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ROGERS v. KELLY

September 30, 1987

Leslie T. Rogers, Plaintiff
v.
Edward Kelly, Superintendent Little Rock, Arkansas, School District, et al., Defendants



The opinion of the court was delivered by: EISELE

 In an Opinion filed October 9, 1985, the Eighth Circuit Court of Appeals partially reversed this Court's Judgment in the above-styled case. Specifically, the Eighth Circuit affirmed the denial of plaintiff's claims of discrimination arising out of his discharge and reversed this Court's conclusion that plaintiff had not been denied procedural due process in being terminated. The Court of Appeals remanded the case with instructions that the Court determine damages for the denial of due process.

 In assessing damages, the Court must determine whether plaintiff suffered any actual damages from the deprivation. As the Supreme Court clearly stated in the controlling case of Carey v. Piphus, 435 U.S. 247, 267, 55 L. Ed. 2d 252, 98 S. Ct. 1042 (1978), the deprivation of a right to procedural due process without proof of actual damages warrants only an award of nominal damages:

 
By making the deprivation of such rights actionable for nominal damages without proof of actual injury, the law recognizes the importance to organized society that those rights be scrupulously observed; but at the same time, it remains true to the principle that substantial damages should be awarded only to compensate actual injury or, in the case of exemplary or punitive damages, to deter or punish malicious deprivations of rights.
 
Because the right to procedural due process is "absolute" in the sense that it does not depend upon the merits of a claimant's substantive assertions, and because of the importance to organized society that procedural due process be observed, we believe that the denial of procedural due process should be actionable for nominal damages without proof of actual injury.

 (Citations omitted; footnote omitted.) See also Pollock v. Baxter Manor Nursing Home, 716 F.2d 545 (8th Cir. 1983) (awarding nominal damages for discharge of employee in violation of procedural due process, where employee conceded that allegations of impropriety were true).

 Since its pronouncements in Carey, the Supreme Court has found occasion to amplify its remarks concerning the appropriate assessment of damages. In Memphis Community School District v. Stachura, 477 U.S. 299, 106 S. Ct. 2537, 2544, 91 L. Ed. 2d 249 (1986), an action arising from the unwarranted discharge of a teacher, the Court cited Carey in support of its holding that the abstract value of a constitutional right could not serve as a basis for an award of compensatory damages in an action arising under 42 U.S.C. § 1983. In accordance with its conclusion that damages in a § 1983 action are ordinarily determined by common-law tort principles, the Court further reaffirmed that compensatory damages might include not only verified pecuniary losses, but also payment for such subjective consequences as impairment of reputation, personal humiliation, and mental anguish and suffering. Id. 106 S. Ct. at 2542-43. Finally, the Court observed that punitive damages in an action of this sort would be appropriate only to punish willful or malicious conduct on the part of the defendant or to deter others from similar conduct in the future. Id. at 2543.

 It follows from the principles set forth above that plaintiff must be limited to nominal damages unless the constitutional breach either caused him actual loss or was sufficiently egregious to warrant an assessment of punitive damages. With respect to the issue of actual loss, in terms of tort principles the threshold question is whether defendants' failure to afford plaintiff procedural due process prior to his termination proximately caused his subsequent financial and professional reversals. The Court is persuaded that no such actual damage occurred, since it is both apparent from the factual record and implicit in Judge Overton's unassailed conclusions that plaintiff would have been fired even if he had been accorded procedural due process.

 Judge Overton's conclusions, based on the testimony at trial, echo the list of causes set forth in Superintendent Kelly's letter of intent to terminate Dr. Rogers:

 
(1) Your refusal to comply with and carry out certain tasks and duties assigned to you by your supervisor.
 
(2) Specific acts of insubordination, including telling youngsters not to do certain things they were told to do by Mrs. Hubbard.
 
(3) Your refusal to support certain policies and procedures of the school district.
 
(4) Your harrassment and intimidation of fellow employees through threats of legal action and threats to use a tape recorder ...

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