George E. Bailey v. Marvin T. Runyon

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 99-2560
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George E. Bailey, *
*
Appellant, *
*
v. * On Remand from the United States
* District Court for the District of
Marvin T. Runyon, Jr., Postmaster * Minnesota.
General, *
*
Appellee. *
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Submitted: June 15, 2000

Filed: August 11, 2000
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Before LOKEN, ROSS, and HANSEN, Circuit Judges.
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ROSS, Circuit Judge.

George E. Bailey appeals from the district court's denial of his motion for a new
trial on damages and award of nominal damages in his sexual harassment case against
the United States Postal Service (the Service). We affirm.

A jury found in favor of Bailey on his same-sex harassment claim, but did not
award damages. Because the district court granted the Service's motion for judgment
as a matter of law (JAML), it did not rule on Bailey's post-trial motion on damages.
On appeal, we reversed the grant of JAML and remanded for consideration of Bailey's
motion, noting that the decision to grant a new trial was committed to the district court's
discretion. Bailey v. Runyon, 167 F.3d 466, 470 (8th Cir. 1999). We also noted that
the Service had indicated that if the case was reversed an award of nominal damages
would be appropriate. Id. On remand, the district court denied the motion, holding
Bailey's allegations of jury bias were unsupported and the damages verdict was not
against the weight of the evidence. The court, however, awarded $1.00 in nominal
damages.

The district court did not abuse its discretion. Bailey's argument that the jury's
failure to award damages was a result of bias against male same-sex harassment claims
is without merit. Bailey does not contend that he has evidence of bias. Instead, he
argues bias should be presumed because he knew of no case where a woman who had
been sexually harassed by a man had been awarded only nominal damages. However,
Bailey has not done his homework. See, e.g., Dhyne v. Meiners Thriftway, Inc., 184
F.3d 983, 986 (8th Cir. 1999) (affirming $1.00 nominal damage award to female who
had been sexually harassed by male coworker); Kline v. City of Kansas City, 175 F.3d
660, 668 (8th Cir. 1999) (same), cert. denied, 120 S. Ct. 1160 (2000).

Nor was the jury required to accept Bailey's evidence of emotional harm, as he
argues. "An award of damages for emotional distress must be supported by competent
evidence of 'genuine injury.'" Forshee v. Waterloo Indus., Inc. 178 F.3d 527, 531 (8th
Cir. 1999) (quoting Carey v. Piphus, 435 U.S. 247, 264 n.20 (1978)). Specifically,
Bailey had to offer "evidence of the nature and extent of emotional harm caused by the
alleged violation." Browning v. President Riverboat Casino-Missouri, Inc, 139 F.3d
631, 636 (8th Cir. 1998). It is true that "[m]edical or other expert evidence is not
required to prove emotional distress[,]" and that "'[a] plaintiff's own testimony, along
with the circumstances of a particular case, can suffice to sustain the plaintiff's burden
in this regard.'" Kim v. Nash Finch Co., 123 F.2d 1046, 1065 (8th Cir. 1997) (quoting
Turic v. Holland Hospitality, Inc., 85 F.3d 1211, 1215-16 (6th Cir. 1996)). However,

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Bailey was "required 'to convince the trier of fact that [he] actually suffered distress
because of the [Title VII violation] itself.'" Price v. City of Charlotte, 93 F.3d 1241,
1250 (4th Cir. 1996), cert. denied, 520 U.S. 1116 (1997). "Conclusory statements give
the finder of fact no adequate basis from which to gauge the 'nature and circumstances
of the wrong and its effect on the plaintiff.'" Brady v. Fort Bend County, 145 F.3d 691,
719 (5th Cir. 1998) (quoting Carey, 435 U.S. at 264), cert. denied, 525 U.S. 1105
(1999)).; see Forshee, 178 F.3d at 531 (reversing award of damages for emotional
distress because plaintiff's testimony lacked specificity). Here, Bailey's evidence "of
mental distress is insufficient to support anything more than a nominal damage award."
Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 939 (5th Cir.1996), cert. denied,
519 U.S. 1091 (1997).

Bailey's evidence was either conclusory and vague or was effectively impeached.
For example, one co-worker testified Bailey had a look of "discomfort" when the name
of his perpetrator was mentioned. Another testified that Bailey was "upset" by the
harassment. Although Bailey testified that he had seen a counselor and psychiatrist and
had been taking medication for depression and anxiety because of the harassment, he
did not present medical or psychological testimony in support. While a plaintiff need
not provide expert testimony, such testimony is not irrelevant. To the contrary, "this
court and others recently have noted the probative value of expert psychological proof
regarding causation of the claimant's depression and emotional distress." Jenson v.
Eveleth Taconite Co., 130 F.3d 1287, 1298 (8th Cir. 1997) (listing cases), cert. denied,
524 U.S. 953 (1998); see also Price, 93 F.3d at 1254 (corroboration by plaintiff's
doctors "aid[s] 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").

Here, it is understandable why Bailey failed to present the testimony of the
counselor or a doctor. On cross-examination, Bailey admitted that during the time he
had been harassed he had seen two doctors for a shoulder injury but never told them

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about the harassment. He also admitted that he had not seen a counselor until a year
after the harassment ended, and when presented with the counselor's assessment report,
conceded that it did not mention sexual harassment, but only stated that Bailey had
sought help for anxiety in public speaking. Although he introduced a prescription for
anti-depressant medication, it was dated almost four years after the harassment. His
wife's testimony concerning his alleged emotional distress was also impeached by the
report and the prescription since she testified that Bailey had sought counseling and
was taking medication because of the harassment. In addition, on cross-examination,
Bailey admitted that he had pleaded guilty to giving false information to a police
officer, used different birth dates, names, and social security numbers, and had falsified
an employment application. Thus, it is not at all surprising that the jury did not believe
Bailey's evidence of emotional distress and failed to award compensatory damages.

Bailey also argues that the jury's finding of no damages and the court's award of
nominal damages are inconsistent with a finding of harassment, asserting emotional
harm is inherent in such a finding.1 Not only has this court affirmed nominal damage
awards in harassment cases, see, e.g., Dhyne, 184 F.3d at 986; Kline, 175 F.3d at 668,
we have held that "nominal damages are appropriately awarded where a Title VII
[harassment] violation is proved even though no actual damages are shown." Parton
v. GTE North, Inc., 971 F.2d 150, 154 (8th Cir. 1992); see also Dean v. Civiletti, 670
F.2d 99, 101 (8th Cir. 1982) (per curiam).2 Because Bailey suggests we have not

1
In addition to the nominal damage award, the court also awarded attorney fees,
which are not challenged.
2
Parton and Dean were decided under Title VII before it was amended by the
Civil Rights Act of 1991. The 1991 amendments, 42 U.S.C. § 1981a, added
compensatory and punitive damages relief to the already existing equitable relief and
provided for a jury trial if such damages were requested. See Hopkins v. Saunders,
199 F.3d 968, 978 (8th Cir. 1999) (discussing amendment and refusing to extend
beyond Title VII the implicit view in Parton and Dean that "nominal damages are
equitable in nature"), petition for cert. filed, (U.S. April 25, 2000) (No. 00-47).

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expressly addressed his argument, we do so now but reject it. The Equal Employment
Opportunity Commission (EEOC) has made clear that "'[e]motional harm will not be
presumed simply because the complaining party is a victim of discrimination.'" Vadie
v. Mississippi State Univ., No. 98-60784, 2000 WL 890431, at * 8 (5th Cir. July 5,
2000) (quoting EEOC Policy Guidance No. 915.002 § II (A)(2) (July 14, 1992)). As
previously stated, "[a]n award of damages for emotional distress must be supported by
competent evidence of 'genuine injury.'" Forshee, 178 F.3d at 531 (quoting Carey, 435
U.S. at 264 n.20). Contrary to Bailey's belief, "[t]his proof is wholly unrelated to the
proof required to show discrimination." Browning, 139 F.3d at 636.

We have considered Bailey's other arguments and they are without merit.
Accordingly, we affirm the court's denial of the motion for a new trial and award of
nominal damages.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT

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