15‐1777
Chauca v. Abraham
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_______________
August Term, 2016
(Argued: September 9, 2016 Decided: November 1, 2016)
Docket No. 15‐1720(L), 15‐1777(XAP)*
_______________
VERONIKA CHAUCA,
Plaintiff‐Appellant,
JAMIL ABRAHAM, individually, PARK MANAGEMENT SYSTEMS, LLC, a.k.a. Park
Health Center, ANN MARIE GARRIQUES, individually
Defendants‐Appellees.
_______________
B e f o r e:
KATZMANN, Chief Judge, SACK and HALL, Circuit Judges.
_______________
Appeal from a decision of the district court denying plaintiff’s request for a
jury instruction concerning punitive damages for pregnancy discrimination
‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
*15‐1720 was closed by an order filed on 10/6/15.
claims arising under the New York City Human Rights Law, N.Y.C. Admin.
Code § 8‐107(1)(a). Because the City’s Human Rights Law does not expressly
provide a standard for awarding punitive damages, the United States District
Court for the Eastern District of New York (Vitaliano, J.) drew on the
corresponding federal Title VII standard. On this basis, the court declined to
provide a punitive damages instruction to the jury. Plaintiff contends the court
erred in applying the federal standard because the City’s Human Rights Law
must be construed liberally and independently of federal law. There is no
controlling state law precedent establishing the appropriate standard, however,
and because establishing that standard is an important issue of state law and
would resolve this case, we believe the New York Court of Appeals should have
the opportunity to address this question in the first instance. Accordingly, we
CERTIFY the question to the New York Court of Appeals.
_______________
STEPHEN BERGSTEIN, Bergstein & Ullrich, LLP, Chester, NY, for
Plaintiff‐Appellant.
ARTHUR H. FORMAN, Forest Hills, NY, for Defendants‐Appellees.
_______________
KATZMANN, Chief Judge:
What is the meaning of the phrase “shall be construed liberally”? Just as
the recipe instruction to “apply liberally” has bedeviled many an amateur chef,
the New York City Council’s directive that courts shall construe the City’s
Human Rights Law (“NYCHRL”) liberally presents its own interpretive
challenge. We confront a seemingly straightforward but surprisingly vexing
2
question: what is the standard for a punitive damages award for unlawful
discriminatory acts in violation of the NYCHRL? Is it the same as the standard
for awarding punitive damages under Title VII? If not, what standard should
courts apply? As we explain, we think this question would be more
appropriately answered by the New York Court of Appeals.
In 2005 the City Council, concerned that the NYCHRL had been
interpreted too narrowly by courts in the past—often by drawing on
corresponding federal standards—amended the New York City Administrative
Code to ensure that “[t]he provisions of [the NYCHRL] shall be construed
liberally . . . regardless of whether [related] federal or New York State civil and
human rights laws . . . have been so construed.” Local Civil Rights Restoration
Act of 2005, N.Y.C. Local Law No. 85 of 2005 (Oct. 3, 2005) § 7, N.Y.C. Admin.
Code § 8‐130 (“Restoration Act”). We have since recognized that “courts must
analyze NYCHRL claims separately and independently from any federal and
state law claims.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102,
109 (2d Cir. 2013). This task is not always uncomplicated, however. The
Restoration Act identifies a handful of code provisions that had been interpreted
3
too narrowly by courts, but it otherwise provides no specific guidance
concerning how the NYCHRL should be “construed liberally” and independently
of state and federal law in its particular applications.
This brings us to the case at hand, which involves a dispute over the
standard for establishing liability for punitive damages under the NYCHRL.
Plaintiff‐Appellant Veronika Chauca prevailed in a jury trial against Defendants‐
Appellees Dr. Jamil Abraham, Ann Marie Garriques, and Park Management
Systems, LLC (a.k.a. Park Health Center) on her claim of pregnancy
discrimination in violation of federal, state, and city law. Before the case was
submitted to the jury, however, the district court denied Chauca’s request to
provide a jury instruction on punitive damages under the NYCHRL. The court
declined to do so because it found that Chauca had put forward no evidence that
her employer intentionally discriminated against her with malice or reckless
indifference for her protected rights — the standard for an award of punitive
damages under the corresponding pregnancy discrimination provisions of
federal law contained in Title VII. Chauca appeals that decision, arguing that the
district court failed to construe the NYCHRL’s standard for punitive damages
4
liability “liberally” and to analyze it “independently” of federal law. The
question before this Court, then, is whether the standard for punitive damages is
the same under both Title VII and the NYCHRL, or if a “liberally” construed
NYCHRL might set forth a broader standard for liability. Because we conclude
that the Restoration Act, the relevant sections of the NYCHRL, and New York
case law do not resolve this question, as we noted above, we CERTIFY the
question to the New York Court of Appeals. See N.Y. Comp. Codes R. & Regs. tit.
22, § 500.27 (2013).
BACKGROUND
I. Factual and Procedural History
Plaintiff‐Appellant Veronika Chauca began working for Park Management
Systems (the “Center”) in 2006 as a physical therapy aid. In July 2009, she
informed her supervisors, Defendants‐Appellees Dr. Jamil Abraham and Office
Supervisor Ann Marie Garriques, that she was pregnant and would be taking
maternity leave with a scheduled return in late November, which they approved.
During her time away, another aide, Debra Mahearwanlal, handled Chauca’s
duties. Shortly before Chauca was scheduled to return to work, she contacted the
5
office to remind them of her return. She claims she got the runaround: Sheila
Ramasre, the Center’s payroll manager, told her she needed to discuss the details
of her return with Abraham; Abraham stated that she actually needed to speak to
Garriques; and Garriques was on vacation. When Chauca ultimately did reach
Garriques, Garriques told her that “we no longer need your services” and then
hung up the phone. See Joint App. at 82. Chauca attempted to contact the Center
to learn why she would not be allowed to return, but whenever she called, the
Center either would not answer or would place her on hold indefinitely. Later,
both Abraham and Garriques claimed that Chauca was not brought back because
of a slowdown of business and changes following healthcare reform. At trial,
Garriques testified that she had told Chauca at the time that “[they] have started
reducing the hours of the staff and possibl[y] will be laying off some of the staff”
and that “if there’s any changes, [they] will give her a call.” Joint App. at 286.
Plaintiff suspected this explanation was pretextual, because no other employees
had been laid off, and Mahearwanlal only briefly worked on a reduced schedule,
returning to a 40‐hour workweek within a month. Chauca also alleged that at
6
least three other pregnant women had been unlawfully terminated after
becoming pregnant or after going on maternity leave.
In response, in December 2009 Chauca filed a charge with the Equal
Employment Opportunity Commission (“EEOC”) alleging pregnancy
discrimination. Even as business picked back up and Chauca continued to
contact the Center about returning to work in January and February of 2010,
Abraham explained that Chauca was not invited back to work because by that
point “she decide[d] to sue me,” referring to her EEOC charge of unlawful
discrimination. See Joint App. at 221. After receiving a notice of right to sue from
the EEOC, Chauca subsequently filed suit in November 2010 in the Eastern
District of New York against the Center and against Abraham and Garriques
individually, alleging, inter alia, sex and pregnancy discrimination in violation of
the Pregnancy Discrimination Act, 42 U.S.C. §§ 2000e(k), 2000e‐2(a), which is part
of Title VII of the Civil Rights Act of 1964, as well as in violation of her rights as
guaranteed by both the New York State Human Rights Law (“NYSHRL”), N.Y.
Exec. Law § 296(1)(a), and the NYCHRL, N.Y.C. Admin. Code § 8‐107(1)(a).
7
Among the relief Chauca sought was compensatory and punitive damages, the
latter of which is the focus of the present dispute.
At summary judgment, the district court concluded that Chauca had
established a prima facie case of pregnancy discrimination and denied
defendants’ motion for summary judgment on all claims with respect to the
Center and on Chauca’s state and city law claims with respect to Abraham and
Garriques.1 The case then went to trial and, during the charging conference, the
district court declined to provide a punitive damages instruction to the jury over
plaintiff’s objection. While recognizing that the NYCHRL calls for a liberal
construction of its provisions, the district court found that Chauca had put
forward no evidence that the employer had intentionally discriminated with
“malice” or with “reckless indifference” to her protected rights, impliedly
applying the standard under Title VII. The jury returned a verdict in Chauca’s
favor, awarding $10,500 in lost compensation and $50,000 for pain and suffering.
Chauca now appeals the denial of a jury instruction on punitive damages.
8
DISCUSSION
I. Standard of Review
“We review challenges to a district court’s jury instructions de novo. ‘A jury
instruction is erroneous if it misleads the jury as to the correct legal standard or
does not adequately inform the jury on the law.’” Cameron v. City of New York,
598 F.3d 50, 68 (2d Cir. 2010) (citation omitted) (quoting LNC Invs., Inc. v. First
Fidelity Bank, N.A., 173 F.3d 454, 460 (2d Cir. 1999)).
II. Punitive Damages under the NYCHRL
The question before us is what the standard is to be found liable for
punitive damages for unlawful discriminatory acts in violation of the NYCHRL
and whether it is the same as the standard for a punitive damages award under
Title VII. As discussed below, we think the New York Court of Appeals is the
appropriate court to answer this question.
The district court granted summary judgment in favor of Abraham and Garriques on
1
Chauca’s Title VII claim, as individual defendants cannot be held personally liable
under Title VII. See Patterson v. Cnty. of Oneida, 375 F.3d 206, 221 (2d Cir. 2004).
9
We begin by briefly reviewing the relevant sections of the City’s NYCHRL
as codified in its Administrative Code. Under city law, it is an unlawful
discriminatory practice for an employer or their employee to “refuse to hire” or
“to discharge from employment” any person because of her pregnancy.2 See
N.Y.C. Admin. Code § 8‐107(1)(a)(2). The law establishes the availability of both
compensatory and punitive damages awards against employers and employees
found directly liable for discriminatory practices. Id. § 8‐502(a). In addition to
setting forth liability for an employer’s own discriminatory practices, the law also
“creates an interrelated set of provisions to govern an employer’s liability for an
employee’s unlawful discriminatory conduct in the workplace.” Zakrzewska v. New
Sch., 928 N.E.2d 1035, 1039 (N.Y. 2010) (emphasis added).
As to this imputed liability, employers can be held vicariously liable for
the acts of their employees in the following circumstances: “(1) where the
2 Pregnancy discrimination is a form of gender discrimination under the NYCHRL. See,
e.g., Sanchez v. El Rancho Sports Bar Corp., No. 13‐CV‐5119 (RA), 2015 WL 3999161, at *6
& n.6 (S.D.N.Y. June 30, 2015) (“Although § 8‐107(1) does not explicitly refer to
pregnancy, the New York Court of Appeals has held that ‘distinctions based solely
upon a woman’s pregnant condition constitute sexual discrimination.’” (quoting Elaine
W. v. Joint Diseases N. Gen. Hosp., Inc., 613 N.E.2d 523, 525 (N.Y. 1993))).
10
offending employee ‘exercised managerial or supervisory responsibility’ . . . ; (2)
where the employer knew of the offending employee’s unlawful discriminatory
conduct and acquiesced in it or failed to take ‘immediate and appropriate
corrective action’; and (3) where the employer ‘should have known’ of the
offending employeeʹs unlawful discriminatory conduct yet ‘failed to exercise
reasonable diligence to prevent [it].’” Id. (quoting N.Y.C. Admin. Code § 8‐
107(13)(b)(1)–(3)). Implicitly recognizing that an employer cannot control all
actions of its employees, the law also enables an employer liable for the conduct
of an employee to mitigate punitive damages liability or avoid liability altogether
in certain circumstances where the employer can prove it has put into place
policies and procedures to educate employees, to prevent and detect unlawful
discrimination, and to investigate and effectively resolve complaints of such
conduct. See N.Y.C. Admin. Code § 8‐107(13)(d)–(e).
Regardless of whether an employer can mitigate or avoid imputed liability
for such damages, however, the NYCHRL does not articulate a standard for a
finding of employer or employee liability for punitive damages in the first place,
leaving courts to determine the appropriate standard.
11
A. Farias and the Federal Punitive Damages Standard
This is not the first time this Court has been asked to shed light on the
question of a punitive damages standard under the NYCHRL. Indeed, in Farias v.
Instructional Systems, Inc., 259 F.3d 91 (2d Cir. 2001), we observed that because
“discrimination claims brought under the Administrative Code are generally
analyzed within the same framework as Title VII claims,” and as “‘[t]he
Administrative Code does not provide a standard to use in assessing whether
[punitive] damages are warranted,’” the federal Title VII standard applies to
claims for punitive damages under the Administrative Code. Id. at 101 (quoting
Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 235 (2d Cir. 2000)). 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.’” Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 529–30 (1999) (quoting 42
U.S.C. § 1981a(b)(1)). As of 2001, then, the standard in the Second Circuit for
liability for punitive damages under the NYCHRL required a showing that the
defendant had engaged in intentional discrimination and had done so with
12
malice or with reckless indifference to the protected rights of the aggrieved
individual.
B. Restoration Act of 2005
This standard has subsequently been called into question, however.
Believing that the general substitution of federal standards had led to the
NYCHRL being “construed too narrowly to ensure protection of the civil rights
of all persons covered by the law,” Restoration Act § 1, the New York City
Council has twice legislatively clarified the “uniquely broad and remedial
purposes” of the NYCHRL. See N.Y.C. Admin. Code § 8‐130(a). As part of the
Restoration Act of 2005, the City Council instructed that “[t]he provisions of [the
NYCHRL] shall be construed liberally . . . regardless of whether federal or New
York State civil and human rights laws, including those laws with provisions
comparably‐worded to provisions of [the NYCHRL], have been so construed.”
Restoration Act § 7 (codified at N.Y.C. Admin. Code § 8‐130(a)). In light of this
amendment, we have subsequently concluded that “courts must analyze
NYCHRL claims separately and independently from any federal and state law
claims.” Mihalik, 715 F.3d at 109.
13
Chauca argues that as a result of the Restoration Act, Farias is no longer
good law.3 The matter is not as straightforward as she suggests, however. To
begin, the legislative history of the Restoration Act makes clear that it sought to
override legislatively several judicial decisions that the Council thought had too
narrowly construed the NYCHRL or that had established a federal standard
more narrow than that intended under the NYCHRL. Indeed, it identified those
3 As to Chauca’s proposed post‐Farias liberally construed standard for punitive
damages liability under the NYCHRL, she leans heavily on the fact that Section 8‐
107(13)(d)–(e) enables employers to mitigate or avoid imputed punitive damages
liability for the acts of their employees. She argues that the existence of these provisions
indicates that punitive damages are presumptively available in all circumstances,
regardless of whether the employer or employee has engaged in intentional
discrimination and has done so with malice or reckless indifference to the individual’s
rights. See Pl.‐Appellant’s Reply Br. at 8 (“[T]he . . . structural aspect of [the mitigation
and avoidance provisions] is that they presume that the factfinder is permitted to
determine whether and to what extent punitive damages are to be imposed whenever
discrimination has occurred.”). However, we are skeptical that this inference, even if
correct, would resolve our inquiry. This is because both employers and employees also
may be found directly and individually liable for punitive damages under the
NYCHRL. See Malena v. Victoriaʹs Secret Direct, LLC, 886 F. Supp. 2d 349, 366 (S.D.N.Y.
2012). Thus, even if Chauca were correct that the mitigation and avoidance provisions
establish the presumption that punitive damages are always available in cases of
imputed liability, this would not answer the question of the punitive damages standard
for liability based on an employer’s own actions, an employee’s individual liability for
actions also imputed to the employer, or an employee’s individual liability for actions
not imputed to the employer.
14
decisions by name as ones the Restoration Act was intended to override. See The
Council Report of the Governmental Affairs Division, Committee on General
Welfare, on Prop. Int. No. 22‐A at 4–6 (Aug. 17, 2005). This suggests that the
Council was well aware of the specific cases it thought had misconstrued its
human rights law, and importantly, Farias was not among the decisions
expressly identified by the Council.
The text of the Restoration Act also makes no mention of punitive
damages, and the only reference to punitive damages in the Act’s legislative
history is found in the testimony of the Act’s principal drafter, Craig Gurian,
who stated:
Among other areas that will be able to be addressed anew in view of
the statute (and by way of illustration only) are . . . [w]here a
discriminator recklessly disregards the possibility that his conduct
may cause harm, that discriminator ought to be subject to punitive
damages—the current imported federal standard restricting these
damages to circumstances where the reckless disregard is of the
specific risk that the human rights law is being violated is unduly
restrictive (it gives discriminators an incentive to plead ignorance of
the law) and should be examined.
Testimony of Craig Gurian Regarding Intro 22A, the Local Civil Rights
Restoration Act, Committee on General Welfare at 4 (Apr. 14, 2005), available at
15
http://www.antibiaslaw.com/sites/default/files/all/CenterTestimony041405.pdf.
Whether the City Council agreed with Gurian that the federal standard is
“unduly restrictive” is unclear, and his suggestion that the standard “should be
examined” sheds little light on what the appropriate standard is.
Nor do more recent amendments to the NYCHRL provide definitive
guidance as to the standard. Earlier this year, the City Council amended the
NYCHRL once again to signal further to courts the need to conduct an
independent and liberal construction of the NYCHRL. In the legislative findings
and intent provision of Local Law 35 of 2016, the City Council explained:
Following the passage of local law number 85 for the year 2005,
known as the Local Civil Rights Restoration Act, some judicial
decisions have correctly understood and analyzed the requirement
of section 8‐130 of the administrative code of the city of New York
that all provisions of the New York city human rights law be
liberally and independently construed. The purpose of this local law
is to provide additional guidance for the development of an
independent body of jurisprudence for the [NYCHRL] that is
maximally protective of civil rights in all circumstances.
N.Y.C. Local Law No. 35 of 2016 (Mar. 28, 2016) (codified at N.Y.C. Admin. Code
§ 8‐130) (“2016 Act”). Consistent with this statement of intent, Section 8‐130 was
amended to read in part:
16
a. 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 . . . worded comparably to provisions of this title
. . . have been so construed. . . .
. . . .
c. Cases that have correctly understood and analyzed the liberal
construction requirement of subdivision a of this section and that
have developed legal doctrines accordingly that reflect the broad
and remedial purposes of this title include Albunio v. City of New
York, 16 N.Y.3d 472 (2011), Bennett v. Health Management Systems,
Inc., 92 A.D.3d 29 (1st Dep’t 2011), and the majority opinion in
Williams v. New York City Housing Authority, 61 A.D.3d 62 (1st Dep’t
2009).
N.Y.C. Admin. Code § 8‐130. Neither the 2016 Act nor its legislative history
discusses punitive damages, and none of the cases cited approvingly in the Act
concerns the availability of punitive damages. Given the lack of clarity
concerning the appropriate standard for punitive damages and the importance of
this issue to state and city law, we believe the prudent course of action is to
certify this question to the New York Court of Appeals.
III. Certification to the New York State Court of Appeals
“Although the parties did not request certification, we are empowered to
seek certification nostra sponte.” Kuhne v. Cohen & Slamowitz, LLP, 579 F.3d 189,
198 (2d Cir. 2009). In ordinary cases, “[w]here the substantive law of the forum
17
state is uncertain or ambiguous, the job of the federal courts is carefully to
predict how the highest court of the forum state would resolve the uncertainty or
ambiguity.” Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d Cir. 1994).
In particularly difficult cases, however, “we are not limited solely to making
predictions, because New York law and Second Circuit Rule § 0.27 allow us to
certify to New York’s highest court ‘determinative questions of New York law
[that] are involved in a cause pending before [us] for which there is no
controlling precedent of the Court of Appeals.’” State Farm Mut. Auto. Ins. Co. v.
Mallela, 372 F.3d 500, 505 (2d Cir. 2004) (quoting N.Y. Comp. Codes R. & Regs. tit.
22, § 500.27). Certification does not terminate or transfer the case; “[i]t permits
federal courts to ask the highest court of a state directly to resolve a question of
state law and to do so while the federal suit is pending.” Allstate Ins. Co. v. Serio,
261 F.3d 143, 151 (2d Cir. 2001). “The certification process provides us with a
‘valuable device for securing prompt and authoritative resolution’ of questions
of state law.” Briggs Ave. L.L.C. v. Ins. Corp. of Hannover, 516 F.3d 42, 46 (2d Cir.
2008) (quoting Ex rel. Kidney v. Kolmar Labs., Inc., 808 F.2d 955, 957 (2d Cir. 1987)).
“We have deemed certification appropriate where state law is not clear and state
18
courts have had little opportunity to interpret it, where an unsettled question of
state law raises important issues of public policy, [and] where the question is
likely to recur . . . .” Mallela, 372 F.3d at 505 (citations omitted).
In determining whether to certify a question, then, “we consider: (1) the
absence of authoritative state court decisions; (2) the importance of the issue to
the state; and (3) the capacity of certification to resolve the litigation.” OʹMara v.
Town of Wappinger, 485 F.3d 693, 698 (2d Cir. 2007). As we discuss below, each of
these considerations weighs in favor of certification to resolve the question of the
punitive damages standard under the NYCHRL.
A. Absence of Authoritative State Court Decisions
As to the first factor, New York state court decisions do not provide
definitive guidance on this question. As noted above, it remains unclear whether
the Restoration Act was intended to legislatively override Farias, as there have
been few state court decisions concerning the punitive damages standard since
2005. The only relevant post‐2005 case cited by either party at oral argument was
Salemi v. Gloria’s Tribeca, Inc., see Oral Argument at 11:01, and although the Salemi
court affirmed a jury’s award of $1.2 million in punitive damages by deeming it
19
not grossly excessive, the court made no mention of the standard used in
charging the jury on punitive damages in the first place. See 982 N.Y.S.2d 458, 460
(1st Dep’t 2014). Moreover, if the Restoration Act did legislatively override Farias,
cf. Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009) (“[T]he
Restoration Act notified courts that . . . cases that had failed to [recognize textual
distinctions between the NYCHRL and its state and federal counterparts and to
independently construe them] were being legislatively overruled.” (quoting
Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27, 31 (1st Dep’t 2009)), state court
decisions have not subsequently provided an answer as to what the standard for
a punitive damages award against employers under the NYCHRL is.4 The
absence of state court case law weighs in favor of certification.
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. See, e.g., Taylor v. New York Univ. Med.
Ctr., 21 Misc. 3d 23, 33 (N.Y. App. Term 2008) (discussing pre‐2005 New York state law
precedents) (Davis, J., dissenting); Jordan v. Bates Advert. Holdings, Inc., 816 N.Y.S.2d 310,
322–23 (Sup. Ct. 2006) (applying Farias); Serdans v. New York & Presbyterian Hosp., 30
N.Y.S.3d 45, 46 (1st Dep’t 2016) (applying Jordan).
20
B. Importance of the Issue
The importance of this issue to the state, the second factor, also suggests
that certification is warranted. We have said that sufficiently important state
issues “require value judgments and important public policy choices that the
New York Court of Appeals is better situated than we to make.” Licci ex rel. Licci
v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 74 (2d Cir. 2012) (internal quotation
marks and alterations omitted). “[Q]uestions of this nature involving competing
policy concerns are best resolved by the New York Court of Appeals.” Georgitsi
Realty, LLC v. Penn‐Star Ins. Co., 702 F.3d 152, 159 (2d Cir. 2012). The standard by
which claims for punitive damages under the NYCHRL are evaluated is plainly
an issue involving competing policy concerns, the importance of which is far
broader than our arriving at a proper resolution of the case at bar.
The New York City Council has twice amended its Human Rights Law in
order to make clear that it is intended to have more bite than the corresponding
state and federal anti‐discrimination statutes. In the 2005 Restoration Act, the
Council noted that its human rights law “ha[d] been construed too narrowly to
ensure protection of the civil rights of all persons covered by the law.”
21
Restoration Act § 1. Reinforcing the issue’s importance, the Council amended the
law again in 2016 in order to ensure it was being fully enforced by courts.
According to amicus curiae National Employment Lawyers Association/New
York (NELA/NY), this case “raise[s an] important question[] of anti‐
discrimination law,” Brief of Amicus Curiae in Support of Plaintiff‐Appellant
Requesting a Trial on Punitive Damages at 2, for “the punitive damages
provisions of the City Law . . . are an integral part of the statutory scheme
designed by the City Council to protect City residents and employees . . . from
discrimination,” id. at 3.
Further illustrating our belief that proper resolution of this issue is broader
than the resolution of the case at bar, we note that federal courts have provided
conflicting decisions concerning the availability of punitive damages under the
NYCHRL. Compare Roberts v. United Parcel Serv., Inc., 115 F. Supp. 3d 344, 373
(E.D.N.Y. 2015) (applying federal standard for punitive damages under
NYCHRL), Johnson v. Strive E. Harlem Emp’t Grp., 990 F. Supp. 2d 435, 449–50
(S.D.N.Y. 2014) (same), MacMillan v. Millennium Broadway Hotel, 873 F. Supp. 2d
546, 563 (S.D.N.Y. 2012) (same), and Caravantes v. 53rd St. Partners, LLC, No. 09
22
Civ. 7821 (RPP), 2012 WL 3631276, at *25 (S.D.N.Y. Aug. 23, 2012) (same), with
Katz v. Adecco USA, Inc., 845 F. Supp. 2d 539, 552–53 (S.D.N.Y. 2012) (recognizing
the Restoration Act’s instruction to construe the NYCHRL liberally and refusing
to apply the federal standard for punitive damages under the NYCHRL).
Finally, and underscoring the importance of the policy issue here,
resolving the standard under the NYCHRL is important because punitive
damages are not available under the state’s human rights law. See Thoreson v.
Penthouse Intʹl, Ltd., 606 N.E.2d 1369, 1370–73 (N.Y. 1992). As a result, employees
seeking to vindicate fully their state and local rights to non‐discrimination can
only obtain this form of relief under the NYCHRL, making the establishment of a
clear standard for awarding punitive damages even more important.
C. Capacity for Certification to Resolve Litigation
The final factor is whether an answer from the New York Court of Appeals
to a certified question would resolve the present litigation, and this factor also
points in favor of certification. The sole issue on appeal is whether the district
court incorrectly declined to charge the jury with a punitive damages instruction.
Clarity as to the appropriate standard for awarding punitive damages under the
23
NYCHRL will permit this Court to determine whether the district court erred in
deciding that the federal and NYCHRL standards were similar such that no
charge was warranted under the NYCHRL.
* * *
Because all three considerations favor certification, we conclude that it is
appropriate to certify the following question to the New York Court of Appeals:
(1) 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?
The Court of Appeals may expand the certified question to address any
other issues that may pertain to the circumstances presented in this appeal. “We
have greatly benefited on many occasions from the guidance of the New York
Court of Appeals, and would very much appreciate its view on this matter of
state law.” OʹMara, 485 F.3d at 699 (citations omitted).
CONCLUSION
It is hereby ORDERED that the Clerk of this Court transmit to the Clerk of
the New York Court of Appeals this opinion as our certificate, together with a
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complete set of the briefs and the record filed in this Court, pursuant to Second
Circuit Local Rule 27.2 and New York Codes, Rules, and Regulations Title 22,
§ 500.27(a), as ordered by the United States Court of Appeals for the Second
Circuit. The parties will equally bear any fees and costs that may be imposed by
the New York Court of Appeals in connection with this certification. The panel
retains jurisdiction and will consider any issues that remain on appeal once the
New York State Court of Appeals has either provided us with its guidance or
declined certification.
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