16‐2654‐cv Rivers v. N.Y.C. Hous. Auth.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 20th day of June, two thousand seventeen.

PRESENT: RALPH K. WINTER, GUIDO CALABRESI, DENNY CHIN, Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

DEBRA CRENSHAW, Plaintiff,

JAKWAN RIVERS, Plaintiff‐Appellant, 16‐2654‐cv

v.

NEW YORK CITY HOUSING AUTHORITY, JOHN B. RHEA, individual, GLORIA FINKELMAN, individual, CAROLYN JASPER, individual, LOCAL 237 INTERNATIONAL BROTHERHOOD OF TEAMSTERS, GREGORY FLOYD, Defendants‐Appellees,

CARL WALTON, individual, MELETHIL ALEXANDER, individual, REMILDA FERGUSON, Defendants.*

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x

FOR PLAINTIFF‐APPELLANT: Alexander T. Coleman, Michael J. Borrelli, Pooja Bhutani, Borrelli & Associates, P.L.L.C., Great Neck New York.

FOR DEFENDANTS‐APPELLEES JANE E. LIPPMAN (Donna M. Murphy, on the NEW YORK CITY HOUSING brief), for David Farber, General Counsel, New AUTHORITY, JOHN B. RHEA, York City Housing Authority, New York, New GLORIA FINKELMAN, and York. CAROLYN JASPER:

FOR DEFENDANTS‐APPELLEES STEPHEN B. MOLDOF (Kate M. Swearengen, LOCAL 237 INTERNATIONAL on the brief), Cohen, Weiss and Simon LLP, BROTHERHOOD OF TEAMSTERS New York, New York. and GREGORY FLOYD:

Appeal from the United States District Court for the Eastern District of

New York (Matsumoto, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff‐appellant Jakwan Rivers appeals from an August 3, 2016

judgment of the district court dismissing his claims against defendants‐appellees New

York City Housing Authority (ʺNYCHAʺ), then‐NYCHA Chairman John Rhea, NYCHA

Deputy General Manager for Operations Gloria Finkelman, and NYCHA Director of

Queens/Staten Island Management Department Carolyn Jasper (together, the ʺNYCHA

* The Clerk of Court is respectfully directed to amend the official caption to conform to the above. 2 Defendantsʺ), and Local 237 International Brotherhood of Teamsters (ʺLocal 237ʺ) and

Local 237 President Gregory Floyd (together, the ʺUnion Defendantsʺ) under the First

Amendment, Monell, and

. The district court explained its reasoning in

a Memorandum and Order issued March 31, 2016. See Rivers v. N.Y.C. Hous. Auth.,

(E.D.N.Y. 2016). Judgment was entered on August 3, 2016, and Rivers

filed a timely notice of appeal on August 12, 2016. We assume the partiesʹ familiarity

with the underlying facts, procedural history, and issues on appeal, which we reference

only as necessary to explain our decision to affirm.

1. Background

Rivers was employed by NYCHA as a maintenance worker from 1998 to

January 2006, when he began working for Local 237 as a business agent. Floyd became

president of Local 237 in March 2007. Eventually, Rivers took issue with a number of

Floydʹs decisions and policies, and he and several colleagues organized a slate to run

against Floyd. Rivers publicly opposed Floyd and endorsed a different candidate for

New York City mayor than Floyd had endorsed.

Rivers contends that thereafter high‐level Local 237 employees began to

harass him. In January 2009, Floyd dismissed Rivers, and Rivers returned to NYCHA

as a maintenance worker. He contends that NYCHA supervisors harassed him and

treated him unfairly upon his return to the agency.

In March 2009, Rivers filed an administrative petition with the New York

City Board of Collective Bargaining, claiming that Local 237 and NYCHA had colluded

3 to place him in the Bronx, far from his home, in retaliation for his opposition to Floyd

(the ʺ2009 Petitionʺ). NYCHA and Rivers signed a written stipulation in August 2009 in

which Rivers released NYCHA and Local 237 from claims relating to the claims in the

petition in exchange for placement at a NYCHA facility closer to his home. In

September 2009, Rivers was transferred to South Jamaica Houses in Queens.

According to Rivers, the harassment did not stop after his transfer. He

asserts that he was inadequately trained for his position, which resulted in two on‐the‐

job injuries, and that his supervisors ridiculed him and began to assign him excessively

physically strenuous tasks.1 In November 2009, Rivers complained about his treatment

by NYCHA staff by email to Rhea, Jasper, and his supervisor, Margo Madden. Rivers

claims that the training he received in response to his complaint was ʺsporadic,ʺ

ʺsuperficial,ʺ and ʺinsufficient.ʺ App. 1903.

Rivers also complains that his supervisors issued him three baseless

counseling memoranda, and that he was repeatedly denied overtime opportunities and

leave under the Family and Medical Leave Act to care for his ailing mother. In 2010,

Rivers filed a second administrative petition with the New York City Board of

Collective Bargaining, which he withdrew in June 2011.

On October 18, 2011, Rivers and plaintiff Debra Crenshaw commenced

this action in the district court alleging First Amendment retaliation under 42 U.S.C.

1 Rivers filed a workersʹ compensation claim after a July 2010 injury to his eye socket. Although NYCHA contested the claim, it was ultimately granted. 4 § 1983. After the close of discovery, the district court granted summary judgment for

the NYCHA and Union Defendants on all of Riversʹs claims.2 This appeal followed.

2. Discussion

We review a district courtʹs grant of a motion for summary judgment de

novo, construing the facts, resolving all ambiguities, and drawing all reasonable

inferences in favor of the non‐moving party. Walsh v. N.Y.C. Hous. Auth.,

(2d Cir. 2016). ʺSummary judgment is appropriate ʹif the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.ʹʺ

(quoting Fed. R. Civ. P. 56(a)). We ask whether ʺthe record taken as

a whole could not lead a rational trier of fact to find for the non‐moving party.ʺ

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

(1986).

Rivers asserts that the individual NYCHA defendants ‐‐ Rhea, Finkelman,

and Jasper ‐‐ retaliated against him for exercising his free speech and association rights

under the First Amendment. He also claims that NYCHA is liable for the same

retaliatory conduct under Monell v. Department of Social Services of New York,

(1978), and that the Union Defendants conspired with the NYCHA Defendants

to violate his First Amendment rights. We discuss Riversʹs arguments as to the NYCHA

Defendants and Union Defendants in turn.

2 After the district court denied in part defendantsʹ motions for summary judgment as to Crenshaw, Crenshaw and the NYCHA Defendants filed a stipulation of dismissal of Crenshawʹs remaining claims. 5 A. NYCHA Defendants

1. Rhea, Finkelman, and Jasper

To establish a prima facie case for retaliation based on the First

Amendment, a plaintiff must show the following: ʺ(1) his speech addressed a matter of

public concern, (2) he suffered an adverse employment action, and (3) a causal

connection between the speech and the adverse employment action.ʺ Wrobel v. Cty. of

Erie,

(2d Cir. 2012). On appeal, Rivers challenges the district courtʹs

determinations as to the second and third elements of his retaliation claim.

Rivers first argues that the district court took an inappropriately narrow

view of the alleged adverse employment actions taken against Rivers by (1) declining to

consider actions taken more than one year after Riversʹs protected speech and (2) failing

to consider the allegedly retaliatory actions collectively and in the context of earlier

conduct that was the subject of the settlement of the 2009 Petition.

Rivers correctly notes that ʺ[w]e do not attempt to determine the outer

limits of temporal proximityʺ in analyzing causation. Cioffi v. Averill Park Cent. Sch.

Dist. Bd. of Educ.,

, 168 (2d Cir. 2006). Nonetheless, our review of the record

indicates that any claim based on the post‐2010 actions must fail because no reasonable

jury could find a causal connection between Riversʹs protected speech and those actions.

Rivers cites to three incidents that occurred after November 2010: (1) a February 2011

counseling memorandum that was later rescinded and the accompanying loss of pay,

(2) denials of transfer requests in February and March 2011, and (3) a March 2011

6 counseling memorandum.3 Not only did this conduct take place over a year after the

2009 Local 237 elections, but Rivers does not point to any admissible evidence from

which a jury could infer that those actions were motivated by a retaliatory animus.

Nor do the seven actions analyzed by the district court, considered

together, and even in conjunction with the post‐2010 events, form a ʺcritical massʺ of

ʺseemingly minor incidentsʺ that can support a retaliation claim.4 Phillips v. Bowen,

(2d Cir. 2002). Riversʹs allegations of retaliation suffer from a lack of

supporting information, including which, if any, defendants were involved in each

event, and rely on inadmissible hearsay statements from various NYCHA and Local 237

employees. See Wright v. Smith,

(2d Cir. 1994) (ʺ[I]t is well settled in this

Circuit that personal involvement of defendants in alleged constitutional deprivations is

a prerequisite to an award of damages under § 1983.ʺ (internal quotation marks

omitted)). Drawing all inferences in Riversʹs favor, the admissible record evidence

establishes isolated criticism of Rivers; NYCHAʹs decision to contest Riversʹs workersʹ

compensation claim5; allegations of physically strenuous work assignments with only

3 Rivers also cites to two hearsay statements by individual Union employees in 2013 and 2014. 4 In light of the stipulation that Rivers signed in settlement of the 2009 Petition, we do not consider the events predating the release in our analysis. We note, however, that the district court did consider these events as background, stating that it would ʺnot blind itself to events preceding th[e] stipulation.ʺ Special App. 55. 5 In analyzing this claim, the district court stated that Rivers had ʺpoint[ed] to no authority indicating that an employerʹs decision to contest workersʹ compensation benefits can constitute an adverse employment action for purposes of a retaliation claim,ʺ and that, ʺ[i]n fact, the New York Workersʹ Compensation Law provides an ʹexclusive remed[y]ʹ to employees for 7 one specific example of such an assignment; denials of requests to transfer, for training,

for overtime, and for FMLA leave; grants of other of Riversʹs requests for training,

overtime, and FMLA leave; and the issuance of several counseling memoranda. When

looked at individually or as a whole, no reasonable jury could find that the alleged

actions constituted ʺa pattern of nearly constant harassment.ʺ Phillips,

.

Finally, Rivers contends that the district court erred in concluding that no

rational jury could find a causal connection between Riversʹs protected speech and the

physically strenuous assignment that he received in November 2009. Assuming

arguendo that the assignment was an adverse employment action, the only evidence of

who assigned the task to Rivers is his own conclusory statement that ʺMadden began

assigning [him] the most physically strenuous responsibilities . . . rather than to any

other maintenance worker.ʺ App. 1902. In fact, in his formal complaint to Madden, he

advised her that he was directed to complete the assignment. Accordingly, without any

other evidence connecting the assignment to any defendant, Rivers cannot establish a

causal connection between the assignment and his protected speech.

retaliation and discrimination for seeking workersʹ compensation.ʺ Special App. 51 (second alteration in original) (quoting Ridgway v. Metro. Museum of Art, No. 06‐CV‐5055,

, at *5 (S.D.N.Y. Apr. 10, 2007)). The ʺexclusive remedyʺ referred to by the district court applies when an act is taken in retaliation for seeking workersʹ compensation. Here, Rivers claims that NYCHA contested his workersʹ compensation claim in retaliation for his First Amendment‐ protected speech. Any error, however, was harmless, as the claim nevertheless fails for similar reasons as the other claims: first, Rivers was ultimately awarded workersʹ compensation, and second, there is a lack of a causal link between NYCHAʹs challenge to the workersʹ compensation claim and Riversʹs protected conduct. 8 2. NYCHA

A municipal entity may be sued under § 1983 if its ʺpolicy or custom,

whether made by its lawmakers or by those whose edicts or acts may fairly be said to

represent official policy, inflicts the injury.ʺ Monell,

. When a plaintiff

alleges that the relevant acts ʺwere taken or caused by an official whose actions

represent official policy, the court must determine whether that official had final

policymaking authority in the particular area involved.ʺ Jeffes v. Barnes,

(2d Cir. 2000). Whether the official possessed final policymaking authority in a

particular area of the local governmentʹs business is a question of state law.

A municipal entity can also be held liable for the actions of lower‐level

employees where a policymaking official ordered the actions taken or ʺexhibits

deliberate indifference to constitutional deprivations caused by subordinates, such that

the officialʹs inaction constitutes a ʹdeliberate choice.ʹʺ Amnesty Am. v. Town of W.

Hartford,

(2d Cir. 2004) (quoting City of Canton v. Harris,

(1989)). In the latter case, ʺthat acquiescence may ʹbe properly thought of as a city

ʹpolicy or customʹ that is actionable under § 1983.ʹʺ Id. (quoting City of Canton,

).

Rivers argues that the district court erred in granting summary judgment

in favor of NYCHA because the allegedly retaliatory acts were directed by Rhea, then‐

NYCHA Chairman, who ʺas a matter of common sense . . . exercises policymaking

authority for NYCHA.ʺ Appellantʹs Br. 29. The New York Public Housing Law vests

9 the agencyʹs responsibilities in a seven‐member board.

.

Although § 402 provides for the designation of a chairman of the board, it does not

delegate any policymaking authority to the chairman in particular. See id. The only

evidence that Rivers presents in support of Rheaʹs policymaking authority is deposition

testimony by Finkelman that the chairman is the ʺhighest titleʺ in NYCHA. App. 653.

Thus, because Rivers failed to establish as a matter of law that Rhea possessed ʺfinal

policymaking authorityʺ regarding work assignments and other personnel issues,

Riversʹs claims against NYCHA must be dismissed. See Jeffes, 208 F.3d at 57‐58 (ʺWhere

a plaintiff relies not on a formally declared or ratified policy, but rather on the theory

that the conduct of a given official represents official policy, it is incumbent on the

plaintiff to establish that element as a matter of law.ʺ).6

B. Union Defendants

We agree with the district courtʹs grant of summary judgment on Riversʹs

conspiracy claims against the individual Union defendant. To the extent Rivers argues

that Floyd and any of the NYCHA Defendants agreed to retaliate against Rivers for

exercising his First Amendment rights, we have already determined that a jury could

not decide in his favor on his retaliation claim. See Singer v. Fulton Cty. Sheriff,

Because Rivers cannot show that Rhea had final policymaking authority for NYCHA regarding work assignments, discipline, and other personnel issues, his argument that NYCHA is liable under § 1983 because Rhea was on notice of and deliberately disregarded constitutional violations by other NYCHA employees also fails. See Amnesty Am.,

. 10 110, 119 (2d Cir. 1995) (ʺ[A § 1983 conspiracy claim] will stand only insofar as the

plaintiff can prove the sine qua non of a § 1983 action: the violation of a federal right.ʺ).

Rivers also challenges the district courtʹs dismissal of his § 1983 claims

against Local 237 for failure to demonstrate that Local 237 had a policy or practice of

engaging in the complained‐of conduct. Rojas v. Alexanderʹs Depʹt Store, Inc.,

, 408‐09 (2d Cir. 1990) (ʺ[Monellʹs] rationale has been extended to private

businesses.ʺ). Although Rivers could have established instead that Floyd was an

individual with ʺfinal policymaking authorityʺ to support his claim, he points to no

evidence of such authority other than Floydʹs title. Thus, we are unable to conclude as a

matter of law that Floyd possessed policymaking authority regarding personnel

decisions, and Local 237 cannot be liable for any alleged retaliation under Monell.

Finally, because Riversʹs retaliation claim fails as to NYCHA, he cannot

maintain a claim that Local 237 conspired with NYCHA to violate his constitutional

rights. See Singer, 63 F.3d at 119.

We have considered Riversʹs remaining arguments and conclude they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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