Knussman v. State of Maryland

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HOWARD KEVIN KNUSSMAN, 

Plaintiff-Appellee,

and

KIMBERLY ANN KNUSSMAN, on behalf

of themselves and their infant

daughter, a/k/a Riley Paige

Knussman,

Plaintiff,

v.

STATE OF MARYLAND; DAVID B.

MITCHELL, Colonel, individually and

in his official capacity as  No. 99-2349

Superintendent; DAVID CZORAPINSKI,

Captain, individually and in his

official capacity as Assistant

Commander of Aviation; RONNIE P.

CREEL, First Sergeant, individually

and in his official capacity as

Director of Flight Operations; JILL

D. MULLINEAUX,

Defendants-Appellants,

and

MARYLAND STATE POLICE,

Defendant.



Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Walter E. Black, Jr., Senior District Judge.

(CA-95-1255-B)

Argued: January 26, 2001

Decided: November 7, 2001

2 KNUSSMAN v. STATE OF MARYLAND

Before WILLIAMS and TRAXLER, Circuit Judges, and

Gerald Bruce LEE, United States District Judge for the

Eastern District of Virginia, sitting by designation.

Affirmed in part, vacated in part, and remanded by published opinion.

Judge Traxler wrote the majority opinion, in which Judge Williams

joined. Judge Lee wrote an opinion concurring in part and dissenting

in part.

COUNSEL

ARGUED: David Phelps Kennedy, Assistant Attorney General, Bal-

timore, Maryland, for Appellants. Robin R. Cockey, COCKEY,

BRENNAN & MALONEY, Salisbury, Maryland, for Appellee. ON

BRIEF: J. Joseph Curran, Jr., Attorney General of Maryland, Betty

Stemley Sconion, Assistant Attorney General, Donald E. Hoffman,

Assistant Attorney General, Baltimore, Maryland, for Appellants.

Deborah A. Jeon, AMERICAN CIVIL LIBERTIES UNION FOUN-

DATION OF MARYLAND, Centreville, Maryland; Sara L. Mandel-

baum, AMERICAN CIVIL LIBERTIES UNION, New York, New

York, for Appellee.

OPINION

TRAXLER, Circuit Judge:

Howard Kevin Knussman, a trooper in the Maryland State Police,

brought an action alleging that the State of Maryland and several indi-

vidual employees of the Maryland State Police (collectively "the

defendants") unlawfully discriminated against him on the basis of his

gender, for which he sought recourse under 42 U.S.C.A. § 1983 (West

Supp. 2000); and that the defendants violated his rights under the

Family and Medical Leave Act of 1993 (FMLA), see 29 U.S.C.A.

§§ 2601 – 2654 (West 1999), for which he sought recourse under

§ 1983 and directly under the FMLA. Following a jury trial and vari-

KNUSSMAN v. STATE OF MARYLAND 3

ous post-trial motions, judgment in the amount of $375,000 was

entered against only one of the defendants — Jill Mullineaux, a civil-

ian employee of the Maryland State Police.

On appeal, Mullineaux contends that she was entitled to qualified

immunity. Alternatively, she challenges the verdict on several

grounds. We conclude that Mullineaux was not entitled to qualified

immunity; however, we find that the award of damages was exces-

sive. Accordingly, we set aside the jury’s award of damages and

remand for further proceedings on that issue.

I.

In 1994, Knussman learned that his wife Kimberly was pregnant.

At the time, Knussman held the rank of trooper first class and served

as a paramedic on medevac helicopters in the Aviation Division of the

Maryland State Police ("MSP"). Unfortunately, Kim’s pregnancy was

difficult and ultimately resulted in her confinement to bed rest in the

latter stages prior to delivery. In October 1994, Knussman submitted

a written request to his supervisor asking that Knussman be permitted

to take four to eight weeks of paid "family sick leave" to care for his

wife and spend time with his family following the birth of his child.1

J.A. 121. Eventually, Knussman was informed by the MSP Director

of Flight Operations, First Sergeant Ronnie P. Creel, that there was

"no way" that he would be allowed more than two weeks. Creel testi-

fied that, at the time of Knussman’s request, the Aviation Division

was understaffed. According to Knussman, Creel misinformed him

that if he wanted more leave, he would be forced to take unpaid leave

because the FMLA did not entitle him to further paid leave. Knuss-

man testified that he was unfamiliar with the FMLA because the MSP

had failed to provide proper notice to its employees about their rights

under the FMLA.

1

Maryland law permitted a state employee to use paid sick leave for

reasons other than the employee’s own illness, including "for death, ill-

ness, or disability in the employee’s immediate family." Md. Code Ann.,

State Pers. & Pens. § 7-502(b)(2) (1994). The statute was later amended

and reorganized; however, Maryland law still permits this particular use

of a state employee’s sick leave. See Md. Code Ann., State Pers. & Pens.

§ 9-501(b)(2) (1996).

4 KNUSSMAN v. STATE OF MARYLAND

In early December, shortly before the Knussmans’ daughter was

born, Jill Mullineaux, manager of the medical leave and benefit sec-

tion of the MSP Personnel Management Division, notified all MSP

employees of a new Maryland statutory provision that allowed the use

of paid sick leave by a state employee to care for a newborn. See Md.

Code Ann., State Pers. & Pens. §§ 7-502(b)(3), 7-508 (1994). The

statute permitted "[p]rimary care givers" to "use, without certification

of illness or disability, up to 30 days of accrued sick leave to care for

[a] child . . . immediately following: . . . the birth of the employee’s

child." Md. Code Ann., State Pers. & Pens. § 7-508(a)(1). A

"[p]rimary care giver" was defined as "an employee who is primarily

responsible for the care and nurturing of a child." Md. Code Ann.,

State Pers. & Pens. § 7-508(a)(1). By contrast, a "[s]econdary care

giver," i.e., "an employee who is secondarily responsible for the care

and nurturing of a child," might use up to 10 days of accrued sick

leave without providing proof of illness or disability. Md. Code Ann.,

State Pers. & Pens. § 7-508(b)(1).2 In contrast to "family sick leave,"

which required an employee to provide verification of a family mem-

ber’s illness, the new "nurturing leave" provision permitted an

employee to use paid sick leave without providing any medical docu-

mentation, since this type of leave was not actually related to the ill-

ness or disability of the employee or the employee’s family.3

Believing that this "nurturing leave" might afford him more paid

leave than he would receive from his request for "family sick leave,"

Knussman contacted Mullineaux for additional information about

using his accrued sick leave under § 7-508. Specifically, he wanted to

know whether he could qualify as a primary care giver under § 7-

508(a)(1) and take 30 days of paid sick leave. According to Knuss-

man, Mullineaux informed him that only birth mothers could qualify

as primary care givers; fathers would only be permitted to take leave

2

Section 7-508 has been amended and recodified, and it now provides

for the use of up to an aggregate of 40 days of accrued sick leave if two

state employees are responsible for the care of a newborn. See Md. Code

Ann., State Pers. & Pens. § 9-505(b)(1) (1996). Section 7-508(b)(1), had

it been in effect at the time, apparently would have applied to the Knuss-

mans, who were both state employees.

3

For ease of reference, we adopt the term "nurturing leave." This term,

however, does not appear in the statute.

KNUSSMAN v. STATE OF MARYLAND 5

as secondary care givers since they "couldn’t breast feed a baby." J.A.

136. Mullineaux, who testified that she was merely passing along the

Maryland Department of Personnel’s (DOP) view of "primary care

giver," denied adopting such a categorical interpretation.4 In any case,

Knussman’s superior officers in the Aviation Division, having con-

sulted Mullineaux about the untested nurturing leave provision,

granted him 10 days of paid sick leave as the secondary care giver

under § 7-508(b).

The Knussmans’ daughter was born on December 9, 1994. Kim-

berly Knussman, however, continued to experience health problems.

Before his authorized 10-day leave expired, Knussman contacted Ser-

geant J.C. Collins, one of his supervisors, and inquired whether his

status could be changed to that of primary care giver and his paid sick

leave extended to 30 days under section 7-508(a). Knussman

explained to Collins that he was the primary care giver for the child

because, given his wife’s condition following delivery, he was per-

forming the majority of the essential functions such as diaper chang-

ing, feeding, bathing and taking the child to the doctor.

David Czorapinski, the Assistant Commander for the Aviation

Division during this time, learned of Knussman’s inquiry and, unable

to reach Mullineaux, gathered some preliminary information on the

new law himself. Czorapinski learned that the Maryland DOP

intended to take the position that the mother was the primary care

giver and the father was secondary. Czorapinski passed this informa-

tion down the chain-of-command and Knussman was told that it was

unlikely that his paid sick leave would be extended under section 7-

508(a).

On the day before Knussman was scheduled to return to work,

Knussman made a final attempt at obtaining additional sick leave.

4

Mullineaux testified that she never told Knussman that fathers were,

as a class, ineligible for primary care giver status. Rather, Mullineaux’s

version was that she told Knussman, based on information provided by

the state Department of Personnel, "that the birth mother was presumed

to be the primary care giver and if he wanted to qualify as the primary

care giver, he could, if he could provide [supporting] information." J.A.

488.

6 KNUSSMAN v. STATE OF MARYLAND

Sergeant Carl Lee, one of Knussman’s immediate superiors, had ear-

lier informed Knussman that although nurturing leave as a primary

care giver was probably not an option, Knussman might be eligible

for additional paid leave under the family sick leave provision, see

Md. Code Ann., State Pers. & Pens. § 7-502(b)(2), as long as he

could demonstrate that it was medically necessary for him to care for

his wife. Knussman contacted Mullineaux to find out what informa-

tion he needed to supply for family sick leave.5 During this conversa-

tion, Knussman again discussed his eligibility for nurturing leave as

a primary care provider under section 7-508(a) with Mullineaux, who

explained that "God made women to have babies and, unless [he]

could have a baby, there is no way [he] could be primary care

[giver]," J.A. 153, and that his wife had to be "in a coma or dead,"

J.A. 154, for Knussman to qualify as the primary care giver.

Mullineaux denied Knussman’s request for paid sick leave under

§ 7-508(a) as a primary care giver. Knussman returned to work as

ordered and immediately filed an administrative grievance on the

grounds that he had been improperly denied primary care giver status

under § 7-508(a). He did not seek review of Mullineaux’s denial of

his request for family sick leave under section 7-502(b)(2). Once the

grievance process was underway, Knussman’s claim went up the

MSP chain-of-command and Mullineaux’s involvement ceased.

Knussman’s grievance was denied at each stage of the four-level

grievance procedure. By the time Knussman reached step two, which

consisted of a review conference held by Knussman’s Assistant Com-

manding Officer Czorapinski, the MSP apparently had retreated from

Mullineaux’s earlier, categorical classification of mothers as primary

care givers and fathers as secondary providers. Czorapinski testified

5

Knussman subsequently submitted a letter from Kimberly Knuss-

man’s doctor in support of his request for family sick leave; however,

Mullineaux concluded that the letter was insufficient to justify family

sick leave because "it [did not] say what care [Knussman was] going to

provide, and it [did not] say that [Knussman] need[ed] to be home . . .

like it’s [Knussman’s] choice and not the doctor’s requirement." J.A.

827. Although Czorapinski suggested to Knussman that the deficiencies

could be easily corrected, Knussman refused "to pursue this option any

further." J.A. 828.

KNUSSMAN v. STATE OF MARYLAND 7

that prior to the grievance conference, he notified Knussman that the

DOP had "recanted [its] policy [that] mother’s primary, father’s sec-

ondary," J.A. 840, and that Knussman was indeed eligible for primary

care giver status and could qualify by providing "some information on

why you are the primary caregiver." J.A. 841. And, Knussman

acknowledged that Czorapinski explained that he would be trying to

determine during the step two grievance conference whether Knuss-

man was the primary care giver. Also, Czorapinski’s later written rul-

ing explained that "the overall issue of primary vs. secondary was still

a matter to be resolved in [Knussman’s] case" and that Knussman was

told to "be prepared to establish himself as primary care giver at the

conference." J.A. 1208. Thus, Czorapinski, interpreting the statute to

permit only one primary care giver, offered Knussman the opportu-

nity to demonstrate that he was that person.

After a formal conference with Knussman and his lawyer,

Czorapinski denied Knussman’s grievance, reasoning that Knussman

failed to present enough evidence to support his claim of primary sta-

tus:

The grievance filed by Tfc. Knussman states that Mrs.

Knussman had medical complications during and after preg-

nancy that necessitated him to assume primary child care

responsibilities. [The documents] presented to verify this

necessity fail to make any argument in that regard. . . .

All indications are that Mrs. Knussman was capable of

providing for the care and nurturing of their child after birth.

She was off on maternity leave from December 9, 1994

when the child was born until January 23, 1995 when she

was certified fit for full time work, a period equivalent to the

30 days allowed by the statute involved in this matter. Addi-

tionally, there was nothing offered to indicate that she was

unwilling or otherwise unable to provide care for the child.

Basically speaking, she was receiving all of the benefits

afforded by statute.

Taking into consideration all of these facts, Mrs. Knuss-

man has to be identified as the primary care giver in this

instance. Tfc. Knussman has not shown any difference

8 KNUSSMAN v. STATE OF MARYLAND

between himself and Mrs. Knussman in skill, talent or abil-

ity in providing care and nurturing for the child. Since Mrs.

Knussman was already receiving benefits equal to those

specified for primary care givers according to statute, there

is no reason to extend similar primary care benefits [to] Tfc.

Knussman. He was afforded benefits of [a] secondary care

provider as he was rightfully entitled. While Tfc. Knussman

may have desired the designation as primary, he has failed

to justify that claim.

J.A. 1209-10. Essentially, Czorapinski believed that Kimberly Knuss-

man, who was also a state employee, was enjoying the benefits of

nurturing leave as a primary care giver because, following delivery,

she took sick leave for a 30-day period — the same amount of time

afforded a primary care giver under § 7-508(a). Thus, Czorapinski

was concerned that both Knussmans were attempting to qualify as the

primary care giver for their daughter when the statute indicated only

one person could qualify. At trial, Knussman presented evidence that,

prior to the step two grievance conference, Mullineaux and Czorapin-

ski were made aware of the fact the Kimberly Knussman was, in fact,

on sick leave for her own disability resulting from the difficult preg-

nancy. Following Czorapinski’s decision, Knussman pursued his

complaint through the two remaining steps of the internal grievance

procedure without success.

Knussman then filed a three-count action in federal court. In Count

I, Knussman sought relief under § 1983, claiming that his leave

request under § 7-508(a) was denied as a result of gender discrimina-

tion in violation of the Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution. In Count II, Knussman

asserted that the denial of his request for additional paid leave vio-

lated the FMLA. See 29 U.S.C.A. § 2612(d)(2)(A) ("An eligible

employee may elect . . . to substitute any of the accrued paid . . . per-

sonal leave, or family leave of the employee for leave provided under

[the FMLA] for any part of the 12-week period of such leave . . . .").

Knussman brought Count II directly under the FMLA as well as

under § 1983. Third, Knussman asserted a claim under the Maryland

Equal Rights Amendment but subsequently agreed to dismiss it. He

named as defendants the State of Maryland, the MSP, and several

employees of the MSP, in both their individual and official capacities:

KNUSSMAN v. STATE OF MARYLAND 9

Mullineaux, Czorapinski, Creel, and Colonel David B. Mitchell,

Superintendent of the MSP.

Initially, the defendants moved to dismiss Counts I and II on the

grounds that the Eleventh Amendment afforded immunity from suit

to the State of Maryland, the MSP, and the individual defendants in

their official capacities. The district court dismissed Knussman’s

§ 1983 equal protection claim under Count I as to the State of Mary-

land, the MSP, and the individual defendants in their official capaci-

ties to the extent the claims sought money damages. See Knussman

v. State of Maryland, 935 F. Supp. 659, 663-64 (D. Md. 1996). The

district court denied the motion to dismiss with respect to Knussman’s

claims under Count II that the defendants violated the FMLA. See id.

at 664.

After a period of discovery, the defendants moved for summary

judgment on the grounds that they were entitled to qualified immunity

and that Knussman could not prove an equal protection violation in

the first place. With respect to Knussman’s equal protection claim

under § 1983 (Count I), the court concluded that the facts, viewed in

the light most favorable to Knussman, indicated that the defendants

applied a gender-based presumption that the birth mother was the pri-

mary care giver, which would amount to an equal protection viola-

tion. See Knussman v. State of Maryland, 16 F. Supp. 2d 601, 611-12

(D. Md. 1998) ("Knussman II"). The district court further concluded

that the defendants were not entitled to qualified immunity because

it was well-established at the time that gender discrimination in

employment was prohibited under the Fourteenth Amendment:

Although the Maryland leave law had been amended effec-

tive less than one month before [Knussman] requested leave

and the DOP had not issued any guidelines regarding appli-

cation of the amended law, the right to equal protection is

a well-established principle. It is also clear that gender dis-

crimination violates the equal protection clause. Discrimina-

tory application of a gender neutral state law is patently

illegal and defendants should have known at least this much.

Id. at 612. As for the FMLA claims (Count II), however, the district

court granted qualified immunity to all of the individual defendants

in their individual capacities. See id. at 611.

10 KNUSSMAN v. STATE OF MARYLAND

Thus, the case went to trial on portions of both counts in the com-

plaint. As for Count I, Knussman’s § 1983 equal protection claim

remained intact against the State of Maryland (but only for declara-

tory and injunctive relief) and the defendants in their individual

capacities. At the close of the evidence, the court submitted the ques-

tion of qualified immunity to the jury as well as the ultimate question

of liability. The jury concluded that each defendant denied Knuss-

man’s request for leave because of his gender; however, the jury also

found that every defendant except Mullineaux was entitled to quali-

fied immunity. Knussman does not challenge this conclusion on

appeal. On Count II, the FMLA claim brought under both the FMLA

and § 1983 against the State of Maryland and the defendants in their

official capacities, the jury concluded that all of the defendants denied

Knussman leave to which he was entitled under the FMLA. The jury

awarded Knussman the sum of $375,000 in damages.

The defendants moved for judgment as a matter of law pursuant to

Rule 50(b) of the Federal Rules of Civil Procedure, or, alternatively,

for a new trial under Rule 59(a). See Knussman v. State of Maryland,

65 F. Supp. 2d 353, 354 (D. Md. 1999) ("Knussman III"). The district

court rejected Mullineaux’s renewed argument that she was entitled

to qualified immunity:

The Court finds no reason to disturb the jury’s findings in

this regard. A jury could have reasonably concluded from

the evidence that Mullineaux, as the personnel officer in the

State’s Personnel Management Division, should have recog-

nized that she was applying a gender neutral leave statute in

a discriminatory manner by making only men prove they are

primary care givers to a newborn or adopted child.

Knussman III, 65 F. Supp. 2d at 360.

The defendants also raised various challenges to the damages

awarded by the jury on Count II, the FMLA claim. Ultimately, the

district court vacated the jury’s verdict on Count II and "amend[ed]

the judgment to remove the State and the individual defendants in

their official capacities from liability for money damages." Id. at 360.

Thus, Mullineaux became the only defendant subject to monetary lia-

bility. She argued that the $375,000 award of damages was excessive.

KNUSSMAN v. STATE OF MARYLAND 11

The district court rejected this argument, concluding there was suffi-

cient evidence for the jury to conclude that Knussman suffered signif-

icant emotional damage. See id.

On appeal, Mullineaux contends that she was entitled to qualified

immunity on Knussman’s equal protection claim under § 1983. She

also challenges, on multiple grounds, the jury’s verdict as well as the

court’s jury instructions.6

II.

First, we turn to defendant Mullineaux’s argument that she was

entitled to qualified immunity from Knussman’s claims. Public offi-

cials "are protected by qualified immunity when performing their

duties within the scope of their employment insofar as their conduct

does not breach ‘clearly established statutory or constitutional rights

of which a reasonable person would have known.’" Sigman v. Town

of Chapel Hill, 161 F.3d 782, 786 (4th Cir. 1998) (quoting Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982)). "The reasonableness inquiry

is an objective one, measured by reference to clearly established law."

Milstead v. Kibler, 243 F.3d 157, 161 (4th Cir. 2001) (internal quota-

tion marks omitted). Essentially, officials

performing a discretionary function enjoy an immunity that

shields them from liability for civil damages unless (1) the

officers’ conduct violates a federal statutory or constitu-

tional right, and (2) the right was clearly established at the

time of the conduct, such that (3) an objectively reasonable

officer would have understood that the conduct violated that

right.

6

We need not address whether the Eleventh Amendment permits

Knussman to bring an FMLA claim against the States and the defendants

in their official capacities. The district court vacated the jury’s verdict on

Count II and Knussman has not appealed that decision. In light of our

disposition of this appeal, there is no need to determine whether the sub-

mission of the FMLA claim to the jury tainted the verdict, and hence no

need to examine the viability of Knussman’s FMLA claim.

12 KNUSSMAN v. STATE OF MARYLAND

Id.; see Anderson v. Creighton, 483 U.S. 635, 638-40 (1987).

Wilson v. Layne, 526 U.S. 603 (1999), instructs that "[a] court eval-

uating a claim of qualified immunity ‘must first determine whether

the plaintiff has alleged the deprivation of an actual constitutional

right at all, and if so, proceed to determine whether that right was

clearly established at the time of the alleged violation.’" Id. at 609

(emphasis added) (quoting Conn v. Gabbert, 526 U.S. 286, 290

(1999)); Saucier v. Katz, 533 U.S. ___, No. 99-1977, slip op. at 5

(June 18, 2001). "Were courts to rule on qualified immunity without

determining the constitutionality of the challenged conduct, ‘stan-

dards of official conduct would tend to remain uncertain, to the detri-

ment both of officials and individuals. An immunity determination,

with nothing more, provides no clear standard, constitutional or non-

constitutional.’" Kibler, 243 F.3d at 162 (quoting County of Sacra-

mento v. Lewis, 523 U.S. 833, 841 n.5 (1998)).

The initial question, therefore, is whether a violation of a constitu-

tional right has been demonstrated. See Wilson, 526 U.S. at 609. "If

so, we may proceed to determine whether [the official] is entitled to

qualified immunity or whether, because he ran afoul of clearly estab-

lished constitutional rights, he is to be held personally accountable for

his unlawful conduct." Doe v. Broderick, 225 F.3d 440, 446 (4th Cir.

2000).

Mullineaux moved for qualified immunity at the summary judg-

ment stage under Rule 56 of the Federal Rules of Civil Procedure.

The district court denied the motion. See Knussman II, 16 F. Supp.

2d at 612. The case proceeded to trial and the district court submitted

the question of qualified immunity to the jury. With regard to the

question of whether Knussman established a constitutional violation,

the court instructed the jury that "[t]he government and its officials

may employ a sex-based classification or policy only if they can dem-

onstrate an exceedingly persuasive justification for the policy and can

show that the discriminatory classification is substantially related to

the achievement of governmental objectives." J.A. 1091-92. The jury

was further instructed that "[w]here a law is gender neutral on its face,

discriminatory application of that law is unconstitutional." J.A. 1092.

The district court then explained that even if the jury were to conclude

that the defendants discriminated based on gender, the defendants

KNUSSMAN v. STATE OF MARYLAND 13

could escape liability if they were entitled to qualified immunity, i.e.,

"if at the time [they] discriminated based on gender [they] neither

knew nor should have known that [their] actions were contrary to fed-

eral law." J.A. 1092. The jury was told that at the time in question,

it was clearly established federal law that "gender discrimination vio-

lates the equal protection clause." J.A. 1092. The jury concluded that

all of the individual defendants except Mullineaux were entitled to

qualified immunity.

Mullineaux renewed her motion at the post-verdict stage under

Rule 50(b). The district judge, in reviewing the Rule 50(b) motion,

refused to disturb the jury’s determination that Mullineaux was not

entitled to qualified immunity. See Knussman III, 65 F. Supp. 2d at

360-61. Ultimately, it is this decision that we are reviewing. On

appeal, we consider the district court’s ruling on the Rule 50(b)

motion in light of the full trial record rather than the court’s denial of

summary judgment under Rule 56(c) on less than a full record. See

Chesapeake Paper Prods. Co. v. Stone & Webster Eng’g Corp., 51

F.3d 1229, 1236-37 (4th Cir. 1995). Our review of the district court’s

denial of Mullineaux’s Rule 50(b) motion is de novo, and we view the

evidence in the light most favorable to Knussman. See Austin v. Para-

mount Parks, Inc., 195 F.3d 715, 727 (4th Cir. 1999).

Before turning to our analysis of whether Mullineaux is entitled to

qualified immunity, we pause to note that, although the jury may be

suited for making factual findings relevant to the question of qualified

immunity, we believe it is far better for the court, not the jury, to

answer the ultimate legal question of whether a defendant is entitled

to qualified immunity. See Warren v. Dwyer, 906 F.2d 70, 76 (2nd

Cir. 1990) ("The ultimate legal determination whether, on the facts

found, a reasonable police officer should have known he acted unlaw-

fully is a question of law better left for the court to decide."). The

nature of the analysis — requiring an examination of current federal

law and federal law as it existed at the time of the alleged violation

— makes for an awkward determination by the jury, at best. But,

since the issue has not been raised, we will leave for another day the

question of whether it is ever appropriate for a jury to answer the ulti-

mate legal question of a defendant’s entitlement to qualified immu-

nity.

14 KNUSSMAN v. STATE OF MARYLAND

A.

We first consider the issue of whether the evidence adduced at trial

is sufficient to establish that Mullineaux committed a constitutional

violation under the law as it currently stands. In a nutshell, Knuss-

man’s contention is that Mullineaux applied a facially neutral statute

unequally solely on the basis of a gender stereotype in violation of the

Equal Protection Clause of the Fourteenth Amendment. The only dis-

tinction created by the statute was between "primary care givers" and

"secondary care givers," the former being entitled to 30 days of

accrued sick leave to care for a newborn and the latter being entitled

to 10 days of accrued sick leave. See Md. Code Ann., State Pers. &

Pens. § 7-508. The statute made no reference to gender. Rather, the

gender classification was created in the application of § 7-508.

Viewed in the light most favorable to Knussman, Mullineaux, based

on the comments of an administrative assistant to the DOP’s Director

of Legislation, took the position that only mothers could qualify for

additional paid leave as primary care givers under § 7-508(a). Essen-

tially, Mullineaux applied an irrebutable presumption that the mother

is the primary care giver, and therefore entitled to greater employment

benefits.7

We agree with Knussman that Mullineaux’s conduct violated his

rights under the Equal Protection Clause. Government classifications

drawn on the basis of gender have been viewed with suspicion for

three decades, beginning with the Supreme Court’s decision in Reed

v. Reed, 404 U.S. 71, 77 (1971), in which the Court condemned "dis-

similar treatment for men and women who are . . . similarly situated."

As its equal protection jurisprudence developed in subsequent cases,

the Court did not view gender classifications as "benign":

7

The fact that Mullineaux told Knussman that he would be eligible for

primary care giver status if his wife were "in a coma or dead" is of no

moment. That was the same as telling Knussman he could never qualify.

If Knussman is given the benefit of the doubt, the evidence establishes

that Mullineaux categorically denied fathers eligibility for primary care

giver status. Thus, it is unnecessary for us to decide whether Mullineaux

could have constitutionally applied a truly rebuttable presumption in

favor of the mother.

KNUSSMAN v. STATE OF MARYLAND 15

[S]ince sex, like race and national origin, is an immutable

characteristic determined solely by the accident of birth, the

imposition of special disabilities upon the members of a par-

ticular sex because of their sex would seem to violate "the

basic concept of our system that legal burdens should bear

some relationship to individual responsibility . . . ." And

what differentiates sex from such nonsuspect [classifica-

tions] as intelligence or physical disability . . . is that the sex

characteristics frequently bears no relation to ability to per-

form or contribute to society.

Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (first ellipsis in

original) (citation omitted); see United States v. Virginia, 518 U.S.

515, 532 (1996) ("VMI") ("Since Reed, the Court has repeatedly rec-

ognized that neither federal nor state government acts compatibly

with the equal protection principle when a law or official policy

denies to women, simply because they are women, full citizenship

stature. . . ."). Thus, a gender classification is subject to heightened

scrutiny and will fail unless it "serve[s] important governmental

objectives and [is] substantially related to achievement of those objec-

tives." Craig v. Boren, 429 U.S. 190, 197 (1976); see Wengler v.

Druggists Mut. Ins. Co., 446 U.S. 142, 150 (1980); see also Mitchell

v. Commissioner of the Social Security Administration, 182 F.3d 272,

274 (4th Cir.) ("[C]ertain quasi-suspect classifications, such as gender

and illegitimacy, are subject to an intermediate form of scrutiny and

will be upheld if ‘substantially related to a sufficiently important gov-

ernmental interest.’" (quoting City of Cleburne, Texas v. Cleburne

Living Ctr., 473 U.S. 432, 441 (1996)), cert. denied, 528 U.S. 9444

(1999).

In particular, justifications for gender-based distinctions that are

rooted in "overbroad generalizations about the different talents,

capacities, or preferences of males and females" will not suffice. VMI,

518 U.S. at 533. "Legislative classifications which distribute benefits

and burdens on the basis of gender carry the inherent risk of reinforc-

ing stereotypes about the ‘proper place’ of women and their need for

special protection." Orr v. Orr, 440 U.S. 268, 283 (1979). Thus, gen-

der classifications that appear to rest on nothing more than conven-

tional notions about the proper station in society for males and

females have been declared invalid time and again by the Supreme

16 KNUSSMAN v. STATE OF MARYLAND

Court. For example, in Frontiero, the Supreme Court invalidated a

federal statute that permitted a male member of the uniformed ser-

vices automatically to claim his wife, for purposes of obtaining addi-

tional benefits, as a dependent, but precluded a female member from

so claiming her husband unless she could demonstrate that he was, in

fact, dependent upon her for more than half of his support. See 411

U.S. at 678-79. The Court concluded that the purported reason for the

different treatment of males and females, administrative convenience,

was premised on the impermissibly broad assumption that wives are

dependent upon their husbands for support. See id. at 689 (rejecting

the Government’s argument "that Congress might reasonably have

concluded that it would be both cheaper and easier simply conclu-

sively to presume that wives of male members are financially depen-

dent upon their husbands"). In Wengler, the Supreme Court struck

down a Missouri workers’ compensation provision that automatically

paid death benefits to a widow but required a widower to demonstrate

that he was actually dependent on his wife’s earnings or that he was

mentally or physically incapacitated. The Wengler Court again

rejected the stereotypical justification offered for treating males and

females differently — "that most women are dependent on male wage

earners and that it is more efficient to presume dependency in the case

of women than to engage in case-to-case determination[s]." 446 U.S.

at 151. And, in Weinberger v. Wiesenfeld, 420 U.S. 636 (1975), the

Supreme Court invalidated a provision of the Social Security Act that

paid benefits to a widow and her minor children based on her

deceased husband’s earnings but, in the case of a deceased wife, pro-

vided benefits only to the minor children and not the widower. See id.

at 637-39. The section of the Social Security Act at issue there was

premised upon "the notion that men are more likely than women to

be the primary supporters of their spouses and children." Id. at 645;

see also Califano v. Goldfarb, 430 U.S. 199, 201-02 (1977) (invali-

dating Social Security provision requiring a widower, but not a

widow, to prove dependency); Orr, 440 U.S. at 280-83 (holding

unconstitutional an Alabama statute making alimony available to

wives only).

Gender classifications based upon generalizations about typical

gender roles in the raising and nurturing of children have met a simi-

lar fate. In Stanley v. Illinois, 405 U.S. 645 (1972), the Court deter-

mined that an Illinois statute was infirm under equal protection

KNUSSMAN v. STATE OF MARYLAND 17

principles where unmarried fathers were presumed to be unfit to raise

their children but married mothers (as well as married fathers) were

presumed fit, meaning that "the children of unwed fathers [became]

wards of the State upon the death of the mother." Id. at 646. The

Court determined that "all Illinois parents are constitutionally entitled

to a hearing on their fitness before their children are removed from

their custody" and that denying a hearing to unwed fathers while

granting it to unwed mothers (and married fathers) "is inescapably

contrary to the Equal Protection Clause." Id. at 658; see also Weinber-

ger, 420 U.S. at 652 (observing that "a father, no less than a mother,

has a constitutionally protected right to the companionship, care, cus-

tody, and management of the children" (internal quotation marks

omitted)).

In Caban v. Mohammed, 441 U.S. 380 (1979), the Court specifi-

cally rejected the argument that a state can classify based solely upon

the idea that the maternal child-raising role is necessarily primary.

There, a New York law gave unwed mothers the power to block the

adoption of their children, in the majority of cases, by withholding

consent; unwed fathers — even those with a substantial relationship

with their children — did not enjoy the same power. Thus, the statute

in Caban treated unmarried parents differently based on their gender.

In holding that the statute did not bear a substantial relation to an

important governmental interest, the Court rejected the argument that

"the distinction is justified by a fundamental difference between

maternal and paternal relations—that ‘a natural mother, absent special

circumstances, bears a closer relationship with her child . . . than a

father does.’" Id. at 388 (ellipsis in original). The Caban Court

observed that "[c]ontrary to appellees’ argument and to the apparent

presumption underlying [the New York statute], maternal and pater-

nal roles are not invariably different in importance" and thus "rejec-

t[ed] . . . the claim that the broad, gender-based distinction of [the

statute] is required by any universal difference between maternal and

paternal relations at every phase of a child’s development." Id. at 389.

The defendants have not even attempted to explain how an irrebutt-

able presumption in favor of the mother under § 7-508 relates to an

important state interest. We conclude that the presumption employed

by Mullineaux here was not substantially related to an important gov-

18 KNUSSMAN v. STATE OF MARYLAND

ernmental interest and, therefore, was not permissible under the Equal

Protection Clause.8

B.

We next must decide whether Mullineaux’s actions contravened

"clearly established statutory or constitutional rights of which a rea-

sonable person would have known." Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982). "Clearly established for purposes of qualified immu-

nity means that the contours of the right must be sufficiently clear that

a reasonable official would understand that what he is doing violates

that right." Wilson, 526 U.S. at 614-15 (alterations and internal quota-

tion marks omitted). Although it is not required that the exact action

at issue has been previously determined to be unlawful, "in the light

of pre-existing law the unlawfulness must be apparent." Id. at 615

(internal quotation marks omitted); Saucier, 533 U.S. ___, No. 99-

1977, slip op. at 6. Wilson reiterated that "the right allegedly violated

must be defined at the appropriate level of specificity before a court

can determine if it was clearly established." Id. Therefore, our analy-

sis of whether the constitutional right at issue was clearly established

must proceed "at a high level of particularity." Edwards v. City of

Goldsboro, 178 F.3d 231, 250-51 (4th Cir. 1999).9

8

We agree with the concurring opinion to the extent that it highlights

the general proposition that the discriminatory application of a statute

that is neutral on its face violates the Equal Protection Clause. See Sylvia

Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 818-19 (4th Cir. 1995).

Respectfully, however, we doubt that we have mischaracterized the

nature of the constitutional right at issue by not focusing on the distinc-

tion between a gender classification created by legislative enactment and

one created by the actions of a single state official. See O’Bar v. Pinion,

953 F.2d 74, 81 (4th Cir. 1991) ("When we conduct an equal protection

review of the individualized decision of a state official made within his

lawful authority, we apply the same analysis as is commonly used in the

context of allegedly unlawful legislative decisions.").

9

Here, the concurring opinion departs and would, like the district court,

define the right in fairly broad terms: whether "a person’s right not to

have a gender neutral statute applied in a discriminatory manner" was

clearly established in 1994. Such a broad definition is not faithful to the

particularity principle which "mandates that courts refer to concrete

KNUSSMAN v. STATE OF MARYLAND 19

We view the relevant constitutional question as follows: was the

law clearly established in December 1994 that the equal protection

clause prohibited a state agency from permitting only mothers, never

fathers, to take child-nurturing leave benefits available to the primary

care giver for a newborn? We think the decisions outlined above dem-

onstrate that it was.

Mullineaux contends that the law was not clear because the

Supreme Court had determined on a number of occasions that equal

protection principles permit government officials to distribute

employment-related benefits pursuant to gender-based classifications.

In the decisions cited by Mullineaux, however, the gender-based clas-

sification was linked to something other than a sexual stereotype. For

example, Mullineaux relies on Geduldig v. Aiello, 417 U.S. 484

(1974). In our view, Geduldig does not cloud the issue. In Geduldig,

the Court upheld a California insurance statute that excluded

pregnancy-related disabilities from coverage against an equal protec-

tion challenge, observing that the exclusion of disabilities relating to

normal childbirth (as well as other short-term disabilities not related

to pregnancy) represented a permissible policy choice aimed at main-

taining the solvency of the insurance program. See id. at 494-97.

Geduldig distinguished the Frontiero line of decisions:

The California insurance program does not exclude anyone

from benefit eligibility because of gender but merely

removes one physical condition—pregnancy—from the list

of compensable disabilities. While it is true that only women

can become pregnant, it does not follow that every legisla-

applications of abstract concepts to determine whether the right is clearly

established." Amaechi v. West, 237 F.3d 356, 362 (4th Cir. 2001). In our

view, defining the right so broadly is not too far removed from framing

the issue as whether it was clearly established that a person had the right

not to be discriminated against based on gender. Such a definition is too

general to provide state officials with adequate guidance on the constitu-

tional limits to their conduct. Cf. Wilson, 526 U.S. at 615 (rejecting the

notion that "any violation of the Fourth Amendment [by an officer] is

‘clearly established,’ since it is clearly established that the protections of

the Fourth Amendment apply to the actions of the police.").

20 KNUSSMAN v. STATE OF MARYLAND

tive classification concerning pregnancy is a sex-based clas-

sification like those considered in Reed . . . and Frontiero

. . . . Normal pregnancy is an objectively identifiable physi-

cal condition with unique characteristics. Absent a showing

that distinctions involving pregnancy are mere pretexts

designed to effect an invidious discrimination against the

members of one sex or the other, lawmakers are constitu-

tionally free to include or exclude pregnancy from the cov-

erage of legislation such as this on any reasonable basis, just

as with respect to any other physical condition.

Id. at 496 n.20. Likewise, Mullineaux’s reliance on decisions such as

Califano v. Webster, 430 U.S. 313 (1977) (per curiam), is unavailing.

In Webster, the Court approved a provision of the Social Security Act

that afforded women a more favorable method of calculating "old-age

insurance benefits" than for similarly situated males, see id. at 314-16,

because Congress aimed the statute at reducing "the disparity in eco-

nomic condition between men and women caused by the long history

of discrimination," id. at 317. Thus, the statute’s disparate treatment

of men and women "was not the accidental byproduct of a traditional

way of thinking about females." Id. at 320 (internal quotation marks

omitted).

The authority cited by Mullineaux actually underscores our conclu-

sion regarding the clarity of the law in December 1994. Mullineaux’s

distribution of sick leave benefits under § 7-508 was a by-product of

traditional ideas about a woman’s role in rearing a child, which was

clearly impermissible under the Equal Protection Clause of the Four-

teenth Amendment at the time in question.

Accordingly, we affirm the denial of qualified immunity to Mul-

lineaux and the jury’s verdict with respect to liability. Given our find-

ing in this regard, we need not consider the effect of the overly broad

definition of the constitutional right contained in the jury instructions.

III.

Mullineaux seeks a new trial on damages, raising several chal-

lenges to the jury’s award of $375,000. Mullineaux’s principal argu-

ment is that the verdict was excessive and that the district court erred

KNUSSMAN v. STATE OF MARYLAND 21

in refusing to grant a new trial on this basis. See Knussman III, 65 F.

Supp. 2d at 360. We review a district court’s denial of a Rule 59

motion for a new trial for abuse of discretion. See Cline v. Wal-Mart

Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998). On a Rule 59 motion,

the district court must

set aside the verdict and grant a new trial[ ] if . . . (1) the

verdict is against the clear weight of the evidence, or (2) is

based upon evidence which is false, or (3) will result in a

miscarriage of justice, even though there may be substantial

evidence which would prevent the direction of a verdict.

Atlas Food Sys. & Servs., Inc. v. Crane Nat’l Vendors, Inc., 99 F.3d

587, 594 (4th Cir. 1996) (quoting Aetna Casualty & Sur. Co. v.

Yeatts, 122 F.2d 350, 352-53 (4th Cir. 1941)). On an excessiveness

challenge, we review a jury’s determination of the amount of com-

pensatory damages under the first two prongs of the Rule 59 standard:

"‘whether the jury’s verdict is against the weight of the evidence or

based on evidence which is false.’" Cline, 144 F.3d at 305 (quoting

Atlas Food, 99 F.3d at 594).

Knussman sought damages solely for emotional distress that he

claimed to have suffered because of Mullineaux’s actions. He did not

suffer any direct pecuniary harms such as loss of income. Compensa-

tory damages for emotional injuries are recoverable under § 1983. See

Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307 (1986)

("[C]ompensatory damages may include not only out-of-pocket loss

and other monetary harms, but also such injuries as impairment of

reputation . . ., personal humiliation, and mental anguish and suffer-

ing." (internal quotation marks omitted) (ellipsis in original)); Carey

v. Piphus, 435 U.S. 247, 263-64 (1978). Damages under § 1983 are

intended to compensate for actual injuries caused by constitutional

violations; therefore, a § 1983 plaintiff alleging emotional distress

must demonstrate that the emotional duress resulted from the consti-

tutional violation itself. See Carey, 435 U.S. at 263. The plaintiff must

adduce sufficient evidence "that such distress did in fact occur and

that its cause was the constitutional deprivation itself and cannot be

attributable to other causes." Price v. City of Charlotte, North Caro-

lina, 93 F.3d 1241, 1250 (4th Cir. 1996); see Hetzel v. County of

Prince William, 89 F.3d 169, 171-72 (4th Cir. 1996) (concluding

22 KNUSSMAN v. STATE OF MARYLAND

compensatory damages award on a retaliation claim under § 1983 was

excessive because "only a part of Hetzel’s harms [were] properly

attributed to appellants’ retaliatory actions. Much, if not all, of Het-

zel’s claimed distress was actually caused by her erroneous belief

that she was the victim of invidious discrimination, and of course,

given the jury’s findings for the defendants on all of Hetzel’s claims

of discrimination, Hetzel is entitled to no damages for any injuries

which were caused by her belief that she was [discriminated against]"

(emphasis in original)). A plaintiff seeking compensatory damages for

emotional injuries cannot rely on "conclusory statements that the

plaintiff suffered emotional distress [or] the mere fact that a constitu-

tional violation occurred," but, rather, "the testimony must establish

that the plaintiff suffered demonstrable emotional distress, which

must be sufficiently articulated." Price, 93 F.3d at 1254.

In determining whether an award of damages for emotional distress

for a constitutional deprivation is excessive, an appellate court may

look to a number of factors: medical attention resulting from the emo-

tional duress; psychiatric or psychological treatment; the degree of

such mental distress; the factual context in which the emotional dis-

tress developed; evidence corroborating the testimony of the plaintiff;

the nexus between the conduct of the defendant and the emotional

distress; mitigating circumstances, if any; physical injuries suffered as

a result of emotional distress; and loss of income, if any. See id. A

substantial award of compensatory damages like Knussman’s "must

be proportional to the actual injury incurred" and "must focus on the

real injury sustained." Hetzel, 89 F.3d at 173 (internal quotation

marks omitted).

Knussman presented sufficient evidence for the jury to conclude

that the emotional distress and mental anxiety he experienced was a

genuine injury resulting, at least to some extent, from Mullineaux’s

equal protection violation. Knussman testified that he was "particu-

larly disgusted" with Mullineaux’s comments that Knussman could

not qualify for primary care giver status because he could not breast

feed and that Kimberly Knussman would have to die or slip into a

coma for him to become eligible. He indicated that in March 1995 —

approximately one month before Knussman initiated this lawsuit —

he began experiencing anxiety and losing sleep as a result of "the

comments by Miss Mullineaux" as well as the commencement of the

KNUSSMAN v. STATE OF MARYLAND 23

internal grievance process. J.A. 196. According to Knussman, by the

fall of 1996, his anxiety had begun to manifest itself as "chest pain"

and "palpitations," and he decided to seek professional help. He was

eventually prescribed medication to manage his symptoms of depres-

sion. Moreover, Knussman presented medical evidence to corroborate

his testimony that he was experiencing emotional distress. Dr. Susan

Toler, a clinical psychologist who treated Knussman, testified that by

1996, Knussman was frequently experiencing "panic attack[s]," J.A.

548, which Dr. Toler attributed to Knussman’s "dispute with his

employer over leave." J.A. 550. Dr. Toler diagnosed Knussman with

"major depressive disorder," J.A. 560, and occupation-related "adjust-

ment disorder," J.A. 561. Dr. Lydia Wenz, a treating psychiatrist, con-

curred in the diagnosis of major depressive disorder. Thus, Knussman

was entitled to recover some amount of compensatory damages for

emotional distress.

The nexus, however, between Mullineaux’s unconstitutional con-

duct and Knussman’s emotional injuries is attenuated, and this is a

factor for us to consider in assessing whether Knussman’s award for

emotional distress is excessive. See Price, 93 F.3d at 1254.10 Mul-

lineaux abridged Knussman’s constitutional rights by denying him the

same opportunity to qualify for primary care giver status as would be

afforded a mother. Mullineaux’s role, however, was limited to the ini-

tial denial of Knussman’s request for primary care giver status under

§ 7-508. Once the internal grievance process was underway, Mul-

lineaux’s involvement ceased.

Furthermore, the evidence linked a large portion of Knussman’s

emotional difficulties to the litigation of this action and, to some

10

In reviewing whether the award is excessive, we consider factors that

are neither new nor amorphous. Rather, our court listed these general

factors in Price. See 93 F.3d at 1254. The strength of the nexus between

the defendant’s conduct and the emotional distress suffered is one of the

factors to consider — we have not created any new standard. Nor have

we suggested that "uncontroverted medical testimony" is legally insuffi-

cient to establish causation; indeed, if the evidence was not sufficient to

establish causation, then the question would be whether Knussman is

entitled to any damages at all. Here, we are only concerned with how

much.

24 KNUSSMAN v. STATE OF MARYLAND

extent, the general MSP "grievance process" rather than Mullineaux’s

unconstitutional conduct. Dr. Toler explained that Knussman began

experiencing physical symptoms related to anxiety as a result of the

"tensions that were building between himself and his employer over

. . . this request for child leave, and then that he had appealed the

decision, and . . . there was a series of administrative procedures that

he became involved with and around appeals or grievances or what-

ever." J.A. 550. Dr. Toler opined that following the original leave

denial, Knussman began feeling anxiety and stress that increased at

every stage of the internal grievance procedure and the litigation pro-

cess. The litigation of Knussman’s claims "magnified the conflicts

with the employer, and . . . directly impacted his sleep," J.A. 558, and

intensified "the adversarial relationship that had evolved and devel-

oped over the course of the years," J.A. 571. Dr. Toler acknowledged

that Knussman’s symptoms of anxiety "elevate[d] during periods of

more activity in the litigation" and "dissipated during periods of low

activity in the litigation." J.A. 588. According to Dr. Toler, Knuss-

man’s depressive symptoms — his sleeplessness, inability to concen-

trate and lack of zest for life — were not alleviated when he was

granted leave for the birth of his second child "because, by that time,

the litigation was well under way and there were a lot of activities

around the first grievance and complaint that continued to wear on

him." J.A. 580. And, Dr. Toler’s treatment plan included a recom-

mendation that Knussman resolve the litigation. Dr. Wenz recom-

mended a similar course.11

Indeed, any anxiety, stress or other unpleasantness that Knussman

experienced as a by-product of litigation or the grievance process was

not caused by "the constitutional deprivation itself." Price, 93 F.3d at

1250. Such mental distress is "inherent in most litigation" and

although "[i]t can be argued that [Knussman] should not have been

placed in a position where [he] had to assert [his] rights, . . . the same

can be said of the successful plaintiff in any case." School Dist. No.

1, Multnomah County v. Nilsen, 534 P.2d 1135, 1146 (Or. 1975)

11

Dr. Wenz’s notes indicated that, in addition to psychotherapy and

medication, she had "discussed with Mr. Knussman that as he is involved

in legal transactions, that until these are resolved, symptoms may persist

to some degree. I have encouraged him to discuss this with his legal

counsel and pursue rapid resolution." J.A. 1203.

KNUSSMAN v. STATE OF MARYLAND 25

(emphasis added). Generally speaking, litigation-induced emotional

distress is never a compensable element of damages. See, e.g., Stole-

son v. United States, 708 F.2d 1217, 1223 (7th Cir. 1983) ("It would

be strange if stress induced by litigation could be attributed in law to

the tortfeasor. An alleged tortfeasor should have the right to defend

himself in court without thereby multiplying his damages . . . .");

Blakey v. Continental Airlines, Inc., 992 F. Supp. 731, 736 n.3 (D.N.J.

1998); Picogna v. Board of Educ., 671 A.2d 1035, 1038-39 (N.J.

1996) (collecting cases).

Clearly, Knussman’s anxiety and emotional distress in large mea-

sure were associated with the litigation of this action or the general

grievance process as opposed to the specific constitutional violation

at issue. Apart from this litigation-related stress, Knussman’s evi-

dence of emotional distress is insufficient to support an award of

$375,000. Although Knussman unquestionably suffered real emo-

tional problems, it is clear that much of his genuine emotional distress

resulted from or was exacerbated by the litigation process. We con-

clude the award of $375,000 is not proportional to the emotional dis-

tress caused by the constitutional violation, as opposed to the

litigation of Knussman’s claims, and is clearly against the weight of

the evidence. Because it is not possible to determine what portion of

the verdict was intended to compensate Knussman for the emotional

damages attendant only to the litigation process, a new trial on dam-

ages is more appropriate than a new trial nisi remittitur. See Cline,

144 F.3d at 305 ("[W]e have the option of ordering a new trial nisi

remittitur.").12

12

In light of our conclusion that the jury’s verdict was excessive, we

need not address Mullineaux’s argument that the general verdict ren-

dered by the jury had to be vacated because there was no way to deter-

mine what portion of the $375,000 was intended to compensate

Knussman on his FMLA claim under Count II, which was subsequently

vacated by the district court. Given that Knussman has not appealed the

district court’s post-trial rulings, the FMLA claim will not be part of the

remand proceedings. Thus, any issue involving the effect of the FMLA

claims is moot.

26 KNUSSMAN v. STATE OF MARYLAND

IV.

In sum, we hold that Mullineaux was not entitled to qualified

immunity against Knussman’s equal protection claim under § 1983

and affirm the judgment as to liability, but we conclude that the jury’s

award of $375,000 was excessive. Accordingly, we vacate the jury’s

award and remand for a new trial on damages with respect to Knuss-

man’s equal protection claim (Count I). Knussman is entitled to be

compensated for emotional distress caused by Mullineaux’s constitu-

tional violation but not for any emotional distress associated with the

litigation of this action or his employer’s general internal grievance

process.13

AFFIRMED IN PART, VACATED IN PART,

AND REMANDED

LEE, District Judge, concurring in part and dissenting in part:

Two issues are before the Court. First, whether a reasonable per-

sonnel official in Mullineaux’s position and with her experience

would have known in 1994 that it was unlawful to apply a gender

neutral child nurturing leave law in a discriminatory manner by bas-

ing a decision with respect to employment benefits on gender stereo-

types. Second, whether the trial court abused its discretion in finding

that the clear weight of the evidence supported the jury’s verdict of

13

Mullineaux also argues that the district court erred in refusing to

instruct the jury under Price v. City of Charlotte that before the jury was

permitted to award emotional distress damages for Mullineaux’s denial

of leave under § 7-508(a), it was required to find specifically that Knuss-

man was entitled to such leave in the first place. See Price, 93 F.3d at

1256. We address this argument to keep it from becoming an issue on

remand. Assuming the district court erred in failing to instruct the jury

under Price (and Mullineaux has not provided the specific instruction

that she believes was required), any error was harmless. The evidence at

trial was that Knussman, in fact, performed most if not all of the tradi-

tional care functions for his infant daughter and that his wife was home

on leave following the delivery as a result of her own disability. Mul-

lineaux has failed to direct us to any substantial evidence to the contrary.

Accordingly, the jury could only have concluded that Knussman was

entitled to leave under § 7-508(a) as a primary care giver.

KNUSSMAN v. STATE OF MARYLAND 27

$375,000 for Trooper Knussman’s emotional distress and time lost

with his newborn daughter.

The Majority concludes that Mullineaux was not entitled to quali-

fied immunity on the grounds that her interpretation of the state pol-

icy on nurturing leave was a by-product of gender stereotypes about

a woman’s role in child rearing. I agree with the Majority’s conclu-

sion that Mullineaux is not entitled to qualified immunity; however,

I write separately to stress the fact that Mullineaux is not entitled to

qualified immunity because she engaged in the discriminatory appli-

cation of a gender neutral statute. The Majority concludes further that

the district court abused its discretion in upholding the $375,000 jury

verdict because the Majority’s review of the record revealed that the

nexus between the constitutional injury and the evidence presented on

damages was "attenuated at best." I dissent from this portion of the

Majority’s Opinion because in reaching its conclusion the Majority

creates a new standard of review for causation and a jury award that

is amorphous and impossible to maintain. The district court did not

abuse its discretion in finding that the weight of the evidence submit-

ted supported the $375,000 verdict. Accordingly, I would affirm the

district court’s decision in its entirety.

I.

Mullineaux is not entitled to qualified immunity because a reason-

able personnel official in Mullineaux’s position, and with her experi-

ence, would have known in 1994 that the law is clearly established

that it is unlawful to administer a gender neutral leave law in a dis-

criminatory manner and to base her decision with respect to employ-

ment benefits on an employee’s gender. Appellate review of a trial

court’s decision that a party is not entitled to qualified immunity is

a matter of law and is subject to de novo review. See, e.g., Winfield

v. Bass, 106 F.3d 525, 529 (4th Cir. 1997). As the Majority clearly

states, the Supreme Court formulated a two-prong test to determine

whether qualified immunity shields a public official from civil liabil-

ity. See Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982). Under the

first prong, the court must identify the constitutional right at issue and

determine whether that right was clearly established at the time of the

alleged infringement. See Wilson v. Layne, 526 U.S. 603, 609 (1999);

Anderson v. Creighton, 483 U.S. 635, 639 (1987). Under the second

28 KNUSSMAN v. STATE OF MARYLAND

prong, the court must determine whether a reasonable officer would

have known he violated such right. See Wilson, 526 U.S. at 614-15.

A.

The Majority states that the constitutional right at issue is whether

the law was clearly established that the equal protection clause pro-

hibited a state agency from permitting only mothers, never fathers, to

take child-nurturing leave benefits available to the primary care giver

for a newborn. However, framing the issue in such a manner mini-

mizes and mischaracterizes the nature of the unconstitutional actions

at issue. Knussman approached Mullineaux, in her capacity as the

Manager of Medical Leave Benefits, to inquire about Maryland’s

newly promulgated leave law that allowed primary care givers of

newborn or adopted children to use accrued sick leave, without certi-

fication of illness or disability. The law allowed up to 30 days leave

for primary care givers, and ten days leave for secondary care givers.

See MD. CODE ANN., STATE PERS. & PENS. § 7-508 (1994). The

leave statute did not condition the receipt of benefits on the basis of

gender. The statute is gender neutral in text, and provides in pertinent

part:

(a) Primary care givers. — With the approval of the head

of the employee’s principal department or other independent

unit, an employee who is primarily responsible for the care

and nurturing of a child may use, without certification of ill-

ness or disability, up to 30 days of accrued sick leave to care

for the child during the period immediately following:

(1) the birth of the employee’s child; or

(2) the placement of the child with the employee

for adoption.

(b) Secondary care givers. — With the approval of the head

of the employee’s principal department or other independent

unit, an employee who is secondarily responsible for the

care and nurturing of a child may use, without certification

of illness or disability, up to 10 days of accrued sick leave

KNUSSMAN v. STATE OF MARYLAND 29

to care for the child during the period immediately follow-

ing:

(1) the birth of the employee’s child; or

(2) the placement of the child with the employee

for adoption.

Id. The statute makes no reference to a distinction on the basis of gen-

der. Nonetheless, in response to Knussman’s request, Mullineaux told

Knussman that he could not qualify as the primary care giver under

the statute because he was a man. Based on these facts, it is impera-

tive that any inquiries into the constitutional violation at issue focus

on the liberties that Mullineaux took in her capacity as Manager of

Medical Leave Benefits.

The Majority misplaces its focus on comparing Mullineaux’s deci-

sion to that of legislators and agencies in order to determine the con-

stitutionality of Mullineaux’s decision. The Majority concludes that

Mullineaux’s decision is unconstitutional because she based her deci-

sion on stereotypical notions of male/female roles in society. It is true

that when analyzing a legislative or state enactment on the basis of

gender that the gender classification cannot be based on stereotypical

notions, and must be substantially related to the achievement of an

important government interest. However, this is not a situation where

the state government or agency arrived at a calculated or reasoned

decision to create a gender based statutory distinction to advance an

important government interest. Cf. Heckler v. Matthews, 465 U.S.

728, 744, 751 (1984) (upholding limited gender based spousal benefit

statute in order to protect a retiree’s reliance on prior provisions

struck down as gender based provisions); Michael M. v. Superior

Court of Sonoma County, 450 U.S. 464, 469-71 (1981) (upholding

sex-based statutory rape law, which furthered an important govern-

ment interest of preventing pregnancy); Rostker v. Goldberg, 453

U.S. 57, 78-79 (1981) (upholding legislative exclusion of women

from draft because men and women are not similarly situated for

combat). Mullineaux created her own classification that primary care

giver equals a woman. By comparing Mullineaux’s actions to promul-

gated laws that make gender distinctions, the Majority mischaracter-

30 KNUSSMAN v. STATE OF MARYLAND

izes the gravity of Mullineaux’s actions. Mullineaux engaged in the

discriminatory application of Maryland’s gender neutral leave statute.

The constitutional right at issue is defined in the plain text of the

statute. Knussman had a right not to be discriminated against on the

basis of his gender. This inquiry does not require consideration of

whether the legislature drew a permissible distinction in law based on

gender. The statute is completely devoid of gender classification. Sig-

nificantly, the nurturing leave statute applies to adoption as well as

the birth of a child; therefore, no biological gender classification is

implied or inherent in the process of determining whether the leave

applicant is a "primary care giver" or a "secondary care giver." In

1994, Knussman sought leave as a primary care giver pursuant to the

nurturing leave statute, which provided 30 days leave for primary care

givers and ten days leave for secondary care givers for parents of

newborns and newly adopted children. Cloaked with the authority as

the Manager of Medical Leave Benefits for the Maryland State

Department of Police, Mullineaux took it upon herself to interpret this

gender neutral statute in a gender specific manner. Mullineaux cate-

gorically denied Knussman’s request for leave to care for his newborn

daughter as a primary care giver because Knussman was a man.

Knussman brought suit against Mullineaux, and others, for categori-

cally denying him leave as a primary care giver because of his gender

in violation of the Equal Protection Clause of the Fourteenth Amend-

ment. Therefore, for the purpose of analyzing Knussman’s claim, this

Court must look at a person’s right not to have a gender neutral stat-

ute applied in a discriminatory manner and determine if such right

was clearly established at the time of Mullineaux’s actions in 1994.

In 1994, it was clearly established that a person should not be dis-

criminated against on the basis of his gender by having a gender neu-

tral statute applied to him in a discriminatory manner. In order for an

identified right to be clearly established, the "‘contours of the right’

must be drawn in such a way as to provide notice to a reasonable per-

son in the official’s position that his conduct violated the identified

right." Amaechi v. West, 237 F.3d 356, 363 (4th Cir. 2001). By 1994,

the Supreme Court conclusively drew the contours of the right to be

free from gender discrimination in employment decisions, which are

not substantially related to an important government interest. See

David v. Passman, 442 U.S. 228, 234-35 (1979) (holding it violates

KNUSSMAN v. STATE OF MARYLAND 31

the Fifth Amendment due process clause to fire a person because she

is a woman); Caban v. Mohammed, 441 U.S. 380, 394 (1979) (hold-

ing that sex-based distinctions between unmarried mothers and

unmarried fathers, in a domestic relations law provision, are unconsti-

tutional because it bears no substantial relation to any important state

interest); Califano v. Goldfarb, 430 U.S. 199, 206-7 (1977) (holding

that a gender based distinction between widows and widowers vio-

lates the due process and equal protection clauses because they are

based on archaic and over-broad generalizations); Craig v. Boren, 429

U.S. 190, 197 (1976) (noting that the archaic and over-broad general-

izations of women could not justify use of gender distinctions). In

addition by 1994, the Supreme Court conclusively drew the contours

of the right to be free from having a neutral statute applied in a dis-

criminatory manner. See Snowden v. Hughes, 321 U.S. 1, 8 (1943)

(holding that the unlawful administration of a statute fair on its face,

resulting in its unequal application, is a denial of equal protection if

it is shown to be intentional or purposeful discrimination present);

Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886) (holding that it is

unconstitutional to administer a law that is fair on its face in an

unequal manner). The established Fourteenth Amendment jurispru-

dence in 1994 protected Knussman’s right to receive nurturing leave

benefits under a gender neutral leave statute without his gender effect-

ing or impeding such decision. Therefore, the right at issue was

clearly established because the contours of the right to be free from

discriminatory behavior afforded Mullineaux adequate notice that her

interpretation of a gender neutral leave statute, which resulted in the

gender based denial of a benefit, violated the Fourteenth Amendment.

B.

A reasonable person in Mullineaux’s position would have known

that her conduct violated a person’s right not to have nurturing leave

benefits administered in a discriminatory manner. Mullineaux was the

Manager of Medical Leave Benefits. She worked previously at the

Maryland State Department of Personnel, and had approximately 15

years of experience in state employment and administrative policy

matters at the time of the incident. J.A. 670, 1058. In 1994, a person

in Mullineaux’s position and with her experience should have known

that Maryland law prohibited her from drawing a distinction on the

basis of gender when administering leave benefits to parents caring

32 KNUSSMAN v. STATE OF MARYLAND

for their children. Maryland law has made it clear that gender is not

a permissible factor in determining the legal rights of a woman or

man. See Burning Tree Club, Inc. v. Bainum, 501 A.2d 817, 822 (Md.

1985); Condore v. Prince George’s Co., 425 A.2d 1011, 1015 (Md.

1981). Therefore, the treatment of any person by the law may not be

based on the mere circumstances that such person is of one gender or

the other. See Burning Tree Club, Inc., 501 A.2d at 822. Maryland’s

Equal Protection Act flatly prohibits gender-based classifications

absent substantial justification, whether contained in legal enact-

ments, government policies, or by application of common law rules.

See State v. Burning Tree Club, Inc., 554 A.2d 366, 387 (Md. 1989);

Rand v. Rand, 374 A.2d 900, 903 (Md. 1977). Maryland reinforced

its mandate of parental equality in 1978 when it unequivocally abol-

ished the maternal preference in child custody cases. See McAndrew

v. McAndrew, 382 A.2d 1081, 1086 (Md. 1978). The highest court in

Maryland has clearly stated that a parent is no longer presumed to be

clothed with, or to lack, a particular attribute merely because that par-

ent is a male or female. See id. Despite this unequivocal mandate,

which Mullineaux should have been aware of given her experience

and position, Mullineaux discriminated against Knussman by assum-

ing that he, as a man, could not have been the primary care giver for

his child.

Moreover, a reasonable leave benefits manager would have known

to pursue the proper channels at work to determine the parameters of

the newly enacted statute. Mullineaux knew that Director of Legisla-

tive and Policy Services, John Irick, had the authority to make policy

rulings for the Maryland State Department of Police. J.A. 711. Irick

knew that the gender-based denial of Knussman’s nurturing leave

request was discriminatory and illegal. J.A. 423, 425, 429. A reason-

able leave benefits manager would have known to confirm the stat-

ute’s requirements with Irick, prior to giving false information. If

promptly asked, Mullineaux could have discovered early on what she

should have known: that confining the primary care giver category to

women was discriminatory and unconstitutional. Ultimately, a reason-

able leave benefits manager should have recognized that she was

applying a gender neutral leave statute in a discriminatory manner by

making only men prove they were primary care givers to newborn or

adopted children. A reasonable person in Mullineaux’s position

would have known that they were violating Knussman’s right to be

KNUSSMAN v. STATE OF MARYLAND 33

free from discrimination on the basis of gender. Therefore, I concur

with the Majority’s conclusion that Mullineaux is not entitled to qual-

ified immunity.

II.

The district court did not abuse its discretion in finding that the

weight of the evidence submitted supported the jury verdict of

$375,000 to Knussman. On a Rule 59 motion for a new trial address-

ing compensatory damages, the trial court must weigh the evidence

and consider the credibility of the witnesses to determine whether the

verdict was against the clear weight of the evidence or was based

upon evidence that was false. See Atlas Food Sys. v. Crane Nat’l Ven-

dors, Inc., 99 F.3d 587, 594 (4th Cir. 1996). If the trial court weighs

the evidence and determines that it is deficient to sustain a verdict,

then the trial court can set aside the verdict and grant a new trial. See

id. It is this decision that this Court must review. In reviewing a trial

court’s decision to uphold a jury verdict, this Court must determine

whether the trial court abused its discretion when it ruled that the ver-

dict was not against the clear weight of the evidence and was not

based upon false evidence. See Cline v. Wal-Mart Stores, Inc., 144

F.3d 294, 301 (4th Cir. 1998). Accordingly, the issue before this

Court is whether the district court abused its discretion in finding that

the $375,000 award was not against the clear weight of the evidence

and was not based upon evidence that was false. Appellate review of

the evidence demonstrates that as a result of the violation Knussman

has suffered emotional distress and has lost priceless time with his

child; therefore, the constitutional violation supports the $375,000

award.

A.

The trial court did not abuse its discretion in finding that the weight

of the evidence submitted in support of Knussman’s claims of emo-

tional distress supports the verdict. Distress is a component of per-

sonal injury that is customarily proved by showing the nature and

circumstances of the wrong and its effect on the plaintiff. See Carey

v. Piphus, 435 U.S. 247, 263-64 (1978). When analyzing a claim for

emotional distress premised upon a constitutional violation, a court

should consider: (1) the degree of emotional distress, (2) the context

34 KNUSSMAN v. STATE OF MARYLAND

of the events surrounding the emotional distress, (3) the evidence

tending to corroborate the plaintiff’s testimony, (4) the nexus between

the challenged conduct and the emotional distress, (5) any mitigating

circumstances, and (6) medical attention and/or psychological or psy-

chiatric treatment that the plaintiff received as a result of the emo-

tional distress. See Price v. City of Charlotte, 93 F.3d 1241, 1254 (4th

Cir. 1996). The uncontroverted evidence of three doctors, Knuss-

man’s family, and Knussman himself were sufficient for a jury and

a trial court to find that the evidence presented to demonstrate Knuss-

man’s emotional distress supported the verdict.

First, the record supports Knussman’s contention that he suffered

a severe degree of emotional distress. Knussman testified that after

being denied leave he experienced chest pains and palpitations,

depression, loss of enjoyment of activities, loss of sleep, and nausea.

J.A. 196, 204-206. In addition, Knussman’s wife testified that Knuss-

man had trouble sleeping and was very withdrawn and depressed. J.A.

525, 529. The severity of Knussman’s distress is best exemplified by

Psychologist Susan Toler’s diagnosis of Knussman as having Adjust-

ment Disorder and Major Depressive Disorder. J.A. 560. For exam-

ple, Dr. Toler described Major Depressive Disorder as a person losing

their sense of vitality, their sense of self, their confidence in their own

ability to respond to problems, and their ability to enjoy normal or

every day ordinary joys. J.A. 560. The Defendants presented no evi-

dence, or contradicting expert testimony that would undermine Dr.

Toler’s diagnosis. Accordingly, the weight of this evidence supports

a finding that the severity of Knussman’s distress was substantial.

Second, the events surrounding the emotional distress were signifi-

cant because the constitutional violation concerned the birth of

Knussman’s first child, and the severe illness endured by his wife in

connection with the birth of their child. During her pregnancy, Mrs.

Knussman was diagnosed as having preeclampsia. J.A. 280, 545. This

condition extended beyond the birth of their child. If not controlled

properly, preeclampsia can cause a triad of swelling, high blood pres-

sure, and protein in the urine. J.A. 280. This process can progress to

a point of causing kidney failure, liver failure, or may even become

fatal. See id. Preeclampsia crippled Mrs. Knussman’s ability to func-

tion, and to care for her newborn child. Notwithstanding these cir-

cumstances, Defendants unconstitutionally denied Knussman

KNUSSMAN v. STATE OF MARYLAND 35

extended nurturing leave benefits, and prohibited him from helping

his wife to care for their newborn child. Such circumstances sur-

rounding the denial of benefits to Knussman contributed to the signif-

icance and gravity of the constitutional violation.

Third, the record is replete with evidence corroborating Knuss-

man’s testimony that he suffered distress. Dr. Toler’s testimony cor-

roborates the severity of Knussman’s emotional distress. On eleven

different occasions during a one year span, Knussman visited Dr.

Toler for treatment of his emotional distress. J.A. 533-34. Dr. Toler

corroborated Knussman’s testimony in that she reported that Knuss-

man had symptoms of sadness, anxiety, worry, rumination, depres-

sion, restlessness, poor concentration, poor self-esteem, paranoia, and

anger. J.A. 547-48, 551, 557. Dr. Toler also acknowledged that

Knussman suffered many physical symptoms such as panic attacks,

chest pains, racing heartbeat, significant sleep loss, and loss of appe-

tite. J.A. 549-50. In addition, Psychiatrist Lidia Wenz’s report further

acknowledged that Knussman manifested symptoms of periodic panic

attacks of varying severity, hyper vigilance avoidance, and a numbing

of emotions. J.A. 1202. Moreover, Knussman’s treating physician,

Dr. Michael Crowley, provided testimony supporting the contention

that Knussman exhibited some of these signs of stress.1 J.A. 316.

Three different doctors corroborated Knussman’s accounts of distress.

Therefore, sufficient credible evidence exists to corroborate Knuss-

man’s accounts of emotional distress.

Fourth, the nexus between the challenged conduct and the emo-

1

This is not a situation where the plaintiff failed to produce evidence

demonstrating that he suffered an injury. See, e.g., Carey v. Piphus, 435

U.S. 247, 263-64 (1978) (holding that a constitutional violation in and of

itself is only entitled to nominal damages absent proof of actual injury

in a § 1983 suit); Price v. City of Charlotte, 93 F.3d 1241, 1245 (4th Cir.

1996) (reversing compensatory damages award in § 1983 suit and award-

ing nominal damages where plaintiffs’ emotional distress consisted

exclusively of their own conclusory statements); Hetzel v. County of

Prince William, 89 F.3d 169, 171 (4th Cir. 1996) (reversing and remand-

ing excessive compensatory damages award in § 1983 and Title VII suit

where plaintiff presented no evidence to corroborate the existence of her

specific harms).

36 KNUSSMAN v. STATE OF MARYLAND

tional distress is substantial. The challenged conduct at issue is

embodied in the jury’s verdict that the State of Maryland, Colonel

David B. Mitchell, Captain David Czorapinski, First Sergeant Ronnie

P. Creel, and Jill D. Mullineaux discriminated against Knussman by

denying him leave benefits on the basis of his gender. J.A. 1211. The

challenged conduct is the constitutional injury of gender discrimina-

tion. Knussman was discriminated against on the basis of his gender

when Defendants acted in concert to deny Knussman extended leave

benefits. The evidence supports the jury’s conclusion that these

actions are inextricably linked to the emotional distress experienced

by Knussman. The jury heard the testimony of Dr. Toler who con-

nected the emotional distress experienced by Knussman to the overall

denial of leave. J.A. 558. Specifically, Knussman’s attorney asked Dr.

Toler, "Is it your expert opinion that those physical symptoms that

[Knussman] was experiencing in 1995 were directly related to the dis-

pute with his employer over leave?" J.A. 550. Dr. Toler responded,

"It is my opinion that they are related, [and] that seemed to be the

stressor that precipitated an evolution of these symptoms." Id. Dr.

Toler concluded further that in her professional judgment if Knuss-

man had been granted leave, then these symptoms that he presented

would not have existed. J.A. 579, 560. Therefore, the evidence sub-

stantially supported the nexus between Knussman’s emotional dis-

tress and the denial of leave.2

Fifth, the evidence shows that Knussman received medical atten-

tion, psychological treatment, and psychiatric treatment as a result of

the emotional distress. As noted above, the evidence submitted

showed that Knussman received lengthy psychological treatment

from Psychologist Dr. Toler for his emotional distress. In addition,

Knussman sought the assistance of Psychiatrist Dr. Wenz who found

it necessary to place Knussman on medication to control his symp-

toms of depression. Dr. Wenz placed Knussman on Prozac in an

attempt to help increase the levels of serotonin in Knussman’s body,

which in turn would enhance Knussman’s ability to use his body’s

natural antidepressants. J.A. 569. Therefore, the medical attention and

2

The Majority holds that the clear weight of the evidence does not sup-

port a causal connection between Knussman’s emotional distress and the

constitutional injury. However, as discussed infra Part II.C, the Majori-

ty’s premise for this conclusion is erroneous.

KNUSSMAN v. STATE OF MARYLAND 37

treatment Knussman received was significant to support the jury’s

verdict for damages.

Ultimately, the weight of the evidence supports the relevant factors

to be considered in analyzing an emotional distress claim. Therefore,

the district court did not abuse its discretion in upholding the jury’s

$375,000 damages award.

B.

Even though emotional damages may be sufficient, in and of them-

selves, to sustain the jury verdict, emotional distress damages were

not the only damages requested and awarded in this action. The dis-

trict court instructed the jury that it could fairly compensate Knuss-

man for any injury caused by the constitutional violation. J.A. 1097-

99. This includes the time Knussman lost with his newborn daughter.

The Maryland statute at issue recognized the importance of a parent

and child bonding in the initial days of a newly born, or newly

adopted, child. See MD. CODE ANN. § 7-508. The statute implicitly

acknowledged the importance of the primary care giver to have up to

30 days leave from work to care for their child. See id. By limiting

him to the ten day secondary care giver leave status, Mullineaux

denied Knussman his right to care for his child during her initial days

on this earth. The jury was in an appropriate position to determine

that Knussman suffered quantifiable damages due to Mullineaux

denying him the additional 20 days with his child. See generally Con-

ner v. Schrader-Bridgeport Internat’l, Inc., 227 F.3d 179, 201 (4th

Cir. 2000) (holding that the district court erred in its determination

that irrelevant and prejudicial evidence affected the jury’s verdict). It

is possible that the jury quantified this pecuniary interest to help con-

tribute to the calculation of the $375,000 award. Accordingly, such a

determination further buttresses the district court’s discretion to

uphold the validity of the jury verdict.

C.

The Majority sets aside the jury’s $375,000 verdict and remands

the case for a trial on damages because it views the nexus between

Mullineaux’s actions and the emotional distress experienced by

Knussman as "attenuated at best." The Majority reaches this decision

38 KNUSSMAN v. STATE OF MARYLAND

based on its view that Knussman’s emotional distress was the result

of this litigation, not the constitutional injury. This approach is flawed

for three reasons. First, the Majority minimizes the constitutional

injury at issue by describing the injury as Mullineaux’s "slanderous

words."3 Second, the Majority utilizes an amorphous standard, which

calls for a jury to explain its particular rationale for its proximate

cause finding. Third, the Majority implies that the jury mistakenly

included litigation related distress within its calculation of damages

yet the Majority does not reference any erroneous jury instruction

given by the district court which would lead the jury to incorporate

litigation related stress4 into damages. As seen below, the Majority’s

approach does not support the conclusion that the district court abused

its discretion in upholding the jury’s verdict.

1.

The Majority minimizes the constitutional violation at issue. The

Majority contends that the constitutional violation was Mullineaux

denying Knussman the same opportunity to qualify for primary care

giver status as would be afforded to a mother. By limiting the consti-

tutional violation to Mullineaux’s sole actions, the Majority mini-

mizes the injury thus enabling it to conclude that the verdict was

excessive in light of the evidence. The constitutional violation was

gender discrimination. The jury returned a verdict that stated that

David Mitchell, David Czorapinski, Ronnie Creel, Jill Mullineaux,

and the State of Maryland all denied Knussman leave under Maryland

law because of his gender. J.A. 1211. Therefore, the actions of all of

the Defendants, not just Mullineaux, compromised the constitutional

violation.

The record demonstrates that Jill Mullineaux’s actions were egre-

gious by themselves. In response to Knussman’s inquiries, Mul-

lineaux, as the Manager of Medical Leave and Benefits, performed a

3

Mullineaux told Knussman "Unless your wife is in a coma or dead,

you can’t be primary care provider." J.A. 1154, 202-04, 232.

4

Defendants raised the issue of non-compensable litigation related

stress in its cross-examination of Dr. Toler, J.A. 588, two questions in

cross-examination of Dr. Crowley, J.A. 319-320, and several questions

to Plaintiff, J.A. 259-263.

KNUSSMAN v. STATE OF MARYLAND 39

cursory inquiry into the meaning of the statute, then she erroneously

informed Knussman that he was only entitled to secondary care giver

status. Subsequently, when Knussman asked a second time if he could

receive extended leave as the primary care giver, Mullineaux commu-

nicated that the only way that Knussman could qualify for primary

care giver status was for his wife to be dead or in a coma.

Similarly, Captain David Czorapinski, participated in the discrimi-

nation against Knussman because he initially misinformed Knuss-

man’s supervisor that the primary care giver was presumed to be the

mother. Czorapinski subsequently realized that he was misinformed

about the presumption of primary care givers being a mother. None-

theless, during the grievance procedure Czorapinski maintained this

erroneous bias. This is evident in Czorapinski’s statement that "All

indicators show that Mrs. Knussman was capable of providing for the

care and nurturing of their child . . . there was nothing offered to indi-

cate that she was unwilling or otherwise unable to provide care for the

child." J.A. 1209. In a less egregious manner, Czorapinski continued

to apply the same unconstitutional presumption as Mullineaux: unless

Knussman could show that his wife was incapable of taking care of

his daughter, Knussman could not be considered the primary care

giver under the statute. The jury also found David Mitchell and Ron-

nie Creel’s actions resulted in a constitutional violation. The evidence

submitted showed that both Mitchell and Creel were privy to all of

the information, knew of Czorapinski and Mullineaux’s actions, yet

failed to act. J.A. 1118, 1132. Therefore, the constitutional violation

encompassed (1) Mullineaux and Czorapinski’s initial joint decision

to only allow Knussman two weeks nurturing leave, (2) Mullineaux,

Creel, and Czorapinski’s subsequent denial of Knussman’s request to

have his two week nurturing leave extended, (3) Mullineaux’s

remarks that Knussman’s wife had to be dead or in a coma before he

could qualify for more leave, (4) Czorapinski’s continued application

of the unconstitutional gender presumption during the grievance pro-

cedure, and (5) Creel and Mitchell’s ambivalence and inaction to

Knussman even though they were aware of the gender presumption

being applied against Knussman. The jury found Knussman was enti-

tled to $375,000 in damages as a result of a series of actions by all

of the Defendants. J.A. 1211-13. The damages were not limited to

Mullineaux’s actions. Therefore, the weight of the evidence supports

40 KNUSSMAN v. STATE OF MARYLAND

the finding that the constitutional injury could have resulted in the

damages sustained.

2.

The Majority Opinion creates an amorphous new standard of

review for an excessive jury verdict claim, which calls for an appel-

late court to determine the proportional component of a jury verdict.

The Majority remands this case for a trial on damages because it

claims it was not possible to determine what proportion of the verdict

was intended to compensate Knussman for emotional damages. The

Majority looks to the precedent of Carey, Hetzel, and Price to support

its conclusion that the constitutional violation did not cause emotional

distress warranting $375,000 in damages. See Carey, 435 U.S. 247;

Hetzel v. County of Prince William, 89 F.3d 169, 171 (4th Cir. 1996);

Price, 93 F.3d 1241.

However, in contrast to Knussman’s situation, the Carey, Hetzel,

and Price decisions focus on cases where the plaintiff failed to show

emotional damages. In Carey, several suspended students brought

procedural due process claims against a school district. See Carey,

435 U.S. at 263-64. The plaintiffs put no evidence in the record to

show what damages, if any, they sustained as a result of the constitu-

tional injury. The record was completely devoid of any evidence that

could form the basis for measuring the extent of their injuries. Ulti-

mately, the Carey Court held that absent proof of actual injury from

the constitutional violation, the students were entitled to recover only

nominal damages. See id. at 264. Similarly, in Hetzel, this Court

found that the record was devoid of evidence to show that the plaintiff

suffered an actual constitutional injury. See Hetzel, 89 F.3d at 172. In

Hetzel, a Hispanic female police officer brought suit against the

county and police chief alleging harassment and discrimination on the

basis of sex and national origin. Hetzel’s evidence concerning the

emotional distress consisted almost exclusively of "Hetzel’s own

brief, conclusory statements — compromising less then ten pages of

a joint appendix exceeding 5,000 pages — that she had headaches,

stress, trouble reading to her daughter, and problems with her family

life as a result of appellants’ actions." Id. at 171. She presented no

evidence corroborating specific harm, she continued to perform her

duties without a noticeable diminution in performance, and she never

KNUSSMAN v. STATE OF MARYLAND 41

saw a doctor, therapist, or other professional. The Court held that the

$500,000 award was grossly excessive in light of the limited evidence

of harm presented at trial. See id. (holding that the award must be pro-

portional to the actual injury incurred and must focus on the real

injury sustained). In addition, in Price, this Court reversed the plain-

tiff’s award of compensatory damages due to the insufficiency of the

evidence. See Price, 93 F.3d at 1250. Several White police officers

sued the city contending that its race-based promotion policy for

police sergeants violated the equal protection clause. At trial, plain-

tiffs proffered only vague, conclusory testimony concerning their

injury. In sum, the police officers said that they suffered feelings of

betrayal and humiliation. See id. at 1254. This Court held that the

police officers’ testimony simply failed to show any demonstrable

emotional injury. See id. at 1254-55. Accordingly, the Court reversed

the $3,000 compensatory award damages and awarded $1 in nominal

damages. Ultimately, the issues focused upon in Carey, Hetzel, and

Price are distinguishable from the case at hand. As demonstrated

above, Knussman presented overwhelming and uncontroverted medi-

cal and non-medical evidence demonstrating that he suffered emo-

tional distress.

The jury was capable of determining that the constitutional viola-

tion caused Knussman’s injuries. It is well settled that causation is

ordinarily left for a jury to determine. See Exxon Co., USA v. Sofec

Inc., 517 U.S. 830, 840-41 (1996) (holding that the issue of proximate

causation involves application of law to fact, which should be left to

the fact finder, subject to limited review); Conner, 227 F.3d at 201

(holding that the district court erred by overturning the jury’s verdict

based on its determination that irrelevant and prejudicial evidence

affected the verdict); Aravanis v. Elsenberg, 206 A.2d 148, 158 (Md.

1965) (holding that violations and proximate cause of injury were

questions of fact properly left for the jury’s determination). Dr. Toler

specifically and repeatedly connected the emotional distress experi-

enced by Knussman to the overall denial of leave. J.A. 550-58. After

weighing the testimony of the witnesses, and examining the evidence,

the jury concluded that Knussman was entitled to compensatory dam-

ages in the amount of $375,000. Medical and eyewitness testimony

within the record supports the jury finding that Knussman’s injury

resulted from the constitutional violation. No reason exists to doubt

42 KNUSSMAN v. STATE OF MARYLAND

the jury’s determination and quantification of compensation for

Knussman.

The Majority is not satisfied with the jury’s determination that the

constitutional violation caused the injury, even though the Majority

acknowledges that Knussman produced sufficient evidence of actual

injury. The Majority seeks some proportional or mathematical for-

mula for the determination of compensatory damages. The Majority

describes the connection between the constitutional injury and the

emotional distress as "attenuated at best." Attenuated means weak or

thin. See RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 133

(2nd Ed. 1987). However, Knussman presented medical testimony

specifically connecting the constitutional violation and the emotional

distress, and the defense presented no evidence of malingering or

overreaching by Knussman. See supra Part II.A. Therefore, the

Majority creates a standard that uncontroverted medical testimony

affirming the connection between the injury and emotional distress is

insufficient as a matter of law. The Majority’s position requires the

fact finder to pinpoint and articulate precisely where the plaintiff’s

emotional distress over the constitutional injury ends, and the emo-

tional distress over the impermissible factor, i.e., the litigation related

distress, begins. This is not, and should not be, a prerequisite to sus-

tain a damage award under § 1983. A court of review reviews the

record to determine if the clear weight of the evidence supports the

verdict. See Cline, 144 F.3d at 301. It is only necessary for plaintiffs

to demonstrate, and the jury to find, that a casual connection between

the constitutional violation and the plaintiff’s demonstrated injury in

order to recover compensatory damages. See Price, 93 F.3d at 1251

(citing Gore v. Turner, 563 F.2d 159, 164 (5th Cir. 1997)). Therefore,

a district court does not abuse its discretion if it upholds a jury verdict

where the evidence presents sufficient proof of a constitutional viola-

tion, injury, and a casual connection between the injury and constitu-

tional violation. Knussman has produced sufficient evidence of

causation. As demonstrated above, the clear weight of the evidence,

in the form of Dr. Toler’s testimony, demonstrates a strong link exists

between the constitutional violation and the emotional distress experi-

enced by Knussman. Therefore, legally sufficient evidence existed for

a reasonable jury to have reached its verdict.

KNUSSMAN v. STATE OF MARYLAND 43

3.

Nothing within record shows that the jury considered litigation

related distress as a factor in damages. The Majority remands for

damages because in its view the jury factored litigation related dis-

tress into its calculation of damages. Defendants had the opportunity

to cross-examine Dr. Crowley and Dr. Toler on the issue of litigation

related distress. J.A. 319-20, 571-80, 588. In particular, Dr. Toler

admitted that the lawsuit was stressful on Knussman because it tended

to magnify the events, circumstances, and adversarial relationship that

had developed over the course of the years. J.A. 571. Notwithstanding

this testimony, it remains possible that the jury found the emotional

distress due to the constitutional injury, not due to litigation, caused

the injury. Defendants stressed to the jury during the trial that Knuss-

man could not recover damages for litigation related distress.5 More-

over, the district court’s instructions were clear that Knussman could

only recover for damages sustained by the constitutional injury itself.

J.A. 1097-98. The Majority references no erroneous instruction given

by the district court, which would confuse the jury into incorporating

litigation related distress as recoverable damages. See, e.g., Memphis

Community Sch. Dist. v. Stachura, 477 U.S. 299, 306 (1986) (revers-

ing jury’s verdict because the trial judge gave an erroneous jury

instruction allowing the jury to compensate the plaintiff for circum-

stances that should not be compensated). The Majority simply implies

that it is not comfortable with the jury’s ability to weigh the credibil-

ity of the witnesses, or the trial judge’s ability to utilize its discretion,

and reach its conclusion that Knussman’s injuries resulted from the

constitutional violation. The Majority has no reason to infer or imply

that the jury improperly calculated litigation related distress into its

$375,000 damages determination. The Majority should not set aside

the jury’s verdict as excessive because it cannot succinctly enunciate

clear principles for assessment of whether a verdict for compensatory

damages, including the medical and emotional distress components,

is excessive as a matter of law. Accordingly, the district court’s deci-

sion upholding the jury’s award should be affirmed. Therefore, while

5

It is important to note that Defendants did not present any contrary

medical evidence showing that Knussman’s distress resulted from the lit-

igation.

44 KNUSSMAN v. STATE OF MARYLAND

I concur in the judgment, I respectfully dissent in the decision to

remand the case for a trial on damages.