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 Niemeyer joined.

_________________________________________________________________

COUNSEL

ARGUED: Frank Lane Williamson, WOMBLE, CARLYLE, SANDRIDGE & 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 district 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 officers who would not have been promoted regardless of a racially discriminatory 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 compensatory damages for Appellees' emotional distress flowing from the

knowledge that the City excluded them from consideration for promotion to sergeant because of their race. Contending that Appellees

would not have been promoted regardless of their race, the City contends that the district court erred in ruling that Appellees have standing to sue to recover compensatory damages. Additionally, the City

posits that the evidence is insufficient to support the award of compensatory 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 AfricanAmerican. In order to meet his quota of promoting four AfricanAmericans 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 roster 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 candidate -- had not entered the promotions calculus, Appellees would

not have been selected for promotion to sergeant.

On remand, Appellees asserted claims of emotional distress, seeking 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 sergeant, 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 judgment, 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 compensatory damages. First, the City asserts that it is not liable for any damages 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 compensatory damages because they would not have been promoted to sergeant regardless of the unconstitutional racial criterion. According to

the City, Appellees are not entitled to any damages because they suffered no compensable loss that can be satisfied by damages. A violation of equal protection is Appellees' sole injury, the City posits, and

the remedy for such a violation is exclusively injunctive or declaratory relief. The City's position is that because there was only a "technical 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 unlawful 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, privileges, 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) (emphasis 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 distress caused by the [constitutional violation] itself is compensable 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 compensable 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 distress 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, therefore, 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 marginal vindication for a constitutional violation. Carey, therefore,

teaches that compensatory damages for emotional distress are available for a constitutional violation, but must be attributed to the invidious discrimination, not to the deprivation of an ultimate benefit; to

recover more than nominal damages, actual injury caused by the constitutional violation must be proved by sufficient evidence.

The Court reiterated the teachings of Carey in Memphis Community 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 distress 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 constitutional 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 compensate 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 plaintiff's ultimate goal. In Northeastern, contractors challenged a setaside 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 requisite 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 compete 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 program, it would not follow that he lacked standing." Id. at 280-81 n.14.

Just as Bakke suffered injury, the Northeastern Court held the contractors suffered injury in fact because they were denied equal protection:

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 treatment 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 programs, 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 recovering damages based on a § 1983 equal protection claim is Adarand

Constructions, Inc. v. Pena, 115 S. Ct. 2097 (1995). Adarand challenged 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 compensation 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 plaintiff] standing to claim damages . . ., does nothing to establish 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, specifically rejecting the Government's contention that"Adarand need . . .

demonstrate that it has been, or will be, the low bidder on a government 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 compensable harm." Id. at 616. Likewise, our sister circuits have applied

the rationale of Carey and its progeny to sustain compensatory damages 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 compensatory damages based on emotional distress claim for a due process 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 standing 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 promotions, 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 sergeant, 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 ignominy as a result of the City's invidious discrimination and the consequences this discrimination visited on their lives. Some Appellees

testified in the most generic of terms that they were "humiliated," "betrayed," and "deceived" by the City's invidiously discriminatory promotions 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 distress.

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 sustained. 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. Second, 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 completely 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 & Casualty Co., 426 F.2d 509, 511 (5th Cir. 1970)).

Our review of the record compels us to conclude that the City sufficiently 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 compelling 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 sufficient evidence to send the case to the jury). We find no merit, therefore, 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 Amendment, 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 determinations, see Murdaugh Volkswagen, Inc. v. First Nat'l Bank, 801

F.2d 719, 715 (4th Cir. 1986), if there is evidence on which a reasonable 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 presumed 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 damages 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 constitutional 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 physical 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 emotional distress fraught with vagueness and speculation, it is easily susceptible 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 nebulous, 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 distress 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 Christina 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 necessary 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 evidentiary 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 entitled to recover "any substantial sum" based on emotional distress

because proof was so lacking); Nekolny, 653 F.2d at 1172-73 (reversing 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 supported 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 original), and seriatim recitations of "depression" or "hurt feelings" as evidence 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 constitutional violation, therefore, must produce evidence of "demonstrable

emotional distress," see Rakovich I, 819 F.2d at 1399, or "demonstrable 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 constitutional right. Thus, while a plaintiff's testimony, standing alone, can

support an award of compensatory damages, the evidence of the emotional 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 Village of Dupo, was told that he behaved in a manner"`unbecoming a

police officer,'" and "was unworthy to represent [the defendant,] Village of Dupo," Biggs, 892 F.2d at 1305. According to Biggs, these

statements caused him emotional distress, and in presenting the evidence 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 sufficiently [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 evidence 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 compensatory damages award. A jury awarded Ramsey $75,000 in compensatory 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 colleague, 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 violation, 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 psychologically 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 concern, 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, harassment, and feelings of isolation,'" id. (quoting Carter v. DuncanHuggins 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' testimony 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 conclusory testimony was "insufficient to constitute proof of compensable 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 considered 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 objective 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 distress 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 Amendment 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 reasonable 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 remittitur 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 pursuant to Title VII and § 1983. Asserting that she was discriminated

against on the basis of sex and national origin, Hetzel brought a variety of claims against her employer. Hetzel, 1996 WL 386464, at *1.

A jury returned verdicts in favor of the employer, but found that Hetzel'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 "consisted 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 problems 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 evidence to support such an award, we observed that"Hetzel presented

no evidence corroborating the existence of any of her supposed specific harms," "remain[ed] . . . in good standing with the police department," 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 testimony, standing alone, can support an award of compensatory damages 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 emotional 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 plaintiff'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 compensatory damages, the Third Circuit in Spence considered four factors: (1) the plaintiff did not lose the esteem of her peers; (2) the

plaintiff suffered no physical injury as a consequence of her emotional 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 sufficiency grounds. See Miner, 999 F.2d at 663. In Fitzgerald v. Mountain 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 constitutional 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 mitigating 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 psychological 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 exclusively 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 transcript, 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 whatsoever," 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 "betrayed," "disappointed and embarrassed," explaining that he "wasn't

aware that race was going to play any part" in the promotions practice. (J.A. at 124.) While testifying that he was betrayed, disappointed, and embarrassed, Officer Corwin also testified that he "tried

not to let it affect me at all." (J.A. at 124.) Moreover, on crossexamination, 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 "selfesteem went from rather high. My confidence was up and all of a sudden it just drops." (J.A. at 134.) He did not testify that any consequence 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 Officer 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 crossexamination, 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; psychological 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 conduct change, see Carey, 435 U.S. at 264 n.20. Also conspicuously

absent from their evidence is any corroboration of their emotional distress 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 "nature 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 damages awards with respect to Officers Corwin, Holl, Elstrom, and Holshouser. 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 damages 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 circumstances of [their] injury," but rather"resort[ed] to mere conclusory

statements," which cannot support an award of compensatory damages. See Biggs, 892 F.2d at 1304. Because these Appellees did suffer

a constitutional violation, but failed to prove emotional distress warranting 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 invidious 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 damages 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 testified 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 officers 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 promotions 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 displeased by the fact that different criteria applied to different races

regarding promotions, specifically asserting that he should be compensated 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 officers," 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 emotional 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 explanation 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 compensatory damages awards. Again, we do not hold that a plaintiff's testimony 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 limited to injunctive or declaratory relief. Rather, they were entitled also

to recover compensatory damages for demonstrable emotional distress if their injuries could be attributed to the actual constitutional

violation. Appellees, however, failed to offer sufficient proof of emotional distress. Accordingly, the award of compensatory damages in

favor of Appellees is reversed, and we award each Appellee one dollar in nominal damages.

AFFIRMED IN PART AND REVERSED IN PART

 26