Bolden v. Southeastern Pennsylvania Transp. Authority

• Decision Date: 09 May 1994
• Docket Number: No. 93-1216,T,AFL-CI,93-1216
• Citation: 21 F.3d 29
• Parties: 146 L.R.R.M. (BNA) 2065, 62 USLW 2703, 127 Lab.Cas. P 57,650, 9 Indiv.Empl.Rts.Cas. (BNA) 676 Russell BOLDEN, v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Third-Party Plaintiff, v. TRANSPORT WORKERS UNION OF PHILADELPHIA, LOCAL 234, TRANSPORT WORKERS UNION OF AMERICA/hird-Party Defendant, Southeastern Pennsylvania Transportation Authority, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 29

21 F.3d 29

146 L.R.R.M. (BNA) 2065, 62 USLW 2703,

127 Lab.Cas. P 57,650,

9 Indiv.Empl.Rts.Cas. (BNA) 676

Russell BOLDEN, v. SOUTHEASTERN PENNSYLVANIA TRANSPORTATION AUTHORITY, Third-Party Plaintiff, v. TRANSPORT WORKERS UNION OF PHILADELPHIA, LOCAL 234,

TRANSPORT WORKERS UNION OF AMERICA/AFL-CIO,

Third-Party Defendant,

Southeastern Pennsylvania Transportation Authority, Appellant.

No. 93-1216.

United States Court of Appeals, Third Circuit.

Argued Sept. 9, 1993.

Decided April 7, 1994.

Sur Petition for Rehearing May 9, 1994.

Richard S. Meyer (argued), Blank, Rome, Comisky & McCauley, Philadelphia, PA, for appellant.

H. Francis deLone, Jr. (argued), Philadelphia, PA, for appellee.

Before: STAPLETON, ROTH and LEWIS, Circuit Judges.

LEWIS, Circuit Judge.

We revisit a case which had come before us in banc and which we had remanded for a new trial on damages. Now, after the trial on remand, we confront a contention that the jury verdict was inconsistent with the law of the case as established by our in banc opinion in the first appeal. We conclude that the jury's verdict can be reconciled with our prior ruling, and that the evidence presented at trial was sufficient to support the jury's award. We must also decide whether expert medical testimony is required to prove emotional distress damages in a case brought pursuant to 42 U.S.C. Sec. 1983 in this circuit. Our conclusion that such testimony is not required leads inexorably to affirmance of the district court.

I.

Plaintiff/appellee Russell Bolden was a maintenance custodian for the Southeastern Pennsylvania Transportation Authority ("SEPTA") from 1981 to 1986. This case, in which Bolden asserts a section 1983 claim against SEPTA, arises from his discharge for suspected drug use. The facts surrounding his employment with SEPTA and his claims are set forth in detail in our in banc opinion, see Bolden v. SEPTA, 953 F.2d 807 (3d Cir.1991) (in banc ) (Bolden I ), and we need not recite them here.

In Bolden I, we affirmed the district court's entry of judgment after a jury verdict for Bolden, holding that SEPTA had violated Bolden's rights by requiring him to undergo an unconstitutional drug test. We reversed the damage award, however, and limited the damages Bolden could recover on remand in light of an agreement settling a grievance he had asserted against SEPTA. See Bolden I, 953 F.2d at 829. Pursuant to that settlement, Bolden was to return to work in exchange for partial back pay on condition that he submit to future drug testing. Although that settlement did not have a res judicata or collateral estoppel effect on Bolden's section 1983 claim against SEPTA, id. at 825-26, we determined that Bolden was bound to it because the union had consented to it on his behalf. Because the settlement "had the same effect ... as if Bolden himself had consented to future drug testing," id. at 829, his subsequent refusal to return to work under the condition that he undergo further drug testing "cut off his right to damages for lost wages following that date." Id. (Emphasis added.) Because it was impossible to determine "how much of the jury verdict was based on lost wages and emotional distress occurring after this settlement," we reversed the award of damages and remanded for a new trial on that issue. Id. (Emphasis added.) In concluding our opinion, we reiterated "that SEPTA is not liable for wages lost by Bolden after the settlement between SEPTA and his union." Id. at 831 (emphasis added).

On remand, SEPTA argued that our in banc opinion mandated that Bolden be treated as if he had returned to work pursuant to the settlement agreement. SEPTA reasoned that if Bolden had returned to work, he would be able to show neither wage loss nor damages for emotional distress and harm to reputation suffered after the settlement date. Therefore, it first argued that the settlement entirely foreclosed recovery of those types of damages attributable to the period after the effective date of the settlement. SEPTA argued in the alternative that even if recovery of damages for emotional distress and harm to reputation incurred after the effective date of the settlement were not entirely precluded, our in banc decision mandated that Bolden be precluded from receiving damages for emotional distress and injury to reputation which stemmed from his being unemployed and from his discharge having rendered him "unemployable" after he rejected the opportunity to return to work provided by the settlement.

The district court refused SEPTA's proposed jury instructions to this effect; instead, it first submitted a general interrogatory to the jury, asking: "What amount of money damages, if any, is Russell Bolden entitled to receive from SEPTA for emotional distress and harm to his reputation alleged to have been sustained by him as the result of SEPTA's violation of his constitutional rights?" The jury answered "$250,001." App. at 207. The court then submitted a more specific set of interrogatories, asking the jury to delineate which portion of the $250,001 represented "damages sustained by [Bolden] before June 1, 1988" (the effective date of the settlement agreement) and which portion represented "damages sustained by him on or after June 1, 1988." The jury allocated $1.00 of the damages to the pre-June 1, 1988 period and $250,000 to the period on or after that date. App. at 208.

The district court denied SEPTA's post-trial motions for judgment as a matter of law, a remittitur or a new trial. Bolden v. SEPTA, 820 F.Supp. 949 (E.D.Pa.1993) (Bolden II ). SEPTA appeals, arguing that the district court erred in not accepting its reading of our in banc opinion. The district court had jurisdiction over this case pursuant to 28 U.S.C. Secs. 1331 and 1343, and we exercise jurisdiction pursuant to 28 U.S.C. Sec. 1291.

II.

We agree with the district court that the jury's allocation of the verdict "produced a peculiar and seemingly inconsistent result." Bolden II, 820 F.Supp. at 956. Whether this peculiar result should stand, however, depends upon whether, as a matter of law, Bolden can recover damages for post-settlement emotional distress and injury to reputation related to unemployment and unemployability in the wake of our in banc ruling that he was bound by the settlement. We apply a plenary standard of review to this determination. Feather v. United Mine Workers of America, 903 F.2d 961, 964 (3d Cir.1990).

Clearly, our in banc opinion was not intended to prohibit Bolden from recovering damages for all post-settlement emotional distress and injury to reputation. Our ruling that his settlement did not have a res judicata or collateral estoppel effect on his section 1983 case necessarily implied that his union had not resolved his section 1983 case by agreeing to that settlement. Instead, the union, acting pursuant to the Pennsylvania Public Employees Relations Act ("PERA"), Pa.Stat. tit. 43 Sec. 1101.606, settled only Bolden's discharge grievance with SEPTA, leaving his claims for damages stemming from the unconstitutional search and seizure, including those for emotional distress, unscathed whether they occurred before or after the settlement.

Our conclusion that Bolden was bound by the terms of the settlement and that his non-compliance with it terminated his right to lost wages after the effective date of the agreement did, however, preclude Bolden from recovering damages caused by his failure to return to work. The law of the case doctrine applies both to issues expressly decided by a court in prior rulings and to issues decided by necessary implication. Doe v. New York City Department of Social Services, 709 F.2d 782 (2d Cir.1983). When we concluded that Bolden was bound by the settlement and thus, in effect, had consented The issue before us, then, is whether the jury's apportionment of the verdict is inconsistent with our prior decision to the extent it may be construed as an award of damages based upon Bolden's failure to return to work, rather than the constitutional violation. SEPTA argues that because the jury apportioned liability as $1.00 for the period before the effective date of the agreement and $250,000 thereafter, it must have awarded damages for Bolden's being unemployed and "unemployable" after that date. SEPTA recognizes that "a verdict must be molded consistently with a jury's answers to special interrogatories when there is any view of the case which reconciles the various answers," Bradford-White Corp. v. Ernst & Whinney, 872 F.2d 1153, 1159 (3d Cir.1989) (emphasis added), ¹ but argues that "there is no view of the case that can rationally synthesize the primary verdict and the subsequent allocation, let alone make the results consistent with the en [sic] banc opinion." SEPTA's brief at 20 (emphasis in original).

to the testing as a condition of his return to work, our in banc opinion also necessarily implied that SEPTA could not be held responsible for damages stemming from Bolden's refusal to take the test and return to work.

To the contrary, Bolden's contention was that SEPTA's unconstitutional drug testing program branded him as a drug abuser and that he suffered severe emotional distress as a result. His lay witnesses gave testimony about his reaction to this branding from which the jury could have concluded that it left Bolden a broken man. We believe the jury could have found as well from Bolden's own testimony that the primary impact was not visited upon him until after his discharge. Until that time, he had pinned his hopes on being vindicated in the grievance process, but the settlement of the grievance dispelled that hope. Indeed, the jury may have believed the settlement--providing as it did that Bolden could return to work only after taking another drug test--exacerbated the impact of the branding by implying that he was a drug user.

While the PERA gave the union authority to settle Bolden's grievance without his consent, that settlement does...