

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 96-1618
No. 96-1663

                       LORI-ANN MOLLOY,

                     Plaintiff, Appellee,

                              v.

               WESLEY BLANCHARD, ETC., ET AL.,

                   Defendants, Appellants.

                                         

        APPEALS FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF RHODE ISLAND

        [Hon. Raymond J. Pettine, U.S. District Judge]                                                                 

                                         

                            Before

                      Cyr, Circuit Judge,                                                    

               Campbell, Senior Circuit Judge,                                                         

                  and Stahl, Circuit Judge.                                                      

                                         

Kathleen M. Powers, with whom Marc DeSisto and DeSisto Law                                                                      
Offices were on brief for appellants.               
Ina P. Schiff for appellee.                         
                                         

                        June 10, 1997
                                         

          CAMPBELL, Senior Circuit Judge.    The former Chief                                                    

of  Police and the City of Warwick, Rhode Island, appeal from

a  judgment against them in the district court entered on the

jury's  verdict  in  favor  of  a  Warwick  police  officer.1

Plaintiff  had  alleged, inter  alia,  that  she was  treated                                                

disparately because of her gender and that her constitutional

right  to procedural due process  was violated when the Chief

suspended her without holding a hearing as  required by state

law.  We affirm.

                              I.

          We state the  facts in the light most  favorable to

the verdict.  See Ferragamo v. Chubb Life Ins. Co. of Am., 94                                                                     

F.3d 26, 27 n.1 (1st Cir. 1996).

          Plaintiff, Lori  Ann Molloy,  a police  officer for

the  City of Warwick, Rhode Island, was suspended by Chief of

Police Wesley  Blanchard, on  June 3,  1994.  The  suspension

resulted from  her ostensible  refusal to cooperate  with the

state  police in  their  investigation of  a triple  homicide

involving Robert Sabetta, a  police officer from the  Town of

Foster, Rhode Island.  

          Before Molloy joined  the Warwick police department

in 1991, she and Sabetta were in the same class at the police

academy.  After the police academy, Molloy had little contact

                                                    

1.  Cf. Molloy v. Blanchard, 907 F. Supp. 46 (D.R.I. 1995)                                       
(granting in part and denying in part the defendants' motion
for summary judgment).

                             -2-                                          2

with Sabetta until 1993.   In February 1993, Molloy  spent an

evening socializing  with  Sabetta and  Paula Duffy,  another

police academy  classmate and  a police officer  in Cranston,

Rhode Island.  During that evening, Sabetta showed Molloy and

Duffy  his personal  firearm,  a semiautomatic  with a  laser

sight.

          Molloy  saw Sabetta  again approximately  two weeks

later.  Duffy,  with Sabetta  in the car,  drove to  Molloy's

home to  show Molloy her new Jeep.  The  three then went to a

nearby  restaurant  for pizza  and  beer.   During  the meal,

Sabetta complained  about his suspension for  improper use of

force.  He commented  that perhaps he should have  killed, or

should kill, the people whose complaints had resulted in  his

suspension.

          On April  13, 1993,  Sabetta shot and  killed three

teenage  boys and injured a  fourth.  Among  the victims were

persons who had filed brutality complaints against  him.  The

injured  victim identified  Sabetta as  the shooter.   Molloy

learned about  the murders  and Sabetta's involvement  during

her  midnight to 8:00  a.m. shift on April  14, 1993.  Molloy

told her sergeant about  knowing Sabetta from having attended

the police academy with him.  

          Later that morning, Duffy contacted Molloy, worried

that  Sabetta  might  come  to  Duffy's  home.   At  Molloy's

suggestion, Duffy arranged to spend the night at the house of

                             -3-                                          3

her friend  Suzanne Jardine, also a  Cranston police officer.

Molloy stopped by  Jardine's home after her duty  shift. When

the Sabetta  matter was  broached, Duffy stated  that talking

about the  shootings upset her too much  and that she did not

want to discuss them further.  Molloy acceded to her request.

          During their investigation,  the Rhode Island state

police  contacted Molloy in June 1993 to ask her some general

questions  about  Sabetta.   Molloy  did  not volunteer  that

Sabetta  had said either he should have killed or should kill

the people who had  filed a brutality complaint  against him,

nor   did  she   mention   knowing  that   Sabetta  owned   a

semiautomatic with a laser sight.  The murder weapon had been

Sabetta's service revolver, not a semiautomatic.

          After the Sabetta murder  trial began the following

summer,  the  state  police  received   an  anonymous  letter

claiming  that a  Warwick  police dispatcher  and a  Cranston

police  officer possessed  information relevant  to Sabetta's

prosecution.  This led  the state police to interview  Molloy

on  June 2, 1994.  At this  interview Molloy revealed her two

meetings  with Sabetta, his comments about the people who had

complained  about his  brutality,  and his  ownership of  the

laser sighted semiautomatic.

          Not  satisfied  with  the  information  Molloy  had

supplied,  the state  police  asked her  to  report to  their

barracks for a third interview the following morning.  During

                             -4-                                          4

this session, Molloy  told the state  police about her  visit

with Duffy  after the  triple homicide.   The police  pressed

Molloy for  additional information, but  Molloy denied having

any.

          The state police called  Chief Blanchard, told  him

that Molloy  was refusing to  cooperate with them,  and asked

him to  come down to their  barracks to speak with  her.  The

Chief prepared a letter  of suspension and then drove  to the

state  police barracks with  Deputy Chief Stephen Castiglioni

and Captain Thomas K. Wilson.  

          After he arrived at  the state police barracks, the

Chief met  with several  investigators who accused  Molloy of

conspiring  with  Duffy  to withhold  information  about  the

murders.   The Chief then met with Molloy and, without asking

for her side of the story, advised her to cooperate  with the

state  police investigation.  When  she insisted she had told

the  state  police all  she knew,  the  Chief handed  her the

letter  of suspension and told her she was suspended with pay

until the state police concluded their investigation into her

alleged conspiracy  with Duffy.   The Chief  also barred  her

from participating  in training activities and  from entering

the police headquarters building.

          Molloy remained  on suspension for nine  and a half

weeks.  While suspended she received her salary, but she lost

the  opportunity  to work  extra  shifts,  to participate  in

                             -5-                                          5

training  sessions,  and  to  work on  special  details,  all

activities which  would have provided additional  pay.  While

suspended, Molloy  suffered emotional distress  and damage to

her  personal  and  professional  reputations.    On  several

occasions during  her suspension,  Molloy was required  while

testifying as  a witness in  connection with arrests  she had

made before her suspension  to explain in open court  why she

had been suspended.

          On  June 9,  1994, approximately  a week  after her

suspension, Molloy, with the  help of her attorney, requested

a  hearing concerning  her suspension  pursuant to  the Rhode

Island Law  Enforcement Officers'  Bill of Rights,  R.I. Gen.

Laws   42-28.6-13(C) ("the Officers' Bill of Rights").2   The

                                                    

2.  Although it has since been amended, see 1995 R.I. Pub.                                                       
Laws ch. 19,   1, at the time of Molloy's suspension, R.I.
Gen. Laws   42-28.6-13(C) stated:

   Emergency suspension may be imposed by the chief or the
   highest ranking officer of the law enforcement agency,
   when it appears that such action is in the best
   interest of the public.  Any emergency suspension of
   any law enforcement officer shall consist of the law
   enforcement officer being relieved of duty and he or
   she shall receive all ordinary pay and benefits as he
   or she would have if he or she were not suspended.  Any
   law enforcement officer so suspended shall be entitled
   to a prompt hearing before a hearing committee upon his
   or her request.  The time period for the hearing is not
   to exceed fourteen (14) days.  If, after hearing, the
   hearing committee does suspend or dismiss the law
   enforcement officer, he or she shall not be entitled to
   his or her pay and benefits; however, if the
   enforcement officer is reinstated by a subsequent
   hearing, he or she shall be entitled to be reimbursed
   for all salary and benefits that have not been paid.

                             -6-                                          6

Chief had met with the City Solicitor, William Smith, the day

before.   The Chief testified  Smith had advised  him that he

did  not need to specify any charges against Molloy or afford

her a hearing  so long as  Molloy was receiving full  pay and

benefits.3    The Chief  did not  charge  Molloy, nor  was he

willing to  grant her the  hearing required by  the Officers'

Bill of Rights.

          Molloy filed a mandamus  action in the Rhode Island

Superior Court  under R.I. Gen.  Laws   42-28.6-14(2).4   The

Chief  never answered  Molloy's  state court  complaint.   In

August 1994, the Chief reinstated her, reserving the right to

file disciplinary  charges upon  the completion of  the state

police investigation.   Her reinstatement rendered  her state

court mandamus action moot.   In September 1994, the Attorney

General informed the Chief that no criminal charges  would be

filed against Molloy.

                                                    

3.  In contrast, Smith testified he told the Chief to put
Molloy on "administrative leave status" and specifically
advised him not to suspend Molloy under the emergency
suspension provision of the Officers' Bill of Rights, R.I.
Gen. Laws   42-28.6-13(C), because that provision did not
apply to Molloy's case.

4.  R.I. Gen. Laws   42-28.6-14(2) states:

   Any law enforcement officer who is denied any right
   afforded by this subtitle may apply, either
   individually or through his or her certified or
   recognized employee organization, to the superior court
   where he or she resides or is regularly employed for
   any order directing the law enforcement agency to show
   cause why the right should not be afforded.

                             -7-                                          7

          On September 30, 1994, Molloy filed an eight-count5

complaint against  the City of Warwick,  the Chief, Warwick's

Board of Public Safety,  and Mayor Lincoln Chafee.   Under 42

U.S.C.   1983,6 Molloy  alleged she had been deprived  of her

constitutional rights to equal  protection, free speech,  and

substantive  and procedural due process.   Under Title VII of

the Civil  Rights Act  of 1964, 42  U.S.C.    2000e et  seq.,                                                                        

Molloy claimed disparate treatment  because of her gender and

disparate  impact  because  of  policies  having a  disparate

negative impact on her  as a woman.  Under  state law, Molloy

alleged  discrimination  and  the  negligent  or  intentional

infliction of emotional distress.

          Before  trial, the  district  court  dismissed,  on

grounds   of   qualified   immunity,   Molloy's   claims  for

substantive  and procedural  due  process violations  against

Mayor  Chafee and  her claim  for a  substantive  due process

violation against the Chief.   The trial then proceeded.   At

                                                    

5.  The complaint actually states nine counts, though two are
labeled "VIII."  However, the first two counts are apparently
identical.

6.  42 U.S.C.   1983 states, in relevant part:

   Every person who, under color of any statute,
   ordinance, regulation, custom, or usage, of any State
   or Territory or the District of Columbia, subjects, or
   causes to be subjected, any citizen of the United
   States or other person within the jurisdiction thereof
   to the deprivation of any rights, privileges, or
   immunities secured by the Constitution and laws, shall
   be liable to the party injured in an action at law,
   suit in equity, or other proper proceeding for redress.

                             -8-                                          8

the  close of all the evidence, the court granted judgment as

a  matter of law for all the defendants on Molloy's disparate

impact and  First Amendment claims.   The court  also granted

judgment as a matter of law for Molloy on her  procedural due

process claim,  submitting her gender discrimination claim to

the  jury.  The jury was also instructed to ascertain damages

on both claims.7

          The   jury   determined   that   Molloy   had  been

discriminated against on the basis of her gender.  It awarded

her $23,000 in damages on the discrimination claim as well as

for violation of  procedural due process as earlier  found by

the  court.   The  district  court  denied Defendants'  post-

verdict motions  for judgment as a  matter of law,  for a new

trial, and to alter judgment.  Defendants appealed.

                             II.

          We  turn first to  Defendants' contention  that the

district  court committed  error  in granting  judgment as  a

matter of  law against Defendants and in Plaintiff's favor on

the  procedural due process claim.  This is a close question.

Given, however, our affirmance,  infra, of the jury's verdict                                                  

for   Plaintiff   on  her   Title   VII   claim  for   gender

discrimination,  there is  no practical  need to  address it;

however resolved,  the outcome  would not affect  the damages

                                                    

7.  The remaining claims appear to have been dropped and, in
any event, are not at issue in this appeal.

                             -9-                                          9

awarded to Plaintiff.   The  jury provided  a single  damages

award  for both  claims, and  so long  as Plaintiff  is found

entitled to have prevailed  on either of the two  claims, the

award  stands, with  no alteration in  the amount  of damages

regardless of whether  one or  both claims are  upheld.   The

same conduct underlay both:  the Chief's suspension of Molloy

while  depriving  her  of  the  hearing  called  for  by  the

Officers' Bill  of  Rights.   Her damages  consisted in  each

instance of her lost  opportunity to earn extra income  while

suspended  (for  special  details,  overtime,  etc.)  and her

emotional  distress  and loss  of  reputation  caused by  her

suspension.  The special  verdict form handed to the  jury by

the court instructed  the jury  to award a  single amount  of

damages  even if  it  found (as  the  jury reported  it  did)

liability  and  causation   under  both  of  Molloy's   legal

theories.8   We  also note  that the  district  court's final

judgment,  which  we  affirm,  infra, does  not  mention  the                                                

underlying  legal  theories  but  only states  a  finding  of

liability and the amount of damages. 

          Because the jury's damages  award would be the same

under either or both liability  theories, and because we find

there was  sufficient evidence to support  the jury's finding

                                                    

8.  Although liability under Molloy's procedural due process
claim had been directed by the court, the causation
determination under that theory was left to the jury, as were
damages.

                             -10-                                          10

of   gender   discrimination,   infra,   we  need   make   no                                                 

determination as  to  whether  or  not  the  court  erred  in

granting  judgment to  Plaintiff as  a matter  of law  on her

constitutional   claim  of  a  violation  of  procedural  due

process.9   Cf. Gulf  Oil Co.  v. Bernard,  452  U.S. 89,  99                                                     

(1981)  ("[P]rior to  reaching any  constitutional questions,

federal  courts must  consider nonconstitutional  grounds for

decision.").  

          Our analysis has the effect of mooting the district

court's holding as  to the  due process  claim, leaving  that

ruling without  legal  effect.   Cf.  Cardinal Chem.  Co.  v.                                                                     

Morton Int'l,  Inc., 508  U.S. 83, 93-95  (1993) (recognizing                               

that  in  patent  infringement   cases,  a  finding  of  non-

infringement prevents  a court  from reaching  an affirmative

defense  asserting   the  patent's  invalidity   because  the

validity issue becomes "immaterial  to the disposition of the

case," and that any determination of the patent's validity by

the  district court in such a case should be vacated) (citing

Electrical Fittings Corp. v. Thomas &amp; Betts Co., 307 U.S. 241                                                           

(1939)).  

                                                    

9.  For the same reasons, we also do not reach the City's
claim that it is not liable for the Chief's actions under  
1983.  The City does not contest respondeat superior
liability under Title VII.  See Randle v. City of Aurora, 69                                                                    
F.3d 441, 450 (10th Cir. 1995); Hamilton v. Rodgers, 791 F.2d                                                               
439, 444 (5th Cir. 1986); Scott v. City of Topeka Police &amp;                                                                      
Fire Civil Serv. Comm'n, 739 F.Supp. 1434, 1438 (D. Kan.                                   
1990).

                             -11-                                          11

                             III.

          We  turn next to  Defendants' assertion  that there

was insufficient  evidence to  support the jury's  verdict in

Plaintiff's favor on the sex discrimination claim.  Title VII

makes it unlawful  for an employer "to fail or refuse to hire

or to discharge any  individual, or otherwise to discriminate

against  any individual  with  respect  to his  compensation,

terms, conditions, or  privileges of  employment, because  of

such individual's  race,  color, religion,  sex, or  national

origin."  42 U.S.C.   2000e-2(a)(1).

          In  a Title VII disparate treatment case, if, as is

often  true, see Smith v. Stratus Computer, Inc., 40 F.3d 11,                                                            

15 (1st Cir. 1994), cert. denied, 115 S. Ct. 1958 (1995), the                                            

plaintiff has  no direct proof of  deliberate discrimination,

"the   plaintiff  must  make  out  a   prima  facie  case  of

discrimination, the employer must then come forward with some

non-discriminatory justification, and  the plaintiff  finally

is given the opportunity  to convince the trier of  fact that

the justification was pretextual and that the real reason was

discriminatory."   Cuello-Suarez v.  Puerto Rico  Elec. Power                                                                         

Auth., 988 F.2d 275, 278 (1st Cir. 1993).                   

          For  the  prima  facie  case,  a  disparate  impact

plaintiff must "identify and relate specific  instances where

persons  situated similarly  'in  all relevant  aspects' were

treated differently."  Dartmouth Review v. Dartmouth College,                                                                        

                             -12-                                          12

889  F.2d 13, 19 (1st  Cir. 1989) (quoting  Smith v. Monsanto                                                                         

Chem. Co., 770 F.2d  719, 723 (8th Cir. 1985),  cert. denied,                                                                        

475  U.S. 1050  (1986)).   "The  test  is whether  a  prudent

person, looking  objectively at  the  incidents, would  think

them  roughly  equivalent  and  the   protagonists  similarly

situated."   Id.  "Exact  correlation is  neither likely  nor                            

necessary,  but the cases must  be fair congeners.   In other

words, apples should be compared to apples."  Id.                                                             

          The  defendants  contend   that  Molloy  failed  to

establish a prima facie  case by establishing that "similarly

situated" males received more lenient treatment in respect to

suspension.  We disagree.

          At  trial,  the  Chief himself  testified  that  in

approximately  a  dozen  discipline  cases  involving Warwick

police  officers who were male,10 the  Chief had afforded the

officers the rights  created by the Officers' Bill of Rights,

as  he  conspicuously  would  not  do  for Molloy,  a  woman.

Moreover,  in a  number of  these cases  he kept  officers on

active duty after learning that they were suspected of highly

questionable behavior.  

          Scott Hornoff, for example, was the primary suspect

in the state  police investigation  of the 1989  murder of  a

woman  named Victoria Cushman.  Although the Chief knew as of

                                                    

10.  The Chief also briefly referred to a situation involving
a woman officer, but she was not identified, and the details
of her case remain unclear.

                             -13-                                          13

October  1991 that Hornoff was  the main suspect,  he did not

suspend him  as he later did  Molloy but instead  kept him on

active duty  working at an  administrative job.   Hornoff was

not suspended until he was eventually indicted for murder  by

a  grand jury in December  1994.  It  was conceded, moreover,

that  Hornoff's rights  under the  Law Enforcement  Officers'

Bill of Rights were recognized.

          Joseph Duquette, a senior Warwick police officer at

the  time of  the  Cushman case,  interfered  with the  state

police investigation of Hornoff.  In  1993, Duquette issued a

memorandum in  which he  ordered the members  of the  Warwick

Major Crimes  Unit not  to discuss the  Cushman investigation

with anyone  from the state attorney  general's office unless

such a discussion took  place pursuant to a subpoena  or with

the   explicit   permission   of   Duquette,   then-Commander

Castiglioni or Chief Blanchard.  Duquette was not disciplined

in  any  way  for  his  interference  with the  state  police

investigation until August of 1995, after Chief Blanchard had

been replaced by  Chief DeFeo.   While Appellants argue  that

the  Chief  was  unaware  of  Duquette's  activity,  we  find

sufficient evidence in  the record from which  the jury could

have properly inferred knowledge.

          We   conclude   that   Molloy  presented   evidence

sufficient   for  the  jury  to  have   found  that  she  had

                             -14-                                          14

established her prima  facie case  that "similarly  situated"

males had received dissimilar treatment.

          The  defendants go  on to  argue that  even if  the

conduct of  the disciplined  male  officers was  sufficiently

similar in material respects to Molloy's to establish a prima

facie case,  the weight of  the evidence was  insufficient to

support  a finding  "that the  justification [offered  by the

defendants]  was  pretextual and  that  the  real reason  was

discriminatory."  Cuello-Suarez, 988 F.2d at 278.                                           

          Presented  with  the  evidence  of  cases  such  as

Hornoff's and  Duquette's in  which male police  officers who

had  committed similar  or  more severe  offenses than  those

Molloy was  accused of  were  either not  disciplined or,  if

disciplined,  were  first  afforded their  rights  under  the

Officers' Bill of Rights, the jury was entitled to infer that

the   Chief's  proffered  explanation   for  his  more  harsh

treatment of Molloy    the state police's advice that she was

refusing  to cooperate  with them  and the  ostensible advice

that the  granting of rights was  unnecessary where, although

suspended, she was still being paid    was a pretext.  

          Essentially  the  same   evidence  also  allowed  a

reasonable jury  to conclude  that the plaintiff  had carried

her  burden  of  proving  that the  Chief  had  discriminated

against Molloy  because of her  gender in violation  of Title

VII.    See Udo  v.  Tomes, 54  F.3d  9, 13  (1st  Cir. 1995)                                      

                             -15-                                          15

(holding  that a plaintiff may  rely on the  same evidence to

prove both pretext and discrimination).  Molloy was suspended

without being  offered the  same rights granted  to similarly

situated male  officers.   Moreover, the reasons  supplied by

the  Chief for his refusal  to provide Molloy  with a hearing

were so flimsy as to permit a finding of mendacity:

          The factfinder's disbelief of the reasons
          put    forward     by    the    defendant
          (particularly if disbelief is accompanied
          by   a   suspicion  of   mendacity)  may,
          together with  the elements of  the prima
          facie case, suffice  to show  intentional
          discrimination.  Thus,  rejection of  the
          defendant's proffered reasons will permit                                                               
          the trier of  fact to infer  the ultimate
          fact  of intentional discrimination . . .
          .

St. Mary's Honor  Ctr. v.  Hicks, 509 U.S.  502, 511  (1993).                                            

See also Woods v. Friction Materials, Inc., 30 F.3d 255, 260-                                                      

61 n.3 (1st Cir. 1994); LeBlanc v. Great Am. Ins. Co., 6 F.3d                                                                 

836, 843 (1st Cir. 1993), cert. denied, 511 U.S. 1018 (1994).                                                  

The  Chief  was  experienced  in matters  arising  under  the

Officers' Bill of Rights,  yet he refused to grant  Plaintiff

her rights even after, with the assistance of an attorney and

a union  representative, she  had requested a  hearing.   The

Chief  said that  he had  refused to  grant Molloy  a hearing

because  the City  Solicitor  had  told  him no  hearing  was

required.   Yet  the statutory  language seems  utterly clear

that a hearing was required in this case.  See R.I. Gen. Laws                                                          

   42-28.6-13(C) ("Any  law enforcement officer  so suspended

                             -16-                                          16

shall  be  entitled  to a  prompt  hearing  before a  hearing

committee upon his  or her request.").  The  Chief's outright

refusal was  in marked contrast  to his regular  allowance of

these rights to  male officers.   We hold that  the jury  had

sufficient  evidence  from  which  to   infer  discriminatory

intent.  

                             IV.

          The  defendants'  remaining  contentions   are  not

persuasive.  First, they  argue that the district court  made

certain errors in admitting evidence at trial.  Our review of

the  record  satisfies us  that  such  errors,  if any,  were

harmless.   See Lataille v. Ponte,  754 F.2d 33, 37 (1st Cir.                                             

1985) ("Our standard for determining whether the admission of

such evidence is harmless  error is whether we can  say 'with

fair assurance . . . that the judgment  was not substantially

swayed  by the  error  . . . .'") (quoting  United States  v.                                                                     

Pisari, 636 F.2d 855, 859 (1st Cir.  1981) (quoting Kotteakos                                                                         

v. United States, 328 U.S. 750, 765 (1946))).                            

          Defendants  protest  that  there  was  insufficient

evidence to  allow  a reasonable  jury  to award  $23,000  in

damages, pointing  out that Molloy  could not have  lost more

than $5,000 in overtime, training, detail work and the  like.

They acknowledge that the  jury may have granted all  or some

of the remaining damages to compensate for Molloy's emotional

distress, but  insist that  since there were  other potential

                             -17-                                          17

causes  of  Molloy's  distress,  such  as  the  state  police

interrogation   and  her  worries   about  possible  criminal

prosecution, expert testimony was essential to establish what

portion  of her distress came from her suspension.  They cite

Andrade v. Jamestown Hous. Auth.,  82 F.3d 1179, 1187-88 (1st                                            

Cir.  1996), as  holding that  where there  is more  than one

possible cause  of a  plaintiff's emotional  distress, expert

testimony  is   required  to   establish  that  it   was  the

defendant's conduct that caused the plaintiff's  symptoms and

not some other factor.

          The defendants misstate our holding in Andrade.  In                                                                    

that case,  the plaintiff had  a previous history  of stomach

problems,  headaches, and  diarrhea.   We  held that  medical

testimony was  required for the  plaintiff to prove  that the

irritated   bowels,   diarrhea,    tension   headaches    and

sleeplessness  she experienced were  the result  of emotional

distress   caused  by   the  defendant   and  not   merely  a

continuation of her previous medical problems.  In that case,

we  sought  to  avoid  putting  juries  in  the  position  of

evaluating  the effect  of  a  preexisting medical  condition

without  the aid  of expert  medical testimony.   We  stated,

"[W]e  are not  establishing a  bright-line rule  that expert

testimony is always necessary to prove the causation prong of

[intentional infliction  of emotional distress].   There  may

very well be  situations where causation is within the common

                             -18-                                          18

knowledge and experience  of the layperson  . . . ."  Id.  at                                                                     

1188 n.5.

          This is such a  case.  There is no  contention that

Molloy's   asserted   anxiety,   nervousness,    nausea   and

sleeplessness  derived from a  preexisting medical condition.

The  sole  issue  was  the  role  of  Defendants' conduct  in

producing  those symptoms and the  placing of a fair monetary

valuation on them relative to the circumstances of this case.

The jury  heard and  could evaluate her  testimony describing

what  effect  the suspension  had upon  her as  compared with

other events.  It is unclear how an expert could have helped.

This  is the  kind  of determination  typically entrusted  to

juries.

          Besides emotional distress,  Molloy also  testified

that  the defendants' actions caused her  to suffer damage to

her personal  and professional reputations.   She stated that

her suspension, related as it was to  Sabetta's murder trial,

received  substantial publicity.  Also, during her suspension

Molloy testified as a witness at several trials in connection

with arrests she had  made previously.  At these  trials, she

had  to admit in open  court that she  was then suspended and

was  obliged  to describe  the circumstances  surrounding her

suspension.  The  jury was entitled to  compensate Molloy for

these additional elements of damage.

          The judgment is affirmed.  Costs to appellee.                                                                  

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