
USCA1 Opinion

	




                            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 & 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 &                                      _____    _______________________            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.                      ________________________   _________________                                         -19-                                          19
