b). 

Relying on favorable statements in his May 2002 performance 

review, Plaintiff contends that his former supervisors’ 
10

unfavorable statements in the ROI are circumstantial evidence 

that the supervisors spoke with actual malice or an intent to 

disclose false information. For example, Plaintiff argues that 

because the May 2002 performance review lauded Plaintiff as 

“conscientious and hard working,” a jury could reasonably infer 

that Sexton spoke with actual malice when he called Plaintiff 

“untrustworthy,” “vindictive,” and “completely unreliable” in 

the AFOSI interview. Plaintiff makes the same argument as to 

Sanders’s and Okuda’s interview statements.

On this record, however, a mere comparison of contrasting 

statements in the May 2002 performance review and the ROI “is 

not significantly probative” evidence of actual malice or 

disregard for truth. Felty, 818 F.2d at 1128. The May 2002 

performance review occurred just three months after Plaintiff 

started at NCI, and it was not entirely favorable to Plaintiff. 

Over the next five months, NCI documented a laundry list of 

incidents and confrontations involving Plaintiff, prompting the 

PIP and culminating in Plaintiff’s termination for misbehaving 

at the training seminar. Thus, descriptions of Plaintiff in the 

ROI as “untrustworthy,” “vindictive,” “completely unreliable,” 

and “disrespectful and somewhat chauvinistic” are substantially 

supported by documentation of Plaintiff’s job performance in the 

record. In that light, a jury could not reasonably infer that 

the supervisors spoke with actual malice or disregard for the 
11

truth merely by comparing statements in the ROI to statements in 

the May 2002 performance review. 

We acknowledge that Okuda’s statement that “[Plaintiff] 

initiated a fistfight with a male co-worker in the office” 

presents a closer question because it suggests that Plaintiff 

was the aggressor in a fistfight at NCI, and the record does not 

support that assertion. However, Okuda expounded in her 

deposition that this statement was a response to the 

interviewer’s question, and it was based on information she 

received from Plaintiff himself. Significantly, Plaintiff does 

not contend that Okuda’s statement was a fabrication or that he 

never communicated such information to Okuda. Thus, even if 

Okuda’s statement is factually inaccurate, Plaintiff did not 

produce evidence that she made the statement with malice or 

disregard for the truth. See Lowery v. Smithburg Emer. Med. 

Serv., 173 Md. App. 662, 685, 920 A.2d 546, 559 (2007) 

(“[M]alice is not established if there is evidence to show that 

the publisher acted on a reasonable belief that the defamatory 

material was substantially correct and there was no evidence to 

impeach the [publisher’s] good faith . . . .”) (citation and 

quotation marks omitted).

In sum, we agree that Plaintiff failed to produce

sufficient evidence for a reasonable jury to conclude that his 

former supervisors spoke with actual malice or disregard for the 
12

truth. Therefore, the statements in the ROI are conditionally 

privileged under Maryland law. Given this conclusion, we need 

not decide whether NCI’s statements are entitled to an absolute 

privilege.

III.

For the foregoing reasons, the judgment of the district 

court is affirmed.

AFFIRMED