Spence v. Board of Education of Christina School District , 806 F.2d 1198 ( 1986 )

OPINION OF THE COURT

VAN DUSEN, Senior Circuit Judge.

Plaintiff, Catherine Spence, was transferred from her position as an art teacher at Newark High School, in Newark, Delaware, to a position teaching elementary school art in June of 1981. Plaintiff filed a complaint under 42 U.S.C. § 1983 on April 27, 1982, alleging that the transfer was in retaliation for the exercise of her First Amendment rights of free speech and free association. A jury trial was held in February 1984; the jury found that plaintiff's exercise of her rights to free speech and association was a substantial motivating factor in the decision to transfer her from Newark High School. The jury awarded plaintiff $25,000. in compensatory damages and assessed punitive damages against defendant John McIntosh, the school’s principal, in the amount of $3,500.

Defendants filed a motion for a new trial pursuant to Fed.R.Civ.P. 59. The district court issued an opinion and order dated April 4, 1984, directing that plaintiff remit $22,060. of the compensatory damages (representing emotional distress damages) or undergo a new trial on both the issues of damages and liability. Contrary to the implication of the concurrence, see concurrence typescript at 9, the district court did not eliminate all compensatory damages.¹ Nonetheless, plaintiff refused to accept the remittitur and elected to proceed with a new trial.

On April 4, 1985, plaintiff requested the district court to reconsider its opinion and order of April 4, 1984, and requested that the retrial be limited solely to the question of damages. The district court denied these requests on October 10, 1985.

The second trial on both the issues of damages and liability was held in March 1986. The jury returned a verdict for defendants, finding that the plaintiff's exercise of her First Amendment rights was not a substantial or motivating factor in the decision to transfer her. A final judgment was entered in favor of the defendants pursuant to that verdict.

Plaintiff appeals from the district court’s order of April 4, 1984, ordering remittitur or a new trial and from its October 10, 1985, order denying plaintiff's request that the retrial be limited to the issue of damages.² For the reasons set forth below, we will affirm the abovementioned district court orders.

I.

The first issue presented to this court is whether the district court erred in its issuance of a remittitur. Plaintiff argues that the district court’s order rests on a misinterpretation of Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978). In Carey, the Supreme Court held that substantial compensatory damages could not be awarded in that case absent proof that actual injury resulted from a denial of procedural due process. Id. at 248, 98 S.Ct. at 1044. The district court, relying on Carey, stated that “[although mental and emotional distress caused by the denial of first amendment rights is compensable, an award of damages for such injury will not stand without proof that such injury was actually caused.” Spence v. Board of Education, Civil No. 82-212, D.Del., slip op. at 2, App. at A-23 (citing Carey, 435 U.S. at 264, 98 S.Ct. at 1052). Plaintiff argues that Carey does not apply to this case because its holding was limited solely to procedural due process deprivations, and not to situations where substantive constitutional rights have been violated. The Supreme Court recently rejected this distinction in Memphis Community School District v. Stachura, — U.S. -, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986):

“[Carey ] does not establish a two-tiered system of constitutional rights, with substantive rights afforded greater protection than ‘mere’ procedural safeguards. We did acknowledge in Carey that ‘the elements and prerequisites for recovery of damages’ might vary depending on the interests protected by the constitutional right at issue____ But we emphasized that, whatever the constitutional basis for § 1983 liability, such damages must always be designed ‘to compensate injuries caused by the [constitutional] deprivation.’ ”

Id., 106 S.Ct. at 2544 (quoting Carey, 435 U.S. at 264-65, 98 S.Ct. at 1052-53) (emphasis in original).

Notwithstanding this language, plaintiff argues that Carey and Memphis support a finding that damages may be presumed in the case at bar. We do not agree. Although the Supreme Court in both cases acknowledged that presumed damages may be appropriate in certain situations, the Court did not state that damages may be presumed in a case in which a plaintiff is unable to prove emotional distress resulting from a First Amendment violation. To the contrary, the Court stated that the doctrine of presumed damages is “an oddity in tort law” and has been applied only in limited circumstances, chiefly in the area of defamation per se. Carey, 435 U.S. at 262, 98 S.Ct. at 1051 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 349, 94 S.Ct. 2997, 3011-12, 41 L.Ed.2d 789 (1974)). The situations alluded to by the Memphis Court that would justify presumed damages are also those involving defamation and the deprivation of the right to vote. Memphis, 106 S.Ct. at 2545 & n. 14.

In the case at bar, plaintiff alleged a First Amendment violation that resulted in emotional distress. Her claim does not fall within the narrow category of cases in which damages may be presumed. Indeed, the Supreme Court made clear in Carey that damages in the nature of emotional distress will not be presumed from an infringement of a constitutional right:

“[W]e foresee no particular difficulty in producing evidence that mental and emotional distress actually was caused by the denial of [a constitutional right]. Distress is a personal injury familiar to the law, customarily proved by showing the nature and circumstances of the wrong and its effect on the plaintiff____ [Neither the likelihood of such injury nor the difficulty of proving it is so great as to justify awarding compensatory damages without proof that such injury actually was caused.”

Carey, 435 U.S. at 263-64, 98 S.Ct. at 1052.

Thus, since emotional distress damages may not be presumed, the district court properly ordered remittitur of those damages, finding that plaintiff did not submit sufficient evidence to prove that emotional injuries actually occurred or that they were caused by defendant’s conduct. We emphasize that the district court did not hold that the plaintiff could not establish that damages for emotional distress were owing. The court held only that, because of the speculative nature of the evidence presented, the plaintiff had not established a right to compensatory damages for emotional distress.

The rationalization for, and use of, the remittitur is well established as a device employed when the trial judge finds that a decision of the jury is clearly unsupported and/or excessive. Kazan v. Wolinski, 721 F.2d 911 (3d Cir.1983); Keystone Floor Products Co., Inc. v. Beattie Manufacturing Co., 432 F.Supp. 869 (E.D.Pa. 1977). Its use clearly falls within the discretion of the trial judge, whose decision cannot be disturbed by this court absent a manifest abuse of discretion. Murray v. Fairbanks Morse, 610 F.2d 149 (3d Cir.1979); Edynak v. Atlantic Shipping, Inc. CIE. Chambon, 562 F.2d 215 (3d Cir.1977). The district judge is in the best position to evaluate the evidence presented and determine whether or not the jury has come to a rationally based conclusion. Murray, 610 F.2d at 152-53.

The district court in this case ordered a remittitur based on its finding that “the award of damages for emotional distress was wholly speculative given the limited quality and quantity of proof that plaintiff submitted on the issue.” Spence, slip op. at 5, App. at A-23. On the record before us, we cannot say that the court abused its discretion in ordering remittitur of the emotional distress damages. The evidence of emotional distress consisted chiefly of plaintiff’s own testimony that she was depressed and humiliated by the transfer and that she had lost her motive to be creative. There was no testimony that plaintiff’s peers held her in any less esteem. In fact, Dr. Shurtleff, an art professor at the University of Delaware, testified that he continued to invite plaintiff to lecture at the University even after her transfer to the elementary school level. Plaintiff offered no evidence that she suffered physically from her emotional distress or that she sought professional psychiatric counselling. It is uncontraverted that plaintiff suffered no loss of job or reduction in pay. Thus, she did not suffer emotional distress resulting from loss of income. In short, neither the circumstances nor the testimony established that there was “a reasonable probability, rather than a mere possibility, that damages due to emotional distress were in fact incurred as a result of the transfer.” Spence, slip op. at 6, App. at A-24.

We need not decide whether a verdict for emotional distress may ever be supported solely by a plaintiff’s own testimony. See Chalmers v. City of Los Angeles, 762 F.2d 753, 761 (9th Cir.1985); Williams v. Trans World Airlines, Inc., 660 F.2d 1267, 1272-73 (8th Cir.1981). But see Cohen v. Board of Education, 728 F.2d 160 (2d Cir.1984); Nekolny v. Painter, 653 F.2d 1164 (7th Cir.1981). We hold only that, on the facts of this case, the district court did not err in finding that the evidence was too speculative to support a $22,060. award of emotional distress damages.

II.

The second issue presented to this court is whether the district court erred in determining that the liability and emotional distress damage issues were so interwoven that the new trial should be held on both issues. This court’s review is limited to determining whether the district court abused its discretion in reaching its conclusion. Vizzini v. Ford Motor Co., 569 F.2d 754 (3d Cir.1977).

The Supreme Court in Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 51 S.Ct. 513, 75 L.Ed.2d 1188 (1931), stated that an issue may not be isolated for a new trial “unless it clearly appears that the issue to be retried is so distinct and separable from the others that a trial of it alone may be had without injustice.” Id. at 500, 51 S.Ct. at 515. In the case at bar, the district judge applied the Gasoline Products Co. standard and concluded that the liability and damages issues were indeed too interwoven to allow a fair determination of damages apart from liability.

We find no abuse of discretion in the trial court’s conclusion. As the district judge noted, “this case involves a tangled and complex fact situation” that took place over a one-year period. App. at 50. Plaintiff asserts that the new trial could have been limited to evidence showing only the effect the wrong had on the plaintiff since the time of her transfer. This, however, is contrary to the rule that emotional distress damages must be evaluated in light of all the circumstances surrounding the alleged misconduct. See Carey v. Piphus, 435 U.S. 247, 263, 98 S.Ct. 1042, 1052, 55 L.Ed.2d 252 (1978) (“Distress ... is proved by showing the nature and circumstances of the wrong and its effect on the plaintiff.”). The liability and damage issues are further intertwined in this case because the plaintiff is seeking punitive damages from the defendants. In order to prove that the defendants’ conduct warranted punitive damages, plaintiff would have to present to the jury all the facts leading up to defendants’ decision to transfer her. Thus, the liability and damages issues are not so easily separable as plaintiff suggests.

In summary, it is our opinion that the district judge properly used his discretion to offer a remittitur or a new trial to the plaintiff, as well as to determine that the liability and damage issues should be tried together on a retrial. Accordingly, the judgment of the district court will be affirmed.

1 . The district court explained that, of the $25,-000. compensatory award, $2,940. represented plaintiffs increased traveling expenses and wage taxes resulting from the transfer. The remaining $22,060. apparently was awarded for emotional distress. Spence v. Board of Education, Civil No. 82-212, D.Del., slip op. at 7-8 & n. 4, App. at A-25 — A-26. The district court stated that if plaintiff chose to accept the remit-titur, she would still receive a $2,940. compensatory award and $3,500. in punitive damages. Id. at A-26.

2 . Plaintiff also appeals from the court’s May 8, 1984, order granting her an extension of time in which to inform the court whether she would accept the remittitur or proceed to a new trial. Plaintiff does not address in her brief the basis for appeal from this order. We find no error in the court’s ruling on this issue.