Veronika Chauca, Appellant,v.Jamil Abraham, et al., Respondents.BriefN.Y.December 14, 2016To be argued by Stephen Bergstein Time requested: 20 minutes CTQ-2016-00003 ~tate of ~ew ~ork QCourt of ~ppeals VERONIKA CHAUCA Plaintiff-Appellant, v. JAMIL ABRAHAM, Individually, PARK MANAGEMENT SYSTEMS, LLC, AKA Park Health Center, ANN MARIE GARRIQUES, Individually, 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 APPELLANT'S REPLY BRIEF LAW OFFICES OF ANNE STEPHEN BERGSTEIN DONNELLY BUSH 8 Main Street BERGSTEIN & ULLRICH, LLP Hastings, New York 10706 5 Paradies Lane (914) 239-3601 (ph) New Paltz, New York 12561 (9 14) 219-3145 (fx) (845) 469-1277 (ph) (845) 469-5904 (fx) Counsel for Plaintiff-Appellant Dated: May 10, 2017 TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . .... . . .. . . . .. . . ... ....... .. . .. . . .. .. . ii PRELIMINARY STATEMENT . . .. . . . . .. .. .. . . . .. ........ . ... . .. .. . .. 1 POINT I: DEFENDANTS MINIMIZE THE PREGNANCY DISCRIMINATION THAT LED TO THE VERDICT IN PLAINTIFF'S FAVOR ...... .. .... . ........ .. .... . . . . .. .. . 2 POINT II: FEDERAL LAW DOES NOT GOVERN THE CITY HRL'S STANDARD FOR PUNITIVE DAMAGES IN EMPLOYMENT DISCRIMINATION CASES ... .. ..... ... .. ......... . ..... . 4 POINT III: THERE IS NO HEIGHTENED PUNITIVE DAMAGES STANDARD FOR INDIVIDUAL DEFENDANTS UNDER THE CITY LAW ....... .. .... .. .... . .. . . . ... .. .... . .. . . . 13 A. The City law authorizes punitive damages against individuals .... 13 B. The standard governing punitive damages against employers and employees is identical . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 POINT IV: PLAINTIFF PROPOSES A JURY CHARGE FOR EMPLOYMENT DISCRIMINATION CASES UNDER THECITYLAW . .. . . . ..... . .......... . . . . . . . .. ... . .... . 17 CONCLUSION .. . . ....... . . . . .. .. . ..... .. . . . ... ...... ... ... .. .. .. 19 CERTIFICATION ..... . . ...... . .. ..... . . ........ . ..... . .. ... . ... .. 20 TABLE OF AUTHORITIES Cases Albunio v. City of New York, 16 N.Y.3d 472 (201 1) .. . .............. ... 9, 17 Bennett v. Health Mgt. Sys. Inc., 92 A.D.3d 29 (1st Dept. 2011) ...... . .. .. . 6, 7 BMW ofN Am. v. Gore, 517 U.S. 559 (1996) .. .... .. ............ ... . . . . 11 Chauca v. Abraham, 841 F.3d 86 (2d Cir. 2016) . .............. 5, 6, 11, 12, 14 Farias v. International Systems, Inc., 259 F.3d 91 (2d Cir. 2001) . ... . ....... 13 Gallo v. Alitalia-Linee, 585 F. Supp. 2d 520 (S.D.N.Y. 2008) . .. .. .. .... . . .. 7 Jordan v. Bates Advert. Holdings, Inc., 11 Misc. 3d 764 (Sup. Ct. 2006) . . .... 12 Kolstad v. Am. Dental Assn, 527 U.S. 526 (1999) .... .............. . 1, 7, 8, 9 Malena v. Victoria's Secret Direct, LLC, 886 F. Supp. 2d 349 (S.D.N.Y. 2012) . . ...... ..... ... .. . . .. .. .... .. . . ....... .. ... . 14 Matter of Shannon, 25 N.Y. 3d 345 (1998) ... .. . ....... . .... . .......... . 9 McGrath v. Toys "R " Us, Inc., 3 N.Y.3d 421 (2004) ........ .. . ... .... .. ... 7 Mcintyre v. Manhattan Ford, Lincoln-Mercury, Inc., 256 A.D.2d 269 (1st Dept. 1998) . ........ . . ... ... .................... .. . ..... . 11 Romanello v. Intesa Sanpaolo, S.p.A., 22 N.Y.3d 881 (2013) . .... ....... .... 7 Salemi v. Gloria's Tribeca, Inc. , 115 A.D.3d 569 (1st Dept. 2014) ..... ... 10, 11 Serdans v. New York & Presbyterian Hasp., 138 A.D.3d 524 (1st Dept. 2016) .......... . . ...... ... .. .. . . .... ............... 13 11 Taylor v. New York Univ. Med. Ctr., 21 Misc. 3d 23 (App. Term 2008) .. . .... 12 Williams v. New York City Hous. Auth., 61 A.D.3d 62 (1st Dept. 2009)) . 8, 12, 17 Wilson v. Phoenix House, 42 Misc. 3d 677 (Sup. Ct. Kings Co. 2013) . .. .... . 11 Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72 (2d Cir. 2015) . ...... . 4 Yatauro v. Mangano, 17 N.Y. 3d 420 (2011) .... ... ..... ... .. .... .. ...... 9 Zakrzewska v. New School, 14 N.Y.3d 469 (2010) .. . .. .. ........... .. .... 4 Statutes N.Y.C. Admin. Code§ 8-107(1)(a) .. . . . ... ...... ...... .. . . . . .. . . ...... 10 N.Y.C. Admin. Code§ 8-107(13)(d) ... .... . . . .. . ... . . . ..... 5, 8, 10, 15, 16 N.Y.C. Admin. Code§ 8-107(13)(e) .... . .... . . . ............ . 5, 8, 10, 15, 16 N.Y.C. Admin. Code§ 8-107(13)(£) . . .. .. . .. ... ... ..... ... . . ... 5, 8, 15, 16 N.Y.C. Admin. Code § 8-130(b) ...................................... . 9 N.Y.C. Admin. Code§ 8-502(a) .. . . .. .......... . .. . .. .......... 10, 13, 14 Other authority Committee Report of the Governmental Affairs Division and Committee on Civil Rights (March 8, 2016) . . ... ........ . . ... .... . .. .. . .... ...... .. . 6 Gurian, A Return to Eyes on the Prize, Litigating under the Restored New York CityHumanRightsLaw, 33 Fordham Urb. L.J. 255, 319 (2006) .... ... .. . . .. 14 111 PRELIMINARY STATEMENT In this certification case from the Second Circuit Court of Appeals, Plaintiff-Appellant Veronika Chauca submits this Reply Brief in further support of her appeal from the judgment of the Eastern District ofN ew York, which declined to charge the jury on punitive damages in her pregnancy discrimination case brought under the New York City Human Rights law. In their brief, Defendants ask this Court to hold that federal standards govern the punitive damages inquiry under the New York City Human Rights Law. They further claim "the statute only refers to punitive damages as it refers to employers'' but "does not contain language defining the legal standard for liability for punitive damages as it applies to employees." (Defs Br. at 15). As demonstrated in Plaintiffs opening brief and herein, the federal punitive damages standard is not consistent with the statutory construction and remedial goals promoted by the City law. To the extent Defendants argue that the City law does not authorize punitive damages against employee-discriminators, they are incorrect. Moreover, the standard governing liability against employers and employees who discriminate is identical and does not draw from the heightened federal standard set forth in Kolstad v. Am. Dental Assn, 527 U.S. 526 (1999). POINT I DEFENDANTS MINIMIZE THE PREGNANCY DISCRIMINATION THAT LED TO THE VERDICT IN PLAINTIFF'S FAVOR In summarizing the evidence at trial, Defendants play down the extent of the pregnancy discrimination that Plaintiff endured. As Defendants frame the sequence of events, they were open-minded about pregnancy-related leaves of absence for Plaintiff and other employees. In particular, Defendants state that Jacqueline Stern "was able to take time off from work to see her son without a problem after returning to work at Park Health Center." (Def's Br. at 3). Defendants further state that Dr. Jamil Abraham told Plaintiff"there would not be a problem with her taking time off for maternity leave" and "Plaintiff did not experience any hostility at work" after she announced her pregnancy. !d. See also id. ("Abraham did not act concerned about the number of months [Plaintiff] wanted"). Defendants' brief fails to view the record in the light most favorable to Plaintiff's position, particularly since Plaintiff prevailed at trial on her pregnancy discrimination claims under federal and city law. When Plaintiff approached the end of her maternity leave in late 2009, she repeatedly called the office to remind management about her return to work. (JA 80- 82). After getting the run-around, Plaintiff was finally told, "we no longer need your services." Ann Marie Garriques, the office manager, "just hung up the phone." (JA 2 82). While Garriques and Dr. Abraham testified that the Center had reduced its hours and was laying off staff (JA 208, 286, 492), and that Garriques had tried without success to call Plaintiff (JA 304-05), the jury was entitled to credit Plaintiffs testimony that she had repeatedly called the Center in early 2010 but that the Center had ignored her calls, prompting her to file an EEOC charge. (JA 82, 108-111 ). The jury also heard evidence that business picked up in early 2010 (JA 220-21), which would have allowed Defendants to return Plaintiff - a senior employee - to the workplace. But Dr. Abraham admittedly refused to return Plaintiff to work because she had filed an EEOC charge. (JA 221-22, 236, 255-56). Further drawing inferences in their favor, Defendants suggest that co- workers Debra Mahearwanlal and Jacqueline Stem were treated fairly during their pregnancies. (Defs Br. at 5-6). However, as demonstrated in Plaintiffs opening brief, Mahearwanlal 's employment with Defendant ended after she became pregnant and took maternity leave in May 2009. (Plaintiffs Br. at 9). Mahearwanlal was fired because "[ s ]he was on matemity.leave too long" and returned to work only after she threatened to file a lawsuit. !d. While Defendants claim Stem was not fired from her position (Defs Br. at 6), the evidence allowed the jury to find Stem was in fact terminated when she was on maternity leave. (Plaintiffs Br. at 9-10). The district court charged the jury that, under Title VII of the Civil Rights 3 Act of 1964, Plaintiff had to prove that, because of her pregnancy, Defendants took adverse action against her, i.e., "a significant change in employment status." (JA 452- 53). The Court instructed the jury that "the defendants's failure to reinstate plaintiff was an adverse employment action under the law." (JA 453). See also JA 457 (same adverse action instruction for the City law claim). The jury found that Defendants had failed to reinstate Plaintiff because of her pregnancy. (JA 472). In reaching a verdict in Plaintiffs favor, the jury was entitled to consider Dr. Abraham's admission that he declined to reinstate Plaintiff to her former position because of her EEOC charge. Any adverse decision based on Plaintiffs EEOC charge was discriminatory. Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 82 (2d Cir. 2015) ("retaliation is a form of discrimination"). POINT II FEDERAL LAW DOES NOT GOVERN THE CITY HRL'S STANDARD FOR PUNITIVE DAMAGES IN EMPLOYMENT DISCRIMINATION CASES As demonstrated in Plaintiffs opening brief, the City HRL is structured and analyzed quite differently from Title VII, reflecting the City Council's intent to create a self-contained employment discrimination statute that promotes different goals than Title VII in order to eradicate and punish workplace bias. See e.g. Zakrzewska v. New School, 14 N.Y.3d 469, 479-480 (2010) (noting that the "interrelated set of 4 provisions" and overall "legislative scheme" under the City law "simply does not match up with theFaragher-Ellerth defense" governing employer liability for sexual harassment in the workplace"). Reviewing the City law in light of the City Council's legislative intent is critical to Plaintiff's argument that punitive damages are available to any plaintiff who suffers employment discrimination, subject only to the mitigating factors set forth under§ 8-107(13)(d)(e) and the safe-harbor provision under § 8-107(13)(£), which does not apply to this case. While the Second Circuit stated in certifying this case to the New York Court of Appeals that the City law "provides no specific guidance concerning how the NYCHRL should be 'construed liberally' and independently of state and federal law in its particular applications," Chauca v. Abraham, 841 F .3d 86, 87-8 8 (2d Cir. 20 16), that was incorrect. In fact, reinforcing the liberal statutory construction guiding the Local Civil Rights Restoration Act of 2005 (see Plaintiff's Opening Br. at 20-23), in 2016, the City Council reaffirmed the goals of the City law, citing with approval particular appellate rulings that faithfully applied the legislative intent in interpreting the City law, stating: These cases do not just establish specific ways in which the HRL differs from its federal and state counterparts; they also illustrate a correct approach to liberal construction analysis and then develop legal doctrine accordingly. It is therefore important for courts to examine the reasoning of the cases- including their 5 extensive discussions of why the U.S. Supreme Court's analysis can be inadequate to serve the purposes of the HRL- and then for courts to employ that kind of reasoning when tackling other interpretative problems that arise under the HRL." Committee Report of the Governmental Affairs Division and Committee on Civil Rights, at 13 (March 8, 20 16) (emphasis supplied). 1 As reflected in the City Council's directive that this interpretative model applies "when tackling other interpretative problems that arise under the HRL," id. , this approach governs all provisions of the City law. See generally Plaintiffs Opening Br. at 27 (noting that the City Council codified this statutory construction) and id. at 37-38 (noting that a City Councilmember had only cited illustrative cases in criticizing the unduly narrow statutory construction that the 2005 amendments were intended to reject). Similarly, while the Second Circuit stated that "the text of the Restoration Act makes no mention of punitive damages," Chauca, 841 F.3d at 92, the City Council has rejected the argument that the Council must "amend the City HRL to specifically depart from a federal doctrine if it wanted to do so." Bennett v. Health Mgt. Sys. Inc., 92 A.D.3d 29, 35 (1st Dept. 2011). In Bennett, the First Department noted that the City Council in enacting the Restoration Act rejected the analysis in 1 http://www.antibiaslaw.com/sites/default/files/Committee%20Report.pdf 6 McGrath v. Toys "R " Us, Inc., 3 N.Y.3d 421 (2004), that held that federal attorneys' fees doctrine governed the City law because the City Council had not specifically acted to depart from that doctrine in enacting the City law. 92 A.D.3d at 35. The interpretative model that the City Council has repeatedly endorsed therefore applies in determining the standard governing punitive damages liability.2 In their brief, Defendants agree that the City HRL "shall be construed liberally for the accomplishment of the uniquely broad and remedies provisions thereof, regardless of whether federal or New York civil and human rights laws ... have been so construed." (Defs Br. at 17) (quoting Romanello v. Jntesa Sanpaolo, S.p.A. , 22 N.Y.3d 881 , 884-885 (2013)). However, in arguing that the federal punitive damages standard- set forth in Kolstad v. Am. Dental Assn, 527 U.S. 526 (1999) - governs punitive damages under the City law, Defendants do not apply that interpretative model. The City law - amended twice after the Supreme Court issued 2 The First Department in Bennett also singled out a federal ruling, Gallo v. Alitalia-Linee, 585 F. Supp. 2d 520 (S.D.N.Y. 2008), as indicative of the court rulings that have ignored the legislative intent in enacting the City law. In Gallo , the court improperly ruled that sexual harassment cases under the City law required a showing that the harassment was "severe or pervasive." 61 A.D.2d at 73 n.15. Gallo further improperly assumed that the City Council in enacting the Restoration Act in 2005 had implicitly endorsed any ruling that the Council had not explicitly rejected. !d. at 75 n. 18. Bennett stated that Gallo had overlooked how "the most important specific textual changes made by the Council were the changes to section 8-130 - changes designed to control the construction of every other provision of the HRL." !d. at 77 n. 24. 7 Kolstad - says nothing about malice or recklessness. Instead, under the City law, upon a finding of discrimination caused by an employee, agent or independent contractor, the inquiry turns to whether the employer can mitigate the amount of punitive damages upon a showing inter alia that it had established and complied with antidiscrimination policies, programs and procedures. Section 8-1 07(13)( d)( e). Unlike Title VII, which requires proof that the employer acted "with malice or with reckless indifference" to the plaintiffs federally-protected rights, Kolstad, 527 U.S. at 529-30, other than a limited exception that does not apply in this case (§ 8- 107(13)(£)), the City law offers employers no safe harbor on punitive damages. The punitive damages model that Plaintiff proposes is consistent with the City Council's intent to create an antidiscrimination law that promotes "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." Williams v. New York City Hous. Auth., 61 A.D.2d 62, 66 (1st Dept. 2009). The law "explicitly requires an independent liberal construction analysis in all circumstances." !d. Moreover, the City law makes it clear to employers that, if they wish to avoid punitive damages, they must take the antidiscrimination mandate seriously and ensure that their employees do not suffer discrimination. As set forth in Plaintiffs Opening Brief (at 8 31-32), the City law is essentially a "zero-tolerance" statute, as it mandates that "exceptions to and exemptions from the provisions of this title shall be construed narrowly in order to maximize deterrence of discriminatory conduct." Section 8- 130(b). Accordingly, this Court should reject Defendants' argument that the City HRL' s "fail [ ure] to set forth a legal standard as to the proof that is necessary for a plaintiff to recover punitive damages" requires this Court to apply the federal standard under Kolstad. (Defs Br. at 14-15). As Defendants recognize, in analyzing a statute, the court must "ascertain and give effect to the intention of the legislature." ld. at 16 (quoting Yatauro v. Mangano, 17 N.Y. 3d 420, 426 (2011)). Defendants also recognize that courts must review the plain language of the statute. !d. (citing Matter of Shannon, 25 N.Y. 3d 345, 351 (1998)). Under this statutory construction, this Court should adopt Plaintiffs interpretation, bearing in mind that the City law must be construed "broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible." Albunio v. City of New York, 16 N.Y.3d 472,477-78 (2011). Plaintiffs proposed standard is "reasonably possible" under Albunio. The City law's structure reflects the City Council's intent to hold employers liable for punitive damages upon a finding of discrimination, subject to any mitigation as set 9 forth in§ 8-107 ( 13 )(d)( e). Moreover, in stating that employees have a cause of action "for damages, including punitive damages," § 8-502(a), against any employer that unlawfully discriminates inter alia "in terms, conditions or privileges of employment,"§ 8-107(l)(a), this language is properly interpreted to mean liability for the cause of action, including punitive damages. Nowhere does the statute assert that the plaintiff must furnish additional proof in order to recover punitive damages. In asserting otherwise, Defendants cite Salemi v. Gloria 's Tribeca, Inc. , 115 A.D.3d 569 (1st Dept. 2014), where the First Department upheld a punitive damages award in a case alleging religious and sexual orientation discrimination. Defendants claim this case supports their position that the City HRL 's punitive damages standard mirrors the federal test because the First Department cited pre-Restoration Act cases. (Defs Br. at 12). However, the Court in Salemi did not articulate or apply a legal standard governing the plaintiffs entitlement to punitive damages. Instead, the Court held that the punitive damages award was not "grossly excessive" in light of the "extensive evidence of defendants ' discriminatory conduct." Id. at 570. While courts have authority to review the amount of punitive damages award to ensure it does not exceed legal requirements, that question is entirely different from whether the plaintiff is entitled to recover punitive damages in the first instance. The cases cited in Salemi for this proposition each held the damages award was not excessive. See 10 e.g. Mcintyre v. Manhattan Ford, Lincoln-Mercury, Inc ., 256 A.D.2d 269, 271 (1st Dept. 1998) ("The punitive damages awarded by the jury in this case for sexual harassment and retaliation total $2,500,000, an amount that does not exceed the limits of what constitutes a 'reasonable relationship' to the amount of compensatory damages") (quoting BMW ofN. Am. v. Gore, 517 U.S. 559,581 (1996)). In certifying this case to the New York Court of Appeals, the Second Circuit noted that Salemi does not advance Defendants' position. See Chauca, 841 F.3d at 93 ("the only relevant post-2005 case cited by either party at oral argument was Salemi v. Gloria's Tribeca, Inc . ... and although the Salemi court affirmed a jury's award of$1.2 million in punitive damages by deeming it not grossly excessive, the court made no mention of the standard used in charging the jury on punitive damages in the first place"). Defendants also rely upon Wilson v. Phoenix House, 42 Misc. 3d 677, 710 (Sup. Ct. Kings Co. 2013), which applied federal standards in interpreting the City law's punitive damages provision. However, Wilson is a non-binding trial court ruling. While the Court in Wilson noted that the City Council sought "'enhanced protection against discrimination," id., the Court failed to engage in the independent statutory analysis that the statute expressly requires. Wilson stated that the City law does not "set forth the standard of proof that is necessary for a plaintiff to recover punitive damages" and that "when local civil rights laws are silent with regard to 11 legal standards, the courts tend to follow the guidelines established under federal law." !d. Yet, as noted above, courts must construe the City law liberally in light of its "uniquely broad and remedial purposes" even if its provisions are worded comparably to its state and federal counterparts. Williams, 61 A.D.3d at 66. Since the Wilson Court did not engage in that statutory analysis, its reasoning is unpersuasive and this Court should reject it. For these reasons, this Court should also reject the analysis in Taylor v. New York Univ., 21 Misc. 3d 23 (App. Term. 1st Dept. 2008), which grafts the federal standard into the City law's punitive damages entitlement without acknowledging that the statute requires the Court to analyze the law independently from its federal counterpart. !d. at 28. What is more, the analysis in Taylor is dicta, as the Court had already vacated the verdict in the plaintiffs favor. !d. The Second Circuit has already held that Taylor and similar cases are unhelpful on the issue of what standard governs punitive damages under the City law. See Chauca, 841 F.3d at 94 n.4 ("Only a handful of other state court decisions have raised the question of the punitive damages standard since 2005, and none considers the Restoration Act's possible effect on the NYCHRL's punitive damages standard") (citing Taylor v. New York Univ. Med. Ctr., 21 Misc. 3d 23, 33 (App. Term 2008) (discussing pre-2005 New York state law precedents) (Davis, J., dissenting); Jordan v. Bates Advert. Holdings, 12 Inc., 11 Misc. 3d 764 (Sup. Ct. 2006) (applying Farias v. International Systems, Inc., 259 F.3d 91(2d Cir. 2001)); Serdans v. New York&PresbyterianHosp. , 138 A.D.3d 524 (1st Dep't 2016)). POINT III THERE IS NO HEIGHTENED PUNITIVE DAMAGES STANDARD FOR INDIVIDUAL DEFENDANTS UNDER THE CITY LAW Defendants argue that the City law does not set forth a legal standard for punitive damages against individual employees. Nor does the City law, Defendants argue, articulate a legal standard guiding employee liability for punitive damages. (Defs Br. at 17). In fact, the statute authorizes punitive damages against individuals. This Court should rule that the standard governing punitive damages against the employer and individual defendants is identical. A. The City law authorizes punitive damages against individuals. Under § 8-502(a), "any person claiming to be aggrieved by an unlawful discriminatory practice as defined in chapter one of this title ... shall have a cause of action in any court of competent jurisdiction for damages, including punitive damages." The employment discrimination provisions under chapter one state that "[i]t shall be an unlawful discriminatory practice [f]or an employer, or an employee or agent thereof, because of ... gender ... to discriminate against such person in 13 compensation or in terms, conditions or privileges of employment." Section 8- 107(1)(a) (emphasis supplied). The plain terms of the City law therefore authorize an award of punitive damages against employers and employees. Indeed, certifying this case for the New York Court of Appeals, the Second Circuit stated that "both employers and employees also may be found directly and individually liable for punitive damages under the NYCHRL." Chauca, 841 F.3d at 91 n. 3 (citing Malena v. Victoria 's Secret Direct, LLC, 886 F. Supp. 2d 349, 366 (S.D.N.Y. 20 12)). See also Gurian, A Return to Eyes on the Prize, Litigating under the Restored New York City Human Rights Law, 33 Fordham Urb. L.J. 255, 319 (2006) ("Restricting the universe of those for whom an employer may be held liable in punitive damages to managerial employees ... is a restriction contrary to the choice made by the City Human Rights Law"); Remarks by Mayor David N. Dinkins at Public Hearing on Local Laws, June 18, 1991, at 4 ("the new law takes the fundamental step of making all people responsible for their own discriminatory conduct").3 B. The standard governing punitive damages against employers and employees is identical. As demonstrated in Point III (A), under§ 8-502(a), the City Council did not intend to absolve individual defendants from liability for punitive damages. This 3 http://www.antibiaslaw.com/sites/default/files/all/LL39LegHist-Mayor.pdf 14 Court should find that plaintiffs may recover punitive damages on the same basis that they may recover them against employers: upon a finding of discrimination. Under the City law, the jury may award punitive damages against employers even if management did not personally engage in the discrimination. See § 8- 107 (13 )(d) (authorizing punitive damages against employers "based solely on the conduct of an employee, agent, or independent contractor"). If, as Plaintiff has demonstrated on this appeal, other than the limited exception set forth in § 8- 107(13)(£), no safe harbor protects the employer from punitive damages even if an employee is solely responsible for the discrimination, it would make no sense to hold the Plaintiff to a higher standard of proof, i. e., malice, in recovering punitive damages against the offending employee. Yet, Defendants propose this standard in asking this Court to apply the malice standard set forth in Kolstad. See Defs Br. at 17-18. Defendants argue that the statute "only refers to punitive damages as it applies to employers" but contains no language defining the legal standard for employee liability. (Defs Br. at 15). However, while the City law does set forth detailed provisions governing employer liability for punitive damages, see § 8- 107(13)(d)( e)(f), that cannot mean the City Council did not intend to hold employees liable for them, or that the Council gave no thought to this issue. Nor can it mean the City Council intended to impose a higher standard in guiding individual employee 15 liability for punitive damages. Employee liability for punitive damages is not complex. If the employee is directly responsible for the discrimination, he is liable for punitive damages. In contrast, when the employer is not directly responsible for the discrimination, it may mitigate the amount of punitive damages based on whether it established and complied with "policies, practices, programs and procedures for the prevention and detection of unlawful discriminatory practices by employees" and others. Section 8- 107 (13 )( d)(l ). The detailed statutory scheme for employer liability is necessary because careful consideration must be given when supervisors and managers are not directly responsible for the discrimination. The various factors relevant to employer liability are therefore set forth in the statute, under§ 8-107(13)(d)(e)(f). In enacting these provisions, the City Council also sought to provide guidance for employers to take preventative measures to ensure that any discrimination is avoided from the outset. But that statutory scheme is not applicable to the offending employee. Not only is the offending employee typically more responsible for the discrimination than the employer, but the employee is not in any position to undertake the various remedial measures under§ 8-107(13)(d)(e)(f). Those provisions are irrelevant in detem1ining what the offending employee should pay out in punitive damages. Plaintiff's proposed standard guiding employee liability for punitive 16 damages is consistent with the statutory intent to eradicate and punish employment discrimination in New York City. Williams, 61 A.D.3d at 66. As this statutory construction is reasonable and logically draws from the statutory language, this Court should adopt it. Albunio, 16 N.Y.3d at 477-78. POINT IV PLAINTIFF PROPOSES A JURY CHARGE FOR EMPLOYMENT DISCRIMINATION CASES UNDER THE CITY LAW The following proposed jury charge is consistent with Plaintiffs position on this appeal, drawn from the New York City Human Rights Law. This proposed charge advises the jury that punitive damages are discretionary and not mandatory. It also instructs the jury that the defendants can mitigate the amount of punitive damages. If you find that Plaintiffhas established by a preponderance of the evidence that any of the Defendants discriminated against Plaintiff because of her [protected status], then you may award punitive damages against that Defendant. The purpose of punitive damages is not to compensate the Plaintiff. Punitive damages are awarded in the jury's discretion to punish a defendant for discriminatory conduct, and to deter that defendant, and others in the same position, from engaging in similar conduct in the future. The employer may mitigate the amount of punitive damages as to itself by producing evidence that it had established and complied with policies, programs and procedures for the prevention and 17 detection of unlawful discriminatory practices by employees, agents and persons employed as independent contractors. These policies, programs and procedures include but are not limited to: 1. A meaningful and responsive procedure for investigating complaints of discriminatory practices by employees, agents and independent contractors and for taking appropriate action against those persons who are found to have engaged in such practices; 2. A firm policy against such discriminatory practices which is effectively communicated to employees, agents and independent contractors; 3. A program to educate employees and agents about unlawful discriminatory practices under local, state, and federal law; and 4. Procedures for the supervision of employees and agents and for the oversight of independent contractors specifically directed at the prevention and detection of such practices; In mitigating the amount of punitive damages, the employer may also prove that it had a record of no, or relatively few, prior incidents of discriminatory conduct by such employee, agent or independent contractor or other employees, agents or independent contractors. In addition to any other relevant factors , the demonstration of any or all of the factors that I just mentioned shall be considered in mitigation of the amount of punitive damages which you may impose against the employer. As for the individual Defendants, you may award pumhve damages against them upon a finding of discrimination against those individuals. In determining on the amount of punitive damages to award against an individual defendant, you may 18 consider any mitigating factors as you deem appropriate. An award of punitive damages against any defendant is discretionary; that is, if you find that the legal requirements for punitive damages are satisfied, then you may decide to award punitive damages, or you may decide not to award them. CONCLUSION This Court should find that, in contrast to the federal standard, employment discrimination plaintiffs are entitled to punitive damages if they prove they suffered discrimination on the basis of any of the protected characteristics under the City law, including pregnancy. This standard governs employer and employee liability for employment discrimination. Dated: May 10, 2017 Respectfully submitte , ~~~~ STEPHEN BERGSTEIN BERGSTEIN & ULLRICH, LLP 5 Paradies Lane New Paltz, New York 12561 (845) 469-1277 steve@tbulaw.com LAW OFFICES OF ANNE DONNELLY BUSH 8 Main Street Hastings, New York 10706 (914) 239-3601 adblaw@gmail.com Counsel for Plaintiff-Appellant 19 CERTIFICATION Pursuant to Court Rule§ 500.13(c)(l), Stephen Bergstein, Esq., certifies that this brief contains 4,366 words. c£~-vt [, !);!;) STEPHEN BERGSTEIN 20