Before ADAMS, HIGGINBOTHAM and VAN DUSEN, Circuit Judges.
VAN DUSEN, Senior Circuit Judge.
Plaintiff, Catherine Spence, was transferred from her position as an art teacher at Newark High School, in Newark, Delaware, to a position teaching elementary school art in June of 1981. Plaintiff filed a complaint under 42 U.S.C. § 1983 on April 27, 1982, alleging that the transfer was in retaliation for the exercise of her First Amendment rights of free speech and free association. A jury trial was held in February 1984; the jury found that plaintiff's exercise of her rights to free speech and association was a substantial motivating factor in the decision to transfer her from Newark High School. The jury awarded plaintiff $25,000. in compensatory damages and assessed punitive damages against defendant John McIntosh, the school's principal, in the amount of $3,500.
Defendants filed a motion for a new trial pursuant to Fed.R.Civ.P. 59. The district court issued an opinion and order dated April 4, 1984, directing that plaintiff remit $22,060. of the compensatory damages (representing emotional distress damages) or undergo a new trial on both the issues of damages and liability. Contrary to the implication of the concurrence, see concurrence typescript at 9, the district court did not eliminate all compensatory damages.*fn1 Nonetheless, plaintiff refused to accept the remittitur and elected to proceed with a new trial.
On April 4, 1985, plaintiff requested the district court to reconsider its opinion and order of April 4, 1984, and requested that the retrial be limited solely to the question of damages. The district court denied these requests on October 10, 1985.
The second trial on both the issues of damages and liability was held in March 1986. The jury returned a verdict for defendants, finding that the plaintiff's exercise of her First Amendment rights was not a substantial or motivating factor in the decision to transfer her. A final judgment was entered in favor of the defendants pursuant to that verdict.
Plaintiff appeals from the district court's order of April 4, 1984, ordering remittitur or a new trial and from its October 10, 1985, order denying plaintiff's request that the retrial be limited to the issue of damages.*fn2 For the reasons set forth below, we will affirm the abovementioned district court orders.
The first issue presented to this court is whether the district court erred in its issuance of a remittitur. Plaintiff argues that the district court's order rests on a misinterpretation of Carey v. Piphus, 435 U.S. 247, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978). In Carey, the Supreme Court held that substantial compensatory damages could not be awarded in that case absent proof that actual injury resulted from a denial of procedural due process. Id. at 248, 98 S. Ct. at 1044. The district court, relying on Carey, stated that "[a]lthough mental and emotional distress caused by the denial of first amendment rights is compensable, an award of damages for such injury will not stand without proof that such injury was actually caused." Spence v. Board of Education, Civil No. 82-212, D.Del., slip op. at 2, App. at A-23 (citing Carey, 435 U.S. at 264, 98 S. Ct. at 1052). Plaintiff argues that Carey does not apply to this case because its holding was limited solely to procedural due process deprivations, and not to situations where substantive constitutional rights have been violated. The Supreme Court recently rejected this distinction in Memphis Community School District v. Stachura, 477 U.S. 299, 106 S. Ct. 2537, 91 L. Ed. 2d 249 (1986):
"[Carey] does not establish a two-tiered system of constitutional rights, with substantive rights afforded greater protection than 'mere' procedural safeguards. We did acknowledge in Carey that 'the elements and prerequisites for recovery of damages' might vary depending on the interests protected by the constitutional right at issue. . . . But we emphasized that, whatever the constitutional basis for § 1983 liability, such damages must always be designed 'to compensate injuries caused by the [constitutional] deprivation.'"
Id., 106 S. Ct. at 2544 (quoting Carey, 435 U.S. at 264-65, 98 S. Ct. at 1052-53) (emphasis in original).
Notwithstanding this language, plaintiff argues that Carey and Memphis support a finding that damages may be presumed in the case at bar. We do not agree. Although the Supreme Court in both cases acknowledged that presumed damages may be appropriate in certain situations, the Court did not state that damages may be presumed in a case in which a plaintiff is unable to prove emotional distress resulting from a First Amendment violation. To the contrary, the Court stated that the doctrine of presumed damages is "an oddity in tort law" and has been applied only in limited circumstances, chiefly in the area of defamation per se. Carey, 435 U.S. at 262, 98 S. Ct. at 1051 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 349, 94 S. Ct. 2997, 3011-12, 41 L. Ed. 2d 789 (1974)). The situations alluded to by the Memphis Court that would justify presumed damages are also those involving defamation and the deprivation of the right to vote. Memphis, 106 S. Ct. at 2545 & n. 14.
In the case at bar, plaintiff alleged a First Amendment violation that resulted in emotional distress. Her claim does not fall within the narrow category of cases in which damages may be presumed. Indeed, the Supreme Court made clear in Carey that damages in the nature of emotional ...