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BOLDEN v. SEPTA

May 7, 1993

RUSSELL BOLDEN
v.
SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY



The opinion of the court was delivered by: EDMUND V. LUDWIG

 Ludwig, J.

 May 7, 1993

 Following a jury verdict of $ 250,001 in favor of plaintiff Russell Bolden, defendant SEPTA moves for judgment as a matter of law, *fn1" or for full remittitur, *fn2" or for new trial. *fn3" Fed.R.Civ.P. 50, 59.

 Plaintiff, a former SEPTA employee, was discharged in August, 1987 after testing positive for marijuana. *fn4" Almost a year later, in May of 1988, Local 234 of the Transport Workers Union and SEPTA negotiated a settlement of Bolden's grievance. Plaintiff would be re-instated upon passing a drug test and either participating in a rehabilitation program or undergoing substance abuse counseling and would receive one-half of his back pay. Plaintiff refused to return to work and, instead, filed this action claiming that the results of the drug test given him in 1987 were inaccurate and the test requirement was unconstitutional.

 In March of 1990, a jury found that SEPTA had violated plaintiff's Fourth Amendment rights and awarded damages of $ 285,000. On appeal, our Court of Appeals, en banc, noting that unconstitutionality was an issue for the court, made a judicial finding that the return to work test constituted a Fourth Amendment violation but ordered a new trial as to damages. Bolden v. SEPTA, 953 F.2d 807, 829 (3d Cir. 1991), cert. denied, U.S. , 112 S. Ct. 2281, 119 L. Ed. 2d 206 (1992). *fn5" Specifically, the decision held that plaintiff was precluded from recovering damages for lost wages after June 1, 1988, the date on which he became eligible for reinstatement under the grievance settlement. Id. The damages left to be determined were lost wages from the date of his discharge in 1987 to June 1, 1988 together with his claims for emotional distress and loss of reputation.

 At the second trial, in August, 1992, SEPTA contended that both the wage loss and the intangible damages were cut off by the grievance settlement. *fn6" Its secondary position was that any intangible damages related to unemployment after the grievance settlement were not recoverable. Its theory was that under the holding of the en banc opinion, Bolden had to be treated as though he had returned to work. If he had returned, he would not - SEPTA maintained - have had any further damages, economic or intangible, arising at least from being unemployed.

 Much of the trial concerned the accuracy and significance of the substance abuse testing that occasioned plaintiff's discharge by SEPTA. The conclusiveness of the test results and the chances of passive inhalation were hotly disputed by expert witnesses. Plaintiff claimed that SEPTA had falsely, as well as unconstitutionally, labelled him a drug abuser, and that the terms of the grievance settlement had the effect of perpetuating that accusation.

 At the close of trial, the sole question submitted to the jury was the amount of the intangible damages, and this submission was bifurcated. *fn7" First, over SEPTA's objection, the jury was asked to determine the amount of intangible damages caused by the constitutional violation, without regard to the grievance settlement. It returned a verdict of $ 250,001. Then, in a second phase, when asked to allocate the verdict between the periods before and after the grievance settlement, it apportioned $ 1 to "before" and $ 250,000 to "after." The jury had been instructed that an award of $ 1 was appropriate as symbolic damages for a constitutional violation.

 SEPTA challenges the verdict as excessive, against the weight of the evidence, inconsistent with the jury instructions - and asserts that the instructions were inadequate and erroneous.

 I.

 According to plaintiff, the stigma of being classified as a drug user ruined his life. He said he was "robbed" of his dignity, hope, self-esteem and spirit, that he could not find another job and was regarded as "a bum," and that an enormous strain had been put on him and his family. His testimony was corroborated by his wife, his 15-year old daughter, and two friends. Viewing this evidence in the light most favorable to plaintiff, see Rotondo, 956 F.2d at 438, the amount awarded for emotional harm and damage to reputation was not grossly excessive or "shocking to the conscience." See Motter v. Everest & Jennings, Inc., 883 F.2d 1223, 1232 (3d Cir. 1989); Morales v. Cadena, 825 F.2d 1095, 1100 (7th Cir. 1987) (remittitur as to compensatory damages for emotional distress or loss of future earning capacity refused).

 For a constitutional rights violation, a plaintiff is entitled to compensatory damages for resulting intangible harm. Memphis Community School District v. Stachura, 477 U.S. 299, 306, 106 S. Ct. 2537, 2543, 91 L. Ed. 2d 249 (1986); Carey v. Piphus, 435 U.S. 247, 264, 98 S. Ct. 1042, 1052, 55 L. Ed. 2d 252 (1978). Cf. Gunby v. Pennsylvania Electric Co., 840 F.2d 1108, 1121 (3d Cir. 1988), cert. denied, 492 U.S. 905, 109 S. Ct. 3213, 106 L. Ed. 2d 564 (1989). While the standard of proof for emotional distress has been problematical, SEPTA's contention that the evidence in this case was legally insufficient is not well founded.

 SEPTA refers to Spence v. Board of Education, 806 F.2d 1198, 1201 (3d Cir. 1986) (remittitur upheld where evidence of emotional distress was speculative, without deciding whether a verdict for such harm may rest solely on plaintiff's own testimony). *fn8" In the present case, plaintiff's portrayal of himself as a broken man was supported by the testimony of four other witnesses. Moreover, the unconstitutional administration of the drug test undeniably brought about extremely stressful consequences - the loss of a job, the lack of pay, the realization that SEPTA and, in turn, the union and others considered plaintiff to be a drug user. In the previous year, he had undergone a lengthy grievance procedure and had just been conditionally reinstated. As it turned out, in insisting on the drug test, SEPTA violated plaintiff's constitutional rights. Factors such as these, which objectively demonstrate a strong probability of stress, were conspicuously missing in Spence.

 In Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183, 527 A.2d 988 (1987), the Pennsylvania Supreme Court considered the legal standard of proof for emotional distress in a special, nontraditional context. In affirming the nonsuit of an action for intentional infliction of emotional distress brought under section 46 of the Restatement (Second) of Torts, Chief Justice Nix concluded that if that section were to be adopted in Pennsylvania "at the very least, existence of the alleged emotional distress must be supported by competent medical evidence." Id., 515 Pa. at 197, 527 A.2d at 995. This requirement of superior proof, however, is occasioned by the subjective and amorphous nature of the tort itself. Analytically, as with intentional torts generally, it is difficult to separate the injury from the offensive conduct. Yet in the case of intentional infliction, it is even harder to define in a concrete and objective way the liability predicate of "outrageousness." Id., 515 Pa. at 197, 527 A.2d at 994-95. The reluctance to allow compensation for emotional distress based on subjective perception and unconfirmed testimony has much less application to a constitutional violation.

 "The starting point for analyzing damages for violations of constitutional rights is the common law." Parrish v. Johnson, 800 F.2d 600, 606 (6th Cir. 1986). If Kazatsky is at one extreme of the compensatory damages spectrum, the present case, which is closely akin to common law defamation, is at the other. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 349, 94 S. Ct. 2997, 3012, 41 L. Ed. 2d 789 (1974) ("The common law of defamation is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss."). As explicated in Carey, "those forms of defamation that are actionable per se are virtually certain to cause serious injury to reputation, and . . . this ...


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