Carroll L. Austin, Appellee, v. the Torrington Company, a Subsidiary of Ingersoll-randcompany, Inc., Appellant,andwebb Forging Company, a Subsidiary of Jervis B. Webb,company, Defendant.charles S. Glaser, Appellee, v. the Torrington Company, a Subsidiary of Ingersoll-randcompany, Inc., Appellant,andwebb Forging Company, a Subsidiary of Jervis B. Webb,company, Defendant.judy C. Howard, Appellee, v. the Torrington Company, a Subsidiary of Ingersoll-randcompany, Inc., Appellant,andwebb Forging Company, a Subsidiary of Jervis B. Webb,company, Defendant.nancy Brown, Appellee, v. the Torrington Company, a Subsidiary of Ingersoll-randcompany, Inc., Appellant,andwebb Forging Company, a Subsidiary of Jervis B. Webb,company, Defendant.anthony L. Duckett, Appellee, v. the Torrington Company, a Subsidiary of Ingersoll-randcompany, Inc., Appellant,andwebb Forging Company, a Subsidiary of Jervis B. Webb,company, Defendant.josephine Hill, Appellee, v. the Torrington Company, a Subsidiary of Ingersoll-randcompany, Inc., Appellant,andwebb Forging Company, a Subsidiary of Jervis B. Webb,company, Defendant.david R. Frick, Appellee, v. the Torrington Company, a Subsidiary of Ingersoll-randcompany, Inc., Appellant,andwebb Forging Company, a Subsidiary of Jervis B. Webb,company, Defendant.ronnie Dean Duckett, Appellee, v. the Torrington Company, a Subsidiary of Ingersoll-randcompany, Inc., Appellant,andwebb Forging Company, a Subsidiary of Jervis B. Webb,company, Defendant.james A. Mcabee, Jr., Appellee, v. the Torrington Company, a Subsidiary of Ingersoll-randcompany, Inc., Appellant,andwebb Forging Company, a Subsidiary of Jervis B. Webb,company, Defendant.john Edward Ward, Appellee, v. the Torrington Company, a Subsidiary of Ingersoll-randcompany, Inc., Appellant,andwebb Forging Company, a Subsidiary of Jervis B. Webb,company, Defendant.robin W. Caldwell, Appellee, v. the Torrington Company, a Subsidiary of Ingersoll-randcompany, Inc., Appellant,andwebb Forging Company, a Subsidiary of Jervis B. Webb,company, Defendant, 810 F.2d 416 (4th Cir. 1987)

No controversy exists about the fact that the two employers, speaking through Dowd and Love, did in fact exchange information concerning plaintiffs below which represented a "blacklisting" of those individuals. To the extent that Dowd accepted additional information about other former employees in addition to Glaser, as proffered by Love, that exchange of information covered all of the persons on the "confidential information" memorandum as set out and discussed supra.

The next question to be addressed, then, is whether the evidence below can sustain a finding of willful or malicious use of that blacklist with resultant injuries to the plaintiffs. First, the evidence at trial indicates that Dowd did not use the list's information at all. His testimony is that the list was never used by him in any way in evaluating any potential employee of Webb Forging. However, there is evidence that the blacklist was seen on Dowd's desk on one or more occasions, most particularly when the security guard saw the list on Dowd's desk and made a photocopy. If the jury chose to believe the testimony of the security guard and others that the list was seen on Dowd's desk, it would have weakened Dowd's testimony that he never referred to the list. However, it appears from the oral argument, the briefs, and the joint appendix that the plaintiffs do not assert a willful or malicious motive on Dowd's part in making the list. Rather, plaintiffs focus on Love; they assert that there was ample evidence from which the jury could have concluded that Love's giving of the information was done maliciously with the intent to hurt the plaintiffs. This was, of course, strenuously denied by Love throughout his testimony at trial. Love testified that the communication of such information is a regular and permissible activity among personnel managers of various employers.

Of some importance, there is a factual distinction between the facts in this case and those in Granby, supra. In Granby, the plaintiff had been mistakenly placed on a list of strikers which had been exchanged with other employers. It was conceded that the plaintiff had not been a striker at all. Nevertheless, his name had been retained on the list of strikers even after the listing employer had known that the plaintiff was not a striker. Under these facts, a finding that there was some willful or malicious motive activating the employer in keeping the plaintiff's name on the striker list is an understandable, and defensible, conclusion.

In the present appeal, however, the evidence advanced to support a finding of malicious conduct in connection with the blacklist presents a far different picture. Appellees advance three propositions in attempting to prove a willful or malicious motive by Love: first, of his own volition Love volunteered the information concerning the plaintiffs, except for Charles Glaser; second, the information was in derogation of the plaintiffs' suitability for employment with Webb Forging; third, the information was false.

Given the proposition that blacklisting is not illegal per se, we cannot see how the three assertions above can be said, in and of themselves, to prove malice by Love. As the Court noted in the Granby opinion, Love's giving such information to Dowd in the context of their mutual interests in the employment process is allowable under South Carolina law. In a broader context, where such information is exchanged because of a mutual interest in its content, and without malice, penalizing that exchange would be a grave disservice to the employer. Certainly, the prospective employer seeks to acquire information judged pertinent by it to facilitate decision as to employment vel non. The former employer is a source of such information, and perhaps the only source. Proscribing such an interchange would severely inhibit the right of employers to communicate on a matter of serious, mutual concern. It appears that this reasoning underlies the decision of the Court expressed in Judge Woods' concurring opinion in Granby, supra, and this Court finds that reasoning strongly persuasive as it is applied in the South Carolina law.

The fact that Love proffered the information as to all plaintiffs, except Glaser, without specific inquiry by Dowd loses significance in light of the fact that Dowd initiated the exchange by inquiring about the reinstatement rights of former employees of Torrington. Glaser's application precipitated the inquiry, but the answer to the question as to Torrington reinstatement policy was obviously general in application to all former employees. In the context of that generalized inquiry and response, discussion of employees other than Glaser flowed as a natural consequence.

That the information exchanged between Love and Dowd related to and dealt with the suitability of the plaintiffs for employment is simply the function of such a list. Information normally found in such a list deals with the question of suitability of employment.

Whether the information on the list was or was not false is, in the context of the factual pattern here, more a function of subjective opinion than refutable fact. Nothing in the evidence from trial indicates that the falsity, if any, of the information contained on the list was brought home to Love, except in one case. In that instance, a fellow employee of Judy Howard told Love that Howard was neither an organizer for NOW nor an organizer for ERA. Love apparently responded that he had information which was contrary to that statement and he apparently relied upon that contrary information in his phone conversation with Mr. Dowd. We have already indicated that blacklisting is not illegal per se under South Carolina law. Given this, the subjective opinions of a person making a blacklist do not, in and of themselves, establish malice or a wanton desire to hurt the persons on the list. No information concerning the possible falsity of any of the statements is brought home to Love, except in the case of Howard. In that one case, the mere existence of conflicting information falls far short of establishing on the part of Love malice²  with respect to the information on the blacklist concerning her.

After a detailed review of the record, we can find no evidence upon which the plaintiffs could have relied in asserting proof of malice. The three bases asserted by plaintiffs to support a finding of malice, i.e., volunteering information, derogatory information, and falsity of the information, if assumed to be true, do not present as much as that "scintilla" of evidence, under the facts in this case. South Carolina's concept of the necessary "scintilla of evidence" describes it as evidence which must be "real, material, and pertinent and relevant evidence, not speculative and theoretical deductions." See Turner v. American Motorists Ins. Co., 176 S.C. 260, 264, 180 S.E. 55, 57 (1935). More than that "scintilla" of evidence is required to permit the conclusion that the inference drawn here by the jury was "reasonably probable," and not the product of speculation. The record, simply put, does not disclose evidence relating to these three factors that can support the quantum leap from the three factors to establishing the required willful or malicious misconduct "--malice in fact--" on the part of Love. For a discussion of factors held insufficient to establish malice in fact, though much stronger factors favoring the plaintiff than those in the case at bar, see Bell v. Bank of Abbeville, 211 S.C. 167, 44 S.E.2d 328 (1947) (second opinion).

Under the law of South Carolina, an action for slander requires that the challenged statement be both defamatory and actionable. A defamatory statement is a statement which tends to impeach the plaintiff's reputation. To be actionable, that statement must also injure the plaintiff. Capps v. Watts, 271 S.C. 276, 281, 246 S.E.2d 606, 609 (1978).

Where a statement is defamatory per se, it is actionable without any proof of special damages.³  Where the defamatory statement is not defamatory per se, there must be proof of special damages. Capps, supra, 246 S.E.2d at 611. Where special damages are required, in the case of a defamatory statement which is not defamatory per se, those special damages must be a loss of money or some other loss capable of being assessed at a monetary value. Smith v. Phoenix Furniture Co., 339 F. Supp. 969, 971 (D.S.C. 1972).

Here, the district court below held that the entire conversation between Love and Dowd bore a qualified privilege, because of the serious, common interests held by Love and Dowd. The status of the challenged statements as qualifiedly privileged, while not conceded by the appellees, is nonetheless cursorily treated in their brief, asserting now that because Love spoke of other employees than Glaser, Love went beyond the scope of the privilege, so that the protection of qualified privilege was lost.

The court below charged the jury on this point in the following language:

I charge you that the qualified privilege is applicable to this case and that the defendant is entitled to assert and rely upon this defense. The effect of the qualified privilege defense is to cast upon the plaintiffs the burden of proving malice in fact on the part of the defendant by a preponderance of the evidence....

There was no objection below by the plaintiffs to this portion of the charge. Thus, under South Carolina law regarding qualified privilege, the plaintiffs had the heavier burden below of proving defamation, injury, and malice in fact on the part of Love, in order to prevail on their charges of slander. Conwell v. Spur Oil Co., 240 S.C. 170, 181, 125 S.E.2d 270, 276 (1962). There is no dispute among the parties that Mr. Love and Mr. Dowd had a common interest, each serving as a personnel manager for an employer in the same community, and from these facts the court below concluded that a qualified privilege existed. The conclusion is clear, and substantially not disputed that the substance of Love's comments to Dowd was that Love could not recommend plaintiffs for employment. It is on this substance that the appellees attempt to engraft malice in fact.

Some consideration of just what was recorded on the memorandum as to the plaintiffs is in order here. As to Glaser, the comment is "17 yrs. (NO)"; as to Howard, "organizer (NOW) & ERA"; as to Austin, "Emotional Problem (male)"; as to A. Duckett and R. Duckett, "militant"; as to McAbee, Brown, Caldwell, Hill, Frick, and Ward, there are no comments of any sort.

Thus, as to the six plaintiffs for whom no comment is made, there is simply no slanderous statement to be found, unless the plaintiffs would have the Court adopt some scheme which would embrace all plaintiffs in a sort of umbrella theory.

Even if this Court were willing to do so, consideration of the comments made as to the five plaintiffs fails to show the required degree of injury which impeaches the particular plaintiff's reputation. As to Glaser, the comment is "17 yrs. (No)". Taken under all the facts here, the statement is Love's statement that he would not recommend hiring Glaser. We cannot see how more can be read into this comment. As to Judy Howard, the comment is "Organizer (NOW) & ERA". It is doubtful that there ever was a day when being stated to be an organizer for the National Organization of Women and the Equal Rights Amendment was considered a slander, but certainly that would scarcely be considered the case today or at the time of trial below. As to Austin, the comment is "Emotional Problem (male)." The statement is obviously one of the opinion of Love, but, again, the language used does not "tend to impeach the reputation of the plaintiff." See, Capps v. Watts, 271 S.C. 276, 281, 246 S.E.2d 606, 609. As to "emotional problem," aside from the matter of expressing an opinion, these words, without more, identify nothing of the nature of whatever problems there might have been, but leave the reader to speculate according to the individual's predilections to assign some further meaning to these words. It is impossible to assign any slanderous meaning to the identification of Austin as "(male)". As to A. Duckett and R. Duckett, the comment is "Militant" as to both. Again, Love expresses an opinion, but there is perhaps more comfort to be drawn by these plaintiffs from that description than there are adverse inferences. In the context in which the notes were made, the description may be intended to indicate strong pro-employee feelings and actions, but, as in all the above analyses of these comments, the most important consideration is that each of the descriptions is given in the framework of qualified privilege, and here, as in the previous comments noted, the statement is intended to convey to Dowd information he could consider in his hiring decisions.

In the fact pattern in this case, and in light of the qualified privilege attaching to the communication, the evidence will not support a finding of slander.

If we assume, however, that this information went beyond a simple statement of non-recommendation for employment, and the memorandum taken as a whole was thus defamatory as to each name listed thereon, the plaintiffs still face the burden of proving actual malice. An inference of malice is not sufficient where the statements are found to be qualifiedly privileged, as was the case below. See Woodward v. South Carolina Farm Bureau Insurance Co., 277 S.C. 29, 282 S.E.2d 599 (1981).

The opinion in Padgett v. Sun News, 278 S.C. 26, 292 S.E.2d 30 (1982) sets out the following definition of "actual malice," as that term is understood in the law of South Carolina. It requires that the defendant

acted "with ill will toward the plaintiff or that [he] acted recklessly or wantonly, meaning with conscious indifference toward plaintiff's rights", and requires that "at the time of his act or omission to act the tortfeasor be conscious, or chargeable with consciousness of his wrongdoing." Rogers v. Florence Printing Co., 233 S.C. 567, 577, 106 S.E.2d 258; Jones v. Garner, 250 S.C. 479, 158 S.E.2d 909.

Sun News, 292 S.E.2d at 34.

No evidence of record supports the proposition that Love at the time of transmitting the challenged statements to Dowd was "at the time of his act or omission to act [was] conscious or chargeable with consciousness of his wrongdoing." As illustrated in the discussion of the South Carolina law governing blacklisting and intentional, improper interferences, etc., Love acted in a way which did not give rise to a tort action under these theories. Certainly, nothing in the evidence showed that Love was "conscious" of any wrongdoing.

It should be noted, also, that under the "actual malice" formulation of Sun News, supra, ill will and consciousness of wrongdoing are conjunctive, so that each element must be supported by more than a "scintilla" of evidence before "actual malice" can be found.

We conclude that, as a matter of law, there was a failure in the evidence below to demonstrate actual malice. Four of the plaintiffs testified below that they "got along fine" with Love. Appellees suggest in their brief that there is only evidence of actual malice toward one of the plaintiffs, Nancy Brown. However, Mrs. Brown's own testimony itself belies this argument. She stated at trial that there had been some sharp words between her and Mr. Love some two years or more before the blacklisting incident. This is the only evidence advanced to show malice in fact on Love's part toward Nancy Brown. In contrast, the recitation of facts suggesting actual malice in Bell v. Bank of Abbeville, supra (second opinion), shows a series of incidents, far severer than those revealed as to Nancy Brown, which series of incidents was not enough to provide that necessary "scintilla of evidence." Further, Nancy Brown testified that after the incident relied on she had continued to work under Love's supervision and her relationship with him after the incident complained of had been very good. She did not deny Love's testimony to the effect that he had evaluated her for the highest possible wage increases in the intervening two years, and she believed Love was sorry that she was discharged during the reduction in the Torrington Co. work force. Taking the Brown testimony as a whole, that testimony is, if possible, less than the "scintilla" of evidence discussed supra. Certainly it is not sufficient, as a matter of law, to support a finding that malice in fact on the part of Mr. Love existed at the time the memorandum was prepared.

Similarly, plaintiffs' argument that malice on Love's part as to plaintiff Howard could be inferred from certain facts fails, since, given a qualified privilege, there must be proof of malice in fact.

If plaintiffs rely entirely on the Brown incident between Mr. Love and Ms. Brown, as apparently they must, for their proof of actual malice, then, as a matter of law, this evidence does not establish Love's ill will toward Ms. Brown, and that he acted recklessly or wantonly with a conscious indifference toward her rights, and was conscious, or chargeable with consciousness of his wrongdoing.

We thus conclude that the statements in question were qualifiedly privileged, there was no proof at trial of actual malice on the part of Love, and thus the verdict of the jury on the slander count of the complaint was not supported by the evidence.III. Conclusion

Because we have found that the verdicts of the jury on the blacklisting and slander counts cannot stand, it is not necessary to address the issues relating to damages, as those issues have been asserted on appeal.

For the reasons indicated above, the decision of the court below in denying a directed verdict is reversed, and the case is remanded with directions to enter judgment for the defendant.

REVERSED AND REMANDED.