Summary: Defendant moved for judgment as a matter of law following the presentation of all of the evidence. The court granted defendant's motion as to the plaintiff's emotional distress claim, finding that plaintiff failed to present any "competent evidence of 'genuine injury.'" Plaintiff's testimony alone and the circumstances did not suffice to establish an emotional distress claim.

Case Name: Debra Bjerke v. Nash Finch Co.
Case Number: A3-98-134
Docket Number: 213
Date Filed: 6/29/00
Nature of Suit: 442

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHEASTERN DIVISION

Trial in this matter commenced on June 5, 2000 and was completed with the entry of a verdict in favor of the plaintiff on June 12, 2000. Following the presentation of plaintiff's case, defendant made a motion to dismiss all claims and for judgment in its favor as a matter of law. The court denied the motion as to the Equal Pay Act, Title VII of the Civil Rights Act and the North Dakota Human Rights Act claims. At the time of its denial, the court took under advisement defendant's motion to dismiss plaintiff's emotional distress claim. The court, after due consideration of the testimony presented by the plaintiff in support of her emotional distress claim and relevant case law, dismissed the emotional distress claim following the presentation of defendant's case, without stating its reasons therefor. This order is the memorialization of the court's order dismissing the emotional distress claim.

It is this court's opinion that Ms. Bjerke failed to present any "competent evidence of 'genuine injury.'" Forshee v. Waterloo Industries, Inc., 178 F.3d 527, 530 (8^th Cir. 1999). The record reflects the only evidence of emotional distress damages was testimony from the plaintiff herself. She testified that she was upset that she was receiving less pay for equal work. She further testified that she gains weight when she is upset. When questioned further the plaintiff identified a number of outside stressors, besides the pay differential, that were causing her to be upset. For example, Ms. Bjerke was having trouble in her marriage, and ultimately obtained a divorce. She indicated her husband's verbal abuse and drinking bothered her, as well as financial concerns due to her husband's quitting his job to start a new business and their resulting bankruptcy. Further, on cross examination the plaintiff testified affirmatively that she had always had problems with her weight. The emotional distress was not so severe as to necessitate medical or psychological treatment, nor was there any corroborating testimony of plaintiff's emotional distress by plaintiff's friends, family or an expert witness. Thus, given the myriad of problems identified by plaintiff and her history of weight gain, this court concluded that Ms. Bjerke's weight gain did not meet the threshold for a claim of emotional distress.

Case law supports the court's conclusion that a statement about weight gain is not sufficient evidence by which to maintain an emotional distress claim. For example, in Forshee v. Waterloo Industries, Inc., 178 F.3d 527, 530 (8^th Cir. 1999) the court held:

While a compensatory damage award may be based solely on plaintiff's own testimony, [plaintiff's] testimony did not identify and describe the kind of severe emotional distress that warranted the awards in [other cases]. [Plaintiff] suffered no physical injury, she was not medically treated for any psychological or emotional injury, and no other witness corroborated any outward manifestation of emotional distress.

Id.

The court recognizes that in some instances the testimony of the plaintiff, without more, may suffice to establish an emotional distress claim. See Kim v. Nash Finch Company, 123 F.3d 1046, 1064 (8^th Cir. 1997) (medical or other expert evidence is not necessary to prove emotional distress). However, this court found that the circumstances in this case do not warrant such a claim. Id. at 1064 ("A plaintiff's own testimony, along with the circumstances of a particular case, can suffice to sustain the plaintiff's burden in this regard.").

Therefore, based on the foregoing, defendant's motion for judgment as a matter of law on plaintiff's emotional distress claim was GRANTED.

Dated this ____ day of June, 2000.