Thus, in keeping with long-standing state and local law, individual claimants in this case should be permitted to proffer evidence demonstrating that they are entitled to compensatory damages independently of their right to do so under federal laws. Case 1:07-cv-02067-NGG-RLM Document 938 Filed 08/08/12 Page 32 of 33 PageID #: 22955 25 10133807_3 CONCLUSION For these reasons, Plaintiffs-Intervenors Non-Hire and Delayed-Hire Subclasses respectfully request entry of an order finding that, upon a sufficient showing of actual harm, individual victims of the City’s discrimination may be entitled to noneconomic compensatory damages pursuant to 42 U.S.C. §§ 1981 and 1983; Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §1981a; the New York State Human Rights Law, N.Y. Exec. Law § 297(9); and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-502(a). Dated: August 8, 2012 New York, New York Respectfully submitted, LEVY RATNER, P.C. /s/ By: Richard A. Levy Dana E. Lossia Robert H. Stroup 80 Eighth Avenue New York, NY 10011 (212) 627-8100 (212) 627-8182 (fax) Attorneys for the Non-Hire Subclass CENTER FOR CONSTITUTIONAL RIGHTS /s/ By: Darius Charney Ghita Schwarz 666 Broadway, 7th Floor New York, NY 10012-2399 (212) 614-6438 (212) 614-6499 (fax) Attorneys for the Delayed-Hire Subclass TO: All Counsel via ECF Case 1:07-cv-02067-NGG-RLM Document 938 Filed 08/08/12 Page 33 of 33 PageID #: 22956

Case 2:16-cv-00359-JAW Document 221 Filed 03/01/19 Page 4 of 5 PageID #: 2567 5 IV. Conclusion Based on the undisputed evidence at trial, this Court must find that AmeriPort has fewer than 100 employees and that the damages awarded by the jury be reduced to $50,000 in accordance with the statutory damage caps set forth by 42 U.S.C. § 1981a(b)(3)(A) and 5 M.R.S. § 4613(2)(B)(8)(e)(i). Date: March 1, 2019 Respectfully submitted, AMERIPORT, LLC, By Its Attorneys /s/ Maureen M. Deskins /s/ Robert P. Hayes Germani Martemucci & Hill 43 Deering Street Portland, ME 04101 (207) 773-7455 e-mail: rhayes@gmh-law.com Local counsel CERTIFICATE OF SERVICE I hereby certify that on March 1, 2019, I electronically filed the foregoing Reply in Support of Motion for Remittitur using the CM/ECF system, which will send notification of such filings to counsel of record.

Id. at 535 (quoting 42 U.S.C. § 1981a(b)(1)) (second alteration and emphasis in original). That the employer intentionally discriminated, or engaged in particularly reprehensible conduct, is not enough, if the employer was not also aware that the conduct violated federally protected rights.

Compensatory damages recoverable under § 1981a include “future pecuniary losses, emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and other nonpecuniary losses.” 42 U.S.C. § 1981a(b)(3). However, 19 Case 3:09-cv-00625-ARC Document 96 Filed 12/03/13 Page 19 of 20 “[c]ompensatory damages awarded under this section shall not include backpay, interest on backpay, or any other type of relief authorized under section 706(g) of the Civil Rights Act of 1964 [42 U.S.C.A. § 2000e-5(g)].”

Aspart of the Civil Rights Act of 1991, punitive damagesfirst becamea specific statutorily-provided remedy within Title VII itself. (42 U.S.C. §1981a(b)(1).) But, as part of the same Act, Congress opted to deny punitive damages(indeed, any damages) in cases where a mixed-motive defense is proven.

This is particularly true in Title VII cases, where attorneys’ fees and compensatory and punitive damages are available to prevailing plaintiffs. 42 U.S.C. § 2000e-5(g), (k); 42 U.S.C. § 1981a(b)(1). A plaintiff’s ability to recover attorneys’ fees and costs “provides substantial incentives to bring meritorious individual suits” (Hamilton, 2006 U.S. Dist. LEXIS 44149, at *41), as does the availability of “substantial compensatory and punitive damages.”

See 42 U.S.C. § 1981a and La. R.S. 23:303(A). FMTS must produce evidence or a theory to support the basis for the application of this defense.

Section 8-107(13)(d) provides: d. Where liability of an employer has been established pursuant to this section and is based solely on the conduct of an employee, agent, or independent contractor, the employer shall be permitted to plead and prove to the discriminatory conduct for which it was found liable it had: 11 As the Second Circuit noted in the Certification: Under the Title VII standard, “[p]unitive damages are limited . . . to cases in which the employer has engaged in intentional discrimination and has done so ‘with malice or with reckless indifference to the federally protected rights of an aggrieved individual.’” Chauca v. Abraham, 841 F.3d 86, 90-91 (2d Cir. 2016) (quoting Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 529–30 (1999)) (quoting 42 U.S.C. § 1981a(b)(1)). 13 (l) Established and complied with policies, programs and procedures for the prevention and detection of unlawful discriminatory practices by employees, agents and persons employed as independent contractors, including but not limited to: (i) A meaningful and responsive procedure for investigating complaints of discriminatory practices by employees, agents and persons employed as independent contractors and for taking appropriate action against those persons who are found to have engaged in such practices; (ii) A firm policy against such practices which is effectively communicated to employees, agents and persons employed as independent contractors; (iii) A program to educate employees and agents about unlawful discriminatory practices under local, state, and federal law; and (iv) Procedures for the supervision of employees and agents and for the oversight of persons employed as independent contractors specifically directed at the prevention and detection of s

site state of mind requirement sufficient to support an award of punitive damages. Kolstad v. American Dental Ass’n, 527 U.S. 526 (1999) (punitive damages should be assessed if there is evidence that the defendant acts with malice or with reckless indifference to the federally protected rights of the plaintiff); Alexander v. Fulton County, Ga., 207 F.3d 1303, 1337-38 (11th Cir. 2000) (defendant‘s knowledge that it is illegal to treat employees differently on account of race, coupled with credible evidence that defendant intentionally did so, is sufficient for a reasonable jury to conclude that the Kolstad standard for punitive damages has been satisfied); Zhang v. American Gem Seafoods, Inc., 339 F.3d 1020 (9th Cir. 2003) (review of the sufficiency Case 8:14-cv-01621-VMC-TGW Document 46 Filed 08/07/15 Page 19 of 25 PageID 187 20 of the evidence to support punitive damages is nearly identical to substantial evidence review for liability for discrimination); see also 42 U.S.C. § 1981a(b)(1). EEOC must also ―show either that the discriminating employee was ‗high up the corporate hierarchy‘ or that the ‗higher management‘ countenanced or approved [the employee‘s] behavior.

Once a plaintiff has been deemed eligible for the Case 1:09-cv-03794-JCF Document 29 Filed 07/06/10 Page 13 of 15 12 remedy, the method of assessing backpay is also a matter for the court’s discretion.”); Zerilli v. New York City Transit Auth., 973 F. Supp. 311, 314 n.1 (E.D.N.Y. 1997) (backpay award under Title VII is for court to decide, where backpay awards are expressly excluded from ambit of “compensatory damages” pursuant to 42 U.S.C. §§ 1981a(a)(1), (b)(2) and (c)(1)), aff’d in part, rev’d in part on other grounds, 162 F.3d 1149 (2d Cir. 1998). The Court should therefore preclude plaintiff from introducing any evidence before the jury regarding backpay.