                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 07-1932


CALVIN ANTHONY,

                  Plaintiff - Appellee,

           v.

ROBERT   WARD;     CHARLES     SHEPPARD,     in   their   individual
capacities,

                  Defendants – Appellants,

           and

SOUTH CAROLINA DEPARTMENT OF CORRECTIONS,

                  Defendant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia.     Margaret B. Seymour, District
Judge. (3:05-cv-01636-MBS)


Argued:   May 12, 2009                            Decided:   July 7, 2009


Before NIEMEYER and MICHAEL, Circuit Judges, and Frederick P.
STAMP, Jr., Senior United States District Judge for the Northern
District of West Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: William L. Howard, Sr., YOUNG, CLEMENT & RIVERS, LLP,
Charleston, South Carolina, for Appellants.      J. Lewis Mann
Cromer, CROMER & MABRY, Columbia, South Carolina, for Appellee.
ON BRIEF: Stephen L. Brown, YOUNG, CLEMENT       &   RIVERS,   LLP,
Charleston, South Carolina, for Appellants.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

            Defendants Robert Ward and Charles Sheppard, officials

in the South Carolina Department of Corrections (SCDC or the

Department), appeal a judgment based on a jury award of $510,000

to    plaintiff     Calvin     Anthony,        the     former     warden    of     Lee

Correctional       Institution,     for       civil    conspiracy       under    South

Carolina law.       According to Anthony, Ward and Sheppard conspired

for personal and malicious reasons to force his termination from

the   Department.      On    appeal     Ward    and    Sheppard    raise    numerous

challenges    to    trial    and   post-trial         proceedings.       Because    we

conclude    that    there    is    no   reversible       error,    we    affirm    the

judgment.



                                          I.

             We recite the facts in the light most favorable to

Anthony, the prevailing party.                 See Lack v. Wal-Mart Stores,

Inc., 240 F.3d 255, 258 (4th Cir. 2001).                    From 1999 until his

involuntary retirement from the Department in 2004, Anthony was

the warden at Lee Correctional Institution, a maximum security

prison in South Carolina.               Anthony, who is African-American,

began working for the Central Correctional Institution at SCDC

in 1978.      He was promoted through the ranks and attained his

wardenship at Lee in 1999.              Anthony received excellent reviews

as a warden from 1999 until 2002 and was named Warden of the

                                          3
Year   in   2002.      In    2002       defendant         Ward,   the   Director      of

Operations for SCDC, became Anthony’s supervisor and thereafter

Anthony did not receive evaluations.

            Anthony initially drew Ward’s ire following a hostage

situation   that    occurred      at    Lee    in    late   October     2003,   during

Anthony’s   tenure    at    that       institution.          At   the   time    of   the

hostage incident, Laurie Bessinger was the Director of Security

and Training at SCDC.        Bessinger had been a candidate for Ward’s

job as Director of Operations.                After Bessinger was passed over

for the Operations Director position, he was placed under the

supervision of defendant Charles Sheppard, the Inspector General

for SCDC, with whom Bessinger had an acrimonious relationship.

Even before the hostage situation Sheppard sought to undermine

and discredit Bessinger, soliciting information from Bessinger’s

subordinates to accomplish that goal.

            Both Ward and Sheppard voiced strong disapproval of

Bessinger’s handling of the hostage situation at Lee, and Ward

went so far as to ask Jon Ozmint, the Director of SCDC, to

“relieve”   Bessinger       the   night       of    the   incident.      J.A.    1067.

Anthony, as the warden of Lee, was responsible for compiling an

After Action Report about what had occurred that night.                          After

Anthony gave Ward a draft of the report, Ward asked Anthony to

“put some negative things in” the report about Bessinger, J.A.



                                          4
155, including things that were untrue.                       Anthony refused and

thereafter Ward’s attitude toward him changed.

            Sheppard’s dislike for Anthony stemmed from Anthony’s

role in the grievance process of Rickie Harrison, an African-

American    warden       at   Kershaw      Correctional      Institution     who     was

demoted    by    Ward    in   2002.      The     events     leading   to   Harrison’s

demotion began with a surprise “shakedown” (or inspection) of

Kershaw.         In    Harrison’s     eighteen      years    of   experience     as   a

warden, this was the only shakedown that had occurred without

the   warden          receiving     prior       notification.         Sheppard       was

Harrison’s      interviewer       during    the    investigation      following      the

shakedown and ultimately recommended Harrison’s demotion.                        After

Harrison’s demotion, Sheppard handled both the investigation of

Harrison’s grievance and acted as the lawyer for the SCDC at the

grievance hearing, which was an unprecedented action for the

Inspector       General.      Sheppard      initially       subpoenaed     Anthony    to

testify at the grievance hearing, but after Anthony made pre-

hearing statements to Sheppard and others in the Department that

he believed Harrison was the victim of racial discrimination,

Sheppard declined to call Anthony as a witness.

            Like Harrison’s demotion, Anthony’s termination from

SCDC resulted from an unannounced shakedown of his institution.

In the spring of 2003 Sheppard placed an investigator, Karen

Hair, at Lee.           Hair reported directly to Sheppard, and Anthony

                                            5
had    no   knowledge    of   the   nature         of    Hair’s   investigative

activities prior to the shakedown.             At 6 a.m. on January 29,

2004, Anthony received a call from Ward informing him that a

shakedown of Lee was about to commence.                 As with the shakedown

at    Kershaw,   but    unlike   any       other     shakedown    Anthony   (or

Bessinger) could remember, Anthony was given no advance warning

of the event.    Ward participated directly in the shakedown.

            The shakedown targeted the boiler room at Lee.                  The

inspection revealed a significant number of items in the boiler

room that were classified by Ward and Sheppard as contraband,

including unaccounted for computer parts, televisions, cameras,

a scanner and various bulk food items.                    The inspection also

revealed a number of other irregularities in the boiler room,

including inmates working without supervision, possible access

to outside phone lines and the Internet, and video surveillance

cameras being used to monitor entry and exit from the room.

            There were four levels of oversight of the boiler room

below Anthony on the prison’s organizational chart, and Anthony

himself was never linked to any of the problems that occurred in

the boiler room.        Anthony inspected the boiler room regularly,

including within the month prior to the shakedown, but had not

observed anything out of the ordinary.                  During his inspections

he checked mainly for cleanliness and sanitation, and not to see

whether there were unauthorized computers in the room.

                                       6
             Regarding unsupervised inmates, there were identical

memoranda dating from 1996 and 2000 and posted on the walls in

the boiler room that authorized inmates to work in the room with

minimal supervision from the courtyard officer in the event that

the officer with direct supervision over the boiler room needed

to attend to business outside the room.                      The former memorandum

predated     Anthony’s      wardenship,       but    the    latter    was    signed    by

Anthony and the four other employees with direct supervisory

responsibility over the boiler room.

             In    April    2004,     slightly      over    two   months     after    the

shakedown, Anthony made a decision to pursue the Teacher and

Employee Retention Initiative (TERI) -- a program through which

qualified     employees         are   permitted       to     retire      early,     begin

receiving their retirement, and at the same time return to work

for   a    substantial     fraction     of    their       original    pay.        Anthony

informed     Ward    about      his   decision      to     “accept    the    retirement

opportunity,” and Ward told him that he was “approved and to

plan to return.”           J.A. 201-02.        Ward also informed Anthony at

that time that the investigation was over: “don’t worry about

it,   go    back    to   your    institution        and    run    your    institution,

because that’s over with.”            J.A. 202.

             On June 16, 2004, Anthony’s immediate supervisor, Carl

Fredericks, handed Anthony a corrective action charging him with

gross negligence (for permitting inmates to work unsupervised in

                                          7
the boiler room) and falsification of documents (specifically,

documents    signed      by    Anthony     in    which     he    stated       that    he    had

inspected the maintenance area of Lee, in which the boiler room

was   located,     and   failed      to    detect    any    of     the    irregularities

discovered during the shakedown).                   Anthony maintained that he

never falsified any documents.                   He talked with Sheppard after

receiving the corrective action, and Sheppard told him to “think

about retiring.”         J.A. 253.         On June 22, 2004, Anthony met with

Ward and was informed that if he had not already put in his

retirement    papers,         he   would    have    been        terminated.           He    was

permitted to retire in lieu of termination.

             Anthony     then      filed    this    action       in    federal       district

court for the District of South Carolina.                             He sued Ward and

Sheppard     in    their      individual        capacities       alleging       that       they

conspired to force him out of his job at Lee.                             His complaint

also included a claim against the Department itself alleging

that he was discriminated against on the basis of his race in

violation of Title VII of the 1991 Civil Rights Act.                                 The case

went to trial and the jury returned a verdict in SCDC’s favor on

the Title VII discrimination claim and in Anthony’s favor on the

civil conspiracy claim.              The jury awarded Anthony $510,000 in

damages     against        Ward     and     Sheppard        in        their     individual

capacities.       Ward and Sheppard appeal.



                                            8
                                            II.

           Ward       and    Sheppard     first        contend      that    the    district

court erred in refusing their proposed jury instructions on the

intracorporate conspiracy doctrine.                    We review jury instructions

for abuse of discretion.              Johnson v. MBNA Am. Bank, NA, 357 F.3d

426, 432 (4th Cir. 2004); see also S. Atl. Ltd. P’ship of Tenn.

v. Riese, 284 F.3d 518, 530 (4th Cir. 2002).                          “The test of the

adequacy   of     jury       instructions        is    whether       the    jury    charge,

construed as a whole, adequately states the controlling legal

principle without misleading or confusing the jury.”                               Chaudhry

v. Gallerizzo, 174 F.3d 394, 408 (4th Cir. 1999).                            “An error of

law constitutes an abuse of discretion.”                      A Helping Hand, LLC v.

Balt. County, Md., 515 F.3d 356, 370 (4th Cir. 2008).                              However,

“[w]e   will     not        set   aside     a     jury     verdict         based    on     an

instructional error ‘unless the erroneous instruction seriously

prejudiced      the    challenging        party’s        case.’”           Willingham     v.

Crooke, 412 F.3d 553, 560 (4th Cir. 2005) (quoting College Loan

Corp. v. SLM Corp., 396 F.3d 588, 595 (4th Cir. 2005)).

           Under South Carolina law “[a] civil conspiracy . . .

consists of three elements: (1) a combination of two or more

persons,   (2)    for       the   purpose    of       injuring      the    plaintiff,     (3)

which   causes    him       special    damage.”         Lee    v.    Chesterfield        Gen.

Hosp., Inc., 344 S.E.2d 379, 382 (S.C. Ct. App. 1986).                                South

Carolina courts have recognized an exception to civil conspiracy

                                             9
liability      when      all     the    alleged      members        of    a     conspiracy     are

agents of a single corporate entity and act on behalf of the

corporation:         a     so-called          intracorporate             conspiracy.            See

McMillan      v.    Oconee      Mem.     Hosp.,      Inc.,      626   S.E.2d         884,    886-87

(S.C. 2006); Anderson v. S. Ry. Co., 77 S.E.2d 350, 351 (S.C.

1953).

              The        intracorporate         conspiracy            doctrine         in     South

Carolina      draws       its    origins       from     Goble       v.    American          Railway

Express Co., where the state Supreme Court indicated that “it is

impossible to conceive that a conspiracy between a corporation

and its agents may be established by the act of such agents

alone.”       115 S.E. 900, 903 (S.C. 1923).                             More recently, the

South     Carolina         Court        of    Appeals        held        that     although       “a

corporation, as a legal person in contemplation of law, cannot

conspire with itself,”                 “the agents of a corporation are legally

capable, as individuals, of conspiracy among themselves or with

third parties.”           Lee, 344 S.E.2d at 383.

              The district court below interpreted the above cases

as distinguishing between two types of civil conspiracies: (1)

principal-agent conspiracies and (2) conspiracies between agents

of a corporation.               Based on its reading of South Carolina case

law,    the    court      concluded          that    the   intracorporate             conspiracy

doctrine      in    South       Carolina       only     applies          to    principal-agent

conspiracies.             Because       the     facts      of    this         case    placed    it

                                                10
“squarely          within”          the    latter        context,       the       district     court

concluded          that        an     instruction           on     civil         conspiracy      was

unwarranted.         J.A. 2071.

               Defendants,            in    contrast,          assert      that     immunity     for

intracorporate conspiracy only ceases to apply when agents or

employees of a corporation step outside the course and scope of

their employment and act as individuals rather than as agents of

the corporation.               Defendants argue that the district court erred

in refusing a jury instruction on “whether or not [Defendants]

were acting for the interest of their employer and in the course

and     scope       of    their           employment.”           Appellants’        Br.   at     16.

According to defendants, the scope of employment question is

“quintessentially              a      factual       issue”        and      must     therefore     be

resolved by the jury.                 Appellants’ Reply Br. at 4.

               In McMillan the South Carolina Supreme Court indicated

that    scope       of    employment          was       relevant      to   the     intracorporate

conspiracy doctrine, holding that “no conspiracy can exist if

the conduct challenged is a single act by a single corporation

acting    exclusively               through       its    own     directors,        officers,     and

employees, each acting within the scope of his employment.”                                      626

S.E.2d at 887 (emphasis added).                            Other courts have similarly

held scope of employment to be relevant under the doctrine.                                      See

Garza    v.     City      of    Omaha,       814    F.2d       553,     556   (8th    Cir.     1987)

(“While       it    is    true       that     a    corporation          cannot     conspire     with

                                                    11
itself, an intracorporate conspiracy may be established where

individual defendants are also named and those defendants act

outside the scope of their employment for personal reasons.”)

(emphasis added); McAndrew v. Lockheed Martin Corp., 206 F.3d

1031, 1036 (11th Cir. 2000) (“Simply put, under the doctrine, a

corporation       cannot      conspire      with     its     employees,        and      its

employees, when acting in the scope of their employment, cannot

conspire among themselves.”) (emphasis added).                       Our circuit has

recognized a similar “personal stake exception,” holding that

(under    Virginia’s        civil    conspiracy      law)     “the      intracorporate

immunity doctrine does not apply where a corporate officer has

an    independent    personal       stake    in    achieving      the    corporation's

illegal objectives.”          ePlus Tech., Inc. v. Aboud, 313 F.3d 166,

179 (4th Cir. 2002) (internal quotations omitted).

            The     jury      verdict      form    in      this   case        failed     to

explicitly address whether Ward and Sheppard were acting within

the scope of their employment, and they made a timely objection

before the district court.                We conclude, however, that even if

the    district     court    erred    in    failing     to    give      the    requested

instruction,      the   error       was     not    seriously      prejudicial          when

considered in light of the record as a whole.

            The     verdict    form     specifically       required      the    jury     to

find that Ward and Sheppard had entered into an agreement “for



                                            12
the purpose of injuring [Anthony].”                 J.A. 2007 (emphasis added).

The jury was also instructed that:

            With respect to the second element [of civil
       conspiracy],    the  plaintiff   must    prove    by   a
       preponderance of the evidence that Mr. Ward and Mr.
       Sheppard   specifically   intended    to   injure    the
       plaintiff.     The primary purpose of the alleged
       agreement or conspiracy must be to injure the
       plaintiff.   Mere speculation about a party’s motives
       with respect to certain conduct does not constitute
       proof of conspiracy.

J.A. 1965.        Further, there was ample evidence adduced at trial

that    Ward’s      and     Sheppard’s       actions        toward     Anthony      were

personally,       rather    than     professionally,         motivated.           Anthony

provided     evidence       that     Ward        disliked    him,      not    for     any

professionally relevant reason, but because he had refused to

accommodate Ward’s request that he alter his After Action Report

to make it more unfavorable to Bessinger.                     Similarly, Anthony’s

refusal    to     testify    negatively          about    Warden     Harrison     during

Sheppard’s      handling    of   Harrison’s        grievance       hearing   motivated

Sheppard     to    act     against      Anthony’s        interests.      Defendants’

decisions to act contrary to longstanding custom, for example by

declining to give Anthony advance notice of the January 2004

shakedown of Lee, is similarly suggestive of a personal, rather

than a professional, motive.                And finally, Anthony introduced

considerable       evidence        at     trial      that     wardens        at     other

institutions in which security lapses were discovered that were

comparable to those at Lee, but against whom defendants did not

                                            13
bear any personal grudge, were permitted to continue working or

participate in the TERI program.

             In sum, the finding of a specific intent to injure

Anthony,     coupled   with     the    evidence        that    defendants   had    a

personal stake in injuring plaintiff, leads us to conclude the

error   in    this   case     was   not    seriously      prejudicial.       Thus,

although     the   district    court      erred   in    refusing    to   give     the

requested scope of employment instruction, we conclude that this

error does not necessitate a new trial.



                                       III.

             Ward and Sheppard next contend that the district court

erred in failing to charge the jury on immunity from suit under

the South Carolina Tort Claims Act (SCTCA).                   We review a court’s

failure to give a requested jury instruction under the abuse of

discretion standard described above.

             S.C. Code Ann. § 15-78-70 provides that:

          (a) This chapter constitutes the exclusive remedy
     for   any  tort   committed   by  an   employee of   a
     governmental entity.    An employee of a governmental
     entity who commits a tort while acting within the
     scope of his official duty is not liable therefor
     except as expressly provided in subsection (b).

          (b) Nothing in this chapter may be construed to
     give an employee of a governmental entity immunity
     from suit and liability if it is proved that the
     employee’s conduct was not within the scope of his
     official duties or that it constituted actual fraud,


                                          14
        actual malice, intent to harm, or a crime involving
        moral turpitude.

S.C. Code Ann. § 15-78-70(a), (b) (2005).                   Under S.C. Code Ann.

§     15-78-30:      “‘Scope    of     official   duty’     or     ‘scope          of    state

employment’ means (1) acting in and about the official business

of a governmental entity and (2) performing official duties.”

S.C. Code Ann. § 15-78-30(i) (2005).

               Defendants      argue     that   the    desire      to    terminate          an

employee cannot constitute intent to harm because “any time a

supervising government employee participates in sanctioning an

employee, they, by definition, intend to do that employee ‘harm’

in the general sense of the word.”                      Appellants’ Br. at 20.

Consequently, defendants say, “intent to harm” under the SCTCA

“must require a malicious or personal motivation in order for

the exception to become operable.”                    Id.   Defendants note that

malice or intent to harm must be “proved” under § 15-78-70(b),

and     they        contend     that     mere     allegations           are        therefore

insufficient.

               The district court concluded that the SCTCA is not

intended       to     protect     state     employees       from        liability          for

intentional         torts,      noting     that    “irrespective              of        whether

Defendants Ward and Sheppard acted outside the scope of their

official duty, they are not immune from suit under the SCTCA




                                           15
because their conduct was proven to be intentionally tortious.”

J.A. 2079.        The court determined that

      it was not necessary . . . to give additional charges
      to the jury regarding intent to harm because the
      elements of civil conspiracy, an intentional tort,
      already encompass such intent.      The jury’s finding
      that   Defendants   had   civilly   conspired   against
      Plaintiff was sufficient to remove from the purview of
      the SCTCA’s protected class of government employees.

Id.   We agree.          The jury was specifically required to find that

defendants        intentionally         injured      Anthony       in    order      to    award

damages on the civil conspiracy claim: namely, that Ward and

Sheppard entered into an agreement “for the purpose of injuring

Plaintiff.”         J.A. 2007.          The jury was also instructed that it

must find Anthony had proved by a preponderance of the evidence

that defendants “specifically intended to injure the plaintiff”

and   that        this    was    “[t]he      primary       purpose       of   the    alleged

agreement     or     conspiracy.”            J.A.    1965.         The    district        court

therefore did not abuse its discretion in refusing to include an

additional jury instruction on scope of employment under the

SCTCA.



                                             IV.

             Ward        and    Sheppard     further       contend       that      they   were

entitled     to     judgment      as    a   matter    of     law   based      on    Anthony’s

failure      to     allege      and     prove      special     damages        or,    in    the

alternative,        that       the     district      court    erred      in     failing      to

                                              16
adequately charge the jury on special damages as an element of

civil conspiracy.            Specifically, defendants contend that Anthony

neither alleged 1 nor proved damages under the civil conspiracy

claim over and above those alleged for the race discrimination

claim.

                                             A.

            In    reviewing         whether       plaintiff    has     proved     special

damages, we view the evidence in the light most favorable to the

plaintiff    as       the    non-moving       party,    drawing        all     reasonable

inferences       in    his       favor    without    weighing        the     evidence   or

credibility of the witnesses.                Baynard v. Malone, 268 F.3d 228,

234-35 (4th Cir. 2001) (“The question is whether a jury, viewing

the   evidence        in   the    light   most     favorable    to    [the     non-moving

party], could have properly reached the conclusion reached by

this jury.”).          “We must reverse if a reasonable jury could only

rule in favor of [the movant]; if reasonable minds could differ,

we must affirm.”           Id. at 235.




      1
       Defendants devote much of their briefing to arguing that
the damages sought in the race discrimination and civil
conspiracy claims were largely overlapping and therefore Anthony
failed to adequately allege special damages. This argument was
not raised before trial and is therefore untimely. On a motion
for judgment as a matter of law, the relevant question is not
whether Anthony adequately alleged special damages but whether
he proved special damages at trial.



                                             17
            As     noted       above,       the          third     element        of    a     civil

conspiracy in South Carolina is that the defendants’ agreement

to injure the plaintiff “causes special damages.”                                 Pye v. Estate

of Fox, 633 S.E.2d 505, 511 (S.C. 2006).                               According to Pye,

“[b]ecause       the    quiddity       of   a    civil         conspiracy     claim          is   the

damage resulting to the plaintiff, the damages alleged must go

beyond the damages alleged in other causes of action.”                                      Id.    In

Todd v. South Carolina Farm Bureau Mutual Insurance Co., the

South Carolina Supreme Court held that “[w]here the particular

acts charged as a conspiracy are the same as those relied on as

the tortious act or actionable wrong, plaintiff cannot recover

damages    for     such    act    or    wrong,       and       recover      likewise         on   the

conspiracy to do the act or wrong.”                        278 S.E.2d 607, 611 (1981)

(quoting    15A     C.J.S.       Conspiracy          §    33     (1967),     at    718).          The

plaintiff in Todd had brought five causes of action, including

four tort claims and a fifth claim for “conspiracy to so damage

the plaintiff.”           278 S.E.2d at 608.                As the court pointed out,

“[t]he     fifth       cause     of    action        simply       takes      all       the    prior

allegations and alleges that the acts were done in furtherance

of a conspiracy among the defendants.                            Damages are then sought

for injury resulting from the conspiracy.”                               Id. at 611.              The

court    held    that     “[t]he       trial     judge         erred   by    overruling           the

demurrer to the conspiracy cause of action in the complaint,



                                                18
since Todd can recover no additional damages for the alleged

fifth cause of action.”              Id.

            The case law makes clear that the concern is with a

plaintiff receiving a double recovery.                        See Kuznik v. Bees Ferry

Assocs., 538 S.E.2d 15, 31 (S.C. Ct. App. 2000) (“An action for

civil conspiracy will not lie if a plaintiff has obtained relief

through other avenues.”).                  Here, because the jury only awarded

damages on one of the two claims in this case, there is no

possibility       that       plaintiff      received         an    impermissible         double

recovery.       See Peoples Fed. Sav. & Loan Ass’n of S.C. v. Res.

Planning    Corp.,       596      S.E.2d    51,    60    (S.C.     2004)       (“The    damages

alleged in [plaintiff’s] breach of fiduciary duty and conspiracy

claims are similar.                 However, since the referee directed the

verdict    in    favor       of     [defendant]         on    [plaintiff’s]          breach   of

fiduciary       duty    claim,       [defendant]         is    not      twice       subject   to

payment for damages for the same act.                             There is no error.”).

Defendants       failed        to    challenge      the        adequacy        of     Anthony’s

complaint prior to trial, and the jury awarded damages on only

one of Anthony’s two claims.                   Consequently, any deficiency in

the   complaint        was     harmless;      defendants          are    not    entitled      to

judgment as a matter of law based on a failure to prove special

damages.




                                              19
                                          B.

              Ward and Sheppard also contend that the trial court

erred in refusing their requests “to elaborate sufficiently to

allow the jury, as laymen, to understand the element of special

damages      as   it    applies     to    a    cause    of    action       for     civil

conspiracy.”       Appellants’ Br. at 27-28.             Defendants argue that

the       trial   court’s       instructions       on   the    special           damages

requirement were misleading and confusing because they led the

jury to believe that if Anthony was awarded no damages under the

discrimination         claim,    any     damages    awarded        under    a      civil

conspiracy claim would necessarily satisfy the special damages

requirement.           Defendants      fail,    however,      to    indicate        what

alternative language they believe should have been used. 2

              On the issue of special damages, the judge instructed

the jury as follows:

           With respect to the third element [of civil
      conspiracy], plaintiff must prove special damages.
      And special damages are damages for losses that are

      2
       We also note that defendants’ counsel never made any
argument based on the distinction between general and special
damages.   South Carolina case law is clear that damages in a
civil conspiracy action must not duplicate those alleged in
other causes of action.    South Carolina courts have been less
clear about what additional specific limitations might exist
with respect to damages that may be recovered on a civil
conspiracy claim.    See Gynecology Clinic, Inc. v. Cloer, 514
S.E.2d 592, 593 (S.C. 1999) (citing Charles v. Texas Co., 18
S.E.2d 719, 726-29 (S.C. 1942) (discussing available damages in
context of unlawful conspiracy)).



                                          20
      not natural and proximate -- that are not the natural
      and proximate result of the injury.      The plaintiff
      must sufficiently state and claim special damages.

           This element is an important element in the tort
      of civil conspiracy because it requires a showing of
      the damage resulting to plaintiff from an overt act
      done pursuant to the alleged conspiracy.

           The damage alleged must go beyond the damages
      alleged in other causes of action.    In other words,
      plaintiff must prove that he had incurred damages
      greater or different from the damages arising from his
      discrimination claim.

           Different damages are damages over and above the
      damages he alleged he suffered from the other claim.
      Damages allegedly resulting from the conspiracy must
      not overlap with or be subsumed by the damages
      allegedly resulting due to the race discrimination
      claim.

J.A. 1965-66.

           We    disagree       with    defendants    that    these      instructions

misstate the relationship between damages recoverable for the

race discrimination and civil conspiracy claims.                        See Pye, 633

S.E.2d at 511.          The jury was instructed that damages for the

civil   conspiracy      must     be    different     from    those     for   the   race

discrimination claim and that it must not award damages on the

civil conspiracy claim if it concluded that these damages were

merely duplicative of those in the race discrimination claim.

See   Peoples    Fed.    Sav.    &     Loan,   596   S.E.2d       at   60.    This   is

correct.      We therefore conclude that the district court did not

abuse   its     discretion       with    respect     to     the    special    damages

instruction.


                                          21
                                        V.

           Ward and Sheppard next contend that they are entitled

to judgment as a matter of law based on Anthony’s failure to

prove a “combination” between defendants and because the jury

verdict was contrary to the weight of the evidence presented.

As   explained    above   in   part     IV.A,       “[w]e    must     reverse   if    a

reasonable jury could only rule in favor of [the movant]; if

reasonable     minds   could   differ,       we    must    affirm.”        Baynard   v.

Malone, 268 F.3d at 235.

           Under South Carolina law “[a] conspiracy is actionable

only if overt acts pursuant to the common design proximately

cause damage to the plaintiff.”                   A Fisherman’s Best, Inc. v.

Recreational Fishing Alliance, 310 F.3d 183, 195 (4th Cir. 2002)

(citing First Union Nat’l Bank of S.C. v. Soden, 511 S.E.2d 372,

383 (S.C. Ct. App. 1998)).            However, “[c]ivil conspiracy is an

act which is, by its very nature, covert and clandestine and

usually not susceptible of proof by direct evidence.”                           First

Union, 511 S.E.2d at 383.             Consequently, “[c]onspiracy may be

inferred from the very nature of the acts done, the relationship

of the parties, the interests of the alleged conspirators and

other   circumstances.”        Island    Car       Wash,    Inc.    v.   Norris,     358

S.E.2d 150, 153 (S.C. Ct. App. 1987) (noting also that “concert

of   action,     amounting     to   a    conspiracy,          may     be    shown    by

circumstantial as well as direct evidence”).

                                        22
                  Defendants claim that Anthony introduced “no evidence

of   any     combination         or    agreement          between    Appellants         Ward    and

Sheppard.”          Appellants’ Br. at 30.                 They claim that “[t]here was

no testimony that [Defendants] had any discussions, meetings or

other      communications             regarding       the        investigation       into       the

discrepancies         in    [Anthony’s]         official         reports,    or    played       any

role    in    making       the   decision        as   to     the    appropriate         level    of

discipline to be recommended to Director Ozmint.”                            Id. at 30-31.

                  In response, Anthony contends that “[t]he nature of

the acts committed and the relationship of Ward and Sheppard

itself       is    evidence      of        conspiracy.”           Appellee’s      Br.    at     33.

According to Anthony, “[t]here were numerous times that Ward and

Sheppard met in discussion of Anthony, and Ward and Sheppard

acted    together,         in    concert,       in    a    course    of    action       that    was

contrary to the normal policy and procedure at SCDC, but which

furthered their own personal objective to harm Anthony.”                                 Id.

                  We agree with Anthony that the jury heard sufficient

evidence at trial regarding motive, opportunity, and concerted

action       from     which      to        conclude       that    defendants      reached        an

agreement to harm Anthony and committed civil conspiracy.                                      With

regard       to    motive,       as    discussed          above     in    part    II,    Anthony

provoked the enmity of both defendants by failing to cooperate

with     their       efforts          to    discredit        other       employees       in     the

Department.          Anthony believed these efforts were inappropriate

                                                 23
and refused to be complicit.                          Regarding opportunity, despite

attempting          to   downplay        the     connection           between       himself       and

Sheppard, Ward conceded at trial that he had a “professional

friendship”          with    Sheppard          and    that    the       two    men    ate     lunch

together       “a    couple     days       a    week.”           J.A.    1052.        Ward       also

testified that he spoke with Sheppard about Laurie Bessinger’s

actions    during         the   hostage         situation        at     Lee.        And    Sheppard

admitted forwarding to Ward an email he received from Inspector

Hair about concerns over activities in the boiler room at Lee.

               The       jury   also       heard       testimony         regarding          adverse

actions taken by the defendants against other SCDC employees

they disliked.           Bessinger testified that the defendants acted in

a   concerted        manner     to       force       his   own    retirement         by     working

together to discredit him.                       According to Bessinger, Sheppard

initiated conversations with employees under Bessinger’s direct

supervision to try to elicit information which could be used to

undermine and discredit Bessinger.                         Ward admitted that he asked

Ozmint    to    “relieve”           Bessinger         on   the    night        of    the    hostage

situation.          J.A. 1067.           And Associate Warden Pridgen testified

that on the night of the hostage incident Ward complained to him

about    Bessinger          being    a    problem:         “Bessinger’s         trying      to    run

everything.          But if you tell anybody, I’m going to tell them you

are lying.”         J.A. 476.



                                                 24
             Harrison,     for      his    part,     testified    that     Sheppard

deviated from Department custom by personally serving as both

investigator and then lawyer in Harrison’s grievance hearing,

which resulted in Harrison’s demotion from warden of Kershaw.

Sheppard served these roles despite the existence of a separate

Office of General Counsel which acts as counsel for SCDC.

             In     Anthony’s      case,    Ward     admitted    deviating        from

standard     SCDC    policy   in    failing     to   inform   Anthony    about    the

shakedown of Lee in January 2004, and he participated directly

in the shakedown.        John Near, the Human Resources Director for

SCDC, testified that he does not know of any other warden who

has   ever    been    terminated      or    refused    rehire    because     of    an

inspection-related issue.            Warden Harrison also testified that

he had never known of a warden losing his job either because of

contraband found in an institution (absent firsthand involvement

by the warden), or for failure to make inspections.                     Ultimately,

we must conclude that reasonable minds could differ regarding

the existence of a common design by Ward and Sheppard to harm

Anthony.     See Baynard, 268 F.3d at 235.             Sufficient evidence was

presented in this case for the jury to find that defendants

conspired to bring about the forced retirement of Anthony.                        The

jury verdict must therefore stand.




                                           25
                                       VI.

             Defendants     further    contend       that    the    district     court

erred in failing to charge the jury on the employment-at-will

doctrine.     Again, as explained above in part II, we review jury

instructions for abuse of discretion.

             Under   South    Carolina       law   “[a]t-will           employment    is

generally terminable by either party at any time, for any reason

or for no reason at all.”           Prescott v. Farmers Tel. Coop., Inc.,

516 S.E.2d 923, 925 (S.C. 1999).              South Carolina recognizes only

three   exceptions     to    this   general     rule:       (1)    an    employee    has

recourse against his employer for termination in violation of

public policy; (2) an at-will employee may not be terminated for

exercising    constitutional        rights;    and    (3)     an    employee    has    a

cause of action against an employer who contractually alters the

at-will relationship and terminates the employee in violation of

the contract.        Nelson v. Charleston County Parks & Recreation

Comm’n, 605 S.E.2d 744, 746 (S.C. Ct. App. 2004). The South

Carolina Supreme Court has held that “an at-will employee may

not maintain a civil conspiracy action against her employer.”

Angus v. Burroughs & Chapin Co., 628 S.E.2d 261, 262 (S.C. 2006)

(citing Ross v. Life Ins. Co. of Va., 259 S.E.2d 814, 815 (S.C.

1979)).

             Ward and Sheppard argue that Anthony was an at-will

employee and that, to the extent that defendants were acting

                                        26
within the scope of their employment, they are protected by the

employment-at-will doctrine.              Anthony counters that he was not

terminated by SCDC but was instead refused rehire under South

Carolina’s TERI program.               More important, Anthony points out

that neither defendant actually had the power to terminate him;

that power resided in Jon Ozmint, the Director of SCDC.                             Ward

merely       had   the   power    to    make     a   recommendation        to     Ozmint

regarding what action SCDC should take; Sheppard lacked even

this   power.        Because     we    agree    with   Anthony     that     his    civil

conspiracy claim is not against his employer, the employment-at-

will doctrine is inapplicable.             The district court did not abuse

its discretion in failing to instruct the jury on the doctrine.



                                         VII.

              Finally, defendants urge this court to consider the

combined effect of the errors committed by the district court

and claim that the cumulative effect of the errors occurring

during trial mandates a remand for a new trial.                           See Beck v.

Haik, 377 F.3d 624, 644-45 (6th Cir. 2004).                  Although this court

has    yet    to   determine     whether       the   cumulative     error       doctrine

applies in the civil context, cf. United States v. Martinez, 277

F.3d 517, 532-34 (4th Cir. 2002) (applying the cumulative error

doctrine      in   the   criminal       context),      we   need    not    make     this

determination in order to resolve this case.                       Assuming without

                                           27
deciding    that   such   a    doctrine   is   appropriate   in   the   civil

context, see Beck, 377 F.3d at 644-45 (adopting cumulative error

doctrine in civil context), overruled on other grounds by Adkins

v. Wolever, 554 F.3d 650 (6th Cir. 2009) (en banc); Frymire-

Brinati v. KPMG Peat Marwick, 2 F.3d 183, 188 (7th Cir. 1993)

(same); Malek v. Fed. Ins. Co., 994 F.2d 49, 55 (2d Cir. 1993)

(same); Hendler v. United States, 952 F.2d 1364, 1383 (Fed. Cir.

1991) (same); Gordon Mailloux Enters., Inc. v. Firemen’s Ins.

Co. of Newark, 366 F.2d 740, 742 (9th Cir. 1966) (same), but see

SEC v. Infinity Group Co., 212 F.3d 180, 196 (3d Cir. 2000)

(noting    rejection      of   cumulative      error   doctrine   in    civil

context), reversal would nevertheless be inappropriate in this

case.     The only error that occurred in this case was that the

jury was not specifically asked to find that defendants acted

outside the scope of their employment when they injured Anthony.

As explained above, because we conclude that his error was not

prejudicial, the cumulative error doctrine does nothing to alter

this conclusion.

                                    * * *

            For the foregoing reasons, the judgment is

                                                                  AFFIRMED.




                                     28
