Hayes v. City of Charlotte NC

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
DARRELL A. PRICE; DAVID H.
HOLLAND; ROBERT A. HOLL;
OSWALD D. HOLSHOUSER;
RAYMOND T. CARLTON; S. VANCE
ELSTROM; MARK E. CORWIN,
Plaintiffs-Appellees,
and
RONALD M. HAYES; RANDY HAGLER,
Plaintiffs,
No. 95-1263
v.
CITY OF CHARLOTTE, NORTH
CAROLINA,
Defendant-Appellant,
and
NORTH STATE LAW ENFORCEMENT
OFFICERS ASSOCIATION,
Defendant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CA-91-158-C-C-P)
Argued: April 1, 1996
Decided: September 3, 1996
Before ERVIN, NIEMEYER, and WILLIAMS, Circuit Judges.
_________________________________________________________________
Affirmed in part and reversed in part by published opinion. Judge
Williams wrote the opinion, in which Judge Ervin and Judge Nie-
meyer joined.
_________________________________________________________________
COUNSEL
ARGUED: Frank Lane Williamson, WOMBLE, CARLYLE, SAN-
DRIDGE & RICE, Charlotte, North Carolina, for Appellant. Louis L.
Lesesne, Jr., LESESNE & CONNETTE, Charlotte, North Carolina,
for Appellees. ON BRIEF: Jim D. Cooley, WOMBLE, CARLYLE,
SANDRIDGE & RICE, Charlotte, North Carolina, for Appellant.
_________________________________________________________________
OPINION
WILLIAMS, Circuit Judge:
Appellees, seven white police officers, sued Appellant, the City of
Charlotte, North Carolina, pursuant to 42 U.S.C.A.§ 1983 (West
1994), contending that promotions practices for advancement in the
Charlotte Police Department violated the Equal Protection Clause of
the Fourteenth Amendment. The district court agreed, see Hayes v.
City of Charlotte, 802 F. Supp. 1361 (W.D.N.C. 1992), and enjoined
the City from employing any race-based criteria in reaching its
employment decisions; we affirmed in part, see Hayes v. North States
Law Enforcement Officers Assoc., 10 F.3d 207 (4th Cir. 1993). While
we affirmed with respect to liability, we remanded the case to the dis-
trict court to limit the scope of the injunction and to resolve issues
stayed during the appeal. On remand, the district court enjoined the
City from using unlawful racial preferences regarding promotions to
sergeant within the police department, and a jury awarded each
Appellee $3,000 in compensatory damages for his injury in being
subjected to the unconstitutional promotions practice.1 Accordingly,
_________________________________________________________________
1 None of the Appellees asserted a denial of promotion, and the City
did not appeal awards of compensatory damages to plaintiffs who were
denied promotions because of their race. Appellees here are police offi-
cers who would not have been promoted regardless of a racially discrimi-
natory promotions practice.
2
the district court entered judgment in Appellees' favor, denying the
City of Charlotte's motions for judgment as a matter of law, see Fed.
R. Civ. P. 50.
In this appeal, we must decide the propriety of awarding compen-
satory damages for Appellees' emotional distress flowing from the
knowledge that the City excluded them from consideration for promo-
tion to sergeant because of their race. Contending that Appellees
would not have been promoted regardless of their race, the City con-
tends that the district court erred in ruling that Appellees have stand-
ing to sue to recover compensatory damages. Additionally, the City
posits that the evidence is insufficient to support the award of com-
pensatory damages for Appellees' emotional distress. We conclude
that Appellees have standing to sue to recover compensatory damages
for emotional distress, but that the evidence is insufficient to support
the verdict. Accordingly, we affirm in part and reverse in part.
I.
The facts are recited in Hayes, and we need address them only
briefly here. In February 1991, the City promoted twenty-one police
officers from patrol officer to police sergeant. Police Chief D.R.
Stone determined that four of the twenty-one promotions would be
awarded exclusively to African-Americans, regardless of the ranking
on the promotions roster. The first eighteen promotions were awarded
based on ranking, but only one of the promoted officers was African-
American. In order to meet his quota of promoting four African-
Americans to police sergeant, Chief Stone disregarded qualified white
applicants for the remaining three promotions and selected three
African-American applicants, whose rankings on the promotions ros-
ter were twenty-nine, sixty-two, and seventy-four, respectively. All
seven Appellees outranked candidates sixty-two and seventy-four, as
did forty-one other white applicants. A substantial number of white
officers who were not promoted had rankings superior to those of any
of the Appellants. Even if an invidious factor -- the race of each can-
didate -- had not entered the promotions calculus, Appellees would
not have been selected for promotion to sergeant.
On remand, Appellees asserted claims of emotional distress, seek-
ing compensatory damages. The City unsuccessfully sought summary
3
judgment respecting the emotional distress claims, contending that
their roster rankings did not qualify them for promotion to police ser-
geant, and they thus were not entitled to individual relief in the form
of damages. Consequently, the issue of individual relief went to trial.
At trial, Appellees sought to prove their claims of emotional distress
by testifying that they experienced degradation and betrayal as a
result of the City's unlawfully discriminatory promotions policy.
Appellees' evidence of their emotional distress consisted exclusively
of their own testimony. According to Appellees, they"had played by
the rules," but the City "deceived" them by not basing its promotions
on grounds of competence.
At the close of Appellees' case-in-chief, and again at the close of
the evidence, the City moved unsuccessfully for judgment as a matter
of law pursuant to Rule 50. A jury returned a verdict in favor of each
Appellee for $3,000 compensatory damages. Following entry of judg-
ment, the City again unsuccessfully moved for judgment as a matter
of law. Thereafter, the City appealed both from the final judgment
and the order denying its post-trial motion for judgment as a matter
of law.
On appeal, the City advances two arguments regarding compensa-
tory damages. First, the City asserts that it is not liable for any dam-
ages because Appellees are entitled solely to injunctive or declaratory
relief. Second, the City posits that even if it is liable for compensatory
damages, the evidence is insufficient to sustain the verdict. We
address these arguments in turn.
II.
The City asserts first that Appellees lack standing to seek compen-
satory damages because they would not have been promoted to ser-
geant regardless of the unconstitutional racial criterion. According to
the City, Appellees are not entitled to any damages because they suf-
fered no compensable loss that can be satisfied by damages. A viola-
tion of equal protection is Appellees' sole injury, the City posits, and
the remedy for such a violation is exclusively injunctive or declara-
tory relief. The City's position is that because there was only a "tech-
nical foul," Appellees are precluded from recovering damages.
4
Appellees contest this position, maintaining that the actual injury
they suffered was their race-based exclusion from equal consideration
for the promotion to sergeant, not the fact that they failed to obtain
a promotion. According to Appellees, their injuries derive from the
City's unconstitutional use of race to decide promotions in the police
department, not from an ultimate denial of a promotion. Appellees'
compensatory damages, therefore, are to redress the ignominy of
denial of consideration for promotion solely because they are white.
Concluding that Appellees had standing to seek compensatory
damages, the district court denied the City's motions for judgment as
a matter of law on this basis. We review the district court's ruling de
novo, see Trandes Corp. v. Guy Atkinson Co., 996 F.2d 655, 661 (4th
Cir.), cert denied, 114 S. Ct. 443 (1993), and affirm.
We conclude that Supreme Court precedent forecloses the City's
argument that Appellees are precluded from recovering any damages
because they would not have been promoted regardless of the unlaw-
ful promotions scheme. In Carey v. Piphus, 435 U.S. 247 (1978), the
Court concluded that § 1983 "was intended to ``[create] a species of
tort liability' in favor of persons who are deprived of ``rights, privi-
leges, or immunities secured' to them by the Constitution." Id. at 253
(alteration in original) (quoting Imbler v. Pachtman, 424 U.S. 409,
417 (1976)). Thus, damages awarded pursuant to § 1983 often find
their genesis in the common law of torts, and the gravamen of tort law
is "compensation for the injury caused to plaintiff by defendant's
breach of duty." Id. at 255 (internal quotation marks omitted) (empha-
sis added in part). Thus, "damages are available under [§ 1983] for
actions ``found . . . to have been violative of . . . constitutional rights
and to have caused compensable injury . . . .'" Id. at 255 (quoting
Wood v. Strickland, 420 U.S. 308, 319 (1975)). In endorsing an award
of damages, Carey explained that the courts must not lose sight of the
fact that such a plaintiff suffered a constitutional violation, and the
federal courts must provide a remedy for the wrong suffered. See id.
at 266.
While Carey concluded that damages for emotional distress are
available under § 1983, the Court held that for a plaintiff to recover
more than nominal damages, his injury must have actually been
5
caused by the challenged conduct, and the injury must be sufficiently
proved:
[W]e foresee no particular difficulty in producing evidence
that mental and emotional distress actually was caused by
the [constitutional violation]. 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. In sum, then, although mental and emotional dis-
tress caused by the [constitutional violation] itself is com-
pensable under § 1983, we hold that 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.
Id. at 263-64. Extrapolating from the common law of torts, the Carey
Court thus concluded that a constitutional violation is indeed compen-
sable with damages for emotional distress, declining to relegate an
otherwise undamaged plaintiff to equitable remedies.
In expounding on the propriety of compensatory damages, the
Carey Court explained that compensatory damages for emotional dis-
tress must be attributed to the actual constitutional violation, as
opposed to denial of the ultimate benefit, and must be proved by a
sufficient quantum of proof demonstrating that the violation caused
compensable injury. Thus, the Court observed that if the plaintiff's
injury is caused by "a justified deprivation, including distress, [it] is
not properly compensable under § 1983." Id. at 263. The injury, there-
fore, must flow from the actual constitutional violation. A plaintiff's
failure to prove compensatory damages results in nominal damages,
typically one dollar, see id. at 266-67, the rationale for the award of
nominal damages being that federal courts should provide some mar-
ginal vindication for a constitutional violation. Carey, therefore,
teaches that compensatory damages for emotional distress are avail-
able for a constitutional violation, but must be attributed to the invidi-
ous discrimination, not to the deprivation of an ultimate benefit; to
recover more than nominal damages, actual injury caused by the con-
stitutional violation must be proved by sufficient evidence.
The Court reiterated the teachings of Carey in Memphis Commu-
nity School District v. Stachura, 477 U.S. 299 (1986). Stachura reaf-
6
firmed the conclusion that § 1983 is akin to tort law and that
determining damages pursuant to § 1983 is governed by principles of
the common law of torts, with the hallmark of these principles being
one of compensation for actual injury. See id. at 307. In describing the
types of injury for which compensatory damages may be recovered
pursuant to § 1983, the Stachura Court observed that "out-of-pocket
loss and other monetary harms [and] ``impairment of reputation . . . ,
personal humiliation, and mental anguish and suffering'" could be
awarded. Id. at 306 (quoting Gertz v. Robert Welch, Inc.,, 418 U.S.
323, 350 (1974)). After explaining that damages for emotional dis-
tress can be recovered under § 1983, the Court reaffirmed Carey by
stating that "``the basic purpose' of § 1983 damages is ``to compensate
persons for injuries that are caused by the deprivation of constitu-
tional rights,'" id. (quoting Carey , 435 U.S. at 254), and to receive
compensatory damages, a plaintiff's damages must be"grounded in
determinations of plaintiffs' actual losses," id. at 307. Hence,
Stachura reaffirmed the holding that the purpose of § 1983 is to com-
pensate a plaintiff whose constitutional rights have been violated; to
recover compensatory damages for such violations, a plaintiff must
suffer actual, demonstrable injury.
The Court applied the principles of Carey and Stachura in
Northeastern Florida General Contractors v. City of Jacksonville,
Fla., 508 U.S. 656 (1993), in holding that the injury required to
recover compensatory damages for a constitutional violation springs
from the impermissible conduct of the Government in perpetrating
invidious discrimination, not from the consequence of denial of plain-
tiff's ultimate goal. In Northeastern, contractors challenged a set-
aside program that awarded black- and Hispanic-owned businesses
construction work, regardless of whether such businesses submitted
the lowest bid. See id. at 659. Asserting that the set-aside program
violated the Equal Protection Clause of the Fourteenth Amendment,
the contractors sued, seeking declaratory and injunctive relief. See id.
Rather than address the merits of the contractors' suit, the Eleventh
Circuit concluded that they lacked standing to challenge the set-aside
program because they failed to demonstrate that but for the set-aside
program, they would have obtained the contracts through successful
bidding. See id. at 660.
Reversing the Eleventh Circuit, the Supreme Court concluded that
the contractors possessed standing to sue. Analogizing from Regents
7
of University of California v. Bakke, 438 U.S. 265 (1978), the Court
concluded that the contractors possessed standing because the requi-
site injury was the inability to compete equally for contracts simply
because the contractors were neither black nor Hispanic. See id. at
666-68. In Bakke, Bakke was denied admission to medical school
because he was white, and the Court held that this denial constituted
the requisite injury because Bakke was not "permit[ted] . . . to com-
pete for all 100 places in the class simply because of his race." Bakke,
438 U.S. at 281 n.14. Thus, "even if Bakke had been unable to prove
that he would have been admitted in the absence of the special pro-
gram, it would not follow that he lacked standing." Id. at 280-81 n.14.
Just as Bakke suffered injury, the Northeastern Court held the con-
tractors suffered injury in fact because they were denied equal protec-
tion:
When the government erects a barrier that makes it more
difficult for members of one group to obtain a benefit than
it is for members of another group, a member of the former
group seeking to challenge the barrier need not allege that
he would have obtained the benefit but for the barrier in
order to establish standing. The "injury in fact" in an equal
protection case of this variety is the denial of equal treat-
ment resulting from the imposition of the barrier, not the
ultimate inability to obtain the benefit.
Northeastern, 508 U.S. at 666. Specifically applied to set-aside pro-
grams, the "``injury in fact' is the inability to compete on an equal
footing in the bidding process, not the loss of a contract." Id.
Rounding out the Carey-Stachura-Northeastern trilogy for recover-
ing damages based on a § 1983 equal protection claim is Adarand
Constructions, Inc. v. Pena, 115 S. Ct. 2097 (1995). Adarand chal-
lenged a federal set-aside program that awarded government contracts
to businesses owned by minorities, regardless of whether the
minority-owned business submitted the lowest bid, contending that
this program violated the Equal Protection Clause. See id. at 2104. In
addition to seeking declaratory and injunctive relief to prevent future
discrimination, Adarand sought compensatory damages for losing a
contract that went to a hispanic-owned business. The Government
asserted that the program was constitutional and asserted further that
8
Adarand lacked standing to sue for future relief. See id. Holding that
Adarand had suffered injury in fact with respect to both compensatory
and declaratory or injunctive relief, the Supreme Court rejected the
Government's contention:
[W]e must consider whether Adarand has standing to seek
forward-looking relief. Adarand's allegation that it has lost
a contract in the past because of a subcontractor compensa-
tion clause of course entitles it to seek damages for the loss
of that contract . . . . But as we explained [previously,] the
fact of past injury "while presumably affording[the plain-
tiff] standing to claim damages . . ., does nothing to estab-
lish a real and immediate threat that he would again" suffer
similar injury in the future.
Id. (quoting Los Angeles v. Lyons, 461 U.S. 95, 105 (1983)) (second
alteration in original). In reaching the conclusion that Adarand had
standing to maintain the suit, the Court relied on Northeastern, specif-
ically rejecting the Government's contention that"Adarand need . . .
demonstrate that it has been, or will be, the low bidder on a govern-
ment contract. The injury in cases of this kind is that a ``discriminatory
classification prevent[s] the plaintiff from competing on an equal
footing.'" Id. (quoting Northeastern , 113 S. Ct. at 2304).
We applied these principles in Burt v. Abel, 585 F.2d 613 (4th Cir.
1978) (per curiam) in the context of a due process violation. Burt was
terminated from her position as a teacher, but the termination was
effected without affording Burt due process. Pursuant to Carey, we
remanded the case to the district court to determine whether Burt
could establish compensatory damages for her § 1983 claim. In
remanding, we observed that in order to recover such damages, Burt
must prove that her injury flowed from the denial of due process, not
from termination of her teaching position, the denial of her ultimate
benefit. See id. at 616. In remanding to determine the propriety of
awarding compensatory damages, we explained that"to recover more
than nominal damages" for emotional distress, a plaintiff "must also
prove that the procedural deprivation caused some independent com-
pensable harm." Id. at 616. Likewise, our sister circuits have applied
the rationale of Carey and its progeny to sustain compensatory dam-
ages awarded pursuant to § 1983. See, e.g. , Miner v. City of Glens
9
Falls, 999 F.2d 655, 663 (2d Cir. 1993) (sustaining an award of com-
pensatory damages based on emotional distress claim for a due pro-
cess violation); United States v. Balistrieri , 981 F.2d 916, 933 (7th
Cir. 1992) (rejecting the very argument that the City advances here
and affirming an award of damages for emotional distress under the
Fair Housing Act), cert. denied, 510 U.S. 812 (1993).
Applying these precedents, we conclude that Appellees have stand-
ing to recover compensatory damages, provided their injuries resulted
from the constitutional violation and are sufficiently proved. Carey
and its progeny demonstrate that the injury Appellees suffered is the
ignominy and illegality of the City's erecting a racial bar to promo-
tions, and more importantly, that this injury can be compensable by
damages, not merely declaratory or injunctive relief. Similar to the
plaintiffs in Bakke, Northeastern, and Adarand, Appellees were not
competing on a level playing field -- the cards were unlawfully
stacked against them -- and this denial of equal protection constitutes
injury in fact capable of supporting compensatory damages. These
precedents also hold that Appellees may be entitled to compensatory
damages for emotional distress, the precise type of injuries claimed
here. In accordance with these precedents, however, Appellees must
establish that their injury is grounded in the denial of equal protection,
not their lack of promotions. Provided, therefore, that the jury
awarded Appellees damages predicated on their unconstitutional
treatment, rather than the ultimate deprivation of promotion to ser-
geant, Appellees can recover compensatory damages for emotional
distress, the issue to which we now turn.
III.
At trial, some Appellees attempted to prove their compensatory
damages for emotional distress by testifying that they suffered igno-
miny as a result of the City's invidious discrimination and the conse-
quences this discrimination visited on their lives. Some Appellees
testified in the most generic of terms that they were "humiliated," "be-
trayed," and "deceived" by the City's invidiously discriminatory pro-
motions policy. In mustering the evidence of their compensatory
damages, Appellees proffered only their vague, conclusory testimony,
but despite the ephemeral nature of this evidence, the jury awarded
10
each Appellee $3,000 in compensatory damages for his emotional dis-
tress.
Challenging the amount of the award of compensatory damages
with respect to each Appellee, the City posits that the evidence is
insufficient as a matter of law to sustain the verdict. According to the
City, the evidence completely lacks any probative quality and is
entirely speculative. Given these fatal flaws, the City argues that on
no principled basis can the award of compensatory damages be sus-
tained. The district court erred, therefore, the City reasons, in denying
its motions for judgment as a matter of law.
Appellees advance two arguments respecting the sufficiency of the
evidence. First, they maintain that we are procedurally barred from
reviewing the sufficiency of the evidence because the City failed to
raise and preserve adequately this issue in its Rule 50 motions. Sec-
ond, even disregarding the procedural bar to reviewing the sufficiency
of the evidence to sustain the compensatory damages, Appellees
assert that the evidence is adequate to sustain their modest awards.
According to Appellees, therefore, the district court properly denied
the City's motions for judgment as a matter of law. We address these
arguments in turn.
A.
Traditionally the City is required to have raised the reason for
which it is entitled to judgment as a matter of law in its Rule 50(a)
motion before the case is submitted to the jury and reassert that reason
in its Rule 50(b) motion after trial if the Rule 50(a) motion proves
unsuccessful. See Singer v. Dungan, 45 F.3d 823, 928-29 (4th Cir.
1995). Thus, a Rule 50(a) motion is a prerequisite to a Rule 50(b)
motion because the City must apprise the district court of the alleged
insufficiency of Appellees' suit before the case is submitted to the
jury. See Tights, Inc. v. Acme-McCrary Corp., 541 F.2d 1047, 1058
(4th Cir.), cert. denied, 429 U.S. 980 (1976). Hence, if the City com-
pletely failed to question the sufficiency of the evidence supporting
compensatory damages in its Rule 50 motions, absent plain error, we
would "not review the sufficiency of the evidence because implicit in
the [City's] failure to move for judgment as a matter of law is the
belief that the evidence created a jury issue, and the [City] ``should not
11
be permitted on appeal to impute error to the trial judge for sharing
that view.'" Bristol Steel & Iron Works. v. Bethlehem Steel Corp., 41
F.3d 182, 187 (4th Cir. 1994) (quoting Little v. Bankers Life & Casu-
alty Co., 426 F.2d 509, 511 (5th Cir. 1970)).
Our review of the record compels us to conclude that the City suffi-
ciently raised and preserved the sufficiency issue for appellate review.
First, in its Rule 50(a) motion at the close of Appellees' case-in-chief,
the City contended "there's no legally sufficient evidentiary basis for
a reasonable jury to find for the plaintiff on any of the issues brought
before the court." (J.A. at 196.) Also, in arguing its Rule 50(a)
motion, the City specifically reiterated that "there's really been no
evidence from which a reasonable jury could conclude that they did,
in fact, suffer mental and emotional distress that can be related to the
constitutional violation they complained of." (J.A. at 199.) Denying
the City's motion, the district court concluded that the sufficiency
issue was raised: "I believe there is sufficient[evidence] -- in the
light most favorable to the plaintiff to go to the jury." (J.A. at 203.)
We likewise conclude that the sufficiency issue was assuredly raised,
given that we have reviewed sufficiency challenges under less com-
pelling circumstances. See Singer, 45 F.3d at 828 (reviewing an
improperly raised sufficiency challenge under Rule 50 and excusing
the impropriety because the district court stated that there was suffi-
cient evidence to send the case to the jury). We find no merit, there-
fore, in Appellees' contrary contention; accordingly, we conclude that
we may review the sufficiency of the evidence.
B.
1.
In reviewing a Rule 50 determination, our review is circumscribed
with respect to any facts the jury found, but plenary with respect to
any legal conclusions underlying the verdict:
Judgment as a matter of law is proper "when, without
weighing the credibility of the evidence, there can be but
one reasonable conclusion as to the proper judgment." 5A
James W. Moore, Moore's Federal Practice¶ 50.07[2], at
50-76 (2d ed. 1994). The movant is entitled to judgment as
12
a matter of law "if the nonmoving party failed to make a
showing on an essential element of his case with respect to
which he had the burden of proof." Bryan v. James E.
Holmes Regional Medical Ctr., 33 F.3d 1318, 1333 (11th
Cir. 1994) (internal quotation marks omitted). While our
review of this motion is plenary, it is also circumscribed
because we must review the evidence in the light most
favorable to [the nonmoving party]. See Lama v. Borras, 16
F.3d 473, 477 (1st Cir. 1994).
Singer, 45 F.3d at 826-27. Because federal courts do not directly
review jury verdicts, constrained, as we are, by the Seventh Amend-
ment, the City bears a hefty burden in establishing that the evidence
is not sufficient to support the awards. See Bristol Steel & Iron Works,
41 F.3d at 186-87. In determining whether the evidence supports the
awards, we review the evidence, and all reasonable inferences to be
drawn therefrom, in favor of Appellees. See Malone v. Microdyne
Corp., 26 F.3d 471, 475 (4th Cir. 1994). Recognizing that we may not
substitute our judgment for that of the jury or make credibility deter-
minations, see Murdaugh Volkswagen, Inc. v. First Nat'l Bank, 801
F.2d 719, 715 (4th Cir. 1986), if there is evidence on which a reason-
able jury may return verdicts in favor of Appellees, we must affirm,
see Wyatt v. Interstate & Ocean Transp., 623 F.2d 888, 891 (4th Cir.
1980). While we are compelled to accord the utmost respect to jury
verdicts and tread gingerly in reviewing them, see Mattison v. Dallas
Carrier Corp., 947 F.2d 95, 99 (4th Cir. 1991), we are not a rubber
stamp convened merely to endorse the conclusions of the jury, but
rather have a duty to reverse the jury verdicts if the evidence cannot
support it, see Singer, 45 F.3d at 829.
2.
While Carey concluded that compensatory damages for emotional
distress are compensable under § 1983, such damages may not be pre-
sumed from every constitutional violation, but must be proven by
competent, sufficient evidence. See Carey, 435 U.S. at 262-63 &
n.20. The emotional distress, moreover, must find its genesis in the
actual violation, not in any procedural deficiencies that accompanied
the violation, see id. at 263, because damages for violations of civil
rights are intended to "compensate injuries caused by the [constitu-
13
tional] deprivation," id. at 265 (emphasis added). See also Stachura,
477 U.S. at 308 (holding that there is no right to damages other than
nominal damages for violation of a constitutional right unless actual
injury is proven). Consequently, Appellees are required "to convince
the trier of fact that [they] actually suffered distress because of the
[equal protection violation] itself," Carey, 435 U.S. at 263, and failure
to succeed in establishing "actual injury" based on sufficient evidence
will result in the award of only nominal damages, typically one dollar,
id. at 266-67. In expounding on the availability of compensatory dam-
ages for emotional distress for a constitutional violation, Carey
observed that such damages are "customarily proved by showing the
nature and circumstances of the wrong and its effect on the plaintiff,"
id. at 263-64, and such injury "may be evidenced by one's conduct
and observed by others," id. at 264 n.20. Carey, therefore, requires
evidence of emotional distress sufficient to convince the trier of fact
that such distress did in fact occur and that its cause was the constitu-
tional deprivation itself and cannot be attributable to other causes. A
verdict supported by competent evidence, therefore, is a prerequisite
to recover compensatory damages for a constitutional violation. This
remedial scheme comports with Carey's holding that remedies for
constitutional violations "should be tailored to the interests protected
by the particular right in question," Carey , 435 U.S. at 259 (emphasis
added), which, of course, comports with the Carey Court's grounding
its decision for analyzing constitutional violations in the common law
of torts, see id. at 258-59, the body of law to which we now turn.
Traditionally, common law courts have been reticent regarding
compensatory damages for emotional distress in the absence of physi-
cal injury. See W. Page Keeton et al., Prosser & Keeton on The Law
of Torts Ch. 2, § 12, at 64 (5th ed. 1984). This reticence originated
from "the elementary principle that mere mental pain and anxiety are
too vague for legal redress," Southern Express Co. v. Byers, 240 U.S.
612, 615 (1916) (internal quotation marks omitted). Not only is emo-
tional distress fraught with vagueness and speculation, it is easily sus-
ceptible to fictitious and trivial claims, see Consolidated Rail Corp.
v. Gottshall, 114 S. Ct. 2396, 2408 (1994), and the intrusion of the
federal courts into proscribing societal etiquette, see Pope v. Rollins
Protective Servs. Co., 703 F.2d 197, 204 (5th Cir. 1983). Empathizing
with the trepidation of common law courts in analyzing such claims,
the federal courts have recognized that emotional distress claims aris-
14
ing from constitutional violations are not immunized from the nebu-
lous, speculative character that plagues their common law analogues.
See, e.g., Ramsey v. American Air Filter Co. , 772 F.2d 1303, 1313
(7th Cir. 1985) (noting the paucity of evidence in reviewing damages
for a § 1981 claim based on emotional distress and noting further that
the proffered evidence was so general and vague that remittitur was
required); Cohen v. Board of Educ., Smithtown Cent. Sch. Dist., 728
F.2d 160, 162 (2d Cir. 1984) (holding that a claim of emotional dis-
tress supported only by the plaintiff's testimony could not support an
award of "substantial damages"); Dougherty v. Barry, 604 F. Supp.
1424, 1443 (D.D.C. 1985) (ruling that damages for emotional distress
based on a constitutional violation could not be awarded for want of
exactitude). Guided by these principles, we analyze the specific
claims presented by this appeal.
Here, as we set out infra at 21-26, the only evidence of Appellees'
emotional distress was their own testimony. A survey of the case law
reveals that a plaintiff's testimony, standing alone, may support a
claim of emotional distress precipitated by a constitutional violation.
See, e.g., Biggs v. Village of Dupo, 892 F.2d 1298, 1304 (7th Cir.
1990); Rakovich v. Wade, 819 F.2d 1393, 1399 & n.6 (7th Cir.)
(Rakovich I) vacated on other grounds , 850 F.2d 1179 (7th Cir. 1987)
(en banc), on reh'g, 850 F.2d 1180 (7th Cir.) (Rakovich II) (en banc),
cert. denied, 488 U.S. 968 (1988); Spence v. Board of Educ. of Chris-
tina Sch. Dist., 806 F.2d 1198, 1201 (3d Cir. 1986); Chalmers v. City
of Los Angeles, 762 F.2d 753, 761 (9th Cir. 1985); Cohen, 728 F.2d
at 162; Williams v. Trans World Airlines, Inc. , 660 F.2d 1267, 1272-
73 (8th Cir. 1981); Nekolny v. Painter, 653 F.2d 1164, 1172-73 (7th
Cir. 1981), cert. denied, 455 U.S. 1021 (1982); Dougherty, 604 F.
Supp. at 1443; see also see also Bolden v. Southeastern Pa. Transp.
Auth., 21 F.3d 29, 34-36 & n.3 (3d Cir. 1994) (generally endorsing
this view, but specifically holding that medical evidence was not nec-
essary to prevail on a claim for emotional distress); Marable v.
Walker, 704 F.2d 1219, 1220 (11th Cir. 1983) (holding that plaintiff's
own testimony of emotional distress was sufficient to warrant an evi-
dentiary hearing and award of compensatory damages).
Equally, however, the case law reveals that courts scrupulously
analyze an award of compensatory damages for a claim of emotional
distress predicated exclusively on the plaintiff's testimony. See, e.g.,
15
Biggs, 892 F.2d at 1304 (remitting compensatory damages based on
emotional distress claim for want of sufficient evidence); Spence, 806
F.2d at 1201 (affirming remittitur of compensatory damages because
plaintiff's testimony was too speculative to support the verdict of
$22,060); Cohen, 728 F.2d at 162 (holding that plaintiff was not enti-
tled to recover "any substantial sum" based on emotional distress
because proof was so lacking); Nekolny, 653 F.2d at 1172-73 (revers-
ing a damages award for emotional distress for a First Amendment
violation because the evidence was insufficient to support it); see also
Hetzel v. County of Prince William, No. 95-1935, 1996 WL 386464,
at *2 (4th Cir. July 11, 1996) (reversing and remanding excessive
compensatory damages award in a Title VII and § 1983 suit where it
was based "almost exclusively" on plaintiff's conclusory testimony);
Morgan v. Secretary of Hous. & Urban Dev., 985 F.2d 1451, 1459
(10th Cir. 1993) (reversing a $5000 verdict for emotional distress
brought under the Fair Housing Act because the verdict was not sup-
ported by substantial evidence). If, as in the instant appeal, "the
injured part[ies] provide[ ] the sole evidence [of mental distress, they]
must reasonably and sufficiently explain the circumstances of [their]
injury and not resort to mere conclusory statements," Biggs, 892 F.2d
at 1304 (internal quotation marks omitted) (third alteration in origi-
nal), and seriatim recitations of "depression" or "hurt feelings" as evi-
dence of emotional distress offered by the plaintiff fail to meet this
standard, see Hetzel, 1996 WL 386464, at *4; Morgan, 985 F.2d at
1459; Nekolny, 653 F.2d at 1172-73. A plaintiff asserting a constitu-
tional violation, therefore, must produce evidence of "demonstrable
emotional distress," see Rakovich I, 819 F.2d at 1399, or "demonstra-
ble mental anguish," George v. Bourgeois, 852 F. Supp. 1341, 1353
(E.D. Tex. 1994) (dicta). In addition, Appellees must demonstrate a
causal connection between the constitutional violation and their
demonstrable emotional distress to recover compensatory damages.
See Gore v. Turner, 563 F.2d 159, 164 (5th Cir. 1977). Appellees,
therefore, cannot automatically recover compensatory damages for
emotional distress simply because they proved a violation of a consti-
tutional right. Thus, while a plaintiff's testimony, standing alone, can
support an award of compensatory damages, the evidence of the emo-
tional distress must be demonstrable, genuine, and adequately
explained.
Various courts have applied these precepts to reverse or remand
compensatory damages awards. For instance, in Biggs, Biggs, who
16
was discharged and brought a First Amendment claim against the Vil-
lage of Dupo, was told that he behaved in a manner"``unbecoming a
police officer,'" and "was unworthy to represent [the defendant,] Vil-
lage of Dupo," Biggs, 892 F.2d at 1305. According to Biggs, these
statements caused him emotional distress, and in presenting the evi-
dence of his emotional distress, he "testified that he was affected
emotionally by being fired, and that he was concerned over ``the idea
of my family going through it.'" Id. at 1304 (quoting testimony).
Except for his own conclusory testimony, Biggs "made no offer of
proof, and no other direct testimony concerning mental distress was
introduced." Id. The Seventh Circuit vacated and remanded Biggs's
compensatory damages award of $60,000 unless Biggs accepted a
remittitur of $29,970 so that he recovered only his lost wages. See id.
at 1305. According to the court, Biggs had failed"reasonably and suf-
ficiently [to] explain the circumstances of his injury," and therefore
his conclusory, inadequate testimony could not support compensatory
damages for emotional distress. Id. at 1304 (internal quotation marks
omitted). Because Biggs's testimony did not show"demonstrable
emotional distress," id. at 1305 (internal quotation marks omitted),
but at most consisted of "mere conclusory statements," id. at 1304
(internal quotation marks omitted), the court held that Biggs's evi-
dence of his emotional distress was insufficient to support the verdict.
See id. at 1305.
In Ramsey, the Seventh Circuit again addressed the issue of
demonstrable evidence of injury in the context of an excessive com-
pensatory damages award. A jury awarded Ramsey $75,000 in com-
pensatory damages for emotional distress based on racial
discrimination. Ramsey, 772 F.2d at 1313. Ramsey's evidence of his
emotional distress consisted of his testimony and that of a former col-
league, Arthur Freeze, and Ramsey's physician, Dr. Robert Wells. See
id. According to Ramsey, "he felt humiliated," "``about as low as any
man could feel,'" "``slap[ped] . . . in the face,'" and "``insulted.'" Id.
(quoting testimony) (alteration in original). Likewise, Freeze testified
that Ramsey "felt ``disgusted'" as a result of his being singled out for
disparate discipline ostensibly based on Ramsey's race. Id. (quoting
testimony). Thus, Ramsey and Freeze testified regarding the viola-
tion, but not about any demonstrable evidence of emotional distress.
According to Dr. Wells,2 Ramsey"was concerned about finding a
_________________________________________________________________
2 According to the Ramsey court, Dr. Wells treated Ramsey principally
for a lung condition several years before the litigation and performed
17
job," explaining that Ramsey's unemployment "``preyed on him psy-
chologically because he doesn't like [the] position his unemployment
has put him in.'" Id. (quoting testimony) (alteration in original).
Despite testifying that Ramsey's unemployment was a source of con-
cern, Dr. Wells never "treated [Ramsey] for depression or prescribed
any drugs for emotional distress." Id. After observing the "paucity of
references to any emotional harm that [Ramsey] suffered as a result
of defendant's discrimination" and "the absence of any evidence that
[Ramsey] was treated for emotional harm or that he became depressed
for any sustained period of time," the court concluded that the
$75,000 compensatory damages award was "excessive compensation
for the humiliation that [Ramsey] experienced," id., and accordingly
vacated and remanded the damages award, conditional on Ramsey's
accepting remittitur of $35,000 for his emotional distress, id. at 1314.
In reaching this holding, the court relied on cases explaining that
compensatory damages awards for constitutional violations require
that the plaintiff demonstrate some objective manifestation of his
emotional distress, such as "``sleeplessness, anxiety, embarrassment
and depression,'" id. at 1313-14 (quoting Block v. R.H. Macy & Co.,
712 F.2d 1241, 1245 (8th Cir. 1983)), or instances"in which the
plaintiff suffered ``seventeen months of incessant humiliation, harass-
ment, and feelings of isolation,'" id. (quoting Carter v. Duncan-
Huggins Ltd., 727 F.2d 1225, 1238 (D.C. Cir. 1984)).
Similarly, in Nekolny, the Seventh Circuit reversed compensatory
damages awards for emotional distress based on the plaintiffs' testi-
mony that they were "``very depressed,'" "``a little despondent and
[lacking] motivation,'" and "``completely humiliated.'" Nekolny, 653
F.2d at 1172 (alteration in original). According to the court, this con-
clusory testimony was "insufficient to constitute proof of compensa-
ble mental or emotional injury" because "[a] single statement by a
party that he was ``"depressed,"' ``"a little despondent,"' or even
``"completely humiliated,"' . . . is not enough to establish injury
. . . ." Id. at 1172-73. In reaching this conclusion, the court consid-
ered the facts and circumstances surrounding the challenged action,
_________________________________________________________________
annual physicals for Ramsey. As far as the opinion reveals, Ramsey did
not seek treatment from Dr. Wells for any afflictions stemming from the
constitutional violation.
18
opining that they were not very egregious. See id. Nekolny, therefore,
teaches that evidence to support a compensatory damages award
based on a constitutional violation must be explained with competent
testimony, not merely be a recital that emotional distress resulted
from a constitutional violation; the injury must be demonstrable and
capable of articulation.
Echoing the concerns of Biggs, Ramsey , and Nekolny, the Second
Circuit in Cohen affirmed the district court's awarding no damages
for a claim of emotional distress for a due process violation because
the only evidence consisted of the plaintiff's own testimony, which
is naturally "subjective" and subject to "vagueness." Cohen, 728 F.2d
at 162. In reaching this ruling, the Second Circuit noted that Cohen
testified respecting psychiatric consultations, but proffered no objec-
tive evidence of his emotional distress. See id. The Cohen court's
affirmance where subjective emotional distress is unsupported by
objective evidence comports with the precept that any emotional dis-
tress be demonstrable.
Also demanding evidence of demonstrable emotional distress to
recover compensatory damages for a constitutional violation is the
Third Circuit's decision in Spence. Spence brought a First Amend-
ment claim against her employer, contending that her transfer had
been in retaliation for voicing her opinion, and a jury awarded her
$25,000 in compensatory damages. See Spence, 806 F.2d at 1199.
Spence's evidence of her emotional distress "consisted chiefly of
[her] own testimony that she was depressed and humiliated . . . and
that she lost her motive to be creative." Id. at 1201. Specifically,
"[t]here was no testimony that [Spence's] peers held her in any less
esteem," nor was there evidence that Spence "suffered physically
from her emotional distress or that she sought professional psychiatric
counselling." Id. Not only did Spence offer no proof of physical or
psychological injury, but she "suffered no loss of job or reduction in
pay. Thus, she did not suffer emotional distress resulting from loss in
income." Id. Given that Spence's evidence did not sufficiently explain
her emotional distress, the Third Circuit concluded that "neither the
circumstances nor the testimony established that there was ``a reason-
able probability, rather than a mere possibility, that damages due to
emotional distress were in fact incurred as a result of [the challenged
action].'" Id. (quoting district court order). Accordingly, for want of
19
sufficient evidence of emotional distress, the court affirmed the remit-
titur of Spence's compensatory damages to $2940, thus compensating
only Spence's actual damages for travel expenses and wage taxes.
Comparable to Biggs, Ramsey, Nekolny, and Cohen, the Spence court
explained that emotional distress for a constitutional violation must be
sufficiently demonstrable and capable of articulation as a prerequisite
to recover compensatory damages.
Recently, in Hetzel, we expressed our reservation regarding an
excessive compensatory damages award for emotional distress pursu-
ant to Title VII and § 1983. Asserting that she was discriminated
against on the basis of sex and national origin, Hetzel brought a vari-
ety of claims against her employer. Hetzel, 1996 WL 386464, at *1.
A jury returned verdicts in favor of the employer, but found that Het-
zel's superior, Police Chief Charlie Deane, retaliated against Hetzel
for engaging in protected speech and awarded compensatory damages
of $750,000 for emotional distress, which the district court remitted
to $500,000. See id. Hetzel's evidence of her emotional distress "con-
sisted almost exclusively of [her] own, brief conclusory statements."
Id. at *2. In fewer than ten pages of transcript, she merely recited that
she had "headaches, stress, trouble reading to her daughter, and prob-
lems with her family life as a result of [her employers'] actions." Id.
In reversing and remanding the award of compensatory damages, we
explained that while Hetzel's evidence of emotional distress entitled
her to "minimal damages," id., there was "insufficient evidence" to
support an award of $500,000, id. at *3. Citing the paucity of evi-
dence to support such an award, we observed that"Hetzel presented
no evidence corroborating the existence of any of her supposed spe-
cific harms," "remain[ed] . . . in good standing with the police depart-
ment," displayed "no observable injuries or physical ailments," and
had "never once seen a doctor, therapist, or other professional, or
even sought the counsel of a friend, to help her deal with her what is
supposedly an enormous problem overshadowing all aspects of her
life." Id. at *2.
Amalgamating these principles, we conclude that a plaintiff's testi-
mony, standing alone, can support an award of compensatory dam-
ages for emotional distress based on a constitutional violation;
however, the testimony must establish that the plaintiff suffered
demonstrable emotional distress, which must be sufficiently articu-
20
lated; neither conclusory statements that the plaintiff suffered emo-
tional distress nor the mere fact that a constitutional violation
occurred supports an award of compensatory damages. In marshaling
the evidence necessary to establish emotional distress resulting from
a constitutional violation, Carey instructs us that "genuine injury" is
necessary. Carey, 435 U.S. at 264.
While the substance and content of testimony regarding a plain-
tiff's emotional distress are considered in awarding compensatory
damages for emotional distress based on a constitutional violation, the
federal courts examine other considerations in determining whether
substantial evidence supports an award of compensatory damages for
emotional distress. For instance, in affirming the remittitur of com-
pensatory damages, the Third Circuit in Spence considered four fac-
tors: (1) the plaintiff did not lose the esteem of her peers; (2) the
plaintiff suffered no physical injury as a consequence of her emo-
tional distress; (3) the plaintiff received no psychological counseling;
and (4) the plaintiff suffered no loss of income. See Spence, 806 F.2d
at 1201. The Second Circuit followed Spence and considered the
same factors in reviewing an award for a like claim challenged on suf-
ficiency grounds. See Miner, 999 F.2d at 663. In Fitzgerald v. Moun-
tain States Telephone and Telegraph Co., 68 F.3d 1257, 1265-66
(10th Cir. 1995), the Tenth Circuit contemplated the following factors
in analyzing a claim for emotional distress premised on a constitu-
tional violation: (1) the degree of emotional distress; (2) the context
of the events surrounding the emotional distress; (3) the evidence
tending to corroborate the plaintiff's testimony; (4) the nexus between
the challenged conduct and the emotional distress; and (5) any miti-
gating circumstances. Various courts also consider medical attention,
if any, that the plaintiff received as a result of the emotional distress,
see, e.g., Hetzel, 1996 WL 386464, at *2; Fitzgerald, 68 F.3d at 1266;
Miner, 999 F.2d at 663; Ramsey, 772 F.2d at 1313-14, and psycholog-
ical or psychiatric treatment, if any, that the plaintiff received, see,
e.g., Hetzel, 1996 WL 386464, at *2; Spence, 806 F.2d at 1201;
Ramsey, 772 F.2d at 1313. All of these factors aid triers of fact in
determining the propriety of awarding compensatory damages for
emotional distress, as well as appellate courts in reviewing sufficiency
challenges to such awards.
In this appeal, we express the same trepidation as our sister circuits
regarding conclusory testimony with respect to the sufficiency of the
21
evidence supporting an award of compensatory damages based on
emotional distress for a constitutional violation. We conclude that the
evidence is not sufficient to support the awards and hence reverse.
Here, the evidence simply fails to show any demonstrable emotional
injury; the evidence of Appellees' emotional distress consisted exclu-
sively of their own conclusory statements, which did not indicate how
their alleged distress manifested itself. For instance, in articulating his
emotional distress in testimony that spanned only a few pages of tran-
script, Officer Holl testified that he felt "betray[ed]," "[e]mbarrassed,"
and "[d]egraded . . . and passed over." (J.A. at 118.) Officer Holl
stated, however, that he did not "change [his] procedures whatso-
ever," with respect to performing his duties. (J.A. at 119.)
Officer Corwin, whose pertinent testimony was approximately one
and one-half pages in length, testified that he"guess[ed]" he felt "be-
trayed," "disappointed and embarrassed," explaining that he "wasn't
aware that race was going to play any part" in the promotions prac-
tice. (J.A. at 124.) While testifying that he was betrayed, disap-
pointed, and embarrassed, Officer Corwin also testified that he "tried
not to let it affect me at all." (J.A. at 124.) Moreover, on cross-
examination, Officer Corwin testified that he did not know his rank
on the promotions roster.
In a like vein, Officer Elstrom testified that he felt "devastated" by
the City's "perpetrat[ing its] deceit," explaining that he felt "used as
a pawn," and "betrayed, lied to, used." (J.A. at 131, 134.) According
to Officer Elstrom, he simply was unsure whether he had faith in his
superiors in the police department because they told him there was no
invidious discrimination regarding promotions, when, in fact, there
was. Summarizing his claim, Officer Elstrom stated that his "self-
esteem went from rather high. My confidence was up and all of a sud-
den it just drops." (J.A. at 134.) He did not testify that any conse-
quence resulted from his drop in self-esteem.
Officer Holshouser stated that he had "been lied to [and] . . .
deceived. [He felt] like a lot of [his] time, a lot of [his] personal time,
personal stress, personal stress on [his] family" was a consequence of
the City's unconstitutional conduct. (J.A. at 175.) According to Offi-
cer Holshouser, he "lost all respect for Chief Stone" and "for a lot of
people in the department that were in the upper echelon of the com-
22
mand." (J.A. at 167-68.) More revealing is the fact that on cross-
examination, Officer Holshouser stated that had he known that race
played a role in the promotions practice, he would not have "spen[t
his] own money to buy the books [for preparing for the promotions
exam]," "spen[t his] own personal time to read the material," or
"spen[t his] own personal time to participate in training that the
department provided." (J.A. at 180.) These conclusory statements are
the only evidence of these officers' emotional distress.
Analyzing these claims, we hold that the compensatory damages
cannot stand. Here, Officers Holl, Corwin, Elstrom, and Holshouser
never offered evidence of any need for medicine, see Hetzel, 1996
WL 386464, at *2; Ramsey, 772 F.2d at 1313; physical symptoms,
see Spence, 806 F.2d at 1201; Ramsey, 772 F.2d at 1313; psychologi-
cal disturbance or counseling, Hetzel, 1996 WL 386464, at *2;
Spence, 806 F.2d at 1201; loss of income or pecuniary expense, see
id.; a description of their emotional distress, see Biggs, 892 F.2d at
1304; or how their conduct changed or if others observed their con-
duct change, see Carey, 435 U.S. at 264 n.20. Also conspicuously
absent from their evidence is any corroboration of their emotional dis-
tress or any manifestation it may have assumed. See Hetzel, 1996 WL
386464, at *2 (observing that the plaintiff displayed "no observable
injuries or physical ailments"). Also, as opposed to Hetzel, in which
there were ten pages of testimony regarding the emotional distress,
here, there was often less testimony. Given this paucity of explanation
or description regarding their emotional distress, we conclude that
Appellees' evidence fails to show "genuine injury" evidenced by "na-
ture and circumstances of the wrong and its effect" under Carey. In
addition, Appellees' evidence fails to exhibit any of the factors that
the Spence, Miner, and Fitzgerald courts considered in assessing
emotional distress claims for constitutional violations. Here, we are
confronted with the bald, conclusory assertions that Appellees felt
betrayed and deceived, but there was no evidence concerning any
demonstrable injury suffered. Such vague, conclusory statements do
not constitute sufficient evidence, see Biggs , 892 F.2d at 1304-05;
Nekolny, 653 F.2d at 1172-73, and we reverse the compensatory dam-
ages awards with respect to Officers Corwin, Holl, Elstrom, and Hol-
shouser. In our opinion, this testimony does not satisfy the
requirement that Appellees show actual injury by sufficient evidence;
their injuries, if any, are properly characterized as disappointment
23
with their superiors, rather than emotional distress. Accordingly, the
compensatory damages awards rendered in favor of Officers Corwin,
Holl, Elstrom, and Holshouser are reversed.
In reaching our conclusion, we do not hold that compensatory dam-
ages for emotional distress can never be awarded based exclusively
on a plaintiff's testimony, see, e.g., Hetzel, 1996 WL 386464, at *2;
Rakovich I, 819 F.2d 1399 & n.6; Chalmers , 762 F.2d at 761;
Williams, 660 F.2d at 1272-73, but we simply hold that in this case,
the testimony was insufficient to support an award of damages. Here,
these officers did not "reasonably and sufficiently explain the circum-
stances of [their] injury," but rather"resort[ed] to mere conclusory
statements," which cannot support an award of compensatory dam-
ages. See Biggs, 892 F.2d at 1304. Because these Appellees did suffer
a constitutional violation, but failed to prove emotional distress war-
ranting compensatory damages, we award them nominal damages in
the sum of one dollar each. See Carey, 435 U.S. at 266 (sua sponte
awarding one dollar in nominal damages because civil rights plaintiffs
failed to prove actual damages); Cohen, 728 F.2d at 162 (stating that
the "better practice" is to award one dollar nominal damages for a
constitutional violation if the plaintiff's evidence cannot support "any
substantial sum" for damages and sua sponte awarding such nominal
damages on appeal).
The compensatory damages awarded to Officers Carlton, Price, and
Holland are likewise problematic because in our view, the evidence
these Appellees provided tends to support the conclusion that their
damages arose not from emotional distress as a consequence of invid-
ious discrimination, but rather from the City's failure to promote
them. Because none of the Appellees would have been promoted even
in the absence of a violation, however, they are not entitled to dam-
ages due to the denial of promotions.
For example, Officer Carlton, whose testimony is roughly four
pages in length, related his emotional distress to the fact that he was
the victim of the City's quota system: Having achieved exceptional
ratings, he felt that he should have been promoted to sergeant, yet was
not. For instance, Officer Carlton stated that he felt "slapped . . . in
the face" because, according to him, he was "more qualified to be a
sergeant" than some of those who were promoted to sergeant. (J.A.
24
at 155.) Despite his supposed emotional distress, Officer Carlton testi-
fied that he continued to perform his duties just as he had prior to this
litigation, explaining that he was "a professional." (J.A. at 156.)
Officer Price's testimony reveals that he was upset that black offi-
cers who scored lower on the evaluations criteria for promotion to
sergeant were promoted, while he was not, simply because he was
Caucasian. According to Officer Price, he "d[idn't] know what to
believe. And after a while it kind of takes the wind out of anything
that you're doing." (J.A. at 161.) Summarizing his testimony, Officer
Price stated that the City's conduct was "a giant step backwards"
because "[t]here just seems to be a problem with the fact that [the pro-
motions practice] applies to one race and not to the other. And I take
that very seriously." (J.A. at 161.)
Officer Holland's testimony establishes the same principle, and
hence the same infirmity. According to Officer Holland, he was dis-
pleased by the fact that different criteria applied to different races
regarding promotions, specifically asserting that he should be com-
pensated for the time spent in preparing for the promotions exam.
Explaining his emotional distress, Officer Holland stated that he "felt
kind of like a patsy" because "one set of rules applied to white offi-
cers," but if "the need arose or the testing procedure didn't deliver the
expected number of minority candidates, a new set of rules were
imposed." (J.A. at 184.) On cross-examination, Officer Holland stated
that he should be compensated for preparing for the promotions
examination, thereby establishing that at least part of his damages
were not based on invidious discrimination. Officers Carlton, Price,
and Holland cannot separate their claims of emotional distress from
their failure to receive promotions; accordingly, they cannot recover
compensatory damages.
Even accepting the contention that the officers' claims of emo-
tional distress are exclusively grounded in the constitutional violation,
their testimony is equally vague and conclusory. The evidence of
Officer Carlton's emotional distress was that he felt "slapped . . . in
the face" as a result of the violation, but he offers no other explana-
tion or evidence of his emotional distress. According to Officer Price,
he was fearful of the police force and lost faith in it, but there is no
testimony describing the emotional distress he suffered. Officer Hol-
25
land complained that he felt like a "patsy," but, like his colleagues'
testimony, there is nothing more regarding his emotional distress.
Like Officers Holl's, Corwin's, Elstrom's, and Holshouser's, Officers
Carlton's, Price's, and Holland's testimony cannot support an award
of compensatory damages. Accordingly, we reverse their compensa-
tory damages awards. Again, we do not hold that a plaintiff's testi-
mony standing alone is insufficient as a matter of law to support an
award of compensatory damages, but in this case, the testimony was
not sufficient to do so. Like their colleagues, Officers Carlton, Price,
and Holland are entitled to one dollar nominal damages.
IV.
We hold that Appellees had standing to sue, and they were not lim-
ited to injunctive or declaratory relief. Rather, they were entitled also
to recover compensatory damages for demonstrable emotional dis-
tress if their injuries could be attributed to the actual constitutional
violation. Appellees, however, failed to offer sufficient proof of emo-
tional distress. Accordingly, the award of compensatory damages in
favor of Appellees is reversed, and we award each Appellee one dol-
lar in nominal damages.
AFFIRMED IN PART AND REVERSED IN PART
26