Trathony Griffin and Michael Godwin, Appellants,v.Sirva, Inc. and Allied Van Lines, Inc., Respondents.BriefN.Y.March 28, 2017To be Argued by: STUART LICHTEN (Time Requested: 30 Minutes) CTQ-2016-00002 Court of Appeals of the State of New York TRATHONY GRIFFIN and MICHAEL GODWIN, Appellants, – against – SIRVA, INC. and ALLIED VAN LINES, INC., Respondents. –––––––––––––––––––––––––––––– ON APPEAL FROM THE CERTIFIED QUESTION BY THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT IN DOCKET NO. 15-1307-CV REPLY BRIEF FOR APPELLANTS LICHTEN & BRIGHT, P.C. Attorneys for Appellants 373 Park Avenue South, 9th Floor New York, New York 10016 Tel.: (646) 588-4870 Fax: (646) 588-4877 TABLE OF CONTENTS I. SECTION 296(15) DOES NOT LIMIT LIABILITY TO EMPLOYERS • •• , •.••.•.•.............•....•...•••...•...... 2 II. ALTERNATIVELY, "EMPLOYERS" SHOULD INCLUDE ENTITIES WHICH EXERCISE A SIGNIFICANT LEVEL OF CONTROL OVER DISCRIMINATION POLICIES AND PRACTICES ................... 4 III. AIDING AND ABETTING LIABILITY APPLIES IN THESE CIRCUMSTANCES ................................. 7 CONCLUSION ................................................... 10 TABLE OF AUTHORITIES Eberline v. Media Net LLC , 68 F. Supp. 3d 619 (S.D. Miss . 2014) ... ....... . .... .. .... ..................... 6 Hopkins v. Cornerstone America, 545 F.3d 338 (5th Cir. 2008) ...................... .... . .................. 6 Gulino v. New York St . Ed . Dep't, 460 F . 3d 361 (2d Cir . 2006) ....... ...................... . . .. . .. . . .. .. ... 5 Jacobson v. Comcast Corp., 740 F . Supp . 2d 683 (D. Md. 2 010) ............................... . .. .... ....... . 6 Keeton v. Time Warner Cable, Inc ., 2011 WESTLAW 2618926 (S .D. Ohio July 1 , 2011) ... .. . . ....... 7 Lima v . Addeco , 634 F . Supp . 2d 394 (S.D . N. Y. 2009), aff'd, 375 Fed . Appx . 54 (2d Cir. 2010)) . . . . .. ........ . .... .. . . . .. . ................. 4 National Org . for Women v. Gannett Co. , Inc ., 40 A.D.2d 107 , 338 N.Y . S . 2d 570 (4th Dep't 1972), rev ' d, 34 N.Y . 2d 416, 358 N. Y. S.2d 124, 314 N.E.2d 867 (1974) ................. . .. . . . .. . .......... . .. 9 National Org. for Women v . State Div'n of Human Rights, 34 N. Y.2d 416 , 358 N.Y.S.2d 124, 314 N.E.2d 867 (1974) .... .. 9 Spirt v . Teachers Ins. and Annuity Ass'n, 691 F. 2d 1054 (2d Cir . 1982), cert . granted on other grounds , 463 U. S . 1223 (1983) .... . ... 5 St. Jean v . Orient- Express Hotels Inc., 963 F . Supp. 2d 301 (S .D.N.Y. 2013) . ... ... .... .. . . ...... .. . 4 Tol entino v . Starwood Hotels & Resorts Worldwide, Inc ., 437 S . W.3d 754, 761 (Mo . 2014 ) ................. ............ . 5 Vanguard Justice Society , Inc . v. Hughes, 471 F. Supp . 670 (D. Md. 1979)) .. . . .. . . ............. . . ..... 5 COURT OF APPEALS STATE OF NEW YORK ---------------------------------------X TRATHONY GRIFFIN and MICHAEL GODWIN, Appellants , - against - SIRVA, INC., and ALLIED VAN LINES, INC . , Respondents. ---------------------------------------X CTQ- 2016- 00002 REPLY BRIEF FOR APPELLANTS Appellants Trathony Griffin ("Griffin") and Michael Godwin ("Godwin") submit this reply brief regarding questions certified to this Court by the United States Court of Appeals for the Second Circuit. Respondents SIRVA, Inc. ("SIRVA") , and Allied Van Lines, Inc. ("Allied"), despite a Second Circuit warning that the verdict and other trial proceedings in this matter were inadmissible, A-664-65, once again nevertheless lay out inappropriate matters before the Court . Brief for Respondents ("Resp . Br.") 2-3, 6-10, 60-61 , 64 , 66 (discussions of "evidence at trial , " "appel lants ' closing argument", and "determinations of the jury") . Appellants urge this Court to ignore this mischaracterized and extraneous material. Furthermore, respondents repeatedly allege that certain facts are "undisputed", when those assertions sometimes turn out to be sharply in conflict. Compare, Resp . Br . , at 16 (citing A- 427) ("Appellants conceded ... that a defendant's ... failure to take the§ 753(1) factors into account does not automatically result in liability"), with, A-426-27 (appellants' memorandum of law: "The automatic disqualification rules of SIRVA and Allied are unlawful on their face, and summary judgment on liability should be granted on that ground to Griffin and Godwin"); see also, Resp. Br., at 1-3, 12, 63. Appellants also respectfully request that the Court overlook these portions of respondents' Brief. Respondents employ these tactics primarily with regard to issues tangential to the certified questions, which after all are legal, not factual, inquiries. Appellants, therefore, will focus on the questions of law certified by the Second Circuit. ARGUMENT I. SECTION 296(15) DOES NOT LIMIT LIABILITY TO EMPLOYERS. No part of N.Y. Executive Law§ 296(15) limits liability for criminal conviction discrimination to "employers." Respondents argue that the section's first sentence, prohibiting "any person, agency, bureau, corporation or association," from denying employment to an individual on the basis of criminal record, "declares a ' discriminatory practice' to be unlawful only if it violates Correction Law Article 23- A", and Article 23 - A "only relates to the conduct of public agencies and private employers . 2 Therefore , " respondents write, "Article 23 - A and§ 296(15) do not apply to any person or entity except a public or private employer." Resp . Br., at 21 (emphasis in original). Under respondents' theory, the Legislature specifically used the words "any person, agency, bureau, corporation or association," in direct contrast with at least 14 other subsections of§ 296 restricting liabil i ty to an "employer , " see, Brief for Appellants ("App. Br."), Fig. 1, only to turn around and , merely by referring to Article 23- A, instantaneously replace those words with the word "employer" . This interpretation makes no sense. Respondents cannot explain why the Legislature would create liability for non- employer entities, and in the next breath and very same sentence, strip that liability away . Respondents' theory offers no reason why § 296(15) does not begin as does§ 296(1) or 296(3) or 296(10), if that is what the Legislature intended. If respondents are correct, the words used by the Legislature instead of the word "employer" are meaningless and serve no purpose. Instead of assuming such irrationality on the part of the Legislature, a much more sound construction of the statute would be that the Legislature intended liability for this type of discrimination to fall on all those who interfered with the employment relationship, not just direct employers. See , 3 App. Br., at 8-9. This interpretation would also be more in line with the legislative purpose of eradicating discrimination. II. ALTERNATIVELY, "EMPLOYERS" SHOULD INCLUDE ENTITIES WHICH EXERCISE A SIGNIFICANT LEVEL OF CONTROL OVER DISCRIMINATION POLICIES AND PRACTICES. The Second Circuit, in its second certified question, asks whether the definition of "employer", for the purposes of this statute, might be broader than merely an individual's direct employer. The Court suggested that the Human Rights Law "may well require a broader definition of 'employer' to effectuate its prohibition against discrimination." A-670-71. Respondents, relying on sources from 1917, Resp. Br., at 31, and 1918, id., at 26, contend that the term "employer" should be "strictly construed" according to its "dictionary" definition. Id. Even the cases from this century cited in support of respondents' notion do not arrive at that conclusion. Rather than directing courts to Webster's, the Human Rights Law instructs, "The provisions of this article shall be construed liberally for the accomplishment of the purposes thereof." Executive Law § 300. Federal courts construing Federal anti- discrimination law have long likewise held that the "'definition of "employer" has been construed liberally for Title VII purposes and does not require a direct employer/employee relationship.'" St. Jean v. Orient-Express Hotels Inc., 963 F. Supp. 2d 301, 307 4 (S.D.N.Y. 20 13) (quoting Lima v. Addeco, 634 F. Supp. 2d 394, 399 (S.D.N.Y . 2009), aff'd, 375 Fed . Appx . 54 (2d Cir. 2010)). Other State courts as well have found, "Remedial statutes . are construed broadly to effectuate the statute's purpose. Doubts about the applicability of a remedial statute are resolved in favor of applying the statute . " Tolentino v. Starwood Hotels & Resorts Worldwide , Inc ., 437 S.W.3d 754, 761 (Mo. 2014) . No relevant modern authority requires "strict construction" of "dictionary" definitions of "employer". Respondents claim that the Second Circuit has "rejected" a formula the Court enunciated in 1982, a standard which held that the term "employer" is " ' sufficiently broad to encompass any party who significantly affects access of any individual to employment opportunities, regardless of whether that party may technically be described as an 'employer' of an aggrieved individual . . '" Spirt v. Teachers Ins . and Annuity Ass'n, 691 F. 2d 1054 , 1063 (2d Cir. 1982), cert. granted on other grounds , 463 U.S. 1223 (1983) (quoting Vanguard Justice Society, Inc . v . Hughes , 471 F. Supp. 670, 696 (D . Md . 1979)). Spirt is still good law . "In Spirt, . we held that, where an employer has delegated one of its core duties to a third party . that third party can incur liability under Title VII ." Gulino v. New York St . Ed. Dep't, 460 F.3d 361, 377 (2d Cir. 2006) (citing Spirt, 691 F. 2d, at 1063). Where an employer, as here , 5 outsources its anti - discrimination practices and policies to a third party, those practices and policies can render that third party liable for the resulting discrimination. Respondents point to what they categorize as "factually analogous cases," where plaintiffs in various types of litigation were not found to have been employed by a third party. For instance, respondents cite the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"), as applied to the cable and satellite television industry, where technicians and installers typically are directly employed by the cable or satellite company's subcontractors . Resp. Br., at 58. In one of the cases cited by respondents, the Court remarked, "Reasonable people may disagree about the answer to the question." Jacobson v . Comcast Corp . , 740 F. Supp. 2d 683, 686 (D. Md. 2010). Indeed, several courts have concluded that such an arrangement could lead to a finding that the third party was an employer and therefore liable under FLSA. One court noted that "the FLSA definitions of 'employee' and 'employer' are broad and intended to encompass 'some parties who might not qualify as such under a strict application of traditional agency principles.'" Eberline v. Media Net LLC, 68 F. Supp. 3d 619, 622 (S . D. Miss . 2014) (quoting Hopkins v. Cornerstone America, 545 F . 3d 338, 343 (5th Cir. 2008) (other citation omitted)). That court found quest i ons of material fact 6 concerning the plaintiffs' employment status. Id., at 627-28; see also, Keeton v . Time Warner Cable , Inc ., 2011 WESTLAW 2618926 (S . D. Ohio July 1 , 2011) (contractors ' installers could be found to be employed by Time Warner) . Respondents' "analogous cases,n cited as support for a constricted definition of "employern, may lead to the opposite conclusion. The defin i tion of "employern offered by the Second Circuit ' s second certified question, an entity that "exercises a significant level of control over . . . discrimination policies and practices,n certainly makes more sense, and is more in tune with today's workplace, than respondents ' idea of a strict "dictionary" definition . The second question should be answered in the affirmative . III . AIDING AND ABETTING LIABILITY APPLIES IN THESE CIRCUMSTANCES. Lastly, the Second Circuit asks whether the Human Rights Law ' s prohibition on aiding and abetting discrimination is applicable to a situation where a corporation requires its agent to violate the law. The answer plainly should be "yes". Respondents contend that the third certified question assumes that Allied's rules "require conviction discrimination." Resp . Br. , at 59. Respondents then use their descr iption of the question as a platform for l aunching into another unfair analysis of the jury verdict and other areas forbidden by the Second 7 Circuit. Resp. Br., at 59-61. Yet respondents did require their agents to violate the Human Rights Law, at least by forcing them to adhere to an automatic policy of per se unfitness, rather than considering the circumstances of each individual employee. See, A-353 (District Judge finds respondents violated Correction Law); App. Br., at 3-4, 7. If respondents' acts do not "deny employment" directly through their Certified Labor Program, those acts certainly "aid, abet, incite, compel or coerce" the denial of employment, or at the very least "attempt to do so." Executive Law§ 296(6). The quest i on must be answered in the affirmative. Respondents engage in a lengthy discussion of common-law tort law, without any explanation of why tort law is relevant to the aid-and-abet provision. Resp. Br., at 62-64. SIRVA and Allied also spend much time, once again, misstating the facts of the case, such as asserting that the Second Circuit's Order "implicitly acknowledges" that respondents "did not actually participate in" appellants' discharge. Resp. Br., at 59-61, 64- 66. Respondents do not deny, however, the requirement that respondents' agents must remove laborers with certa i n criminal convictions from Allied jobs, without any consideration of individual circumstances. Resp. Br., at 4. Respondents contend that a defendant must know of a direct employer's violation of the law, and must intentionally assist 8 that breach , for aid-and-abet liability to attach . Resp. Br., at 61. This Court, however, has found liability even though a plaintiff did not allege that the defendant even knew of, much less intended to assist, a specific employer who discriminated on the basis of sex. National Org. for Women v. State Div'n of Human Rights, 34 N.Y.2d 416, 358 N. Y.S.2d 124, 314 N. E.2d 867 (1974); see, App. Br., at 17. This Court, in NOW, reversed the Fourth Department, which had held that § 296(6) requires "knowledgable and intentional participation in the unlawful conduct charged." National Org. for Women v . Gannett Co . , Inc . , 40 A.D . 2d 107 , 116-17, 338 N.Y.S.2d 570, 579 (4th Dep ' t 1972), rev'd, 34 N.Y.2d 416 , 358 N.Y . S.2d 124, 314 N.E.2d 867 (1974). If aid- or-abet liability applies where there is not necessarily a culpable direct employer , the provision comfortably fits a non- employer that actually requires its agent - employers to discriminate . 9 CONCLUSION For all of the above r easons, appellants Trathony Griffin and Michael Godwin respectfully request that the first certified question be answered in the negative, 1 and the second and third in the affirmative. Dated: New York, New York February _ll, 2017 LICHTEN & BRIGHT, P. C. Attorneys for Appellants By: Stuart Lichten 373 Park Avenue South - 9 Fl. New York, New York 10016 (646) 588 -4 872 1In appellants' initial Brief, appellants mistakenly asked the Court to answer the first certified question in the affirmative. 10 COURT OF APPEALS OF THE STATE OF NEW YORK PRINTING SPECIFICATIONS STATEMENT I hereby certify pursuant to the Rules of Practice of the Court of Appeals, § 500.13(c) (1), that the foregoing brief was prepared on a computer using WordPerfect 10. Type. A monospaced typeface was used, as follows: Name of typeface: Courier New Point size: 12 Line spacing: Double Word Count. The total number of words in this brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service and this Statement is 1,892. Dated: New York, New York February 10, 2017 Stuart Lichten LICHTEN & BRIGHT, P.C. Attorneys for Appellants 373 Park Avenue South,9th Fl. New York, New York 10016 (646) 588-4872