In the

United States Court of Appeals

For the Seventh Circuit

No. 99-3224

WASHINGTON C. ALSTON,

Plaintiff-Appellant,

v.

SCOTT L. KING, individually,

as Mayor of the City

of Gary, Indiana, and as Special

Administrator of Gary Sanitary

District, OTHO LYLES,

III, individually and as a

member of the Board of

Commissioners of the Gary Sanitary

District, ROLAND ELVAMBUENA,

individually and as a

member of the Board of

Commissioners of the

Gary Sanitary District, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Indiana, Hammond

Division.

No. 96 C 36--Rudy Lozano, Judge.

Argued May 16, 2000--Decided November 2, 2000

 Before EASTERBROOK, RIPPLE, and ROVNER,

Circuit Judges.

 ROVNER, Circuit Judge. This is the

second appeal in this case, and the facts

underlying the case are set forth in

detail in Alston v. King, 157 F.3d 1113

(7th Cir. 1998). We will repeat only

those facts necessary for resolution of

this appeal.

 Washington Alston was the Director of

the Gary Sanitary District when Scott

King, the new mayor of Gary, terminated

his employment. Alston then filed an

action against King, the City of Gary,

and the Gary Sanitary District

(collectively referred to as "King")

alleging retaliatory discharge, violation
of procedural due process, conspiracy to

violate constitutional rights, and breach

of contract. The undisputed evidence

established that King had failed to

provide Alston with a pretermination

hearing as required under the employment

contract, and that a suspension prior to

the hearing would have protected the

City’s interest in preventing further

harm. The district court therefore

entered judgment in favor of Alston on

the breach of contract and procedural due

process claims, and the jury awarded

damages of $40,600 for breach of contract

and $92,500 for the procedural due

process violation. In the earlier appeal,

we reversed the award of damages on the

procedural due process count because an

erroneous jury instruction was given, and

remanded the case for further

proceedings. We held that the jury, in

awarding damages for the procedural due

process violation, did not appear to

understand that its award had to be

limited to any additional damages that

Alston might have incurred as a result of

the denial of a pretermination hearing,

and that were not included in the award

for the breach of contract. Id. at 1118.

 On remand, the district court held a

trial solely relating to the issue of

damages. Prior to that trial, King filed

a motion in limine seeking to preclude

testimony regarding compensatory damages

that were litigated under the contract

claim. The motion noted that damages

compensable under the contract claim had

already been awarded to Alston, and

therefore that the evidence must be

limited to damages for emotional distress

that resulted from the failure to provide

a pretermination hearing. The motion

specifically sought to exclude the

following evidence that had been fully

litigated under the contract claim:

earnings under the contract; pension

benefits; social security income

contributions and benefits; and the loss

of employability, life insurance,

medical, dental and vision benefits,

savings, deferred compensation, sick pay,

and vacation pay. The motion also sought

to prevent testimony regarding physical

injuries and conditions not disclosed

prior to or during the first trial. The

district court tentatively granted the

motion, stating: "Motion in limine is

granted. And counsel, that does not mean

you’re going to get it in or not get it
in, you’ll have to come to side bar as

the evidence presents itself." The court

then conducted a trial to determine the

procedural due process damages, and

Alston presented only his own testimony

to establish damages. At the close of

Alston’s case, King sought judgment as a

matter of law awarding only nominal

damages. The district court agreed that

Alston had failed to prove any damages

attributable to the procedural due

process violation, and granted judgment

as a matter of law, awarding one dollar

in nominal damages. Alston appeals that

decision, arguing that the district court

improperly limited the scope of damages

so as to preclude damages arising from

the termination itself, and that even

given those limitations by the court, he

had presented sufficient evidence to

avoid judgment as a matter of law. We

take these arguments in turn.

I.

 Alston contends that by granting King’s

motion in limine and adhering to that

ruling during the trial, the district

court improperly limited the scope of the

damages to emotional distress caused by

the failure to provide a hearing, and

excluded damages caused by the improper

termination. In addressing this

contention, it may be helpful to once

again clarify the type of damages that

are permissible for a procedural due

process violation. As we stated in our

prior opinion, a plaintiff who succeeds

on a procedural due process claim is

entitled to those damages that are caused

by the denial of the process required by

the Constitution. Id. at 1117-18, citing

Carey v. Piphus, 435 U.S. 247, 263

(1978). 

 The Carey decision clarified the type of

damages available for a violation of

procedural due process. The Court began

by recognizing that the procedural due

process clause has the dual purpose of

protecting persons from the mistaken or

unjustified deprivation of life, liberty

or property, and of conveying to the

individual a feeling that the government

has dealt with her fairly. 435 U.S. at

259, 261-62. Accordingly, damages for a

procedural due process violation can

include damages for a termination if

there is a causal connection between the

termination and the failure to provide a
hearing. The converse is true as well;

where the employer can prove that the

employee would have been terminated even

if a proper hearing had been given, the

terminated employee cannot receive

damages stemming from the termination in

an action for a procedural due process

violation. Id. at 260. In such a case,

the employee may still obtain damages for

emotional distress attributable to the

deficiencies in procedure if the employee

can convince the trier of fact that the

distress is attributable to the denial of

procedural due process itself rather than

to the justified termination. Id. at 263.

 Alston argues that the district court

denied him the opportunity to establish

damages resulting from the termination.

Under Carey, such damages are unavailable

if the termination would have occurred

even if the hearing had been provided.

King contends, persuasively, that the

undisputed facts establish that Alston

would have been terminated for cause

because the jury and the court in the

first trial found that Alston was

responsible for $16,000-$18,000/1 in

misappropriated funds. Alston’s response

is that the evidence demonstrated only

improper documentation of funds, not

theft of funds. That is irrelevant,

however, because Alston presents no

evidence that mismanagement of funds

under his control would not constitute

cause for his termination. Because the

undisputed evidence establishes cause for

his termination, damages from that

termination could not be attributed to

the failure to provide a hearing.

 Even if we were to recognize a disputed

issue of fact regarding the inevitability

of the termination decision, the result

would be no different in this case

because the district court did not in

fact exclude evidence relating to

thetermination. The motion in limine

merely sought to exclude evidence

relating to damages litigated in the

contract claim and for which Alston had

been compensated, and to limit the

evidence to damages for emotional

distress resulting from the failure to

provide a pretermination hearing. That

position is fully consistent with Carey

and our prior decision in Alston. 

 Moreover, an inquiry into the court’s
rulings during trial reveals the same

conclusion. Because the ruling on the mo

tion in limine was tentative, we must

examine the particular evidentiary

rulings made during the trial. See Wilson

v. Williams, 182 F.3d 562, 565-66 (7th

Cir. 1999) (when court’s ruling on a

motion in limine is tentative, litigant

must raise it during trial in order to

preserve the issue). Alston asserts that

as a result of the court’s restrictions

on evidence relating to the termination,

he was prevented from presenting evidence

regarding: his employment contract; his

humiliation immediately after being

terminated; his feelings about not

receiving a name-clearing hearing; his

ability to obtain other employment; the

video of the press conference held after

the termination; the damage to his

reputation; his removal from the Black

History Month program; his beliefs as to

why his termination was unjustified; and

his ability to use his educational

degrees after termination. The transcript

reveals, however, that without exception

those evidentiary rulings were the result

of Alston’s failure to properly present

that evidence, and were unrelated to any

opinion by the court regarding the

propriety of damages for the termination.

 For instance, the district court

precluded testimony regarding damage to

his reputation, his removal from the

Black History program, and his inability

to use his educational degrees because in

each case Alston’s testimony was based

upon hearsay and not his own personal

knowledge. The court did not rule that

such evidence was irrelevant, only that

it was not admissible through hearsay

testimony. Alston chose not to call the

individuals who could have properly

presented such evidence, such as the

person who decided to remove him from the

Black History program or individuals who

refused to offer him a job. 

 Similarly, testimony regarding the press

conference was ultimately excluded

because Alston failed to tie it to any

damages. Prevalent throughout the

transcript are repeated instances in

which Alston failed to lay a proper

foundation for testimony, or attempted to

introduce testimony that called for

speculation or was based on hearsay. For

instance, some testimony about how he
felt at not receiving a name-clearing

hearing was excluded for lack of

foundation and because it was

speculative. Another predominant problem

was Alston’s proclivity for testifying in

the narrative rather than confining his

answers to the question before him. His

testimony regarding the humiliation he

suffered immediately after being

terminated was stricken because it was

provided in an ongoing narrative directly

after the court had issued three warnings

that such testimony was improper, the

last of which directed that such

testimony would be stricken if it

continued. Alston’s counsel did not then

ask further questions to properly

introduce that testimony. The court

excluded testimony regarding Alston’s

employment contract because he was

introducing it to show that the contract

called for arbitration, which was not

relevant to the issue of damages given

that the due process violation was

already established. Finally, Alston

asserts that the court excluded testimony

of his beliefs as to why the termination

was unjustified. That is an inaccurate

characterization of the record. The court

in fact allowed testimony on that matter,

repeatedly overruling King’s objections.

That line of questioning was restricted

only when Alston attempted to introduce

hearsay testimony. 

 Thus, although significant limitations

were ultimately placed on the testimony,

those restrictions were a result of

Alston’s failure to rely on competent,

admissible testimony to make his case for

damages. King’s objections were

undoubtedly distracting in their sheer

volume and repetition, but Alston

consistently failed to adhere to basic

principles of evidence in eliciting the

testimony. We find no support in the

record for Alston’s contention that the

district court improperly excluded

damages evidence relating to the

termination.

II.

 Alston nevertheless argues that despite

the court’s adverse evidentiary rulings,

he submitted sufficient evidence of

damages to avoid judgment as a matter of

law. The evidence relating to emotional

distress that was admitted at the trial

is sparse. We have Alston’s bare
testimony that as a result of being

denied a hearing, he suffered

"humiliation, embarrassment, stress [and]

rejection." We also have his testimony

that the deprivation of a hearing caused

him to become depressed, that he had a

tendency to abuse alcohol, and that it

materially affected the quality of his

relationship with the woman he was dating

and that he was no longer engaged to her.

On cross-examination, however, Alston was

confronted with inconsistent trial

testimony of October 20, 1997, and he

then acknowledged that he was not abusing

alcohol and had never sought professional

counseling. He also acknowledged that he

first became engaged to the woman in

question more than a year after the

termination. 

 Alston also presented some testimony

regarding the circumstances surrounding

the termination. He testified that after

King terminated him, he was escorted by

another person to his former office to

remove his personal effects. He further

testified that employees were gathered

around and some were crying, some were

mocking or laughing at him, and others

were befuddled. 

 When the injured party provides the only

evidence of emotional distress, he must

reasonably and sufficiently explain the

circumstances of the injury rather than

relying on mere conclusory statements.

Biggs v. Village of Dupo, 892 F.2d 1298,

1304 (7th Cir. 1990), citing Rakovich v.

Wade, 819 F.2d 1393, 1399 n.6 (7th Cir.

1987), vacated on reh. en banc on other

grounds, 850 F.2d 1180 (1988). Moreover,

"we require that a plaintiff show

’demonstrable emotional distress,’ not

just point to circumstances of the

constitutional violation which might

support an inference of such injury."

Biggs, 802 F.2d at 1305, quoting

Rakovich, 819 F.2d at 1399 (emphasis in

original). We have previously held

insufficient statements by a plaintiff

that he is "depressed, a little

despondent, or even completely

humiliated," Biggs, 892 F.2d at 1305, but

the sufficiency of such statements

ultimately depends upon the particular

facts of the case. As this court

clarified in United States v.

Balistrieri, 981 F.2d 916, 932 (7th Cir.

1992), an injured person’s testimony may,

by itself or in conjunction with the
circumstances of a given case, be

sufficient to establish emotional

distress without more. Balistrieri set

forth certain factors relevant to

determining when such evidence will

suffice, as follows:

[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 the distress. . . .

The more inherently degrading or

humiliating the defendant’s action is,

the more reasonable it is to infer that a

person would suffer humiliation or

distress from that action; consequently,

somewhat more conclusory evidence of

emotional distress will be acceptable to

support an award of emotional distress.

Id. [citations omitted]. The act that

allegedly caused the distress in this

case is the denial of the hearing, not

the termination itself. That is not the

type of inherently degrading conduct that

would portend emotional distress. See,

e.g., Balistrieri, 981 F.2d at 932

(recognizing that racial discrimination,

one of the "relics of slavery," is the

type of conduct that is reasonably

expected to cause emotional distress).

Therefore, Alston’s bare allegations of

humiliation would not, without more,

preclude judgment as a matter of law. 

 Therefore, we must examine the more

specific testimony of emotional distress

provided by Alston, to determine whether

it is sufficient to raise a jury issue.

Alston testified to alcohol abuse and the

demise of his engagement, but that

testimony was contradicted by Alston

himself on cross-examination, when he

acknowledged that as of the first trial,

he suffered no alcohol abuse and that he

did not even become engaged until over a

year after the termination. Alston

introduced no testimony from which a

finder of fact could attribute the

subsequent alcohol and relationship

problems as a long-delayed reaction to

the denial of the hearing. Accordingly,

that testimony provides no basis for a

jury to conclude that he suffered damages

in the form of emotional distress from

the failure to provide the hearing. 

 Alston also testified, however, as to
the sequence of events at the office that

occurred immediately after he was

informed of his termination. According to

that testimony, Alston was escorted by "a

police officer or someone that the Mayor

directed" to take him to his District.

Once there, he was taken to his former

office and he removed his personal

effects. In the meantime, employees were

gathered around, and some were crying,

others were befuddled, and still others

were mocking or laughing at him. That

testimony is sufficient to raise a jury

issue of emotional distress damages

related to the denial of procedural due

process. The portrayal of the incident

certainly gives credence to his claim of

feeling humiliated and suffering

emotional distress, particularly the

allegation of co-workers laughing and

mocking him as he cleaned out his desk.

Moreover, a reasonable juror could

conclude that the humiliating office

scene would not have occurred if Alston

had not been summarily terminated. For

instance, a jury could conclude that if

he was suspended pending a hearing, he

would not have been immediately taken

back to his desk and forced to clean out

his desk in the presence of his coworkers, without any explanation.

Although he may have had to clear out his

desk eventually after the hearing, we

cannot say that the humiliation would

have been the same given the opportunity

for the other employees to at least have

learned what was happening in the

interim, and possibly given the potential

for him to choose a less visible time to

accomplish the task. In other words,

there was enough evidence to infer that

the humiliation he experienced was

attributable to the summary nature of the

proceedings, rather than to the

termination itself. Alston therefore

presented sufficient evidence of damages

to withstand judgment as a matter of law.

 Accordingly, the district court erred in

granting judgment as a matter of law and

awarding only nominal damages. The

decision of the district court is

reversed and the case remanded for

further proceedings consistent with this

opinion.

/1 The district court initially determined on

summary judgment that Alston was responsible for
a set-off of $18,372.33 for funds misappropriated

by him from the City. The issue was later submitted to the jury, which held Alston responsible

for a $16,857.99 set-off.