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 co-
workers, 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 submit-
ted to the jury, which held Alston responsible
for a $16,857.99 set-off.
