                              UNPUBLISHED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Affirmed by unpublished opinion.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Unpublished opinions are not binding precedent in this circuit.
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   “fully-

qualified” ratings, with scores between five and seven on a ten-

point 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 hard-
     working. . . . 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.




                                   3
       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   non-

management     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

                                                  4
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

                                                     5
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 co-
      workers 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

                                        6
       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




                                        7
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

                                              8
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’

                                          9
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

                                      10
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

                                               11
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




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