Veronika Chauca, Appellant,v.Jamil Abraham, et al., Respondents.

Brief

N.Y.December 14, 2016

State of New York Court of Appeals DICK BAILEY SERVICE, Inc. · 1-800-531-2028 · dickbailey.com [REPRODUCED ON RECYCLED PAPER] VERONIKA CHAUCA, Plaintiff-Appellant, v. JAMIL ABRAHAM, Individually, PARK MANAGEMENT SYSTEMS, LLC, AKA Park Health Center, ANN MARIE GARRIQUES, Individually, Defendants-Respondents. TO BE ARGUED BY: ARTHUR H. FORMAN, ESQ. COURT OF APPEALS NO. CTQ-2016-00003 TIME REQUESTED: 15 MINUTES ARTHUR H. FORMAN, ESQ. Attorney for Defendant-Respondents 9820 Metropolitan Avenue Forest Hills, New York 11375 (718) 268-2616 BRIEF FOR DEFENDANTS-RESPONDENTS ON APPEAL FROM THE CERTIFIED QUESTION BY THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT IN DOCKET NO. 15-1777-CV Date Completed: April 25, 2017 i TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii CERTIFIED QUESTION ACCEPTED FOR REVIEW ........................................... 1 STATEMENT OF THE CASE .................................................................................. 1 STATEMENT OF JURISDICTION.......................................................................... 2 STATEMENT OF FACTS ........................................................................................ 2 THE TRIAL AND VERDICT ................................................................................... 6 THE SECOND CIRCUIT OPINION ........................................................................ 7 SUMMARY OF ARGUMENT ................................................................................. 8 ARGUMENT ............................................................................................................. 9 POINT 1: THE STANDARD FOR ASSESSING WHETHER PUNITIVE DAMAGES UNDER THE NEW YORK CITY HUMAN RIGHTS LAW ARE WARRANTED WAS NOT CHANGED BY THE LOCAL CIVIL RIGHTS RESTORATION ACT OF 2005 ........................................... 9 CONCLUSION.......................................................................................................18 ii TABLE OF AUTHORITIES Cases Albunio v. City of New York 16 N.Y. 3d 472 (2011) ........................................................................................ 17 Farias v. Instructional Systems, Inc. 259 F. 3d 91 (2nd Cir. 2001) .......................................................................... 9, 10 Grella v. Avis Budget Group, Inc. No. 14-Cv-8273 (CM), 2016 WL 638748 at *1 (S.D.N.Y. Feb. 11, 2016) ..................................................................... 13, 14 Hill v. Airborne Freight Corp. 212 F. Supp. 2d 59 (E.D.N.Y. 2002) .................................................................. 12 Johnson v. Strive East Harlem Employment Group 990 F. Supp. 2d 435 (S.D.N.Y. 2014) ................................................................ 13 Katz v. Adecco USA, Inc. 845 F. Supp. 2d 539 (S.D.N.Y. 2012) ................................................................ 12 Majewski v. Broadalbin-Perth Central School District 91 N.Y. 2d 577 (1998) ........................................................................................ 16 Matter of DaimlerChrysler Corp. v. Spitzer 7 N.Y. 3d 653 (2006) .......................................................................................... 16 Matter of Shannon 25 N.Y. 3d 345 (2015) ........................................................................................ 16 McIntyre v. Manhattan Ford, Lincoln-Mercury 256 A.D. 2d 269 (1st Dept., 1998) ..................................................................... 12 Mihalik v. Credit Agricole Cheuvreux North America, Inc. 715 F.3d 102 (2d Cir. 2013) ............................................................................... 10 Nardelli v. Stamberg 44 N.Y. 2d 500 (1978) ........................................................................................ 12 iii Romanello v. Intesa Sanpaolo S.p.A. 22 N.Y. 3d 881 (2013) ....................................................................................... 17 Ross v. Louis Wise Services, Inc. 8 N.Y. 3d 478 (2007) .......................................................................................... 15 Sabot V. Lavine 42 N.Y. 2d 1068 (1977) ..................................................................................... 16 Salemi v. Gloria’s Tribeca, Inc. 115 A.D. 3d 569 (1st Dept. 2014) ...................................................................... 11 Sharapata v. Town of Islip 56 N.Y. 2d 332 (1982) ........................................................................................ 15 Taylor v. New York University M.C. 21 Misc. 3d 23 (App. Term, 1st Dept.) ............................................................... 15 Thoreson v. Penthouse Int’l, Ltd. 80 N.Y. 2d 490 (1992) ........................................................................................ 15 Wiercinski v. Mangia 57, Inc. 787 F. 3d 106 (2d Cir. 2015) .............................................................................. 14 Wilson v. Phoenix House 42 Misc. 3d 677 (Sup. Ct. Kings Co. 2013) ....................................................... 14 Yatauro v. Mangano 17 N.Y. 3d 420 (2011) ........................................................................................ 16 Statutes 22 N.Y.C.R.R. § 500.27 ............................................................................................. 2 29 U.S.C. §§ 2601 ...................................................................................................... 1 42 U.S.C. § 1981 a (b)(1) ........................................................................................ 14 iv 42 U.S.C. § 2000e(k) ................................................................................................. 1 Exec. Law § 290 et seq. ............................................................................................. 1 N.Y.C Admin. Code § 8-107 ......................................................................... 1, 16, 17 N.Y. C. Admin. Code § 8-130 ................................................................................ 10 N.Y. C. Admin. Code § 8-502(a) ..................................................................... 1, 2, 15 1 CERTIFIED QUESTION ACCEPTED FOR REVIEW What is the standard for finding a defendant liable for punitive damages under the New York City Human Rights Law, N.Y.C. Admin. Code § 8-502? (A.529) STATEMENT OF THE CASE Plaintiff-Appellant, Veronika Chauca, brought this action in the United States District Court for the Eastern District of New York against Defendants- Respondents Park Management Systems, LLC a/k/a Park Health Center (“Park Health Center”), Jamil Abraham and Ann Marie Garriques alleging she was terminated from employment on account of pregnancy in violation of the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), the Family and Medical Leave Act of 1993, 29 U.S.C. §§ 2601, et seq. (“FMLA”), the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (“State HRL”), and the New York City Human Rights Law, New York City Administrative Code § 8-107 et seq. (“City HRL”). Plaintiff’s claim under the FMLA, however, did not reach the jury. (A. 42). The jury returned a verdict in Plaintiff’s favor in the amount of $10,500.00 in compensatory damages and 450,000 for pain and suffering. (A. 473). Judgment in the sum of $60,500.00 was entered against all defendants on April 23, 2015. (A. 503). 2 The district court (Vitaliano, D.J.) declined to charge the jury on punitive damages under the City HRL. Judge Vitaliano stated, “[t]here is nothing here that supports punitive damages under any stretch of anybody’s imagination...There’s no showing of malice, reckless indifference, that there was an intent to violate the law. They may have violated the law, which is what you are going to try to prove, but there is certainly no evidence of intent.” (A. 411). Plaintiff appealed to the United States Court of Appeals for the Second Circuit, arguing that the district court had erred in declining to charge the jury on punitive damages under her City law claim. On November 1, 2016, the Second Circuit certified the following question for review by the New York Court of Appeals: “What is the standard for finding a defendant liable for punitive damages under the New York City Human Rights Law, N.Y.C. Admin. Code § 8-502?” (A. 529). This Court accepted certification on December 15, 2016. (A. 531). STATEMENT OF JURISDICTION This Court has jurisdiction under 22 N.Y.C.R.R. § 500.27. STATEMENT OF THE FACTS Plaintiff Veronika Chauca was hired to work at Park Health Center as a physical therapy aide in 2006. (A. 65, 102). Within months of Plaintiff’s hire, Jacqueline Stern was also hired as a physical therapy aide. (A. 68-69). In 2010, Stern took maternity leave. (A. 350). Before taking leave, she lost many days from 3 work because of complications with her pregnancy. (A. 376). She gave birth in October 2010. (A. 377). Her son remained in the hospital for five months because of his health. (A. 377). She returned to work about one week after calling Park Health Center to come back (A. 378). Stern testified she was able to take time off from work to see her son without a problem after returning to work at Park Health Center (A. 378). In the beginning of July 2009, Plaintiff told defendant Abraham she was pregnant. (A. 75). He congratulated her and told he there would not be a problem with her taking time off for maternity leave. (A. 40). After notifying Abraham that she was pregnant, Plaintiff did not experience any hostility at work. (A. 130). On August 20, 2009, Plaintiff reminded Abraham that she would be going out on maternity leave. (A. 77). She presented him with a written confirmation of the dates she wanted to be on leave. (A. 77). The note requested two months of leave, but the dates extended almost three months, from August 27, 2009 through November 23, 2009. (A. 491). The reason she requested three months was to spend time with her first child, and not because of health reason. (A. 126). Nevertheless, Abraham did not act concerned about the number of months she wanted. (A. 127-128). Plaintiff gave birth on September 10, 2009. (A. 80). She was medically fit to return to work on October 22, 2009 (A. 129). But Plaintiff was not ordered to return to work at that time. (A. 129). 4 When Plaintiff went out on maternity leave, Debra Mehearwanlal assumed her duties as a physical therapy aide. (A. 317). Debra had recently given birth on June 17, 2009. (A. 326). She had requested to return to work on August 3, 2009. (A. 38). But she was told her position was not available at that time. She returned to work the following month, on September 7, 2009, (A 328-329), when Plaintiff left on maternity leave. (A. 330). Park Health Center has an informal leave policy. (A. 258). As Abraham testified: “Q. Well when she handed you the letter, did you notice that it was three months instead of two months that she wanted to come back? A. No, I didn’t Q. When did you first notice? A. I did not notice this discrepancy two months she come back. It doesn’t matter to us. Whenever she want to come back, she come back. So I didn’t make notice of it. (A. 258). Q. All right. So somebody wants to go back to their country, what’s the policy at Park Health Center? A. There’s not policy where we force them to take the time, special time. It’s up to them. We very loose in this respect. They go and we usually, as I said the work shuffle, I don’t mean shuffling, we accommodate and put people in other 5 places as far as we can make the whole department go smoothly. So there’s no special restriction.” (A. 258-259). Nevertheless, Plaintiff testified to her belief that Defendants had a history of harassing and refusing to restore pregnant employees to duty. Plaintiff testified that a co-worker, Sharene, had a miscarriage, “was out for a little while, and ...came back.” (A. 70). Plaintiff believed that the delay in restoring Sharene to duty was not because Sharene needed to recuperate from a miscarriage but rather because “they did not want to take her back.”. (A. 71). Plaintiff also testified that Debra Mehearwanlal was fired while on maternity leave because “[s]he was on maternity leave too long.” (A. 71-72). Although Plaintiff acknowledged that Mehearwanlal returned to work, Plaintiff testified she believed Defendants only took her back after Mehearwanlal threatened to file a lawsuit. (A. 118-119). Mehearwanlal testified, however, that she was pregnant twice while employed by Defendants. (A. 282). The first time she had a miscarriage and returned to work the next day. (A. 283). She denied being terminated while on maternity leave or threatening to sue if Defendants did not take her back to work. (A. 284-285). She returned to work approximately one month after the date she had requested to return to work. (A. 328-329). 6 Again, Plaintiff believed another co-worker, Jackie Stern, was also fired while on maternity leave (A. 96). Plaintiff acknowledged that Stern had a difficult pregnancy (Id.) Plaintiff testified, however, that Defendants reinstated Stern after plaintiff filed her lawsuit. (Id). Stern testified, however, that she stopped working because her pregnancy was high risk. (A. 378-379). After the delivery, her child remained in the hospital with complications for five months. (A. 377). Stern testified she requested to remain on leave because she needed to visit with her child at the hospital every day. (A. 377). While Stern was on leave, Plaintiff encouraged her to file a lawsuit. (A. 344). Stern testified she told Plaintiff she had not been fired. (Id.). Stern testified she was scheduled to return work one week after letting Defendants know she was able to return. (A. 378). THE TRIAL AND VERDICT The case was tried before a jury on April 13, 14 and 15, 2015. During the charge conference, Plaintiff’s counsel requested a jury instruction on punitive damages under the City Human Rights Law. (A. 409-411). The district court refused to grant the request. District Judge Vitaliano reasoned, “The problem that I have is that considering the standard language, the standard tests for punitive damages, there is no evidence in this case whatsoever that would support a verdict for punitive damages.” (A. 409). He added, “There is nothing here that supports 7 punitive damages under any stretch of anybody’s imagination...There’s no showing of malice, reckless indifference, that there was an intent to violate the law. They may have violated the law, which is what you are going to try to prove, but there is certainly no evidence of intent.” (A. 411). The jury returned a Plaintiff’s verdict. It ruled that Plaintiff proved “by a preponderance of the evidence that pregnancy discrimination, on the part of defendants, was a motivating factor in their decision not to reinstate her employment.” (A. 472). The jury found that the employer, Park Health Center, and both employees, Dr. Jamil Abraham and Ann Marie Garriques, were liable for pregnancy discrimination. Id. Plaintiff was awarded $10,500 in lost compensation and $50,000 for pain and suffering as against the Defendants, jointly and severally. (A. 472-73). THE SECOND CIRCUIT OPINION Plaintiff appealed to the United States Court of Appeals for the Second Circuit from the judgment of the district court, challenging the district court’s order denying her request for a jury instruction concerning punitive damages for pregnancy discrimination under the City HRL. The Second Circuit in its decision asked, what the standard is for a punitive damages award for unlawful discriminatory acts in violation of the City HRL? Is it the same as the standard for awarding punitive damages under Title VII? If not, what standard should courts 8 apply? In place of an answer, the court stated, “[W]e think the New York Court of Appeals is the appropriate court to answer this question.” (A. 507-508). SUMMARY OF ARGUMENT Plaintiff argues that the question asked by the Second Circuit, ‘Is the standard for awarding punitive damages under the City HRL the same as under Title VII,’ should be answered negatively. However, Plaintiff fails to answer the second question posed by the Federal appellate court, namely ‘If not, what standard should courts apply?’ Plaintiff contends that employment discrimination plaintiffs are entitled to a jury charge on punitive damages in each case where the question of whether defendants engaged in discriminatory practices in violation of the City HRL is sent to the jury. Plaintiff contends that to effectuate the intent of the City HRL, that it be interpreted independently of, and more liberally than, State and Federal discrimination laws, necessarily means that the legal standard for sending a charge on punitive damages to the jury is the same as the legal standard for sending a charge to the jury for employment discrimination. The logical result of Plaintiff’s position is that punitive damages should be awarded in City HRL actions under the same legal standard as compensatory damages. Defendants contend, however, that the same legal standard should not be applied for both compensatory and punitive damages. In the absence of a legal standard in the City 9 HRL, courts should continue to follow the Federal standard for punitive damages in discrimination cases. ARGUMENT POINT I THE STANDARD FOR ASSESSING WHETHER PUNITIVE DAMAGES UNDER THE NEW YORK CITY HUMAN RIGHTS LAW ARE WARRANTED WAS NOT CHANGED BY THE LOCAL CIVIL RIGHTS RESTORATION ACT OF 2005 In 2001, the Second Circuit decided, in Farias v. Instructional Sys., Inc., 259 F. 3d 91 (2d Cir. 2001), that “the federal standard applies to claims for punitive damages under the [City HRL].” Id., at 101. The Second Circuit based its determination on a finding that “‘[T]he Administrative Code does not provide a standard to use in assessing whether [punitive] damages are warranted.’” Farias, 259 F. 3d at 101(citation omitted). The Court concluded that the imposition of punitive damages under the City HRL is governed by the federal standard because “the local statute is silent as to the applicable standard.” Farias 259 F. 3d at 102. The Court went on to affirm the district court’s decision to refuse to charge the jury on the issue of punitive damages. It found that there was no proof that defendant acted with conscious knowledge it was violating the law or that the plaintiff had presented any evidence of egregious or outrageous conduct from which 10 defendant’s malice or reckless indifference could be inferred. Farias, 259 F. 3d at 102. Plaintiff contends that the rule in Farias is no longer valid because in 2005 the City HRL was amended to liberally expand civil rights protections. In 2005, the statute at Section 8-130 of the New York City Administrative Code was amended to provide, “The provisions of this title shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title have been so construed.” Subsequent to passage of the 2005 amendments to the City HRL, in Mihalik v. Credit Agricole Cheuvreux North America, Inc., 715 F.3d 102 (2d Cir. 2013), the Second Circuit revisiting the Second Circuit vacated the district court’s grant of summary judgment dismissing a former employee’s gender discrimination and retaliation claims brought pursuant to the City HRL and remanding for a trial, stated, “[C]ourts must analyze NYCHRL claims separately and independently from any federal and state law claims...construing the NYCHRL’s provisions ‘broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.’” Id. at 109 (citations omitted). The Court concluded, “Thus, even if the challenged conduct is not actionable under federal and state law, 11 federal courts must consider separately whether it is actionable under the broader New York City standards.” Id. Plaintiff cites to Mihalik in support of her argument that the Federal standard for awarding punitive damages in discrimination cases should not apply to City HRL cases. Nevertheless, the court in Mihalik was not faced with, and did not address the question here, namely, did the Restoration Act change the legal standard for punitive damages, and if so, what should the legal standard be? In Salemi v. Gloria’s Tribeca, Inc., 115 A.D. 3d 569, 982 N.Y.S. 2d 458 (1st Dept. 2014), the First Department applied the same standard subsequent to the Restoration Act as before passage of the Act when analyzing punitive damages under the NYCHRL. The court decided in Salemi that a punitive damages award under the NYCHRL in the amount of $1.2 million was supported by the “extensive evidence of defendants’ discriminatory conduct.” Salemi, 115 A.D. 3d at 570, 982 N.Y.S. at 460. The court noted that the plaintiff presented proof at trial that she was discriminated against based on her religion and sexual orientation at the restaurant where she was the chef and manager by showing that the owner required all employees to attend mandatory weekly prayer meetings, repeatedly remarking that homosexuality is a sin, that gay people are going to go to hell, “and generally subjecting her to an incessant barrage of offensive anti-homosexual invective...” Salemi, 115 A.D. 3d at 569, 982 N.Y.S. 2d at 459. 12 In Salemi, although decided in 2014, the New York appellate court relied on three cases that were decided prior to the Restoration Act: Nardelli v. Stamberg, 44 N.Y. 2d 500, 503, 406 N.Y.S. 2d 443 (1978); McIntyre v. Manhattan Ford, Lincoln-Mercury, 256 A.D. 2d 269, 271, 682 N.Y.S. 2d 167 (1st Dept., 1998); and Hill v. Airborne Freight Corp., 212 F. Supp. 2d 59, 74, 77 (E.D.N.Y. 2002). In Nardelli, the New York Court of Appeals stated that an award of punitive damages in an action for malicious prosecution may be based on a finding that defendant was motivated by actual malice or acted in reckless disregard of plaintiff’s rights. 44 N.Y. 2d at 503, 406 N.Y.S. 2d at 445. In McIntyre, a case in which the jury awarded punitive damages for sexual harassment in employment and retaliation under the New York City Human Rights Law, the First Department held that $1.5 million in punitive damages was a reasonable sum “in view of the egregiousness of defendant’s misconduct...” 256 A.D. 2d 269, 271, 682 N.Y.S. 2d 167, 170. In Hill, 212 F. Supp. 2d at 75, the federal district court looked to the federal standard for awarding punitive damages under the New York City Human Rights Law, citing Farias. Appellant, in her brief, relies on Katz v. Adecco USA, Inc., 845 F. Supp. 2d 539 (S.D.N.Y. 2012), a case decided prior to Mihalik by District Judge Harold Baer, Jr., for the rule that the NYCHRL requires a jury to award punitive damages 13 in every case in which it finds discrimination “unless the employer shows (1) that the unlawful conduct was perpetrated ‘solely’ by an employee, agent, or independent contractor; and (2) that during the relevant time period, the employer implemented and complied with antidiscrimination ‘policies, programs, and procedures’ established by the New York City Human Rights Commission.” Katz, 845 F. Supp. 2d at 552. Apparently, Judge Baer in a subsequent City HRL case concerning punitive damages, reconsidered his prior ruling in Katz. In Johnson v. Strive East Harlem Employment Group, 990 F. Supp. 2d 435, 449-450 (S.D.N.Y. 2014), cited by the court in Roberts, and decided after Mihalik, Judge Baer applied the federal “malice or reckless indifference” standard to deny defendants’ motion that plaintiff had failed to prove she was entitled to punitive damages as a matter of law. The court found that the “plethora of discriminatory comments supports the jury’s finding of malice or reckless indifference to plaintiff’s right to work free from race and gender discrimination.” Johnson, 990 F. Supp. 2d at 450. Recently, in Grella v. Avis Budget Group, Inc., No. 14-Cv-8273 (CM), 2016 WL 638748 at *1 (S.D.N.Y. Feb. 11, 2016), a federal trial court applied the federal malice or reckless indifference standard to an action brought pursuant to the section of the Administrative Code prohibiting discrimination against persons with disabilities in public accommodation. Id. at *7. The court reasoned that the only 14 standard for applying punitive damages to disability causes of action under the Administrative Code, other than the federal standard, would be New York State’s law on punitive damages. Id. Relying on Farias, supra, 259 F. 3d at 101-102 the court found that the two standards are indistinguishable. The court in Grella, agreed. Grella, 2016 WL 638748 at *7. The federal standard for awarding punitive damages was recently examined by the Second Circuit in Wiercinski v. Mangia 57, Inc., 787 F. 3d 106, 115 (2d Cir. 2015). The Federal Appeals Court explained, “The showing required for an award of punitive damages is not the same as that required for liability.” Wiercinski, 787 F. 3d at 115. The Court, quoting from 42 U.S.C. § 1981 a (b)(1), stated that punitive damages in an employment discrimination case may only be awarded where the employer has “engaged in a discriminating practice or practices with malice or reckless indifference to the federally protected rights of an aggrieved individual.” Id. The Court found that the defendant’s mere alleged failure to act after the plaintiff complained about discrimination might establish liability for discrimination, but could not support an award of punitive damages. Id. The same federal standard should be followed in cases brought pursuant to the City HRL. The City HRL fails to set forth a legal standard as to the proof that is necessary for a plaintiff to recover punitive damages. Wilson v. Phoenix House, 42 Misc. 3d 677, 710 (Sup. Ct. Kings Co. 2013). When local civil rights law do 15 not provide legal standards, courts tend to follow the ‘malice’ or ‘reckless indifference’ standard of Federal law. Taylor v. New York University M.C., 21 Misc. 3d 23, 28 (App. Term, 1st Dept.) This Court has stated that punitive damages are not equivalent to compensatory damages. Ross v. Louis Wise Services, Inc., 8 N.Y. 3d 478, 489 (2007). Punitive damages may be awarded “when the wrongdoer has acted maliciously, wantonly...or with a reckless or wanton disregard of safety or rights.” (quoting, Sharapata v. Town of Islip, 56 N.Y. 2d 332, 335, (1982). They are appropriate where the wrongdoer engaged in “gross misbehavior” or “willfully and wantonly causes hurt to another.” Thoreson v. Penthouse Int’l, Ltd, 80 N.Y. 2d 490, 497 (1992). The City HRL clearly states that a person aggrieved by an unlawful discriminatory action is entitled to recover damages, including punitive damages. Administrative Code § 8-502. However, Plaintiff argues that the standard of proof a plaintiff must prove to be entitled to punitive damages is contained in Administrative Code § 8-107 (13) (d). That section of the Administrative Code provides that employers may mitigate or avoid liability for punitive damages arising from acts of employees. By its terms, however, this statute only refers to punitive damages as it applies to employers. It does not contain language defining the legal standard for liability for punitive damages as it applies to employees. 16 Nevertheless, Plaintiff seeks punitive damages against two individual employees of Park Health Center as well as the employer, Park Health Center. When considering a question of statutory interpretation, a court’s primary consideration “is to ascertain and give effect to the intention of the legislature.” Yatauro v. Mangano, 17 N.Y. 3d 420, 426 (2011) (quoting Matter of DaimlerChrysler Corp. v. Spitzer, 7 N.Y. 3d 653, 660 (2006). “In searching for the legislative intent, we, of course, first examine the words of the statute both for their meaning as used in the specific section and in their context as part of the statutory scheme.” Thoreson v. Penthouse Int’l, Ltd, supra, 80 N.Y. 2d at 496. Since “the clearest indicator of statutory intent is the statutory text, the starting point in any case of interpretation must always be the language itself giving effect to the plain meaning thereof.” Matter of Shannon, 25 N.Y. 3d 345, 351 (2015) (quoting Majewski v. Broadalbin-Perth Central School District, 91 N.Y. 2d 577, 583 (1998). “Any statute or regulation, but particularly social legislation, however broad, must be interpreted and enforced in a reasonable and humane manner in accordance with its manifest intent and purpose. Sabot V. Lavine, 42 N.Y. 2d 1068, 1069 (1977). The title of Administrative Code § 8-107 (13) is: “Employer liability for discriminatory conduct by employee, agent or independent contractor.” The statute then imposes liability upon an employer for discriminatory conduct of an 17 employee or agent. Subparagraph (d) provides that where an employer took steps, prior to the employee’s discriminatory acts, to prevent and detect discrimination by its employees, or had no reason to believe such employee would commit such acts, the employer can plead and prove such facts in mitigation or to avoid liability. More importantly, subsection (e) provides that such proof may be shown by the employer to mitigate or avoid punitive damages. The clear language of the statute only applies to employers and only when an employee has been found liable for discrimination. The statute does not, however, contain the legal standard for an employee’s discrimination or, more importantly, the employee’s liability for punitive damages. This Court has stated, and defendants do not challenge, the rule that the City HRL “shall be construed liberally for accomplishment of the uniquely broad and remedied purposes thereof, regardless of whether federal or New York State civil and human rights laws ...have been so construed.” Romanello v. Intesa Sanpaolo, S.p.A., 22 N.Y. 3d 881, 884-885 (2013); see Albunio v. City of New York, 16 N.Y.3d 472, 477-478 (2011) (the provisions of the City HRL must be construed broadly in favor of discrimination plaintiffs to the extent such a construction is reasonably possible.) However, the City HRL does not define the legal standard for charging a jury on punitive damages. In the absence of a standard, courts should continue to follow the Federal standard for punitive damages m discrimination cases brought under the City HRL. CONCLUSION Courts should continue to follow the Federal standard for punitive damages in discrimination cases brought under the City HRL. Dated: April 25, 2017 18 Respectfully submitted, ~fb. W. fOJ,mJ)./L- A1thur H. Forman Attorney for Defendants-Respondents 98-20 Metropolitan Avenue Forest Hills, New York 11375 718-268-2616 af@ahforman.com CERTIFICATION Pursuant to court Rule§ 500.13 ( c)(l), Arthur H. Forman certifies that this brief contains 3 ,988 words. ~ H. +D7Ymaut- ARTHUR H. FORMAN 19