IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

DONALD GALLOWAY, )

)

Plaintiff, )

)

v\. ) Civil Action No. 91-0644

) (JHG)

SUPERIOR COURT OF THE DISTRICT )

OF COLUMBIA )

)

and )

)

THE DISTRICT OF COLUMBIA, )

)

Defendants. )

)

**MEMORANDUM OF THE UNITED STATES, AS AMICUS CURIAE, IN OPPOSITION TO
DEFENDANTS\' MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF\'S CLAIM FOR
COMPENSATORY DAMAGES**

##  I. Introduction

On March 16, 1993, this Court granted plaintiff\'s motion for
declaratory and injunctive relief, ruling that the District of
Columbia\'s policy of excluding persons who are blind from jury service
violates section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794,
and Title II of the Americans with Disabilities Act of 1990 (\"ADA\"),
42 U.S.C. §§ 12131 [et seq.]{.underline}. Now before the Court are the
remaining issues relating to relief. In its previous memorandum, the
United States, as [amicus curiae]{.underline}, urged the Court to hold
that compensatory damages are available forms of relief under both
statutes. In response to an argument raised by the defendants in their
motion for summary judgment, we demonstrate below that neither an overt
nor physical manifestation of emotional injury is necessary to support
an emotional distress claim for compensatory damages.

# II. Argument

Defendants argue that the emotional distress incurred by Plaintiff
Galloway as a result of being excluded from jury duty on account of his
disability is insufficient to warrant an award of compensatory
damages.[^1] The crux of the defendants\' argument appears to be that
absent some overt or physical manifestation of emotional injury, the
injury is not \"substantial\" enough to justify a compensatory damage
award.

This argument is without merit. As we have argued,[^2] compensatory
damages are available under both section 504 of the Rehabilitation Act
and title II of the ADA. Such damages include compensation for the
mental and emotional distress that has resulted from defendants\'
violation of these civil rights statutes. This distress need not be
evidenced by any physical manifestation of injury. Testimony describing
significant emotional pain and mental anguish, such as that detailed in
Galloway\'s affidavit in support of his motion for summary judgment, is
sufficient to warrant a compensatory damage award.

This Court recently held that the type of emotional distress endured by
Galloway warrants monetary compensation. In [Doe v. District of
Columbia]{.underline}, 796 F. Supp. 559, 573 (D.D.C. 1992), a section
504 case, the Court noted that the plaintiff\'s \"testimony \[\]
established the emotional pain he endured from his rejection and the
sense of isolation he felt from being singled out on the basis of his
\[disability\].\" Based on the plaintiff\'s testimony, compensatory
damages were awarded. [See also]{.underline} [Tanberg v. Weld County
Sheriff]{.underline}, 787 F. Supp. 970, 973 (D.Colo. 1992) (money
damages warranted to compensate plaintiff for mental anguish where the
plaintiff was discriminated against on the basis of his disability).

Similarly, in [Carter v. Duncan-Huggins, Ltd.]{.underline}, 727 F.2d
1225, 1238 (D.C. Cir. 1984), the District of Columbia Circuit Court of
Appeals affirmed a jury award of compensatory damages for the
humiliation and other emotional harm that the plaintiff had endured
after being discriminated against on the basis of her race. The court
noted that feelings of humiliation and isolation, albeit intangible, are
cognizable and compensable injuries. [Id.]{.underline} The plaintiff\'s
testimony that she \"felt isolated,\" that her \"mind just flew out\"
when she heard a racist anecdote, and that she was shocked by an
accusation of incompetence was sufficient evidence to justify the jury
award. [Id.]{.underline}

The decisions in [Doe]{.underline} and [Carter]{.underline} are fully
consistent with other courts\' interpretations of various civil rights
laws. A number of circuit courts have held that emotional distress
damages may be awarded in civil rights cases where the sole evidence of
emotional injury is the plaintiff\'s testimony, and where there has been
no overt or physical manifestation of such injury. [See,
e.g.]{.underline}, [United States v. Balistrieri]{.underline}, 981 F.2d
916, 931 (7th Cir. 1992) (plaintiffs\' testimony that they felt \"angry
and upset,\" \"hurt and disappointed,\" \"disbelief and kind of a hurt
feeling like feeling real sorry,\" and \"surprised\" sufficient to
support emotional distress damage awards in Fair Housing Act case);
[Johnson v. Hale]{.underline}, 940 F.2d 1192, 1193-94 (9th Cir. 1991)
(testimony that plaintiffs were acutely upset because they had been
denied the opportunity to rent or inspect advertised rental units on the
basis of their race and that they had begun to suspect that their white
friends were racist sufficient to support emotional distress damage
award in housing discrimination case); [Marable v. Walker]{.underline},
704 F.2d 1219, 1220-21 (11th Cir. 1983) (plaintiff\'s testimony in Fair
Housing Act case that he had been embarrassed and humiliated by
defendant\'s refusal to rent an apartment to him on the basis of his
race sufficient to establish right to an evidentiary hearing regarding
the amount of emotional distress damages that should be awarded);
[Williams v. Trans World Airlines]{.underline}, 660 F.2d 1267, 1272-73
(8th Cir. 1981) (specific proof of out-of-pocket losses or medical
testimony not necessary to establish humiliation or mental distress in
employment

discrimination case arising under 42 U.S.C. § 1981; plaintiff\'s own
testimony may be sufficient) [Seaton v. Sky Realty Co.]{.underline}, 491
F.2d 634, 636 (7th Cir. 1974) (award for emotional distress upheld in
housing discrimination case where only direct evidence of emotional
distress was plaintiff\'s testimony that \"I was humiliated. I was
intimidated, not only as a person but as a man. He stripped me of my
right as a father to my kids.\"). Indeed, as the District of Columbia
Circuit Court of Appeals stated in [Hobson v. Wilson]{.underline}, 737
F.2d 1, 62 (D.C. Cir. 1984), [cert. denied]{.underline}, 470 U.S. 1084
(1985), a case arising under the civil rights conspiracy statute, 42
U.S.C. § 1985(3):

> the factfinder may measure plaintiff\'s testimony in light of the
> surrounding circumstances, and in proper circumstances award damages
> on the basis of plaintiff\'s testimony. In reaching its conclusion,
> the court or jury may consider, as elements of compensable injury for
> emotional distress, humiliation and personal indignity, emotional
> pain, embarrassment, fear, anxiety, and anguish. (footnotes omitted)

Moreover, the defendants\' argument that there must be an overt or
physical manifestation of emotional injury to warrant compensatory
damages rests on an incorrect reading of

[Carey v. Piphus]{.underline}, 435 U.S. 247 (1978). In
[Carey]{.underline}, the Supreme Court held that mental anguish and
emotional distress are compensable injuries under § 1983. 435 U.S. at
263-64. The Court further held that substantial damages may be recovered
only for the actual injury suffered, and that the plaintiff must
demonstrate injury to secure more than a nominal recovery.
[Id.]{.underline} at 266. Nevertheless, although the Court noted in a
footnote that mental and emotional distress \"[may]{.underline} be
evidenced by one\'s conduct and observed by others,\" [id.]{.underline}
at 264 n.20 (emphasis added), nowhere did it [require]{.underline} an
overt or physical manifestation of emotional distress. Rather, the Court
stated that, although a showing of actual injury is necessary, such
injury can be proven by \"showing the nature and circumstances of the
wrong and its effect on the plaintiff.\"[^3] [Id.]{.underline} at
263-64. [See also]{.underline} [Balistrieri]{.underline}, 981 F.2d at
930, 931-932, citing [Carey v. Piphus]{.underline}:

\[A\] court may not presume emotional distress from the fact of
discrimination. A plaintiff must actually prove that he suffers from
emotional distress and that the discrimination caused that distress.

. . .

\[I\]n determining whether the evidence of emotional distress is
sufficient to support an award of damages, we must look at both the
direct evidence of emotional distress and the circumstances of the act
that allegedly caused that distress.

Defendants also cite two civil rights cases and suggest that because
emotional distress damages were not awarded in these two cases, they
should not be awarded in the instant case. However, these cases are
readily distinguishable. In [Dougherty v. Barry]{.underline}, 604 F.
Supp. 1424 (D.D.C. 1985), and [Spence v. Board of Educ. of Christina
Sch. Dist.]{.underline}, 806 F.2d 1198 (3d Cir. 1986), both First
Amendment cases, the courts noted that the plaintiff\'s testimony was
\"brief\" and \"limited\" and that the courts would have had to
speculate as to the extent of the injury suffered.
[Dougherty]{.underline}, 604 F. Supp. at 1443; [Spence]{.underline}, 806
F.2d at 1201. Indeed, the [Spence]{.underline} court specifically noted
that it was [not]{.underline} deciding whether a verdict for emotional
distress may ever be supported solely by a plaintiff\'s own testimony,
but rather, it had merely decided that on the facts of the case before
it, the evidence was insufficient to justify the jury\'s award. 806 F.2d
at 1201.

In this case, however, the facts detailed in Galloway\'s affidavit are
neither brief nor limited. No speculation is required to reach the
conclusion that Galloway was substantially injured. For example,
Galloway explains:

> My feelings of rejection and dejection lasted many weeks\....I felt
> that the Court was telling me that I was not worthy of participating
> as a citizen, that I was incapable and incompetent to make judgments.
> I felt the same denial of self worth and sense of alienation that I
> experienced as a young person in a segregated society when I was
> denied access to restaurants and movie theaters because I am black. I
> realized that I was considered not as a person, but solely as a member
> of a minority group, judged on the basis of a single physical trait.
>
> For weeks, I was fixated on the incident and became irritable,
> hostile, and aggressive. It became my sole topic of conversation. My
> family and personal relationships suffered.[^4]

Moreover, as discussed above, many circuit courts have held that the
type of emotional distress and mental anguish described in Galloway\'s
affidavit is sufficient to support an award of compensatory damages in
civil rights cases.

Galloway\'s affidavit amply demonstrates that he endured substantial
emotional pain and mental anguish. Neither in this case, nor in any
other under section 504 or title II of the ADA, should the overt or
physical manifestation of emotional injury be required before emotional
distress damages are awarded. Galloway should be compensated for the
indignity, humiliation, stigmatization, and emotional distress of being
prohibited, because of his disability, from exercising one of the most
important privileges and duties this country asks of its citizens.

# III. Conclusion

The Court should hold that neither an overt nor physical manifestation
of emotional injury is necessary to establish an emotional distress
claim under Section 504 or title II of the ADA.

Dated: Washington, D.C.

May \_\_ , 1993

Respectfully submitted,

J. RAMSEY JOHNSON JAMES P. TURNER

United States Attorney Acting Assistant Attorney

for the District of Columbia General for Civil Rights

D.C. BAR #243253

By: JOHN L. WODATCH

D.C. Bar #344523

JOAN A. MAGAGNA

D.C. BAR #910885

SHARON PERLEY

Attorneys

U.S. Department of Justice

Civil Rights Division

Public Access Section

P.O. Box 66738

Washington, D.C. 20035-6738

Tel: (202) 514-6016

[^1]: ^?^ Def.\'s Mem. Supp. Summ. J. at 8.

[^2]: ^?^ Mem. of the United States, as [Amicus Curiae]{.underline}, at
    5.

[^3]: ^?^ The Court also noted that \"an award of damages must be
    supported by competent evidence concerning the injury.\" 435 U.S. at
    264 n.20.

[^4]: ^?^ Galloway aff. at 2.