                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 11-2317


SHIRLEY SHAHEEN,

                Plaintiff – Appellant,

          v.

THE WELLPOINT COMPANIES, INC., d/b/a WellPoint, Inc.,

                Defendant – Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (3:11-cv-00077-JRS)


Submitted:   May 17, 2012                 Decided:   August 3, 2012


Before AGEE, DAVIS, and DIAZ Circuit Judges.


Affirmed by unpublished per curiam opinion.


Richard F. Hawkins, III, HAWKINS LAW FIRM, PC, Richmond,
Virginia, for Appellant.        Karla Grossenbacher, Taron K.
Murakami, SEYFARTH SHAW LLP, Washington, D.C., for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             After      her      termination,          Shirley      Shaheen       filed    suit

against her former employer, alleging defamation in the context

of her termination.            The district court entered summary judgment

in favor of Shaheen’s employer and denied as moot her motion to

compel    production        of    certain     privileged           documents.        For   the

reasons that follow, we affirm.



                                            I.

                                            A.

             Shaheen          worked       for         The       WellPoint          Companies

(“WellPoint”)        in     various      capacities          from    March        2004    until

October 2010.           In March 2006, Shaheen was named a manager of

WellPoint's       NurseLine,       “a    24/7     call-in      operation      designed       to

provide    quick      and     immediate     advice       from      nurse   associates       to

insureds     of     Anthem        Blue    Cross        Blue      Shield     (a      WellPoint

subsidiary).”           Appellant’s Br. 5.              As a manager, Shaheen was

responsible       for       supervising         approximately         twenty        NurseLine

associates.

            Shaheen remained in this position until October 15,

2010, when      she     was      terminated       by   WellPoint.          The     chronology

leading    to     her     termination     began        with    a    September       11,    2010

incident     between          Shaheen     and      Linda        Taylor,       a     NurseLine

associate.        According to Shaheen, she asked Taylor to switch to

                                              2
a cubicle with a “Click–to–Talk” extension, a call feature that

Taylor needed to perform her job.                        Taylor protested, responding

“I don’t understand why the hell I have to move,” and adding

that after previously using a cubicle not equipped with Click-

to-Talk, “why the hell is it so important that I move now?”

J.A. 315.         The exchange continued.                  Ultimately Shaheen asked,

“[I]s it really an ordeal to move?,” and according to Shaheen,

Taylor responded, “[I]t f-king is.”                      Id.

             Shaheen       subsequently            participated            in    a    previously-

scheduled online conference with other NurseLine managers and

WellPoint     personnel,         including          Kelli      Lohmeyer,             Director     of

NurseLine,        and    Whitney      Ingle,       the    WellPoint             Human      Resources

representative          for   NurseLine.             Shaheen          informed          Ingle    and

Lohmeyer     of    her    encounter      with       Taylor.            Ingle         and   Lohmeyer

advised    Shaheen       that    this    behavior          was       grounds         for    Taylor's

termination.        To this end, Ingle and Lohmeyer instructed Shaheen

to submit a written description of the incident.                                     According to

Shaheen,     Ingle       specifically      requested             a    statement            regarding

“what the curse words were.”              Id. 81.           Shaheen’s subsequent memo

indicated that Taylor “responded in a verbally hostile matter,”

used   the    “f-word,”         and    that    at        least       two    other          NurseLine

associates—Tammy           DeGroft       and        Pamela           Roepke—witnessed            the

incident.     Id. 149.



                                               3
               In      response    to     Ingle’s          instruction,      Shaheen       and

Barbara Wetzler, another NurseLine manager, informed Taylor that

she was        being    terminated       based      on    her   behavior     and    language

during the September 11 incident.                        According to a memo Shaheen

prepared       for     Ingle    summarizing         the    conversation      with    Taylor,

Taylor felt that “she did nothing wrong, she did not curse, was

not hostile and was not inappropriate.”                           Id. 155.         Shaheen’s

memo again          mentioned     that    the       incident    was    “witnessed     by    at

least    two        associates,”     identifying           DeGroft     and   Roepke,        and

noting that “both associates were standing with [Taylor] and I

[sic] when the incident occurred.”                        Id.   And Shaheen added that

three other associates—including Charlyn Harrison—“were also on

the     unit     in     [the]     area    to        potentially       overhear      and    see

[Taylor’s] comments and behavior.”                    Id.

               Days later, Taylor contacted Ingle to challenge her

termination, insisting that she never used the “f-word” during

her exchange with Shaheen.                In light of Taylor’s protestations,

Ingle and Lohmeyer opened an investigation into the incident.

Initially, they contacted the witnesses identified in Shaheen’s

memo—including DeGroft, Roepke, and Harrison—asking if they had

“overheard or seen anything inappropriate.”                            Id. 458.           These

witnesses, however, were unable to confirm that Taylor used the

“f-word.”        In fact, Harrison stated that she was not at work

when the incident occurred.                 Unable to confirm the details of

                                                4
the alleged incident via Shaheen’s asserted witnesses, Ingle and

Lohmeyer scheduled a meeting with Shaheen.

            During their meeting with Shaheen, Ingle and Lohmeyer

requested   a   verbatim      account    of   the   incident,       specifically

asking about Taylor’s cursing and why no other employees heard

the exchange.    Shaheen responded that although she could not say

why no one overheard Taylor’s words, Shaheen never said that she

and Taylor were yelling.          Apparently dissatisfied with Shaheen’s

responses, at a meeting on October 15, 2010, Ingle and Lohmeyer

terminated Shaheen.         Explaining the decision, Ingle and Lohmeyer

indicated that they felt that Shaheen had “misrepresented the

severity of the situation” between her and Taylor.                     Id. 326.

Specifically, they emphasized that they had to “prompt [Shaheen]

four times” before Shaheen restated that Taylor used the “f-

word.”    Id.   In Shaheen’s personnel file, “misconduct” was noted

as the reason for termination.          Id. 437.



                                        B.

            Shaheen filed a diversity action alleging defamation

and   defamation      per    se    against    WellPoint,      and     requesting

compensatory    and   punitive      damages. 1      Shaheen   challenged     the

      1
      Shaheen’s complaint also included a breach of contract
claim that was subsequently dismissed and is not challenged on
appeal.


                                        5
following six statements:                   (1) Ingle and Lohmeyer’s statements

during        the      October        13        and     15      meetings     that     Shaheen

misrepresented and lied about the facts related to the incident

with    Taylor;        (2)    Ingle     and      Lohmeyer’s         statement    during   the

October 15 meeting with Shaheen that she “misrepresented the

severity” of Taylor's conduct; (3) a note in Shaheen’s personnel

file that she was terminated for “misconduct”; (4) a                                statement

that         Shaheen         violated           WellPoint's         ethics      policy     by

misrepresenting facts related to a company investigation; (5)

Lohmeyer's statement in an email to Ingle that Shaheen did not

offer any alternatives to terminating Taylor; and (6) Lohmeyer's

statement       in     an     email        to    Ingle       that    Shaheen    decided    to

terminate, or recommended termination for, Taylor.                               Shaheen v.

WellPoint Companies, Inc., No. 3:11–CV–077, 2011 WL 5325668, at

*2 (E.D. Va. Nov. 3, 2011).

               WellPoint       moved       for        summary    judgment,     with   Shaheen

responding in opposition.                   Shaheen subsequently moved to compel

the production of documents related to WellPoint’s investigation

of     the    incident,       including          communications        between      WellPoint

employees and counsel, and to reopen the depositions of Ingle

and Lohmeyer.          The district court found that the statements were

protected by a qualified privilege that Shaheen had not defeated

and therefore, that Shaheen “failed to show the existence of a

genuine dispute” as to whether the challenged statements were

                                                  6
defamatory or defamatory per se.                  Id., 2011 WL 5325668, at *6.

Accordingly, the district court granted WellPoint’s motion for

summary judgment and denied Shaheen’s motion to compel as moot.

Shaheen timely appealed.



                                            II.

           We    review      the    district       court’s     grant     of    summary

judgment de novo, viewing the facts and drawing all reasonable

inferences therefrom in the light most favorable to the non-

movant.    PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d 111,

119 (4th Cir. 2011).          Summary judgment is proper only if there

is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.                     Id.    We review the

district   court’s      denial     of   a    motion   to   compel   discovery       for

abuse of discretion.          Lone Star Steakhouse & Saloon, Inc. v.

Alpha of Va., Inc., 43 F.3d 922, 929 (4th Cir. 1995).



                                        III.

           A defamation action under Virginia law requires (1)

publication,     (2)    of    an    actionable        statement,       and    (3)   the

requisite intent.        Chapin v. Greve, 787 F. Supp. 557, 562 (E.D.

Va. 1992).      To be actionable, a statement must be both false and

defamatory.       Id.     Defamatory         statements      must   be   “more      than

merely unpleasant or offensive;” rather, they must “make the

                                            7
plaintiff    appear       odious,   infamous,          or    ridiculous.”          Id.

(internal quotation omitted).            Certain statements are considered

defamatory per se, including those that impute an unfitness to

perform    the   duties    of   a   job       or    lack    of   integrity    in   the

performance of duties, or prejudice the party in her profession

or trade.    Echtenkamp v. Loudon County Pub. Sch., 263 F. Supp.

2d 1043, 1061 (E.D. Va. 2003).

            In   the   context      of    a        defamation    action,     Virginia

recognizes a qualified privilege for “[c]ommunications between

persons on a subject in which the persons have an interest or

duty.” 2    Larimore v. Blaylock, 528 S.E.2d 119, 121 (Va. 2000).

The qualified privilege, however, “is lost if a plaintiff proves

by clear and convincing evidence that the defamatory words were

spoken with common-law malice.”                Smalls v. Wright, 399 S.E.2d

805, 808 (Va. 1991).         To defeat the privilege, a plaintiff must

     2
      As noted by the district court, the publication element of
a defamation action requires dissemination of the statement to a
third party in a nonprivileged context and “[i]n this regard, it
is well settled . . . that communications between persons on a
subject in which the persons have an interest or duty are
occasions of privilege.”     Shaheen, 2011 WL 5325668, at *4.
(quotation and alteration omitted).   In concluding that Shaheen
could not defeat WellPoint’s qualified privilege, the district
court determined that WellPoint was entitled to summary judgment
on Shaheen’s claims of defamation and defamation per se.     See
Food Lion, Inc. v. Melton, 458 S.E.2d 580, 584 (Va. 1995)
(noting, in the context of a claim of defamation per se, that in
addition to proving negligence, a plaintiff “further must prove
that there was publication of the defamatory words”) (emphasis
added).



                                          8
show “that the communication was actuated by some sinister or

corrupt    motive         such   as      hatred,    revenge,       personal     spite,         ill

will, or desire to injure the plaintiff,” or “what, as a matter

of law, is equivalent to malice, that the communication was made

with such gross indifference and recklessness as to amount to a

wanton       or         wilful      disregard         of     the      rights        of         the

plaintiff.”          Southeastern Tidewater Opportunity Project, Inc. v.

Bade, 435 S.E.2d 131, 132-33 (Va. 1993).

             Shaheen          does        not      seriously       dispute         that        the

statements—at            least        initially—are          covered      by        qualified

privilege, and we readily conclude that they are.                             See Larimore,

528 S.E.2d at 121 (noting that Virginia courts have applied the

privilege “in a number of cases involving defamatory statements

made     between        co-employees         and    employers       in   the       course      of

employee     disciplinary           or     discharge       matters”).         She    asserts,

however,     the        existence     of    a   genuine     dispute      on   an    issue       of

material fact as to whether WellPoint lost the privilege through

its malicious actions.                Specifically, she argues that WellPoint

lost the privilege via its (1) “reckless disregard for the truth

in   terms      of      its   gross[ly]         deficient      investigation”         of       the

incident,         (2)     “use   of        disproportionate         and/or      exaggerated

language when describing the ‘facts’ it believes supported its

defamatory statements,” and (3) “lack of reasonable cause or

belief    for      believing        the     allegations      against      Shaheen         to   be

                                                9
true.”      Appellant’s Br. 34, 36 (citing Great Coastal Exp., Inc.

v. Ellington, 334 S.E.2d 846, 853-54 (Va. 1985)).

             We find that Shaheen fails to raise a genuine dispute

on the issue of WellPoint’s alleged malice.                     Ingle and Lohmeyer

conducted     an   investigation       of     the    incident        in    response     to

Taylor’s challenge to her termination, including her denial of

using the “f-word.”          This investigation included interviews of

Shaheen and all associates identified by Shaheen as witnesses or

potential     witnesses.        Shaheen’s       attempts        to    discredit        the

investigation as “grossly inadequate,” Appellant’s Br. 3, are

themselves lacking.          For example, Shaheen argues that in asking

if    the      associates       had     “overheard         or        seen       anything

inappropriate,”       J.A.   458,     rather    than    specifically            inquiring

about the “f-word” or about Taylor, Ingle and Lohmeyer failed to

ask   “the    right    questions,”      Appellant’s       Br.        36.        As   Ingle

explained, however, it is her practice “not [to] ask leading

questions when . . . conduct[ing] an investigation.                         I wanted to

get open and honest answers about . . . what they may or may not

have observed.”       J.A. 458-59.

             In another example, Shaheen asserts that Ingle did not

include in her talking points with Shaheen that DeGroft said

that Taylor was talking loudly, was agitated, and left at some

point and did not hear the end of the conversation.                                  In so

doing,   Shaheen      argues   that    Ingle        "downplayed"          and   "omitted"

                                         10
certain facts supportive of Shaheen's account.                           Appellant’s Br.

18-19.     While it is true that DeGroft indicated that she heard

Taylor “speaking loudly” (adding that Taylor “often” spoke at a

similar volume), J.A. 410, Taylor was not terminated for raising

her   voice,     but     “predominantly”           for    allegedly      using     the   “f-

word,”     id.   444.          And    on     this    point,      DeGroft     offered       no

corroboration for Shaheen’s version of events.

            WellPoint’s         investigation         stands      in    contrast    to    the

incomplete or nonexistent investigations in the cases on which

Shaheen relies.           See, e.g., A.B.C. Needlecraft Co. v. Dun &

Bradstreet,      Inc.,    245    F.2d       775,    777    (2d   Cir.    1957)     (finding

evidence     that      defendant           published      false        information       with

“nothing    more    to    go    on    than     a    misunderstood        casual     remark,

with no effort to verify the facts, though to have done so would

have been a simple matter” was “clearly sufficient to support a

[jury] finding that the defendant acted in wanton and reckless

disregard of the plaintiff's rights” (emphasis added)); Wirig v.

Kinney Shoe Corp., 461 N.W.2d 374, 380 (Minn. 1990) (rejecting

claim of qualified privilege where “no investigation occurred to

substantiate       the     charges          that    [the     terminated       plaintiff-

employee] had stolen merchandise,” but rather “[t]he managerial

personnel    who    repeated         the    accusations      simply      believed     their

sources without further investigation” (emphasis added)).



                                              11
            The    investigation        that   led   to   Shaheen’s   termination

did not suffer from the same failings and thus, Shaheen has

failed to raise a genuine dispute on an issue of material fact

sufficient        to    defeat         WellPoint’s        qualified    privilege.

Accordingly,      we   affirm    the    district     court’s   summary   judgment

ruling. 3    See, e.g., Taylor v. CNA Corp., 782 F. Supp. 2d 182,

202-03 (E.D. Va. 2010) (granting summary judgment to defendants

on defamation claim where plaintiff asserted malice but “the

record provides no basis for a reasonable jury to make such a

conclusion by th[e] elevated [clear and convincing] standard”).



                                         IV.

            Shaheen further contends that the district court erred

in denying her motion to compel as moot.                    Having reviewed the

record and considered Shaheen’s argument, we find no abuse of

discretion and affirm.          See Lone Star, 43 F.3d at 929 (observing

that we “afford[] a district court substantial discretion in

managing discovery”).




     3
      Because we affirm the district court’s conclusion that
WellPoint was entitled to summary judgment based on its
qualified privilege, we do not address Shaheen’s additional
argument that the court erred in “suggest[ing]” that the
challenged statements were not defamatory per se. Appellant’s
Br. 39.



                                          12
             Moreover, even were we to conclude that the district

court erred, any error was harmless.                   Shaheen concedes that she

sought     to    compel    production        of    documents      protected      by    the

attorney-client       privilege,         but      argues    that     disclosure        was

warranted under the “at issue” doctrine.                      According to Shaheen,

the   “at-issue”      exception         to     the    attorney-client         privilege

applies because (1) the privilege was asserted as a result of

some affirmative act by WellPoint; (2) through the affirmative

act, WellPoint put the protected information at issue by making

it relevant to the case; and (3) application of the privilege

would deny Shaheen access to vital information.                      See Billings v.

Stonewall Jackson Hosp., 635 F. Supp. 2d 442, 446 (W.D. Va.

2009).

            We    disagree,       as    WellPoint     never      asserted    advice     of

counsel as an affirmative defense.                    Indeed, neither Ingle nor

Lohmeyer    indicated      that     they     relied    on   advice    of    counsel     in

terminating       Shaheen,     or      in    making     the      alleged    defamatory

statements.       Thus, the “at issue” doctrine does not apply.                       See,

e.g., Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851,

863 (3d Cir. 1994) (“Advice is not in issue merely because it is

relevant . . . .          The advice of counsel is placed in issue where

the client asserts a claim or defense, and attempts to prove

that claim or defense by disclosing or describing an attorney

client   communication.”);             Billings,      635   F.    Supp.     2d   at    446

                                             13
(“[Defendant] does not assert the defense of advice of counsel

in this case; thus, the narrow ‘at-issue’ exception does not

apply.”); Hearn v. Rhay, 68 F.R.D. 574, 581 (E.D. Wa. 1975)

(noting that cases finding a waiver of attorney-client privilege

share a “common denominator” in that “the party asserting the

privilege placed information protected by it in issue through

some affirmative act for his own benefit”).



                                      V.

              For the foregoing reasons, we affirm the judgment of

the district court.          We dispense with oral argument because the

facts   and    legal   contentions    are   adequately   presented    in   the

materials     before   the    court   and   argument   would   not   aid   the

decisional process.



                                                                     AFFIRMED




                                      14
