(concurring in part and dissenting in part).
I concur in affirming the trial court’s finding defendants liable for violating plaintiff’s first amendment rights. I disagree that substantial evidence exists to support an award of damages for emotional distress.
I disagree with the characterization of defendants’ argument as asserting “there was insufficient evidence to support this finding [‘plaintiff has incurred damages for emotional distress in the amount of $60,-000.00’] solely because Jacobs did not produce medical expert or other evidence to support the award of damages for emotional distress.” (Emphasis mine.) Defendants’ argument relating to damages is broken down into four parts: first, the trial court’s finding is not supported by any evidence of emotional distress; second, damages for emotional distress cannot be presumed to flow from the deprivation of constitutional rights, citing Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252 (1978); third, even if plaintiff suffered emotional distress, there was no medical evidence to support the damage award; and fourth, even if plaintiff proved emotional distress, it was not caused by deprivation of his constitutional rights.
Thus, it is clear that defendants assert four claims under the damage issue, not two. Further, use of the phrase, “Jacobs had produced no ... corroborative evidence to support his claim,” implies there was some evidence to support the award of damages for emotional distress, and that defendants are claiming the lack of other corroborative evidence. I do not believe this is accurate. Defendants are claiming that, through the testimony of Jacobs or otherwise, there was no evidence of emotional distress; and in my opinion they are correct. Plaintiff failed to point out in his brief any evidence in the record which supports his emotional distress claim. My own review of the record revealed nothing which supports his claim.
While acknowledging that defendants requested supplemental findings and also requested the trial court to strike the finding on emotional distress damages, it is not clear if the opinion is suggesting that defendants may have waived their claim to challenge the finding of damages by failing to request findings -on that subject. If defendants had any obligation to alert the trial court as to lack of proof of emotional distress, it arose after the trial court made its finding; defendants satisfied that obligation by requesting supplemental findings. See SCRA 1986, 1-052(B)(2). Defendants filed two motions to amend the trial court’s findings and conclusions, one on May 23, 1985, the other on May 29, 1985. Since judgment was not entered until December 16, 1985, these motions were timely under Rule 1-052(B)(2). In the first motion defendants moved to strike finding No. 50 (the emotional distress finding). In their brief in support of that motion, defendants specifically called the trial court’s attention to the lack of evidence to support an award for emotional distress, and alerted the trial court to the need for such proof under Carey. The trial court was sufficiently alerted before entry of the judgment to enable it to avoid error. Defendants' claim of error was preserved.
I will reverse the order of defendants’ first two claims under this point and address the last two in the order they were briefed.
1. Proof of Actual Injury Is Required — From Carey Forward
To determine whether there was evidence to support a finding of damages for emotional distress, it is necessary to first discuss the type of evidence required under 42 U.S.C. Section 1983 (1970) for emotional distress caused by deprivation of a constitutional right. Carey determined that a plaintiff claiming emotional distress caused by deprivation of his constitutional rights under Section 1983 must prove actual damages. The fact finder may not presume damages for constitutional violations. The Supreme Court in that case held that common law of torts provides “the appropriate starting point,” 435 U.S. at 258, 98 S.Ct. at 1049, for resolving damage questions. The Court foresaw no difficulty in producing evidence of emotional distress actually caused by the denial of due process, the constitutional claim in Carey. It said, “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.” Id. at 263-64, 98 S.Ct. at 1052-53. The Court continued that “although mental and emotional distress caused by the denial of procedural due process itself is compensable under § 1983,” neither the likelihood of such injury nor the difficulty of proving it justifies an award of compensatory damages “without proof that such injury actually was caused.” Id. at 264, 98 S.Ct. at 1052. Finally, the Court determined that even in the absence of proof of actual injury, nominal damages, punitive damages, and attorney fees may be available for deprivation of procedural due process. Id. at 257 n. 11, 267, 98 S.Ct. at 1049 n. 11, 1054.
Although Carey limited its holding to procedural due process claims, the Supreme Court in Memphis Community School District v. Stachura, 477 U.S. 299, 106 S.Ct. 2537, 91 L.Ed.2d 249 (1986), addressed the relationship between Carey’s actual injury requirement and substantive constitutional violations. The Court rejected the plaintiff’s attempt to limit Carey to procedural due process claims, concluding that nothing in Carey established a two-tiered system. Thus, it appears that Carey’s actual injury requirement applies in any suit for constitutional violations.
In Stachura, an action brought by a tenured seventh-grade teacher who was suspended after a number of parents complained of teaching methods, the trial court instructed the jury that in addition to punitive damages it could award two types of compensatory damages: one based on the plaintiff’s actual injury according to tort principles, the other based on the value or importance of the constitutional rights violated. The Supreme Court reversed. It held that, in light of the compensatory purpose of the damage award, the instruction allowing an award based on the abstract or inherent value of a constitutional right was fatally defective. Since compensatory damages are “damages grounded in determinations of plaintiffs’ actual losses,” id., 477 U.S. at 307, 106 S.Ct. at 2543, the jury may not permissibly award damages without making those determinations. Allowing damages to be predicated on inferences or presumptions of harm, without proof of that harm, violates the spirit of the principle of compensation for harm to constitutional rights. The Court noted that presumed damages are a substitute for compensatory damages, to be given when a plaintiff seeks damages for an injury that is likely to have occurred but difficult to establish, and not a supplement for compensatory damages. Id. at 310, 106 S.Ct. at 310.
In this case, plaintiff could have testified to any emotional distress the unlawful termination caused. The fact finder would not have had to presume damages, since “[distress is a personal injury familiar to the law.” Carey, 435 U.S. at 263, 98 S.Ct. at 1052. Plaintiff did not, however, offer any such proof.
At least one commentator believes that Carey’s actual injury requirement should not apply to certain types of constitutional claims, most notably first amendment claims. S. Nahmod, Civil Rights and Civil Liberties Litigation: The Law of Section 1983 § 4.02 (2d ed. 1986). Nahmod argues the first amendment is closely tied to the right of representative government and the right of self-expression, and as such may be analogized to the right to vote. Under Carey, damages may possibly be presumed for denials of voting rights, because of the difficulty of proving actual damages. See 435 U.S. at 264 n. 22, 98 S.Ct. at 1053 n. 22. The language in Stachura, however, seems to continue the requirement of proof of actual damages for first amendment cases. Until the Supreme Court holds otherwise, allowing damages to be presumed in first amendment cases is impermissible.
According to Nahmod, Carey intimated that there may be a difference between “presumed” and “inferred” damages. Damages may possibly be inferred in cases involving racial discrimination and fourth amendment violations. Nahmod, supra, § 4.02, at 199. The Court has not, however, definitively answered this question. Even if damages may be inferred in certain types of cases, this case is not an appropriate one for inferred damages. Employment termination does not fall within the ambit of the types of rights sought to be protected in race discrimination or fourth amendment violation cases, where direct testimony of the damages may not be available, yet the damages are of such a nature that the fact finder may readily infer them. Further, as noted above, plaintiff could have produced evidence of any emotional distress he may have suffered.
A discussion of other cases involving the requisite proof for emotional distress is useful. In Parrish v. Johnson, 800 F.2d 600 (6th Cir.1986), the court, following Stachura, held that it may be appropriate to presume general damages from some constitutional violations. On remand, however, the court cautioned the district court that the plaintiff in that case could not recover any damages for the inherent value of his first amendment rights violations. Instead, the district court should determine whether the defendant’s action in interfering with the plaintiff’s mail and phone calls caused the plaintiff any “pain, suffering, emotional distress, or impairment of employment prospects.” Parrish v. Johnson, 800 F.2d at 607.
Other circuits have used the same approach. In Busche v. Burkee, 649 F.2d 509 (7th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981), a civil rights action for termination of employment prior to hearing, the court held that lack of medical or psychiatric expert testimony was not fatal, although it would strengthen the claim of emotional injury. The court noted that, although it is essentially subjective, mental suffering or emotional anguish may be evidenced by one’s conduct and observed by others. Id. at 519 n. 12. In that case the plaintiff, following termination, became severely depressed, changed his drinking habits, became moody and quarrelsome, had marital difficulties that eventually ended in divorce, and had financial difficulties due to loss of income. The court held the evidence sufficiently supported an award of $10,000.
In Whitley v. Seibel, 676 F.2d 245 (7th Cir.), cert. denied, 459 U.S. 942, 103 S.Ct. 254, 74 L.Ed.2d 198 (1982), a false arrest civil rights case, the court held that an award of $60,000 was not excessive where the plaintiff was imprisoned for 113 days, suffered nightmares, insomnia, and nausea, and was a changed man, given to depression, vagueness, and tears. The plaintiff himself and others testified about this behavior. Id. at 252. The court held expert testimony was not essential.
In the first amendment context, at least one court, see Nekolny v. Painter, 653 F.2d 1164 (7th Cir.1981), cert. denied, 455 U.S. 1021, 102 S.Ct. 1719, 72 L.Ed.2d 139 (1982), has held that, although mental and emotional distress caused by denial of first amendment rights is compensable, an award of damages for such injury will not stand without proof that such injury actually was caused. In that case, the only evidence was one plaintiff’s testimony that on learning he was terminated he was “very depressed”; another plaintiff’s statement that at one point subsequent to leaving her job she was “a little despondent and [lacking] motivation”; and the third plaintiff’s testimony, on being asked whether he looked for employment after losing his job, “Well, I didn’t work for six weeks, I was completely humiliated, and I stayed close to home.” Id. at 1172. The court held this evidence insufficient proof of compensable mental or emotional injury.
Likewise, the sixth circuit reversed awards of $2500 for emotional distress to each plaintiff in a procedural due process violation case. In Davis v. Mansfield Metropolitan Housing Authority, 751 F.2d 180 (6th Cir.1984), the defendant wrongfully denied one plaintiff’s application for a federal housing project, and wrongfully terminated another from participation in the project. One plaintiff testified she felt “kind of angry” when defendant denied her application for housing. Id. at 186. The court found this testimony insufficient.
In another first amendment case, the court in Brule v. Southworth, 611 F.2d 406 (1st Cir.1979), upheld awards of $1000 to each plaintiff. The plaintiffs were correctional facility employees who were suspended in violation of their first amendment rights. The court found the evidence sufficient to support the awards where plaintiffs “testified at some length,” id. at 411, of their emotional distress. The evidence included sleeplessness, nervousness, irritability, embarrassment, anguish, and the changed attitudes of the plaintiffs’ coworkers toward them.
My own research turns up few cases which suggest that it may be possible, in an appropriate case, to infer infliction of emotional distress from circumstances of the violation. In Seaton v. Sky Realty Co., 491 F.2d 634 (7th Cir.1974), the plaintiffs, who are black, were awarded compensatory and punitive damages against a real estate broker, its manager, and one of its salesmen, for a racially motivated refusal to negotiate for the sale of a dwelling in a predominantly white area of Chicago. In this pre-Carey case, the seventh circuit, rejecting the defendant’s position that unless there is evidence of economic or financial loss, or medical evidence of mental or emotional impairment, there can be no award of compensatory damages, concluded that compensatory damages under 42 U.S.C. Section 1982 (1970) and “actual damages” under 42 U.S.C. Section 3612 (1970) are appropriate for humiliation caused by the type of violation of rights established in that case. The court said, “Humiliation can be inferred from the circumstances as well as established by the testimony.” Id. at 636.
It does not appear that Seaton would lend support for the position taken by the other members of the panel that damages for emotional distress may be inferred without proof of actual damages. First, Mr. Seaton was subjected to a racial indignity which is one of the relics of slavery that Section 1982 was enacted to eradicate. Second, an inference of humiliation was not necessary to establish damages; Mr. Sea-ton testified that he was humiliated “not only as a person but as a man. He stripped me of my right as a father to my kids.” Id. at 636. Distinguishing. Seaton, the Nekolny court, relying on Carey, held that a single statement was not adequate to establish injury.
Bell v. Little Axe Independent School District, 766 F.2d 1391 (10th Cir.1985), also held that damages may be presumed in first amendment cases, which it analogized to voting rights cases. However, this holding seems doubtful after Stachura. See Nahmod, supra, § 4.02, at 198; § 4.06, at 225.
2. Sufficiency of the Evidence
The problem in the case before us is that there was no evidence of emotional distress or evidence of facts and circumstances from which it could be inferred. One member of the panel noted that plaintiffs testimony on emotional distress may be weak and thus fall at the low end of the scale of proof required to support a finding. I submit that it does not exist. The thrust of plaintiffs damages was an economic loss. Not only did plaintiff offer no evidence of emotional distress, the subject did not come up. Nor did he bring other witnesses to describe any changes in his behavior following the termination.
Citation to plaintiffs inability, after leaving the university, to obtain another permanent teaching position due to the circumstances surrounding his termination has been offered as evidence of emotional distress. Based on such, it is said that injury to plaintiffs self-image as a professional teacher and to his ability to retain other gainful employment may be inferred. I disagree for two reasons. First, this conclusion runs counter to the holdings of Carey and Stachura that damages for violation of constitutional rights may not be presumed and that actual damages must be established. Second, the record shows that plaintiff obtained another job teaching at Fisk University beginning in September 1976, and left that job after a few months for reasons unrelated to any actions by defendants. Plaintiff was simply unable to get along with the Fisk University administration.
Testimony by plaintiff that his eventual divorce from his wife and the resulting separation from his family were caused by his inability to support his family, which, in turn, resulted from the manner in which he lost his job with the university, also fails to establish emotional distress. I agree with defendants that neither plaintiffs divorce, nor any inferred emotional distress associated with that event, can reasonably be considered a consequence of the employment termination. First, the divorce took place in 1980, nearly six years after plaintiff left the university (four years after leaving Fisk University). Second, by his own testimony plaintiff attributed the divorce not to the circumstances surrounding the termination, but rather to his financial condition. When asked on direct examination why he was divorced in 1980 and whether it was related to his termination from the university in 1975, plaintiff responded, “Well, my lack of ability to support my family and the intense pressure that this put my family under and living in poverty the way we did. I think it has affected me, yes ... has affected that.” Plaintiff is talking about the effects of his lost income. The trial court, by refusing to adopt plaintiffs finding on lost income, found against him on that issue. See Padilla v. Lawrence, 101 N.M. 556, 563, 685 P.2d 964, 971 (Ct.App.1984).
I do not believe that this testimony meets the requirements of Carey and Stachura that there must be proof of actual injury. When compared with the cases discussed above, such as Brule and Busche, the evidence here does not even come close, qualitatively or' quantitatively.
The reliance on Restatement (Second) of Torts Section 912 (1979) for the proposition that the trier of fact can properly award substantial damages as compensation for harms that normally flow from a tortious injury without specific proof of their existence neither correctly states the Restatement nor comports with the teachings of Carey and Stachura. Section 912 provides:
One to whom another has tortiously caused harm is entitled to compensatory damages for the harm if, but only if, he establishes by proof the extent of the harm and the amount of money representing adequate compensation with as much certainty as the nature of the tort and the circumstances permit.
My reading of that section suggests that it deals only with the certainty of damages, not the essential elements that a plaintiff must prove to establish the damages. The problem in the case before us is not a lack of certainty as to the extent of damages; rather, it is the lack of proof of any damages at all.
Further, to simply conclude that the involuntary loss of a job would cause emotional distress, without proof of how such distress was manifested, simply ignores Carey and Stackura.
3. Lack of Medical Expert Evidence to Support Damage Award
I agree that, while medical or similar type expert testimony would strengthen a claim for emotional injury, it is not essential to prove a claim for emotional distress. See Busche v. Burkee; Whitley v. Seibel.
4. Causation
Defendants argue that if we hold that plaintiff suffered emotional distress, nevertheless, there was no evidence that such was the result of the wrongful deprivation of his constitutional rights as opposed to a lawful termination. They cite Laje v. R.E. Thomason General Hospital, 665 F.2d 724 (5th Cir.1982), wherein the plaintiff was able to recover damages only for the procedural violation which preceded his otherwise lawful firing. There are two answers adverse to defendants’ position. First, under my analysis, this sub-issue need not be reached because I would hold that plaintiff is entitled to no more than nominal damages. Second, defendants ignore the fact that the violation of the constitutional right and the termination were inseparably connected, since the termination here, unlike the termination on Laje, was unlawful. To accept defendants’ argument, we would have to find that the termination was lawful; that position has been correctly rejected.
CONCLUSION
For the reasons stated, I respectfully dissent on the issue of damages, and would remand with instructions to award plaintiff nominal damages of $1.00 plus his attorney fees. See Carey v. Piphus, 435 U.S. at 257 n. 11, 98 S.Ct. at 1049 n. 11 (potential liability of Section 1983 defendants for attorney fees provides assurance that state agents will not ignore due process rights); Basiardanes v. City of Galveston, 682 F.2d 1203 (5th Cir.1982) (nominal damages held to justify imposition of attorney fees and costs even though plaintiff fails to prove actual injury necessary to sustain an award of compensatory damages); Lamar v. Steele, 693 F.2d 559 (5th Cir.1982), cert. denied, 464 U.S. 821, 104 S.Ct. 86, 78 L.Ed.2d 95 (1983) (same).