Rivers v. New York City Housing Authority et al
Filing
110
ORDER granting 79 Motion for Summary Judgment; granting in part and denying in part 89 Motion for Summary Judgment. For the reasons provided in the annexed opinion, defendants' motions for summary judgment are GRANTED in part and DENIED in p art. The court concludes that all of the Union defendants must be dismissed from this action. Rivers' claims against the NYCHA defendants are also dismissed. Crenshaw's claims survive, but only as against Walton and Alexander in their indiv idual capacities. The only remaining purportedly adverse employment actions are Crenshaw's alleged loss of supervisory authority and the allegedly baseless counseling memoranda she received. Ordered by Judge Kiyo A. Matsumoto on 3/31/2016. (Jacobson, Jonathan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------ x
JAKWAN RIVERS and
:
DEBRA CRENSHAW,
:
:
Plaintiffs,
:
:
-against:
:
NEW YORK CITY HOUSING AUTHORITY;
:
JOHN RHEA, individual;
:
GLORIA FINKELMAN, individual;
:
CAROLYN JASPER, individual;
:
CARL WALTON, individual;
:
:
MELETHIL ALEXANDER, individual;
:
LOCAL 237 INTERNATIONAL BROTHERHOOD
:
OF TEAMSTERS;
:
GREGORY FLOYD; and
:
REMILDA FERGUSON,
:
:
Defendants.
------------------------------------ x
Matsumoto, United States District Judge:
Plaintiffs
Jakwan
Rivers
MEMORANDUM & ORDER
11-CV-5065 (KAM) (MDG)
and
Debra
Crenshaw
(“plaintiffs”) initiated this action against the New York City
Housing Authority (“NYCHA”), NYCHA employees John Rhea (“Rhea”),
Gloria Finkelman (“Finkelman”), Carolyn Jasper (“Jasper”), Carl
Walton
(“Walton”),
and
Melethil
Alexander
(“Alexander”),
(collectively, the “NYCHA defendants”), as well as the Local 237
International Brotherhood of Teamsters (the “Union” or “Local
237”), Union President Gregory Floyd (“Floyd”), and Union official
Remilda
Ferguson
(“Ferguson”)
(collectively,
the
“Union
defendants”) alleging that defendants conspired to and did in fact
retaliate against them for exercising their First Amendment free
1
speech and association rights. Defendants have separately moved
for summary judgment on all claims. For the reasons provided
herein, the Union defendants’ motion for summary judgment is
GRANTED in its entirety, and the NYCHA defendants’ motion for
summary judgment is GRANTED in part and DENIED in part.
BACKGROUND
I.
Factual Background
The following facts are set forth from the admissible
evidence of record and are viewed in the light most favorable to
plaintiffs as the non-moving parties. The court will provide a
general background of the events giving rise to this action. The
fact-specific nature of the allegations, however, makes it more
prudent to discuss certain factual details that are supported by
admissible evidence throughout the court’s analysis as particular
details become relevant.
A.
Rivers
Rivers’ Initial Work at NYCHA
Rivers began working for NYCHA as a maintenance worker
in April 1998. (NYCHA 56.1 at ¶ 37; Pl. 56.1 at ¶ 1.) He became a
member of the Union as soon as he began his employment at NYCHA.
(NYCHA
56.1
at
¶ 38)
Rivers’
principal
job
duties
involved
emergency construction work near Long Island City. (Id. at ¶ 37.)
Rivers worked at NYCHA until January 2006. (Pl. 56.1 at ¶ 1.)
Throughout that period, he had a perfect disciplinary record
2
without any negative evaluations or feedback. (Id. at ¶ 22.) In
January 2006, Rivers took a leave of absence from NYCHA to work at
the Union as a “business agent.” (Id. at ¶ 1.) In that capacity,
he
handled
Union
member
grievances,
visited
members’
work
locations to investigate grievances, and defended members in local
disciplinary hearings. (NYCHA 56.1 at ¶ 24.)
Rivers’ Work at the Union
In March 2007, Floyd became the Union president. (NYCHA
56.1 at ¶ 19.) Beginning in January 2008 Floyd and his subordinate
Ferguson, the director of the Union’s housing division, told all
Union employees that the Union backed then-Mayor Michael Bloomberg
for the 2009 New York City mayoral election. (Pl. 56.1 at ¶ 4.)
Around June 2008, Rivers learned that Floyd had begun to implement
a policy of permitting NYCHA management to terminate Union members
without
opposition
to
solidify
his
relationship
with
NYCHA
management. (Id. at ¶ 5.) Rivers alleges that Floyd told him to
let the terminations “take [their] course.” (Id.) It is undisputed
however, that the number of terminations of Local 237-represented
NYCHA employees did not materially differ during 2007 and 2008
from the number of terminations of Local 237-represented NYCHA
employees in other years. (Union 56.1 at ¶ 124.)
In part because of their dissatisfaction with Floyd’s
leadership
and
in
part
because
of
their
support
for
William
Thompson (Bloomberg’s Democratic opponent in the 2009 mayoral
3
race), Rivers and six colleagues began to organize an alternative
Union slate, Members for Change, and announced in August 2008 that
members of the group would run a slate of candidates against Floyd
and his supporters in the upcoming October 2009 Union elections.
(Pl. 56.1 at ¶¶ 7, 9.) Members for Change distributed campaign
literature, some of which including Rivers’ photograph indicating
that he was running for vice president of the Union. (Id. at ¶ 8;
Union 56.1 at ¶ 28.) Toward the end of 2008 and the beginning of
2009, Rivers publicly announced Members for Change’s opposition to
Floyd and its endorsement of Thompson in Union meetings before
hundreds of members. (Pl. 56.1 at ¶¶ 10-11.)
Rivers alleges that Floyd’s adherents at the Union took
notice of Rivers’ political activities. In November 2008, Rivers
alleges that one of his supervisors screamed and cursed at him
while
he
was
discussing
a
Union
member’s
grievances
on
the
telephone. (Id. at ¶ 57.) A few weeks later, Union Deputy Director
James Giocastro (“Giocastro”) allegedly told Rivers that he should
support Bloomberg for mayor because the Union could have him
“placed anywhere” in the city, suggesting that the Union could
assign him to an inconvenient or undesirable work location. (Id.
at ¶ 13.) On January 27, 2009, Floyd terminated Rivers’ position
as a business agent. (Id. at ¶ 12.) Rivers alleges, thought the
Union disputes, that Floyd expressly told Rivers that it was due
4
to his support for Thompson for mayor. (Id. at ¶ 12; Union Resp.
to Pl. 56.1 at ¶ 12.)
Rivers’ Return to NYCHA
Rivers
immediately
returned
to
NYCHA
in
his
former
position as a maintenance worker. (Pl. 56.1 at ¶ 15.) On January
27, 2009, upon learning that Rivers was being reassigned to NYCHA,
defendant
Finkelman,
NYCHA’s
deputy
general
manager
for
operations, placed Rivers in the Bronx, at a NYCHA facility called
the St. Mary’s Houses without speaking to anyone at Local 237.
(NYCHA 56.1 at ¶ 46-49, 56.) It is undisputed that an employee has
no right to return to his prior location after a term with the
Union. (Union 56.1 at ¶ 36.) Rivers claims that his placement
created a travel hardship for him because he lived in Suffolk
County on Long Island. 1 (Pl. 56.1 at ¶ 20.) It is undisputed that
Finkelman
placed
Rivers
at
St.
Mary’s
Houses
based
on
NYCHA
availability and need. (NYCHA 56.1 at ¶ 54.) Rivers asserts that
on his first day at St. Mary’s Houses, the assistant superintendent
said to him that Finkelman had told St. Mary’s staff that Rivers
had opposed the wrong people and that his supervisors should
therefore make his life miserable. 2 (Pl. 56.1 at ¶ 21.)
That same
day, Rivers was issued what he claims was a baseless counseling
1
Rivers contends that NYCHA employees who were Floyd/Bloomberg
supporters returning from a stint at the Union were permitted to return
to their prior assignments, though defendants strongly dispute this.
(Compare Pl. 56.1 at ¶ 14, with Union Resp. to Pl. 56.1 at ¶ 14.)
2 This statement, however, is inadmissible hearsay.
5
memorandum 3 for failing to find himself a work assignment. (Id.
at ¶ 22.)
At St. Mary’s Houses, instead of the construction work
he had previously done, Rivers was assigned to a position where
his duties generally involved repair work inside NYCHA housing
units.
(Id.
at
¶ 15.)
His
work
entailed
electrical
repair,
plumbing, carpentry, appliance repair, and door and window repair.
(Id.) Rivers claims, though defendants dispute, that he received
insufficient training to perform these tasks. (Id.)
Rivers’ frustration at St. Mary’s Houses led him to
informally request transfers from Finkelman. In February 2011,
soon after Rivers began requesting a transfer, NYCHA Deputy General
Manager for Administration Natalie Rivers (no relation to Rivers)
emailed Finkelman to tell her that Union President Floyd was
“driving [her] crazy” by insisting that Rivers “is supposed to be
at St. Mary’s.” (Id. at ¶ 86.) Finkelman responded, telling Natalie
Rivers that Rivers should remain in the Bronx. (Id.)
In
administrative
March
2009,
petition
Rivers
before
(through
the
New
counsel)
York
City
filed
an
Board
of
Collective Bargaining. (Union 56.1 at ¶ 51.) In the petition,
Rivers complained, as relevant here, that the Union and NYCHA had
3
“A Counseling Memorandum is a form of formal disciplinary action used
by the NYCHA.” Dingle v. City of New York, No. 10-CV-4, 2012 WL 1339490,
at *1 (S.D.N.Y. Apr. 17, 2012).
6
colluded
to
place
him
in
the
Bronx
in
retaliation
for
his
opposition to Floyd. (NYCHA 56.1 at ¶¶ 63-64; Union 56.1 at ¶ 51;
ECF No. 92, Declaration of Jeffery Niederhoffer (“Niederhoffer
Decl.”), Ex. 28.) In August 2009, NYCHA and Rivers signed a written
stipulation of settlement in which Rivers released his claims in
exchange for a placement at a NYCHA facility closer to his home.
(Niederhoffer Decl., Ex. 30; Union 56.1 at ¶ 52.)
Rivers’ Tenure at the South Jamaica Houses
In
September
2009,
pursuant
to
the
stipulation
of
settlement, Rivers was transferred to the South Jamaica Houses
development in Queens. (Pl. 56.1 at ¶ 26; NYCHA 56.1 at ¶ 65.)
Rivers continued to protest, however, that he was not properly
trained for his job responsibilities. Though it is undisputed that
Rivers received many trainings, Rivers states that they were
superficial and did not adequately prepare him for his daily
responsibilities at NYCHA. (Pl. 56.1 at ¶ 17; NYCHA 56.1 at ¶¶ 37,
58-59, 69-71, 75-78, 91.)
Shortly after his transfer to the South Jamaica Houses,
Rivers alleges that Union Deputy Director Giocastro visited the
development and told Rivers’ supervisor Margo Madden (“Madden”) as
well as the South Jamaica Houses superintendent that they “could
do anything they want to Rivers, such as giving him any assignments
and writing him up for any reason, and the Union would not
represent Rivers or stop their abuse.” (Pl. 56.1 at ¶ 26.) Rivers
7
alleges that Giocastro told Rivers that Giocastro would permit the
mistreatment
because
Rivers
was
running
against
Floyd
and
supporting Thompson. (Id. at ¶ 27.) Rivers alleges that Madden and
Rivers’
other
supervisors
subsequently
began
to
assign
him
physically strenuous tasks while refusing to provide him the tools
he
needed
to
Superintendent
complete
Alan
the
Guadagno
tasks,
and
purportedly
St.
Mary’s
mocked
Houses
Rivers’
work
continually. (Id. at ¶¶ 28-29.)
In
the
months
preceding
the
October
2009
Union
elections, Rivers alleges that a subordinate of Union President
Floyd admitted to a Union business agent that the Union was working
to end Rivers’ employment at NYCHA (Pl. 56.1 at ¶ 84.)
In November 2009, Rivers complained about his treatment
at NYCHA by email to NYCHA Chairman Rhea as well as to his NYCHA
supervisors Madden and Jasper. Jasper advised Maddden not to
respond but instead to take “the high road as we discussed today
treat him fair, and issue work accordingly.” (Niederhoffer Decl.,
Ex. 38.) Jasper subsequently updated Chairman Rhea to let Rhea
know that NYCHA would provide training to Rivers. (Id., Ex. 40.)
Rhea responded and stated that “disciplinary consequences” should
follow if Rivers failed “to meet expectations.” (Id.) In December
2009, Rivers claims he was injured due to his lack of training.
(Pl. 56.1 at ¶ 38.)
8
In February 2010, Rivers complained to NYCHA officials
Finkelman and Jasper as well as to NYCHA Chairman Rhea about a
threat NYCHA manager Madden allegedly made about him to a tenant.
(Pl.
56.1
at
¶¶ 33-37;
NYCHA
56.1
at
¶ 82.)
Although
it
is
undisputed that NYCHA investigated the threat, Rivers claims that
the investigation was insufficient. (Id.) A few months later, in
July 2010, Rivers claims that he was again injured and that NYCHA
and the Union colluded to contest workers’ compensation benefits
he sought after the injury. (Pl. 56.1 at ¶¶ 39-45.)
In September 2010, Rivers again emailed Chairman Rhea
directly to complain about his lack of training and the injuries
he had suffered, though Rhea did not respond to the emails. (NYCHA
56.1 at ¶ 98; Pl. 56.1 at ¶ 35.) After Rivers’ return from workers’
compensation leave, in February 2011, he received a purportedly
baseless counseling memorandum from an assistant superintendent at
the South Jamaica Houses; although the counseling memorandum was
revoked, Rivers was never reimbursed the pay he lost. (Pl. 56.1 at
¶¶ 48-49.) Rivers also alleges that NYCHA repeatedly denied him
overtime and leave under the Family and Medical Leave Act. (Id. at
¶¶ 51-55.)
In
2010,
Rivers
(through
counsel)
filed
a
second
administrative petition with the New York City Board of Collective
Bargaining. (ECF No. 85, Declaration of Stephen B. Moldof (“Moldof
Decl.”), Ex. 18; Union 56.1 at ¶ 53.) The petition alleged that
9
NYCHA and the Union had worked together to punish NYCHA employees
(including both Rivers and Crenshaw) for supporting Members for
Change, and included many of the specific allegations Rivers brings
in
this
action.
(Union
56.1
at
¶¶ 53-55.)
The
petition
was
withdrawn in June 2011. (Id. at ¶ 56; Moldof Decl., Ex. 19.)
In December 2012, at his deposition, Rivers claimed to
be totally disabled and unable to work. (Union 56.1 at ¶ 4.)
B.
Crenshaw
Crenshaw began working at NYCHA in March 1995 as a
housing assistant. (NYCHA 56.1 at ¶ 111.) She was promoted to a
managerial position in March 2006. (Id. at ¶ 112.) Crenshaw began
attending Members for Change meetings in August 2008, shortly after
she met Rivers. (Pl. 56.1 at ¶¶ 58-59.) She became more vocal on
behalf of Members for Change in January 2009, when she began
canvassing at NYCHA facilities before work. (Id. at ¶ 60.) Her
canvassing continued in March 2009. (NYCHA 56.1 at ¶ 31.) She also
alleges that she had discussions about Members for Change in April
2009 and June 2010. (Pl. 56.1 at ¶¶ 75-76.)
In February 2009, Crenshaw’s supervisors, Alexander and
Walton, met with Crenshaw. (Id. at ¶¶ 62, 64.) During the meeting,
they increased Crenshaw’s workload and reduced her authority by
telling her that her then-subordinates would begin reporting to
Alexander
instead.
(Id.)
She
alleges
that
her
new
job
responsibilities — which were time-consuming and burdensome — were
10
not
borne
by
other
assistant
housing
managers.
(Id.)
It
is
undisputed, however, that assistant managers at other locations
were given many of the same tasks as Crenshaw. (NYCHA 56.1 at
¶ 116.)
In March 2009, Alexander issued Crenshaw a counseling
memorandum for missing work during a snowstorm that Crenshaw claims
crippled public transportation and prevented her from commuting to
work. (Pl. 56.1 at ¶ 67.) After Crenshaw complained to Walton
around March 2009 about the new job responsibilities and said she
would discuss her concerns with the Union, Walton stated that he
and Union official Ferguson had known each other for 18 years,
which indicated to Crenshaw that the Union would not defend her.
(Id. at ¶ 73.) Soon after Crenshaw’s conversation with Walton,
Union representative Giocastro attended a meeting with Walton and
Crenshaw to discuss Crenshaw’s concerns. (Id. at ¶ 74.) Crenshaw
alleges
that
after
Giocastro
began
to
defend
her
against
an
allegedly unwarranted counseling memorandum, Walton raised his
hand and said: “Don’t you know who this is, she is the one who is
going
up
against
you
and
Floyd.”
(Id.)
Crenshaw
claims
that
Giocastro immediately ceased defending her. (Id.) Crenshaw also
alleges that she complained via email to NYCHA managers including
Chairman
Rhea
throughout
2009
and
2010
about
her
alleged
mistreatment, though there does not appear to be any record of the
purported emails. (Id. at ¶ 82.)
11
A string of counseling memoranda followed in April and
May 2009 that Crenshaw complains were entirely baseless. (Id. at
¶¶ 68-69.) For example, in April 2009, Walton issued Crenshaw a
counseling memorandum for “insubordination” after she yelled and
cursed at him; Crenshaw claims the allegations were false. (Id. at
¶ 68;
NYCHA
56.1
at
¶ 121.)
Crenshaw
claims
that
she
always
performed her work in a “timely and accurate manner,” despite
feeling overwhelmed by her new responsibilities. (Pl. 56.1 at
¶ 69.) Overall, between March 2009 and May 2010 Crenshaw received
three
instructional
memoranda
and
nine
written
counseling
memoranda. (NYCHA Resp. to Pl. 56.1 at ¶ 69.)
NYCHA served Crenshaw with notice of a hearing in October
2009 that would address three serious disciplinary charges against
Crenshaw. First, Crenshaw was charged with creating a hostile work
environment and insubordination to Alexander on June 11, 2009. The
second charged that Crenshaw failed to follow instructions between
May 20 and 28, 2009. The third charge Crenshaw faced was for
failing to follow NYCHA rental procedures on September 18, 2009.
(Id. at ¶ 79; Niederhoffer Decl., Ex. 65-66; NYCHA 56.1 at ¶¶ 13644.) Crenshaw alleges that Union representative Giocastro, who was
assigned to represent her at the October 2009 hearing, failed to
prepare or seriously contest the allegations against her. (Pl.
56.1 at ¶ 79.) Alexander testified at the hearing and Crenshaw was
ultimately found guilty of two of the three charges by a neutral
12
hearing officer. (Niederhoffer Decl., Ex. 66; NYCHA 56.1 at ¶¶ 136,
140.)
In April 2010, Crenshaw alleges that Alexander sexually
assaulted her when he “pressed up behind [her] and rubbed his erect
penis on [her] buttocks.” (ECF No. 102, Declaration of Alexander
Coleman, Ex. C, Declaration of Debra Crenshaw (“Crenshaw Decl.”)
at ¶ 25.) Crenshaw filed a report with NYCHA’s Department of Equal
Opportunity, but she claims that NYCHA took no action against
Alexander.
(Pl.
56.1
at
¶ 71.)
Alexander
testified
at
his
deposition, however, that an internal investigation occurred and
that
the
charges
against
him
were
dismissed.
(ECF
No.
95,
Declaration of Donna M. Murphy, Ex. 1, Alexander Deposition at 5961.) One week after the assault, Alexander issued her a counseling
memorandum
for
being
AWOL
during
the
time
she
reported
her
complaint about Alexander’s assault. (Pl. 56.1 at ¶ 72.)
Crenshaw claims that the increased workload and stress
brought on by the disciplinary actions and harassment caused her
to develop serious back and neck problems. (Id. at ¶¶ 80-81.) By
August 2010, she claims she was incapacitated. (Id.) She sought
workers’ compensation, which was granted in part over NYCHA’s
opposition. (NYCHA 56.1 at ¶¶ 147-50.) Pursuant to NYCHA policy,
after she had been absent for one year due to disability, she was
terminated in August 2011. (Id. at ¶ 151-52.) She returned to work
13
at NYCHA in July 2012 as an assistant manager in the Bronx, but
retired in early 2014. (Id. at ¶ 153; Union 56.1 at ¶ 6.)
II.
Procedural Background
Plaintiffs filed their complaint in this action alleging
claims under 42 U.S.C. § 1983 (“§ 1983”) on October 18, 2011. (ECF
No. 1, Complaint.) They amended their complaint on February 28,
2012. (ECF No. 14, Amended Complaint (“Am. Compl.”).) Plaintiffs’
motion to supplement the pleadings and re-open discovery was denied
on November 17, 2014. (ECF No. 72.) Plaintiffs bring two claims
against the NYCHA defendants under § 1983. The first alleges that
the NYCHA defendants retaliated against them for exercising their
First Amendment right to freedom of speech. The second alleges
that the NYCHA defendants retaliated against them for exercising
their First Amendment right to freedom of association. They also
bring two related claims against the Union defendants. The first
alleges
that
the
Union
defendants
conspired
with
the
NYCHA
defendants to retaliate against them for exercising their right to
freedom of speech. The second alleges that the Union defendants
conspired with the NYCHA defendants to retaliate against them for
exercising their right to freedom of association. 4
4
None of the parties meaningfully distinguish between the plaintiffs’
speech and association claims in this case. In any event, retaliation
claims based on freedom of speech are subject to the same analysis as
retaliation claims based on freedom of association. See Lynch v. Ackley,
811 F.3d 569, 583 (2d Cir. 2016) (“This claim based on [plaintiff’s]
First Amendment association rights is subject to the same analysis as
set forth above for [plaintiff’s] First Amendment free-speech right based
14
Defendants have separately moved for summary judgment
and filed memoranda of law in support of their motions. (ECF No.
89, NYCHA Memorandum in Support of Motion for Summary Judgment
(“NYCHA Mem.”); ECF No. 80, Union Memorandum in Support of Motion
for
Summary
Judgment
(“Union
Mem.”).)
Plaintiffs
filed
an
opposition addressing both motions. (ECF No. 101, Plaintiffs’
Memorandum
in
Opposition
to
Defendants’
Motions
for
Summary
Judgment (“Pl. Opp’n.”).) Defendants filed replies. (ECF No. 94,
NYCHA Reply in Support of Motion for Summary Judgment (“NYCHA
Reply”); ECF No. 97, Union Reply in Support of Motion for Summary
Judgment (“Union Reply”).)
The parties have also filed statements of material facts
(as well as responses) in accordance with Local Rule 56.1. (ECF
No. 89, Ex. 2, NYCHA Statement of Material Facts (“NYCHA 56.1”);
ECF No. 81, Union Statement of Material Facts (“Union 56.1”); ECF
No. 103, Plaintiffs’ Statement of Material Facts (“Pl. 56.1”); ECF
No. 104, Plaintiffs’ Response to NYCHA 56.1 (“Pl. Resp. to NYCHA
56.1”); ECF No. 105, Plaintiffs’ Response to Union 56.1 (“Pl. Resp.
to Union 56.1”); ECF No. 108, NYCHA Response to Plaintiffs’ 56.1
on the same incident.”). Because the speech rights at issue in this
action are closely bound up with the association rights, the court’s
analysis does not generally differentiate between the two types of
claims.
15
(“NYCHA
Resp.
to
Pl.
56.1”);
ECF
No.
98,
Union
Response
to
Plaintiffs’ 56.1 (“Union Resp. to Pl. 56.1”).)
SUMMARY JUDGMENT LEGAL STANDARD
Summary judgment is appropriate “where there exists no
genuine issue of material fact and, based on the undisputed facts,
the moving party is entitled to judgment as a matter of law.”
Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 224 (2d Cir. 2006)
(internal
quotation
marks
and
citation
omitted).
“The
plain
language of Rule 56(c) mandates the entry of summary judgment . . .
against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). “Summary judgment is
appropriate when the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party.” Smith v.
Cnty. of Suffolk, 776 F.3d 114, 121 (2d Cir. 2015) (internal
quotation marks and citation omitted).
DISCUSSION
The court turns to the issues raised by defendants’
motions for summary judgment. First, the court will address the
preclusion concerns presented by the defendants regarding the two
earlier-filed administrative petitions. Second, the court will
address liability for the entity defendants: NYCHA and the Union.
Third, the court will provide the appropriate legal standards for
16
the First Amendment retaliation claims and the conspiracy claims.
Fourth, the court will evaluate Rivers’ claims. Finally, the court
will address Crenshaw’s claims.
I.
Preclusion
At
the
outset,
the
court
must
examine
defendants’
arguments that certain claims in this action are precluded because
of actions taken by Rivers and Crenshaw in two administrative
proceedings.
A.
The 2009 Improper Practice Petition
On March 5, 2009, Rivers, represented by counsel, filed
an “Improper Practice Petition” 5 against Local 237 and NYCHA.
(NYCHA 56.1 at ¶ 63.) Among other grievances, Rivers complained of
his assignment to the Bronx upon his return to work at NYCHA. (Id.)
He had previously been assigned to Long Island City, which was
closer to his home, and sought a reassignment there. (Id.) NYCHA
filed an answer to the petition on April 24, 2009. (Id. at ¶ 64.)
On August 24, 2009, the parties agreed to settle the petition and
entered into a stipulation providing for Rivers’ transfer to the
South Jamaica Houses in Queens as a maintenance worker. (Id. at
¶ 65.)
5 An Improper Practice Petition is a complaint alleging violations of
the New York City Collective Bargaining Law by, for example, a public
employer. See N.Y.C. Admin. Code Title 12, ch. 3. It is filed with the
Board of Collective Bargaining. See id. § 12–306.
17
The settlement, signed by Rivers, his attorney, and a
representative of NYCHA, “resolve[d] any and all claims on behalf
of Rivers that may have arisen from or related to [sic] the matters
addressed in [the 2009 Improper Practice Petition].” (Niederhoffer
Decl., Ex. 30, at 2.) Rivers agreed to withdraw his claims with
prejudice. (Id.) Rivers has conceded that claims “arising from or
relating to the matters alleged” in the 2009 petition are barred
in this action. (See Pl. Opp’n at 19 (“Plaintiffs do not seek
damages
for
Rivers’
January
27,
2009
assignment
to
the
Bronx. . . .”) The court accepts that concession for purposes of
deciding these motions.
B.
The 2010 Improper Practice Petition
A separate issue is raised by a 2010 Improper Practice
Petition filed, and later withdrawn, by Rivers and Crenshaw. The
Union defendants argue that the withdrawal of the 2010 petition
bars
certain
claims
asserted
by
both
plaintiffs
in
this
litigation. 6
The 2010 Improper Practice Petition alleged that NYCHA
and the Union sought to penalize NYCHA employees who backed the
Members for Change slate in the 2009 Local 237 election. (See
Moldof Decl., Ex. 18; see also Union 56.1 at ¶ 53.) The petition
alleged that NYCHA and the Union “collectively engaged in a[n]
6
The NYCHA defendants do not join the Union’s argument regarding the
2010 petition.
18
unlawful
attempt
to
violate
the
rights
of
the
membership
by
disallowing fair and impartial disciplinary practices to ensue,
and selective disciplinary practices to those in opposition of the
current
leadership.”
specifically
mentions
(Moldof
a
Decl.,
variety
of
Ex.
18.)
retaliatory
The
petition
actions
that
overlap with the allegations in the Amended Complaint in this
action. For example, the petition mentions Rivers’ lack of training
for certain work duties, the denial of repeated transfer requests
resulting in two on-the-job injuries, the opposition to Rivers’
workers’ compensation claim, the denial of certain requests for
FMLA leave, and the physical threats allegedly made against Rivers
to a NYCHA tenant. (See Moldof Decl., Ex. 18; see also Union 56.1
at ¶ 54.) The petition also alleges that Crenshaw was disciplined
for minor infractions and subjected to constant harassment by her
manager. (See Moldof Decl., Ex. 18; see also Union 56.1 at ¶ 55.)
Ultimately,
the
petitioners,
through
counsel,
withdrew
the
petition. (See Moldof Decl., Ex. 19; see also Union 56.1 at ¶ 56.)
The withdrawal — which contains the signatures of Rivers, Crenshaw,
and various other NYCHA employees — provides that the signatories
“would like to rescind our complaint submitted to the Office of
Collective Bargaining.” (See Moldof Decl., Ex. 19; see also Union
56.1 at ¶ 56.) An e-mail sent by Rivers’ attorney contains the
withdrawal document as an attachment: the document is titled
“COMPLETE WITHDRAWAL LETTER FOR OCB.” (Moldof Decl., Ex. 19.)
19
The Union defendants argue that plaintiffs are barred
from pursuing any claims mentioned in the 2010 petition that were
“with[drawn]
with
prejudice.”
(Union
Mem.
at
28.)
Plaintiffs
respond that the Union’s “assertion is objectively untrue and is
made in bad faith” because the withdrawal does not suggest or
establish that “any individual intended to give up or waive any
rights with prejudice.” (Pl. Opp’n at 20.)
To determine whether plaintiffs waived their right to
bring this § 1983 action, “this Court does not rely on New York
law, since ‘the question of a waiver of a federally guaranteed
constitutional right is, of course, a federal question controlled
by federal law.’” Legal Aid Soc’y v. City of New York, 114 F. Supp.
2d 204, 226 (S.D.N.Y. 2000) (quoting Brookhart v. Janis, 384 U.S.
1, 4 (1966)). The waiver of a fundamental right “cannot be presumed
or lightly inferred, and courts must indulge every reasonable
presumption against waiver.” Intermor v. Inc. Vill. of Malverne,
No. 03-CV-5164, 2007 WL 2288065, at *8 (E.D.N.Y. Aug. 8, 2007)
(internal quotation marks and citation omitted); see also Fuentes
v. Shevin, 407 U.S. 67, 94 n. 31 (1972) (“[I]n the civil no less
than
the
criminal
presumption
against
area,
courts
waiver.”
indulge
(internal
every
quotation
reasonable
marks
and
citation omitted)).
With these background principles in mind, the court
concludes
that
the
withdrawal
20
of
the
2010
petition
is
insufficiently unequivocal for a determination that plaintiffs
waived their federal constitutional rights. The language in the
waiver
provides
that
the
plaintiffs
wished
to
“rescind”
the
complaint. (Moldof Decl., Ex. 19.) Nowhere does the withdrawal
provide that it was “with prejudice,” as the Union defendants
inaccurately argue. 7 (Union Mem. at 28.) Instead, the withdrawal
in this case bears a strong resemblance to a voluntary dismissal
without prejudice under Fed. R. Civ. P. 41(a). In the Fed. R. Civ.
P. 41(a) voluntary dismissal context, where it is unclear whether
a
withdrawal
was
with
or
without
prejudice,
Fed
R.
Civ.
P.
41(a)(1)(B) provides that the dismissal is without prejudice and
a “dismissal without prejudice does not preclude another action on
the same claims.” Chappelle v. Beacon Commc’ns Corp., 84 F.3d 652,
654 (2d Cir. 1996); Thai v. United States, 391 F.3d 491, 497 (2d
Cir. 2004) (per curiam) (applying Fed. R. Civ. P. 41(a) voluntary
dismissal principles in federal habeas context, though the federal
rules of civil procedure need not be employed in federal habeas
cases); see also 9 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2367 (3d ed.) (“[A]s numerous federal
courts have made clear, a voluntary dismissal without prejudice
7
The court declines to ascribe significance to the withdrawal document’s
file name: “COMPLETE WITHDRAWAL.” (Moldorf Decl., Ex. 19.) Waiver of a
federal constitutional right cannot rest on the file name of a PDF
document. In any case, even a withdrawal without prejudice could fairly
be characterized in some circumstances as a “complete withdrawal.”
21
under Rule 41(a) leaves the situation as if the action never had
been filed.”).
The court cannot find a waiver based on the thin evidence
presented here, particularly given the strong presumption against
waiver. See Fuentes, 407 U.S. at 94 n.31. For purposes of the
defendants’
motions,
no
legal
significance
attached
to
the
withdrawal of the 2010 Improper Practice Petition.
II.
Liability Under § 1983 for NYCHA and the Union
Before proceeding with an analysis regarding individual
liability, the court will address the issue of liability for NYCHA
as well as liability for the Union.
A municipal entity like NYCHA can only be held liable if
its “policy 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.” Monell v. Dep’t. of Soc. Servs. of
City of New York, 436 U.S. 658, 694 (1978). “Whether or not a
single individual possesses ‘final policymaking authority’ is an
issue of state law.” Chin v. New York City Hous. Auth., 575 F.
Supp. 2d 554, 562 (S.D.N.Y. 2008) (quoting Jett v. Dallas Indep.
Sch. Dist., 491 U.S. 701, 737 (1989)).
Policymaking authority for NYCHA is placed in a sevenmember body that includes the chairman. See N.Y. Pub. Hous. Law
§ 402(3) (“The authority shall consist of seven members appointed
by the mayor, one of whom shall be designated by the mayor as
22
chairman removable at his or her pleasure.”); see also Ramos v.
City of New York, No. 96-CV-3787, 1997 WL 410493, at *3 (S.D.N.Y.
July 22, 1997) (dismissing NYCHA because NYCHA board — rather than
the
NYCHA
chairman,
“discriminated
against
discriminatory
conduct”
who
the
him
—
plaintiff
had
and
alleged
ratified
final
a
directly
subordinate’s
policymaking
authority).
Because Rhea did not have final policymaking authority, because
there
is
no
indication
that
the
NYCHA
board
delegated
such
authority to him, and because there is no evidence that any other
board member had notice of the alleged retaliation at issue in
this action, NYCHA must be dismissed.
For a similar reason, the Union — the entity itself, as
opposed to the two Union employee defendants (Floyd and Ferguson)
— must also be dismissed. The Second Circuit has extended Monell’s
rationale to private entities 8 when they are sued under § 1983.
See Green v. City of New York, 465 F.3d 65, 82 (2d Cir. 2006)
“Private
employers
are
not
liable
under
§
1983
for
the
constitutional torts of their employees . . . unless the plaintiff
proves that action pursuant to official . . . policy of some nature
caused a constitutional tort. Although Monell dealt with municipal
employers, its rationale has been extended to private businesses.”
8
Unions are private entities. See Wilkie v. Robbins, 551 U.S. 537, 566
(2007); Turner v. Air Transp. Lodge 1894 of Int’l Ass’n of Machinists &
Aerospace Workers, AFL-CIO, 590 F.2d 409, 413 n.1 (2d Cir. 1978)
(Mulligan, J., concurring).
23
Rojas v. Alexander’s Dep’t Store, Inc., 924 F.2d 406, 408-09 (2d
Cir. 1990) (internal quotation marks, citations, and alterations
omitted).
Here,
plaintiffs
argue
that
they
were
specifically
targeted for retaliation based on their political beliefs, but do
not anywhere propose that the Union had a policy or practice of
engaging in such conduct beyond their individual situations. The
Union is therefore dismissed from this action. See, e.g., Gitter
v. Target Corp., No. 14-CV-4460, 2015 WL 5710454, at *3 n.4
(S.D.N.Y. Sept. 29, 2015) (“Although the parties do not raise this
issue, because Target is a corporation, to find Target liable for
a violation of § 1983 Plaintiff would also have to offer evidence
that Plaintiff’s handcuffing was pursuant to Target’s policy or
custom.”).
III. Legal Standard for First Amendment Retaliation Claims
To
survive
summary
judgment
on
a
First
Amendment
retaliation claim, a plaintiff must establish a prima facie case
by “bring[ing] forth evidence showing that [1] he has engaged in
protected First Amendment activity, [2] he suffered an adverse
employment action, and [3] there was a causal connection between
the protected activity and the adverse employment action.” Smith,
776 F.3d at 118 (internal quotation marks and citation omitted).
A.
Protected First Amendment Activity Standard
24
Courts employ a two-step inquiry to evaluate whether a
public employee’s speech or association is protected under the
First Amendment. The first step requires evaluating whether the
employee spoke as a citizen on a matter of public concern. 9 See
Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). The Supreme Court
has defined “a matter of public concern” as one that “relat[es] to
any
matter
of
political,
social,
or
other
concern
to
the
community.” Connick v. Myers, 461 U.S. 138, 146 (1983). Second, if
the employee spoke on a matter of public concern, the court must
determine whether the relevant government entity “had an adequate
justification for treating the employee differently from any other
member
of
the
public
based
on
the
government’s
needs
as
an
employer.” Lane v. Franks, 134 S. Ct. 2369, 2380 (2014) (internal
quotation marks and citation omitted); see also Pickering v. Bd.
9
Although there had previously been some uncertainty about whether the
“public concern” requirement applied to associational claims, see Clue
v. Johnson, 179 F.3d 57, 60 n.2 (2d Cir. 1999) (“[I]t is anything but
clear whether the public concern requirement applies to associational
claims made by government employees.”), courts have since held that even
associational claims must involve “associational activity” touching upon
a matter of public concern. See Rutherford v. Katonah-Lewisboro Sch.
Dist., 670 F. Supp. 2d 230, 246 (S.D.N.Y. 2009) (“[I]n order to state a
viable First Amendment free association claim, Plaintiff must allege
that the associational activity at issue touches upon a matter of public
concern.”); see also Cobb v. Pozzi, 363 F.3d 89, 105 (2d Cir. 2004)
(concluding that the “public concern requirement applies to freedom of
association claims”). It is not clear from the briefing whether NYCHA’s
challenge on the “public concern” issue is addressed both to plaintiffs’
speech and association claims. The court will assume for purposes of
this decision that NYCHA’s arguments about the failure to meet the
“public concern” requirement are directed to all of plaintiffs’ claims.
25
of Ed. of Twp. High Sch. Dist. 205, Will Cnty., Illinois, 391 U.S.
563, 568 (1968).
B.
Applicable “Adverse Employment Action” Standard
With respect to the second element of a First Amendment
retaliation
claim,
“retaliatory
individual
of
the
conduct
adverse
that
ordinary
employment
would
firmness
deter
from
a
action
requirement,
similarly
exercising
his
situated
or
her
constitutional rights constitutes an adverse action.” Zelnik, 464
F.3d at 225. An adverse employment action includes a “discharge,
refusal to hire, refusal to promote, demotion, reduction in pay,
and reprimand.” Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999),
abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 64 (2006). The Second Circuit has cautioned,
however, that “lesser actions may also be considered adverse
employment actions,” 10 id. (citation omitted), and emphasized that
whether an action qualifies as adverse is a “heavily fact-specific,
contextual determination.” See Hoyt v. Andreucci, 433 F.3d 320,
328 (2d Cir. 2006). A “campaign of harassment which though trivial
in detail may [be] substantial in gross, and therefore . . .
10
In a recent case in the education context, the Second Circuit explained
that “[a]dverse employment actions may include negative evaluation
letters, express accusations of lying, assignment of lunchroom duty,
reduction of class preparation periods, failure to process teacher’s
insurance forms, transfer from library to classroom teaching as an
alleged demotion, and assignment to classroom on fifth floor which
aggravated teacher’s physical disabilities.” Zelnik, 464 F.3d at 226
(internal quotation marks and citations omitted).
26
actionable.” Zelnik, 464 F.3d at 227; see also Phillips v. Bowen,
278
F.3d
103,
109
(2d
Cir.
2002)
(“Our
precedent
allows
a
combination of seemingly minor incidents to form the basis of a
constitutional
retaliation
claim
once
they
reach
a
critical
mass.”).
The “standard for an ‘adverse action’ in the context of
First Amendment retaliation is substantially similar to the same
inquiry in the Title VII retaliation context.” Manon v. Pons, No.
12-CV-7360, 2015 WL 5507759, at *7 n.8 (S.D.N.Y. Sept. 18, 2015)
(citation
omitted).
The
standard
for
what
constitutes
a
retaliatory adverse action both under Title VII in the First
Amendment context is broader, however, than in the Title VII
discrimination
context.
See
Burlington,
548
U.S.
at
64
(recognizing that Title VII’s anti-retaliation provision “is not
limited
to
discriminatory
actions
that
affect
the
terms
and
conditions of employment”); Taylor v. New York City Dep’t of Educ.,
No. 11-CV-3582, 2012 WL 5989874, at *9 (E.D.N.Y. Nov. 30, 2012)
(“The standard for an adverse employment action in retaliation
claims
is
considerably
broader
than
the
standard
for
discrimination claims under Title VII.” (internal quotation marks
and citation omitted)).
C.
Applicable Causation Legal Standard
The parties dispute the appropriate legal standard to be
employed
in
the
evaluation
of
27
causation
for
First
Amendment
retaliation claims. Plaintiffs argue that the appropriate test
evaluates whether the relevant protected speech was a substantial
motivating factor in the adverse employment action. (Pl. Opp’n at
30-31.) Defendants contend that University of Texas Southwestern
Medical Center v. Nassar, 133 S. Ct. 2517 (2013), a recent Supreme
Court decision holding that Title VII retaliation claims are
subject to a “but for” causation standard, applies in the First
Amendment retaliation context as well. (NYCHA Mem. at 5-6; Union
Mem. at 13-14 & n.10.)
Nassar held that the “text, structure, and history of
Title VII demonstrate that a plaintiff making a retaliation claim
under [Title VII] must establish that his or her protected activity
was a but-for cause of the alleged adverse action by the employer.”
133 S. Ct. at 2534. The Second Circuit has, on at least two
occasions since Nassar, addressed causation standards in the First
Amendment
retaliation
context.
First,
in
Puglisi
v.
Town
of
Hempstead, Dep’t of Sanitation, Sanitary Dist. No. 2, 545 F. App’x
23, 25 (2d Cir. 2013), a plaintiff appealed a summary judgment
granted
to
various
defendants
on,
inter
alia,
a
Title
VII
retaliation claim and a First Amendment retaliation claim. The
court explicitly recognized that Nassar’s “but for” causation
standard doomed the plaintiff’s Title VII retaliation claim. Id.
The
court,
however,
separately
addressed
plaintiff’s
First
Amendment claim. Id. at 26-27. Although the court concluded that
28
the plaintiff could not carry his causation burden, it explained
his burden as follows, citing a case predating Nassar: “‘Even if
there is evidence that the adverse employment action was motivated
in part by protected speech, the government can avoid liability if
it can show that it would have taken the same adverse action in
the absence of the protected speech.’” Id. at 26 (alteration
omitted)
(emphasis
added)
(quoting
Anemone
v.
Metro.
Transp.
Auth., 629 F.3d 97, 114 (2d Cir. 2011)). The court’s use of the
above-quoted
“motivated
in
part”
language,
coupled
with
its
citation to a case predating Nassar to provide the applicable
causation
standard,
motivating
factor
strongly
test
for
suggests
evaluating
that
the
causation
substantial
for
First
Amendment retaliation claims survived Nassar.
An even more recent post-Nassar Second Circuit case
reached a similar outcome. In Georges v. Peters, 581 F. App’x 80,
81 (2d Cir. 2014), the Second Circuit affirmed a district court’s
dismissal of a Title VII claim because the plaintiff could not
meet Nassar’s “but-for” causation standard. In that same decision,
the court affirmed the dismissal of a First Amendment retaliation
claim “for substantially the same reasons stated by the district
court,” id. at 80, where the district court — post-Nassar — had
applied
the
substantial
motivating
factor
test
to
evaluate
causation. See Georges v. Peters et al., No. 10-CV-7436 (S.D.N.Y.
Oct. 8, 2013), ECF No. 57, at 11. Peters, like Puglisi, suggests
29
that the Second Circuit is disinclined to extend Nassar’s “butfor” standard to First Amendment retaliation claims. 11
Further, courts both in this circuit and others have
declined to apply Nassar to First Amendment retaliation claims.
See Jagmohan v. Long Island R. Co., No. 12-CV-3146, 2014 WL
4417745, at *14, *16 (E.D.N.Y. Sept. 8, 2014) (post-Nassar decision
applying
Nassar
to
Title
VII
retaliation
claim
but
applying
substantial motivating factor test to First Amendment retaliation
claim).
The
only
circuit
court
to
squarely
address
the
applicability of Nassar in the First Amendment retaliation context
held that Nassar does not apply to First Amendment retaliation
claims. See Mooney v. Lafayette Cnty. Sch. Dist., 538 F. App’x
447, 453 n.4 (5th Cir. 2013) (“The holding in Nassar, however,
does not apply to the First Amendment causation standard, which
requires
only
that
protected
speech
be
a
‘substantial’
or
‘motivating’ factor in the adverse employment action suffered by
the plaintiff.”); see also Stoner v. Ark. Dep’t. of Corr., 983 F.
Supp.
2d
1074,
1099
(E.D.
Ark.
2013)
(applying
substantial
motivating factor test to First Amendment retaliation claim and
11
The court emphasizes Peters and Puglisi because these two cases both
involve First Amendment retaliation claims as well as citations to Nassar
to address related Title VII retaliation claims. In another post-Nassar
First Amendment retaliation case not involving any Title VII claims, the
Second Circuit explicitly stated that to “demonstrate a causal connection
a plaintiff must show that the protected speech was a substantial
motivating factor in the adverse employment action.” Smith, 776 F.3d at
118 (emphasis added).
30
explicitly distinguishing Nassar); Powell v. Doane, No. 12-CV-440,
2013 WL 4511935, at *4 n.3 (M.D. Ala. Aug. 23, 2013) (same). 12
The court acknowledges that at least two district courts
in this circuit have held that Nassar applies to First Amendment
retaliation claims. See Zehner v. Bd. of Educ. of the JordanElbridge Cent. Sch. Dist., No. 11-CV-1202, 2015 WL 5708797, at *6
n.1 (N.D.N.Y. Sept. 29, 2015); Mazur v. New York City Dep’t of
Educ., 53 F. Supp. 3d 618, 638 (S.D.N.Y. 2014) aff’d, 621 F. App’x
88
(2d
Cir.
2015)
(affirming
dismissal
of
First
Amendment
retaliation claim on unrelated ground because the speech at issue
did not address matter of public concern). Neither the Zehner court
nor the Mazur court, however, discussed Nassar in any detail, and
the Mazur court extended the Nassar standard to a First Amendment
retaliation
claim
despite
the
defendant’s
argument
that
the
substantial motivating factor test applied. See No. 12-CV-687, ECF
No. 58, at 28-29.
Even setting aside the precedent, most of which provides
little or no justification for extending (or refusing to extend)
Nassar, there are strong reasons not to apply Nassar to § 1983
actions, particularly § 1983 actions involving First Amendment
12
Additionally, the Committee on Model Civil Jury Instructions for the
Third Circuit — which is composed exclusively of district judges in the
Third Circuit — has determined that Nassar “did not disturb the standard
used for First Amendment retaliation claims.” Model Civ. Jury Instr. 3rd
Cir. 7.4 (2015) (“[T]he causation standard for Title VII retaliation
claims is ‘but for’ causation, while the causation standard for First
Amendment retaliation claims is ‘motivating factor . . . .’”).
31
retaliation claims. First, neither the majority nor the dissent in
Nassar even mentions § 1983 or the First Amendment. Second, as the
Nassar majority itself took pains to explain, the decision was
grounded in the “text, structure, and history of Title VII.” 133
S. Ct. at 2534. A decision so strongly rooted in Title VII should
not necessarily apply to § 1983, which has its own distinctive
text, structure, and history. See Patterson v. Cnty. of Oneida,
N.Y., 375 F.3d 206, 225-27 (2d Cir. 2004) (emphasizing significant
distinctions between Title VII and § 1983 in reversing grant of
summary judgment for § 1983 claims while affirming grant of summary
judgment for Title VII claims); see also Keller v. Prince George’s
Cnty., 827 F.2d 952, 955 (4th Cir. 1987) (discussing the broader
remedies available to plaintiffs under § 1983 than Title VII, and
further emphasizing the longer statutes of limitations and lack of
exhaustion requirement under § 1983). 13
Having
considered
the
Second
Circuit’s
decisions
in
Puglisi and Peters; the other cases both in and outside this
circuit outlined above that explicitly refused to extend Nassar to
13
“The primary doctrinal differences between Title VII claims and
employment discrimination claims pursuant to Sections 1981 and 1983
regard (1) the statute of limitations, (2) the requirement that Section
1981 or 1983 plaintiffs must show employment discrimination pursuant to
an official policy or custom, (3) that individuals may be held liable
under Sections 1981 and 1983, but not under Title VII, and (4) a Title
VII claim may be established through proof of negligence, whereas Section
1981 and 1983 claims must be supported by evidence of intentional
discrimination.” Jackson v. City of New York, 29 F. Supp. 3d 161, 170
n.10 (E.D.N.Y. 2014) (citing Patterson, 375 F.3d at 225-27).
32
the
First
Amendment
retaliation
context;
and
the
significant
distinctions between § 1983 and Title VII, the court concludes
that plaintiff’s First Amendment retaliation claims are governed
by the substantial motivating factor causal test rather than the
but-for causal test. 14
D.
Conspiracy Standard
Plaintiffs
additionally
seek
to
hold
the
Union
defendants liable under § 1983. Because the Union defendants are
private actors not generally subject to § 1983 actions, plaintiffs
argue that they are liable since they conspired with the NYCHA
defendants to retaliate against them for exercising their First
Amendment rights. To establish a conspiracy, plaintiffs must show:
“(1) an agreement between a state actor and a private party; (2)
to act in concert to inflict an unconstitutional injury; and (3)
an overt act done in furtherance of that goal causing damages.”
Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324-25 (2d Cir.
2002).
IV.
Rivers 15
14
The court concludes, however, that none of Rivers’ claim can survive
under either standard while Crenshaw’s claims that survive would survive
under both standards. Accordingly, the court will discuss both causation
standards throughout its analysis of plaintiffs’ claims.
15 Defendants correctly point out that plaintiffs’ Rule 56.1 statement
of facts contains many particularly egregious allegations about
statements made and actions taken by NYCHA and Union officials that were
never referenced in the amended complaint or revealed in plaintiffs’
depositions. (See Union Reply at 2-3 n.4, 7-8.) Almost all of the new
allegations are sourced from Rivers’ affidavit filed in support of
plaintiffs’ opposition to the defendants’ motions for summary judgment.
33
As set out above, to establish a viable First Amendment
retaliation
claim,
Rivers
must
show
that:
(1)
he
engaged
in
constitutionally protected speech as a private citizen speaking on
a matter of public concern; (2) he suffered an adverse employment
action; and (3) a causal connection exists between the protected
speech and the adverse employment action. See Ruotolo v. City of
New York, 514 F.3d 184, 188 (2d Cir. 2008). The court will address
the three elements as they pertain to Rivers’ various claims.
A.
Constitutionally Protected Activity
Rivers
must
first
show
that
his
protected
activity
constitutes speech (or association) as a citizen related to a
matter of public concern. See Garcetti, 547 U.S. at 418. If he
(See Pl. 56.1 at ¶¶ 13, 22, 24, 27, 29, 56, 84-85.) Rivers’ affidavit
contains many of the most unflattering allegations at issue in this
litigation. It is troubling that these allegations did not surface in
his deposition or in the complaint. “A certification or affidavit
opposing a summary judgment motion is not a vehicle for plaintiff to
reshape the theory and underlying facts of her discrimination claims as
originally pled in her Complaint.” Petrisch v. HSBC Bank USA, Inc., No.
07-CV-3303, 2013 WL 1316712, at *11 (E.D.N.Y. Mar. 28, 2013); see also
Hayes v. New York City Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996)
(“Factual issues created solely by an affidavit crafted to oppose a
summary judgment motion are not ‘genuine’ issues for trial.”). The court
concludes that it is not obligated to consider or discuss the plaintiffs’
late-breaking allegations. For two reasons, however, the court will
discuss the new facts as part of its analysis. First, Rivers’ claims
cannot survive summary judgment even if a factfinder were to consider
the new facts. Second, some of the new facts in Rivers’ affidavit do not
expressly contradict his prior testimony. See Jin Dong Wang v. LW Rest.,
Inc., 81 F. Supp. 3d 241, 259-60 (E.D.N.Y. 2015) (considering allegations
raised for the first time in affidavit submitted in opposition to motions
for summary judgment where “majority of the alleged contradictory
statements identified by Defendants were made prior to the motion for
summary judgment, were not directly contradictory, and, at best, appear
to be ambiguous, vague, or capable of multiple explanations”).
34
succeeds, the court must next evaluate whether NYCHA “had an
adequate justification for treating [him] differently from any
other member of the public based on the government’s needs as an
employer.” Lane, 134 S. Ct. at 2380. Here, the central disputed
issue is whether Rivers spoke or associated on a matter of public
concern. 16
Rivers proposes that he engaged in two types of First
Amendment protected activity: (1) his support for William Thompson
for New York City mayor and (2) his work on behalf of Members for
Change in opposition to the Floyd slate. Rivers contends that his
support for Thompson, as well as Floyd’s acquiescence to NYCHA
management, led him to form Members for Change, along with six of
his colleagues, in July 2008. (Pl. 56.1 at ¶ 7; NYCHA 56.1 at
¶ 26.) In October 2008, he announced, at a meeting of at least 100
16
NYCHA does not argue that Rivers and Crenshaw’s activities were
undertaken in their capacities as employees rather than in their
capacities as citizens. If the activities were undertaken in their
capacities as employees, the activities would not receive First Amendment
protection. See Lane, 134 S. Ct. at 2378 (“Whereas speech as a citizen
may trigger protection, the Court held [in Garcetti] that when public
employees make statements pursuant to their official duties, the
employees are not speaking as citizens for First Amendment purposes, and
the Constitution does not insulate their communications from employer
discipline.” (internal quotation marks and citation omitted)). Neither
does NYCHA argue that it had a strong efficiency or disciplinary interest
in treating Rivers or Crenshaw differently from other members of the
public. See Connick, 461 U.S. at 150-51 (recognizing “the government’s
legitimate purpose in promoting efficiency and integrity in the discharge
of official duties, and [maintaining] proper discipline in the public
service” (internal quotation marks, citation, and some alterations
omitted)).
35
Union members, that Members for Change endorsed Thompson for mayor.
(Pl. 56.1 at ¶ 10.) On January 26, 2009, Rivers again announced
Members for Change’s endorsement of Thompson, and its opposition
to the Floyd slate, this time at a meeting of approximately 250
Union members. (Id. at ¶ 11.) Rivers actively campaigned on behalf
of Members for Change and Thompson until the Local 237 board member
elections in October 2009 and the mayoral elections in November
2009. 17 (Id. at ¶¶ 7-12.)
The
NYCHA
defendants
argue
that
retaliation
claims
arising out of plaintiffs’ opposition to the Floyd slate must be
dismissed
because
that
opposition
constituted
an
intra-union
dispute that did not touch on a matter of public concern. 18 (NYCHA
Mem. at 14-16; NYCHA Reply at 5-6.) Plaintiffs argue that their
opposition
management
to
to
Floyd
was
completely
a
result
of
circumvent
his
“collu[sion]
members’
with
collectively
bargained for rights” and therefore that their actions involved
matters of public concern. (Pl. Opp’n at 23.)
17
Although it appears that Rivers’ opposition to Floyd continued after
November 2009 (see ECF No. 48), Rivers does not allege any protected
activity beyond November 2009 that is relevant to this action, and he
may not do so. (See ECF No. 72 (this court’s order precluding plaintiffs
from supplementing the pleadings and re-opening discovery in this
action).)
18 The Union defendants do not join the NYCHA defendants’ argument
regarding the public concern requirement. The Union defendants appear
to concede that Rivers has established that his actions (both his speech
and his association) touched on matters of public concern.
36
Although “retaliation against public employees solely
for their union activities violates the First Amendment,” Clue v.
Johnson, 179 F.3d 57, 60 (2d Cir. 1999), “[t]here may well be
intraunion disputes that do not raise enough of a public concern
to trigger First Amendment protection.” Id. at 61. In Clue, which
both parties recognize is controlling here, members of a vocal
faction of a transit workers’ union had challenged union leadership
on the ground that “union leaders were ‘in bed’ with management
and
supported
management
policies
that
redounded
to
the
disadvantage of workers.” Id. They alleged that their employer,
the New York City Transit Authority, retaliated against them for
their activities. Id. at 58-59. The Transit Authority argued that
the employees’ activities were purely an internal dispute within
the
union,
and
therefore
not
entitled
to
First
Amendment
protection. Id. at 60. The Second Circuit disagreed, and held that
the employees’ activities — even if they could be characterized as
“‘factional’ rather than as tantamount to ‘union activity,’” — did
not merely involve internal union affairs. Id. at 61. Instead, the
employees had “substantial[ly] critici[zed] management,” and such
criticism “raise[d] matters of public concern.” Id.
NYCHA argues that Members for Change “criticized Union
leadership and policy, not management’s labor policies.” (NYCHA
Reply at 5.) The evidence suggests, however, that much of Members
for
Change’s
platform
involved
37
both
explicit
and
implicit
criticism of NYCHA management. For example, Members for Change
literature
contained
allegations
that
Local
237
officials
“Permitted Management to terminate union employees at an Alarming
rate”
and
“Allowed
Management
to
violate
Union
Contractual
Agreements with no Opposition.” (Niederhoffer Decl., Ex. 17.) A
flyer including Rivers’ photograph and name urged union members to
“vote for leadership that pledges their commitment to the Local
237 membership and not to management.” (Id., Ex. 16.) Another flyer
stated that “Local 237 members have been fighting a losing battle
against management.” (Id., Ex. 18.) Rivers’ challenges to Local
237 leadership closely resemble the transit employees’ challenges
to union leadership in Clue, where the faction’s argument was that
“union
leaders
management
were
policies
‘in
that
bed’
with
redounded
management
to
the
and
supported
disadvantage
of
workers.” 179 F.3d at 61. Indeed, in many ways, the two factional
challenges appear practically identical.
NYCHA correctly points out that some Members for Change
campaign literature is directed at perceived Union shortcomings
that do not involve relations with management (NYCHA Mem. at 1415), but strong criticism of management is sufficient under Clue
to raise matters of public concern. See 179 F.3d at 61. The court
concludes that strong criticism of management can be found in the
above-quoted literature alone. Clue does not require or even
remotely suggest that the speech and associational activities of
38
a
union
faction
be
exclusively
targeted
at
union-management
relations to touch on matters of public concern. 19 Consequently,
viewing the record in the light most favorable to the non-moving
plaintiffs, the court finds for purposes of defendants’ motions
that Rivers’ opposition to the Floyd slate, and its relationship
with NYCHA, was protected activity.
In addition, though neither defendant argues otherwise,
Rivers’ public support for William Thompson for mayor similarly
constitutes protected activity. See, e.g., Burns v. Cook, 458 F.
Supp. 2d 29, 40 (N.D.N.Y. 2006) (“[P]laintiff’s public support of
the candidate running for a position on the Board of Education is
protected speech under First Amendment retaliation law.”); see
also Seale v. Madison Cnty., 929 F. Supp. 2d 51, 70 (N.D.N.Y. 2013)
(“The support of a candidate for public office can reasonably be
considered a matter of public concern.”); Kelly v. Huntington Union
Free Sch. Dist., 675 F. Supp. 2d 283, 294 (E.D.N.Y. 2009) (“To the
extent the mass mailing in support of a Board candidate was an
improper political activity, it can reasonably be considered a
matter of public concern.”).
B.
Adverse Employment Actions
19
At the very least, plaintiffs have shown that there is a genuine issue
of material fact concerning whether their activities related to a matter
of public concern. See Novak v. Bd. of Educ. of Fayetteville-Manlius
Cent. Sch. Dist., No. 05-CV-199, 2007 WL 804679, at *5 (N.D.N.Y. Mar.
14, 2007) (denying summary judgment where genuine issue of material fact
existed about whether “Plaintiff engaged in protected union-organizing
speech or merely spoke about internal workplace grievances”).
39
Defendants
next
argue
that
Rivers
has
failed
to
establish any adverse employment actions to support his First
Amendment retaliation claims. As discussed earlier, a plaintiff
must
show
that
he
suffered
an
adverse
employment
action
to
establish a First Amendment retaliation claim. See Ruotolo, 514
F.3d at 188. To establish a genuine issue of material fact with
regard to whether a particular action constitutes an adverse
employment action in the First Amendment retaliation context, a
plaintiff must show that the retaliatory action “would deter a
similarly situated individual of ordinary firmness from exercising
his
or
her
constitutional
rights.”
Zelnik,
464
F.3d
at
225
(internal quotation marks and citation omitted).
Rivers proposes a lengthy list of actions that he claims
constitute adverse employment actions. (Pl. Opp’n at 27-28.) At
the outset, the court concludes that Rivers cannot assert as
adverse
any
employment
actions
predating
the
August
2009
stipulation dismissing with prejudice the 2009 Improper Practice
Petition. Since no claim can arise from actions preceding the
stipulation (see Niederhoffer Decl., Exs. 28-30; see also supra
Discussion Part I.A), Rivers is precluded from arguing that any
action taken by defendants preceding the stipulation constitutes
an adverse employment action. Additionally, for reasons explained
in further detail below in the court’s discussion about causation
(see infra Discussion Part IV.C), the court will not consider
40
purportedly retaliatory acts occurring more than a year after
Rivers’ protected speech concluded. Accordingly, based on the
temporal parameters suggested by the Second Circuit between the
protected activity and the adverse employment action, the court
will only discuss purportedly adverse employment actions that
occurred between the 2009 stipulation and November 2010, one year
after the conclusion of the November 2009 mayoral election (the
latest time in which Rivers engaged in protected speech).
The
actions
that
court
fall
will
within
thus
the
consider
the
asserted
adverse
aforementioned
temporal
bounds.
Rivers alleges that the following constitute adverse employment
actions: (1) Floyd’s statement made to a Union subordinate, in
front of Rivers in late 2009, to the effect of: “you see what
happens when you go against the grain” (Pl. 56.1 at ¶ 56); (2)
South Jamaica Houses Superintendent Guadagno’s continuous mocking
of Rivers (id. at ¶ 29); (3) NYCHA’s denial of overtime requests
made by Rivers (id. at ¶¶ 51-54); (4) NYCHA’s denial of requests
made for leave under the Family and Medical Leave Act to care for
Rivers’ dying mother (id. at ¶ 55); (5) Rivers’ rebuffed requests
to NYCHA and Union officials for additional training or for a
transfer to a position for which he was adequately trained (id. at
¶¶ 15, 17-18, 30-32); (6) NYCHA’s opposition to Rivers’ request
for workers’ compensation after Rivers was ostensibly injured on
the job in July 2010 (id. at ¶¶ 39-45); and (7) Madden’s actions
41
assigning Rivers “the most physically strenuous responsibilities”
(id. at ¶ 28). 20
The court will evaluate Rivers’ claims individually,
mindful, however, that a “campaign of harassment which though
trivial
in
detail
may
[be]
substantial
in
gross,
and
therefore . . . actionable.” Zelnik, 464 F.3d at 227; see also
Phillips, 278 F.3d at 109 (“Our precedent allows a combination of
seemingly minor incidents to form the basis of a constitutional
retaliation claim once they reach a critical mass.”).
(1) Floyd Statement
Rivers’ first allegation stems from Floyd’s purported
statement to a Union subordinate in the presence of Rivers in late
2009. (Pl. 56.1 at ¶ 56.) Floyd allegedly told the subordinate:
“You see what happens when you go against the grain.” (Id.)
20
Rivers also alleges that the following constitute adverse employment
actions: (1) Union official Giocastro’s statement to NYCHA manager Madden
and the South Jamaica Houses superintendent that they could “do anything
they want to Rivers” without expecting Union opposition because of
Rivers’ support for Thompson and opposition to Floyd (Pl. 56.1 at ¶¶ 2627); (2) Union official Donald Arnold’s statement to Union business agent
Felicia Cannon that the Union was working with NYCHA to terminate Rivers’
employment (id. at ¶ 84); and (3) a purported threat about Rivers made
by a NYCHA official to a tenant in February 2010 (id. at ¶¶ 33-37).
Because these three allegations are based entirely on hearsay, the court
does not consider them. See Fed. R. Civ. P. 56(c)(4) (“An affidavit or
declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence . . . .”);
Marshall v. Allison, 908 F. Supp. 2d 186, 196 (D.D.C. 2012) (holding
that plaintiff’s testimony about a defamatory statement made during a
meeting at which plaintiff was not present constituted inadmissible
hearsay and therefore could not be used to defeat a motion summary
judgment).
42
Threats of retaliation standing alone do not generally
constitute adverse employment actions. See Murray v. Town of N.
Hempstead, 853 F. Supp. 2d 247, 269 (E.D.N.Y. 2012) (“As an initial
matter, threats of termination cannot, by themselves, constitute
an adverse employment action.”); Gross v. Home Depot U.S.A., Inc.,
386 F. Supp. 2d 296, 298 n.2 (S.D.N.Y. 2005) (“With respect to her
retaliation claim, Plaintiff has accused Buchanan of, at most,
threatening to retaliate against her, but a threat of retaliation,
by itself, does not constitute an adverse employment action.”).
Consequently,
Floyd’s
statement
–
which
is,
in
any
case,
susceptible to many different meanings – cannot constitute an
adverse employment action.
(2) Guadagno Criticism
Rivers
next
alleges
that
South
Jamaica
Houses
Superintendent Alan Guadagno “regularly and harshly ridiculed and
criticized Rivers’ performance on the assignments for which he had
been denied adequate training.” (Pl. 56.1 at ¶ 29.) Rivers provides
little more detail, except to allege that “Guadagno regularly
laughed at Rivers’ work and mockingly asked him how he expected to
be Union President when he cannot even be a competent maintenance
worker.” (Id.)
“Courts in this circuit have found that reprimands,
threats of disciplinary action and excessive scrutiny do not
constitute adverse employment actions.” Murray, 853 F. Supp. 2d at
43
266; Johnson v. Conn. Dep’t of Corr., 392 F. Supp. 2d 326, 340 (D.
Conn. 2005) (“The ‘routine ridicule’ that [plaintiff] allegedly
suffered also does not, without more, rise to the level of an
adverse employment action for retaliation claims.”); cf. Brennan
v. City of White Plains, 67 F. Supp. 2d 362, 374 (S.D.N.Y. 1999)
(“While verbal abuse might at times be sufficiently severe and
chronic to constitute an adverse employment action, such behavior,
without
more,
hardly
rises
to
the
level
of
actionable
retaliation.”). Conduct “which could be found to be offensive,
discourteous, demeaning, and/or belittling” does not constitute an
adverse employment action for purposes of a retaliation claim.
Sangan v. Yale Univ., No. 06-CV-587, 2008 WL 350626, at *4 (D.
Conn. Feb. 7, 2008).
In this case, Rivers’ allegations surrounding Guadagno’s
demeaning
comments
employment
action.
do
not
rise
Instead,
to
even
as
the
level
alleged,
of
they
an
adverse
appear
to
constitute “routine ridicule” that is not actionable through a
First Amendment retaliation claim.
(3) Overtime
Rivers
also
claims
that
he
was
repeatedly
denied
overtime opportunities that were provided to similarly situated
employees. (Pl. 56.1 at ¶¶ 51-54.) Although Rivers proffers no
evidence of a particular occasion on which he requested and was
denied overtime, he argues that at least six other maintenance
44
workers “worked significantly more overtime than what Rivers was
granted.” (Id. at ¶ 52.)
A deprivation of the opportunity to earn overtime can be
an adverse employment action. See Mazyck v. Metro. Transp. Auth.,
893 F. Supp. 2d 574, 589 (S.D.N.Y. 2012) (finding that plaintiff
who was denied requested overtime had shown adverse employment
action); Turley v. ISG Lackawanna, Inc., 803 F. Supp. 2d 217, 235
(W.D.N.Y. 2011) (“The denial of overtime may constitute an adverse
employment action in some circumstances . . . .”); Little v. Nat’l
Broad.
Co.,
Inc.,
210
F.
Supp.
2d
330,
379
(S.D.N.Y.
2002)
(evidence that plaintiff “incurred an actual loss in income because
of lost overtime and that he was forced to work undesirable shifts
with
an
erratic
schedule . . .
,
if
true,
could
prove
that
[plaintiff] was subject to an adverse employment action”). Failure
to substantiate an allegation of retaliatory overtime denial with
anything more than a conclusory allegation in an affidavit is,
however, highly problematic. See Hayle v. Nassau Health Care Corp.,
No. 08–CV–2396, 2013 WL 6231164, at *6 (E.D.N.Y. Dec. 2, 2013) (in
title VII context, finding plaintiff’s complaint “that she was not
able to get as much overtime as the other supervisors in her
department . . . deficient because it is comprised [sic] only of
her own conclusory testimony”); see also Tulrey, 803 F. Supp. 2d
at 236 (finding failure to show adverse employment action in Title
VII case where plaintiff did not “identify any instance where he
45
was denied requested overtime work so that it could be given to
others”).
The parties appear to agree that Rivers worked some
overtime. (See Pl. Resp. to NYCHA 56.1 at ¶ 61; Pl. Resp. to Union
56.1 at ¶ 68.). Rivers also concedes that he was offered, but did
not accept, overtime on weekends. (ECF No. 99, Joint Deposition
Appendix (“Dep. App’x.”), Rivers Dep. at 62. (“Q: Have you worked
overtime on weekends? A: No. Q: Were you offered the opportunity
to work overtime on weekends? A: Yes.”).) The parties disagree
about when overtime was principally available: Rivers argues that
it was generally available in the late evening on weekdays while
the Union contends that it was generally available on weekends.
(Compare Pl. 56.1 at ¶ 54, with Union Resp. to Pl. 56.1 at ¶ 54.)
Resolution of the dispute regarding the availability of
overtime is unnecessary. Rivers’ claim on the overtime issue boils
down to an argument that depriving him of overtime in his desired
timeframe (while offering him overtime at a time he contends is
less desirable) amounts to an adverse employment action. Rivers
cites no caselaw to support such a novel argument. Further, Rivers
has failed to direct the court to any particular request for
overtime that was denied. His broad, conclusory statements that he
was treated differently from his similarly situated co-workers
with respect to the provision of overtime do not create a genuine
issue
of
material
fact
about
46
whether
the
overtime
denials
constitute adverse employment actions. No rational jury could find
that the denial of overtime in the circumstances outlined above
“would deter a similarly situated individual of ordinary firmness
from exercising his or her constitutional rights.” Zelnik, 464
F.3d at 225 (internal quotation marks and citation omitted).
(4) Family and Medical Leave Act
Rivers’ arguments about Family and Medical Leave Act
requests fall short for very much the same reason. As with denial
of
overtime,
denial
of
FMLA
leave
can
constitute
an
adverse
employment action. See Thompkins v. Potter, 451 F. Supp. 2d 349,
358 (D. Conn. 2006) (recognizing that a denial of FMLA leave could,
for example, “force an employee to work without adequate child
care resources”). Rivers’ only support for his claimed improper
denial of FMLA requests, however, is his statement in his affidavit
that he “applied for FMLA leave from NYCHA on multiple occasions
[between June or July 2008 and January 2013] to take care of my
mother,
who
was
very
ill.
NYCHA
denied
each
of
these
leave
requests.” (ECF No. 102, Declaration of Alexander Coleman, Ex. B,
Declaration of Jakwan Rivers at ¶ 63; Pl. 56.1 at ¶ 55.) Rivers
does
not
dispute
that
NYCHA
approved
multiple
six-month
intermittent leave requests under the FMLA between June 2008 and
January 2013. (Pl. Resp. to NYCHA 56.1 at ¶¶ 107-08; Niederhoffer
Decl.,
Ex.
60.)
Additionally,
Rivers
provides
no
evidence
supporting his application for (or the denial of) FMLA leave. He
47
does not provide the names of the individuals to whom he submitted
the
requests
and
he
provides
no
dates
on
which
the
denials
occurred. Without any additional evidence beyond his bare and
undetailed testimony, the denial of FMLA leave cannot form the
basis of an adverse employment action.
(5) Training
Rivers next argues that his requests for additional
training
or
for
a
transfer
to
a
position
for
which
he
was
adequately trained fell on deaf ears at NYCHA and the Union. (Pl.
56.1 at ¶¶ 15, 17-18, 30-32.) “Denial of training can constitute
an adverse employment action . . . .” Hill v. Rayboy–Brauestein,
467 F. Supp. 2d 336, 352 (S.D.N.Y. 2006) (quoting Nakis v. Potter,
No. 01-CV-10047, 2004 WL 2903718, at *20 (S.D.N.Y. Dec. 15, 2004)).
Rivers alleges that he was undertrained for his work as
a maintenance worker at NYCHA. (Pl. Opp’n at 27.) He alleges that
his new duties included electrical repairs, plumbing, carpentry,
refrigerator and range/stove repair, and door and window work.
(Pl. 56.1 at ¶ 15.) Prior to his assignment, he claims, NYCHA
failed to provide him with adequate training. (Id.) He claims that
his lack of training ultimately led him to seriously injure his
eye socket while attempting to clear a sink and tub stoppage at a
resident’s apartment in July 2010. (Id. at ¶¶ 39-45; see also NYCHA
56.1 at ¶ 89.)
48
Rivers concedes, however, that during a two-week period
in November and December 2009, shortly after he was transferred to
the South Jamaica Houses, he was provided “sporadic and superficial
one-on-one training on some of his job functions,” but states that
his training was “insufficient to prepare Rivers to perform these
job functions safely or adequately.” (Id. at ¶ 17.) He concedes
also that he did not perform well at the trainings he attended.
(Id. at ¶ 18.) Rivers also does not dispute the following facts:
his NYCHA application in 1998 reflected training in electrical,
plumbing, and carpentry (NYCHA 56.1 at ¶ 58); he was provided with
multiple trainings before late 2009 including a safety refresher
course, a refrigerator repair course, and window pane maintenance
(id. at ¶ 59); he was scheduled for but failed to attend trainings
for basic electrical repair, basic plumbing, worker safety, and
dust control and cleanup (id.); after requesting training upon his
placement as a maintenance worker, he was immediately scheduled to
attend multiple maintenance skills training courses but did not
appear for some of the courses. (id. at ¶ 69-71).
Even taking as true all of Rivers’ allegations and
resolving every ambiguity in his favor, no reasonable jury could
conclude — based on the evidence he has proffered — that the
failure to adequately train at issue here would deter a similarly
situated
individual
of
ordinary
firmness
from
exercising
his
constitutional rights. See Washington v. Cnty. of Rockland, 373
49
F.3d 310, 320 (2d. Cir. 2004); see also Zelnik, 464 F.3d at 225.
There is no dispute that Rivers was provided multiple opportunities
to train. There is no dispute that he took advantage of many
training opportunities. There is no dispute that he failed to take
advantage of some training opportunities. The central harm he
claims occurred as a result of the failure to train him was the
eye socket injury he suffered while attempting to clear a sink and
tub stoppage. Rivers acknowledges, however, that he had training
in plumbing, and that he received one-on-one training in clearing
and
controlling
plumbing
stoppages
including
tub
and
sink
stoppages. (Pl. Resp. to NYCHA 56.1 at ¶¶ 58, 77, 91.) Perhaps
most significantly for his July 2010 eye injury and its alleged
relationship to the purportedly retaliatory failure to train,
Rivers admits that he was scheduled for, but failed to attend, a
basic plumbing course in April 2009 (id. at ¶ 59), approximately
15 months before he suffered the injury. 21 (Pl. 56.1 at ¶¶ 39-41.)
Consequently, even construing all the evidence in Rivers’ favor,
21
Rivers also alleges that he suffered a serious back injury in December
2009, one month after formally requesting training, while removing an
overhead cabinet in a tenant’s apartment. (Pl. 56.1 at ¶ 38.) He alleges
that he had not been properly trained prior to his December 2009 back
injury to safely perform such carpentry work. (Id.) Rivers stated on his
1998 NYCHA job application, however, that he had received training in
carpentry work. (NYCHA 56.1 at ¶ 58.) He admitted that he took part in
training for the maintenance and repair of doors, but also missed part
of that training. (Id. at ¶ 71.) For the same reasons outlined above,
the court concludes that the asserted failure to train Rivers adequately
in cabinet repair work does not constitute an adverse employment action.
50
NYCHA’s
failure
to
train
Rivers
in
the
circumstances
he
has
described cannot constitute an adverse employment action.
(6) Workers’ Compensation
Rivers
next
alleges
that
NYCHA
contested,
with
a
retaliatory purpose, the workers’ compensation benefits he sought
after the July 2010 eye socket injury. (Pl. 56.1 at ¶¶ 39-45.)
Plaintiffs point to no authority indicating that an employer’s
decision to contest workers’ compensation benefits can constitute
an adverse employment action for purposes of a retaliation claim.
In
fact,
the
“exclusive
New
York
remed[y]”
discrimination
for
Workers’
to
seeking
Compensation
employees
workers’
for
Law
provides
retaliation
compensation.
Ridgway
an
and
v.
Metro. Museum of Art, No. 06-CV-5055, 2007 WL 1098737, at *5
(S.D.N.Y. Apr. 10, 2007) (dismissing allegations that employer
“mishandled [plaintiff’s] workers’ compensation claim, retaliated
against him, and unlawfully terminated his employment because he
sought
and
obtained
workers’
compensation”
for
lack
of
jurisdiction because of exclusive state-law remedy (citing Burlew
v. Am. Mut. Ins. Co., 472 N.E.2d 682, 684 (N.Y. 1984))); Martinelli
v. Swissre Holding (N. Am.) Inc., No. 95-CV-10996, 1996 WL 125657,
at *3 (S.D.N.Y. Mar. 20, 1996) (“Where an employee has a remedy
against
his
employer
in
proceedings
under
the
Workers’
Compensation Law, that remedy is exclusive.” (internal quotation
marks and citation omitted)); Williams v. Brooklyn Union Gas Co.,
51
819
F.
Supp.
214,
231
(E.D.N.Y.
1993)
(“As
[N.Y.
Workers’
Compensation Law § 120] provides a remedy to employees alleging
retaliatory discharge, that section is exclusive and no cause of
action for such a claim exists in the federal district court.”).
Accordingly, Rivers cannot show that opposition to his
workers’ compensation claim is actionable.
(7) Physically Demanding Work
Rivers also proposes that he was subjected to an adverse
employment
action
when
he
was
assigned
physically
demanding
responsibilities shortly after his assignment to the South Jamaica
Houses. Heavier workloads or more physically demanding tasks can
constitute adverse employment actions. See Paul v. Postgraduate
Ctr. for Mental Health, 97 F. Supp. 3d 141, 196 (E.D.N.Y. 2015)
(“The Second Circuit has recognized that increasing an employee’s
workload may be an adverse action for the purposes of a retaliation
claim
if
the
increase
is
heavily
disproportionate
to
those
similarly situated.”); Chacko v. Connecticut, No. 07-CV-1120, 2010
WL 1330861, at *14 (D. Conn. Mar. 30, 2010) (finding that “a
heavily
burdened
workload
may
constitute
adverse
employment
action”); cf. Delgado v. Triborough Bridge & Tunnel Auth., 485 F.
Supp. 2d 453, 461 (S.D.N.Y. 2007) (finding that the plaintiff’s
allegedly increased workload was not an actionable retaliatory
adverse
employment
action
when
52
she
failed
to
plead
facts
demonstrating that her workload was disproportionate to that of
other employees in her department).
Rivers alleges that Madden — his NYCHA supervisor at the
South Jamaica Houses — assigned him “the most physically strenuous
responsibilities”
shortly
after
Union
official
Giocastro’s
statement to Madden that NYCHA could “do anything they want to
Rivers” without expecting Union opposition. (Pl. 56.1 at ¶¶ 2628.) Rivers cites to one particular example. NYCHA management
required him to perform a non-emergency repair during an elevator
outage, forcing him to carry heavy equipment up five stories of
stairs. (Id. at ¶ 28.) The assignment had apparently been pending
at that time for over two months. (Id.) The court will assume for
purposes
of
this
decision
that
assigning
Rivers
physically
strenuous activities like the non-emergency repair constitutes an
adverse employment action. The claim based on the physically
strenuous activities fails, as discussed below, for failure to
establish
the
requisite
causal
nexus
between
the
alleged
retaliatory act and Rivers’ protected activity.
Based
on
the
record
before
the
court,
only
the
disproportionately physically strenuous work assignments to Rivers
qualify as adverse employment actions. Even evaluating Rivers’
other alleged adverse employment actions together, they do not
constitute a “campaign of harassment which though trivial in detail
may [be] substantial in gross, and therefore . . . actionable.”
53
Zelnik, 464 F.3d at 227. The court turns next to whether Rivers
has shown the requisite causal nexus between his protected activity
and the physically strenuous assignments.
C.
Causation
As discussed earlier, Rivers’ protected activity — his
support for Thompson and his work on behalf of Members for Change
— began at least as early as July 2008. (See supra Discussion Part
IV.A.) At the latest, as relevant here, Rivers was engaged in
protected activity through November 2009. It is not disputed that
Rivers had an untarnished disciplinary record during his first
term of employment with NYCHA, from April 1998 to January 2006,
when he became a business agent at the Union. (Pl. 56.1 at ¶¶ 1,
22; NYCHA Resp. to Pl. 56.1 at ¶¶ 1, 22; Union Resp. to Pl. 56.1
at ¶¶ 1, 22.) Following his protected activity, though, Rivers’
career at NYCHA and the Union became increasingly unsettled. Rivers
was relieved of his Union position on January 27, 2009, the day
after his announcement — before a substantial Union audience — of
Members for Change’s endorsement of Thompson and opposition to the
Floyd slate. (Pl. 56.1 at ¶¶ 11-12.) Rivers states, though the
Union denies, that Floyd directly told him that he was being fired
because he supported Thompson rather than Bloomberg for mayor.
(Id. at ¶ 12; Union Resp. to Pl. 56.1 at ¶ 12.) On his first day
54
back at NYCHA, Rivers received a counseling memorandum for “time
theft.” 22 (Pl. 56.1 at ¶ 22.)
Rivers’
counseling
firing
memorandum
from
from
his
his
Union
first
day,
position
however,
and
his
are
not
actionable adverse employment actions in this case because of the
2009 stipulation. (See supra Discussion Part I.A.) Although the
court does not blind itself to events preceding the stipulation,
only one of Rivers’ proposed adverse employment actions survived
the court’s earlier analysis: his allegedly retaliatory workload
at NYCHA’s South Jamaica Houses.
As to Rivers’ workload, he alleges first that Madden
“began
assigning
Rivers
the
most
physically
strenuous
responsibilities, such as carrying heavy equipment over great
distances, rather than to any other maintenance worker.” (Pl. 56.1
at ¶ 28.) Rivers, however, provides no particular example or
evidence of Madden’s burdensome assignments. He provides no dates
on which Madden issued the purportedly strenuous assignments. The
22
The parties dispute the date of the counseling memorandum. Defendants
allege it was issued for Rivers’ activities on February 19, 2009. (E.g.,
NYCHA Resp. to Pl. 56.1 at ¶ 22; Niederhoffer Decl., Ex. 27.) Viewing
the facts in the light most favorable to Rivers, however, it was issued
on his first day back at NYCHA, January 28, 2009. (See Dep. App’x.,
Rivers Dep. at 199 (Rivers: “I don’t think [NYCHA’s] dates are
correct.”).) As to the substance of the counseling memorandum, Rivers
alleges that he had been waiting for the housing project superintendent
to give him an assignment and when the superintendent arrived late, the
superintendent issued a counseling memorandum to Rivers because Rivers
had failed to obtain an assignment from a different supervisor. (Pl.
56.1 at ¶ 22; Niederhoffer Decl., Ex. 27.)
55
quoted allegation above is too conclusory to support the requisite
causal relationship between Rivers’ protected activity and the
purportedly physically burdensome assignments.
Rivers does, however, point to the elevator incident —
in which he was asked to walk up five flights of stairs with heavy
equipment for a non-emergency repair — as evidence of a physically
strenuous assignment. (Id.) However, Rivers provides no statement
about who actually issued the non-emergency repair assignment to
him. “It is well settled that the personal involvement of a
defendant is a prerequisite for the assessment of damages in a §
1983 action.” Morrison v. Johnson, No. 01-CV-636, 2006 WL 2811802,
at *19 (N.D.N.Y. Sept. 28, 2006) (citing McKinnon v. Patterson,
568 F.2d 930, 934 (2d Cir. 1977)). The doctrine of respondeat
superior is inapplicable to § 1983 claims. See Polk County v.
Dodson, 454 U.S. 312, 325 (1981); Johnson v. Glick, 481 F.2d 1028,
1034 (2d Cir. 1973), overruled on other grounds by Graham v.
Connor, 490 U.S. 386, 393 (1989). In Rivers’ letter to Madden,
NYCHA Chairman Rhea, and NYCHA supervisor Jasper (informing them
about the elevator assignment, and suggesting that Madden did not
assign the task himself), Rivers provides no information about the
individual who issued the repair assignment. Without that critical
information
and
supporting
evidence,
the
court
simply
cannot
evaluate whether Rivers has shown any causal relationship between
the increased workload and his protected activity.
56
Accordingly, Rivers has failed to make the requisite
showing to defeat summary judgment on the issue of whether NYCHA
retaliated against him for the exercise of his First Amendment
rights. Because NYCHA cannot be held liable for retaliating against
Rivers on this record, his conspiracy claims against the Union
must also be dismissed. See Harris v. Buffardi, No. 08-CV-1322,
2011 WL 3794235, at *11 (N.D.N.Y. Aug. 24, 2011) (“In the absence
of an underlying constitutional violation, [plaintiff’s] charges
of conspiracy under § 1983 . . . cannot be maintained.”); see also
Singer v. Fulton Cnty. Sheriff, 63 F.3d 110, 119 (2d Cir. 1995)
(“[A]lthough the pleading of a conspiracy will enable a plaintiff
to bring suit against purely private individuals, the lawsuit will
stand only insofar as the plaintiff can prove the sine qua non of
a § 1983 action: the violation of a federal right.”).
V.
Crenshaw
To establish a viable First Amendment retaliation claim,
Crenshaw must show that: (1) she engaged in constitutionally
protected speech as a private citizen speaking on a matter of
public concern; (2) she suffered an adverse employment action; and
(3) a causal connection exists between her protected speech and
the adverse employment action. See Ruotolo, 514 F.3d at 188.
A.
Constitutionally Protected Activity
Crenshaw contends that she began attending meetings for
Members for Change in August 2008, but became more active and vocal
57
around January 2009. 23 (Pl. 56.1 at ¶ 59–60; see also Crenshaw
Decl. at ¶ 11.) In January 2009, she began canvassing on behalf of
Members for Change at NYCHA developments and elsewhere in New York
City. (Id.) At some time around March or April 2009, Crenshaw
states that Union Deputy Director Giocastro and NYCHA supervisor
Walton discussed Crenshaw’s opposition to Floyd in Crenshaw’s
presence. (Pl. 56.1 at ¶¶ 73-74.) Crenshaw also alleges that
Walton, one of her NYCHA supervisors, witnessed her discussing
Members for Change with colleagues in April 2009, and told her to
stop the discussion immediately. (Pl. Resp. to NYCHA 56.1 at
¶ 129.)
She
Alexander
similarly
heard
alleges
Crenshaw
that
discussing
in
or
Members
around
June
for
2010,
Change
with
colleagues and observed her wearing pins associated with Members
for
change,
and
that
Alexander
instructed
her
to
stop
the
discussion immediately and cease wearing the Members for Change
pins. (Pl. 56.1 at ¶ 76.) This June 2010 incident is the last
protected activity that Crenshaw has asserted.
For the same reasons discussed supra with respect to
Rivers, the court concludes that Crenshaw’s work on behalf of
Members for Change in opposition to the Floyd slate and her related
23
The parties appear to agree that plaintiff’s 56.1 statement erroneously
refers to January 2014 as the beginning of her public support of Members
for Change and Thompson. (E.g., NYCHA Reply at 8 n.6.)
58
support for Thompson for mayor (Crenshaw Decl. at ¶ 7) constituted
protected activity.
B.
Adverse Employment Actions
Crenshaw, like Rivers, proposes a long list of actions
taken against her that she claims constitute adverse employment
actions. For reasons explained in further detail below in the
court’s discussion about causation (see infra Discussion Part
V.C), the court will not consider any adverse actions that occurred
more than a year after any of Crenshaw’s protected activities. The
court will therefore only discuss purportedly adverse employment
actions
that
occurred
after
the
commencement
of
Crenshaw’s
protected activity in January 2009 (Pl. 56.1 at ¶ 59) and June
2011 (one year after her latest protected activity in June 2010).
The purportedly adverse employment actions that meet the
criteria outlined above are as follows: (1) in February 2009, NYCHA
supervisors Alexander and Walton assigned her time-consuming and
burdensome tasks not normally performed by other assistant housing
managers (Pl. 56.1 at ¶¶ 62 24-64); (2) in February 2009, Alexander
and Walton advised her that some of her subordinates would report
directly to Alexander rather than Crenshaw, thus stripping her of
supervisory authority (id. at ¶ 64); (3) she received numerous
24
Although paragraph 62 of plaintiffs’ 56.1 statement states that
Alexander and Walton met with Rivers, this appears to be a typographical
error and the court construes this paragraph to refer to Crenshaw.
59
purportedly baseless counseling memoranda between March 2009 and
May 2010 (id. at ¶¶ 67-72, 79); (4) the Union refused to defend
her
after
she
complained
about
the
changes
in
her
job
responsibilities and her mistreatment at work (id. at ¶¶ 73-74,
79); (5) in June 2010, Alexander sexually assaulted her (id. at
¶¶ 71-72); and (6) in August 2010, NYCHA contested her claim for
workers’ compensation
benefits
after
she
became
incapacitated
(NYCHA 56.1 at ¶¶ 147-49.)
The court employs the same analysis here as with Rivers.
Crenshaw must show that the retaliatory action “would deter a
similarly situated individual of ordinary firmness from exercising
his or her constitutional rights constitutes an adverse action.”
Zelnik, 464 F.3d at 225 (internal quotation marks and citation
omitted). Although the court evaluates the claims individually, a
“campaign of harassment which though trivial in detail may [be]
substantial in gross, and therefore . . . actionable.” Id. at 227.
(1) New Responsibilities
The court first evaluates Crenshaw’s allegation that
assigning
her
more
time-consuming
and
burdensome
tasks
not
normally performed by other assistant housing managers constitutes
an adverse employment action. As discussed earlier, a heavier
workload can constitute an adverse employment action. See Paul, 97
F. Supp. 3d at 196 (“The Second Circuit has recognized that
increasing an employee’s workload may be an adverse action for the
60
purposes
of
a
retaliation
claim
if
the
increase
is
heavily
disproportionate to those similarly situated.”). (See also supra
Discussion
Part
IV.B(7)
(discussing
legal
standards
governing
enhanced workloads issue with respect to Rivers’ similar claim).)
Crenshaw contends that in February 2009 she was assigned
multiple tasks not assigned to other assistant housing managers,
including creating and maintain a spreadsheet of rented/re-rented
apartments
and
regularly
meeting
with
tenants
regarding
rent
delinquencies. (Pl. 56.1 at ¶ 62.) Crenshaw claims the new tasks
were “extremely time-consuming” and created a “significant burden”
that other assistant housing managers did not have to bear. (Id.)
Crenshaw does not dispute NYCHA’s proffered evidence that she and
assistant managers at other locations were tasked with recording
information
on
spreadsheets
regarding
the
rental
status
of
apartments. Nor does Crenshaw dispute that Alexander and Walton
held weekly meetings with other assistant housing managers of a
nearby housing location, the Ingersoll Houses. (Pl. Resp. to NYCHA
56.1 at ¶¶ 115-16.) Yet, Crenshaw asserts that her assignments
were
disproportionate
to
the
assignments
for
other
assistant
housing managers and disputes whether she underperformed at work.
(See Pl. Resp. to NYCHA 56.1 ¶¶ 115-120, 134; Pl. 56.1 at ¶¶ 6264.) Even construing the facts in the light most favorable to
Crenshaw, however, as the court must, a reasonable jury could not
conclude that the increased workload required of Crenshaw and other
61
assistant housing managers at other locations — even in conjunction
with the counseling memoranda that appear to address defendants’
allegations that Crenshaw failed to complete certain work on time
(see NYCHA 56.1 at ¶ 121) — constituted an adverse employment
action. Crenshaw does not dispute NYCHA’s evidence that she and
other
assistant
housing
managers
were
required
to
add
the
spreadsheet data to their job duties. (Pl. Resp. to NYCHA 56.1 at
¶ 116.) She does not establish that she was burdened with extra
duties. Accordingly, her new responsibilities were not adverse
employment actions imposed in retaliation for protected activity.
(2) Lost Supervisory Authority
Crenshaw next argues that Alexander and Walton stripped
her of some of her supervisory authority for retaliatory purposes.
(Pl.
56.1
at
¶ 64.)
aforementioned
informed
her
Alexander.
February
that
(Id.)
subordinates,
Crenshaw
her
2009
meeting,
subordinates
Alexander
telling
claims
them
then
to
that,
Alexander
would
followed
report
at
report
up
directly
with
to
the
and
same
Walton
directly
to
Crenshaw’s
him.
(Id.)
Defendants assert that Crenshaw complained to Alexander about her
workload, which was the same as that of other assistant managers,
but
deny
that
Crenshaw
suffered
any
change
in
supervisory
responsibilities. (NYCHA Resp. to Pl. 56.1 at ¶ 64; NYCHA Mem. at
19.) “[S]ignificantly diminished material responsibilities” can
constitute an adverse employment action. Terry v. Ashcroft, 336
62
F.3d 128, 138 (2d Cir. 2003); see also McCollum v. Reno, No. 95CV-1237, 1996 WL 294257, at *2 (D.D.C. May 28, 1996) (finding that
employee
could
show
an
adverse
employment
action
where
“her
supervisory responsibilities were reduced,” even without a change
in title). The court concludes that Crenshaw’s loss of supervisory
authority could constitute an adverse employment action.
(3) Baseless Counseling Memoranda
Crenshaw next argues that she received multiple baseless
counseling memoranda between February 2009 and May 2010. (Pl. 56.1
at ¶¶ 67-72, 79.) Significantly, in the 14 years at NYCHA preceding
Crenshaw’s
political
activity,
she
received
no
negative
evaluations and just a single counseling memorandum. (Pl. 56.1 at
¶ 66.) Between February 2009 and May 2010, Crenshaw was issued at
least nine counseling memoranda. For example, in March 2009, she
missed work during a snowstorm that she alleges “crippled public
transportation and prevented her commute to work.” (Id. at ¶ 67.)
At
least
two
insubordination
others
that
were
issued
Crenshaw
for
claims
Crenshaw’s
never
yelling
occurred.
(Id.
or
at
¶¶ 68, 70.) NYCHA concedes that between March 2009 and May 2010
Crenshaw received three instructional memoranda and nine written
counseling
memoranda 25
for
“poor
25
performance,
misconduct,
and
Instructional memoranda provide formal written instructions to an
employee that may address conduct or job performance, but instructional
memoranda do not constitute disciplinary actions (or go into an
employee’s personnel file). (Niederhoffer Decl., Ex. 55.) Counseling
63
insubordination,” but asserts that each one was justified. (NYCHA
Resp. to Pl. 56.1 at ¶ 69.)
The court recognizes that there is some tension within
the Second Circuit regarding whether counseling memoranda can
constitute
adverse
employment
actions
for
purposes
of
a
retaliation claim. 26 Compare, e.g., Eustache v. Home Depot U.S.A.,
Inc., No. 13-CV-42, 2014 WL 4374588, at *33 (E.D.N.Y. Sept. 2,
2014) (“Even under the more lenient standard applied in retaliation
cases, courts have found that counseling memoranda do not qualify
as adverse employment actions.”) aff’d, 621 F. App’x 86 (2d Cir.
2015) and McPherson v. City of New York, No. 09-CV-4682, 2011 WL
4431163, at *7 (S.D.N.Y. Sept. 23, 2011) (“From an objective
standpoint, these critiques - both in person and via memoranda are all instances of ordinary workplace supervision, oversight,
and management.”), with Dingle v. City of New York, No. 10-CV-4,
2011 WL 2682110, at *6 (S.D.N.Y. July 7, 2011) (“In the Second
Circuit, a counseling memorandum, as a formal, written reprimand,
memoranda, however, address “misconduct or incompetent performance” and
usually become part of an employee’s personnel record. (Id.)
26 Title VII discrimination cases treat counseling memoranda differently.
See Watson v. Geithner, No. 11-CV-9527, 2013 WL 4028152, at *10 (S.D.N.Y.
Aug. 8, 2013) (“The cases in this Circuit uniformly hold that the
issuance of such memoranda, unaccompanied by demotion, diminution of
responsibilities or the like, does not constitute an adverse employment
action for purposes of a discrimination claim.” (collecting cases))
report and recommendation adopted, 2013 WL 5441748 (S.D.N.Y. Sept. 27,
2013).
64
sufficiently
deters
the
exercise
of
constitutional
rights
to
constitute an adverse employment action.”).
Even
if
counseling
memoranda
unaccompanied
by
any
additional actions might not constitute an adverse employment
action,
Crenshaw
has
proffered
evidence
of
nine
counseling
memoranda that she claims were completely baseless. She contends
that at least nine counseling memoranda — including the ones
described above — were issued to her between March 2009 and May
2010. In the 14 years preceding the nine counseling memoranda at
issue, Crenshaw had received only a single one. A rational jury
could find that the allegedly retaliatory stream of counseling
memoranda at issue here would deter a similarly situated individual
of ordinary firmness from exercising her constitutional rights.
See Zelnik, 464 F.3d at 225.
(4) Union Failure to Defend
Crenshaw’s argument about the Union’s failure to defend
her
after
she
complained
about
the
changes
in
her
job
responsibilities and her mistreatment at work fails. The Union’s
refusal to assist could only amplify the consequences of an adverse
employment action. The refusal to assist Rivers in a dispute with
NYCHA could not, standing alone, be an adverse employment action.
(5) Sexual Assault
Crenshaw’s next purported adverse employment action is
Alexander’s alleged sexual assault. Crenshaw argues that, in April
65
2010, while she was working in a file room, “Alexander pressed up
behind [her] and rubbed his erect penis on her buttocks.” (Pl.
56.1 at ¶ 71.) Crenshaw immediately filed a complaint with NYCHA’s
Department of Equal Opportunity, but she believes NYCHA took no
action.
(Id.)
Alexander
memorandum
“for
Department
of
being
Equal
subsequently
AWOL
during
Opportunity.”
issued
the
(Id.
time
at
her
a
she
went
¶ 72.)
counseling
to
the
NYCHA
and
Alexander denied the assertions of sexual assault and asserted
that
an
internal
NYCHA
EEO
investigation
of
Alexander
was
dismissed, and that the asserted facts are “immaterial.” (NYCHA
Resp. to Pl. 56.1 at ¶¶ 71-72.) There is no evidence that Crenshaw
pursued the sexual assault claim further.
Physical assaults qualify as adverse employment actions
for purposes of a First Amendment retaliation claim. See e.g.,
Manon,
2015
WL
5507759,
at
*8
(“The
physical
assault
that
[plaintiff] describes — during which [defendant] allegedly ran
full-throttle into her, causing significant injury — would be
sufficient to dissuade a reasonable person from exercising her
First Amendment rights.”). Alexander’s alleged sexual assault of
Crenshaw, which is disputed, nonetheless could qualify as an
adverse employment action in this case.
(6) Workers’ Compensation
Crenshaw’s final proposed adverse employment action is
NYCHA’s allegedly retaliatory decision to contest her application
66
for workers’ compensation benefits in August 2010. (NYCHA 56.1 at
¶¶ 147-49.) For the same reasons discussed above with respect to
Rivers’ substantially similar allegation (see supra Discussion
Part IV.B(6)), retaliatory opposition to workers’ compensation
benefits cannot constitute an adverse employment action.
C.
Causation
The
court
turns
next
to
defendants’
arguments
that
Crenshaw has failed to adequately establish evidence of causality
between her protected activity and the adverse employment actions.
The court will address whether enough evidence of a causal link
has been established by Crenshaw to defeat summary judgment.
As
discussed
earlier,
causation
may
be
shown:
“(1)
indirectly, by showing that the protected activity was followed
closely
by
discriminatory
treatment,
or
through
other
circumstantial evidence such as disparate treatment of fellow
employees who engaged in similar conduct; or (2) directly, through
evidence of retaliatory animus directed against the plaintiff by
the defendant.” Gordon v. N.Y. City Bd. of Educ., 232 F.3d 111,
117
(2d
Cir.
2000).
Although
a
plaintiff
must
produce
“some
tangible proof to demonstrate that [her] version of what occurred
was not imaginary,” summary judgment is precluded where questions
about the employer’s motive predominate. Morris, 196 F.3d at 111
(citation omitted).
67
Viewing
Crenshaw,
the
the
court
facts
in
concludes
the
that
light
the
most
favorable
earliest
any
of
to
the
defendants could have known of her opposition to Floyd and support
for Thompson was in January 2009. (Pl. 56.1 at ¶ 75.)
Over the course of Crenshaw’s 14 years at NYCHA, before
her support for Members for Change and Thompson for mayor, “she
did not receive any negative evaluations and just one counseling
memorandum, which was issued in the first year or two of Crenshaw’s
employment (i.e., in or about 1995 or 1996).” (Pl. 56.1 at ¶ 66;
Crenshaw Decl. at ¶¶ 19-20.) Defendants do not seriously dispute
Crenshaw’s
virtually
unblemished
disciplinary
record
prior
to
March 2009. (See NYCHA Resp. to Pl. 56.1 at ¶ 66; Union Resp. to
Pl. 56.1 at ¶ 66.)
As discussed earlier, Crenshaw alleges that a series of
retaliatory adverse employment actions followed shortly after her
protected activity began. The court discusses only the actions
found
above
to
constitute
adverse
employment
actions.
First,
Crenshaw states that Alexander and Walton stripped her of her
supervisory authority by informing her that her subordinates would
report directly to Alexander instead of to Crenshaw. (Id. at ¶ 64.)
Second, she claims that she received approximately nine baseless
counseling memoranda between March 2009 and May 2010. (Id. at
¶¶ 68-69.)
Third,
she
claims
that
68
NYCHA
supervisor
Alexander
sexually assaulted her and that NYCHA failed to adequately follow
up on her report of the sexual assault.
Additionally, Crenshaw contends in or around March 2009,
she
told
Walton
that
the
unwarranted
counseling
memoranda,
increased workload, and reduced supervisory authority were unfair.
(Pl. 56.1 at ¶ 73.) Walton responded that he was not concerned
with Crenshaw complaining to the Union because he and defendant
Ferguson — the director of the Union’s housing division — had known
each other for 18 years. (Id.) Soon after that conversation,
plaintiffs
assert
that
Rivers
complained
to
the
Union,
and
Giocastro personally attended a meeting with Crenshaw and Walton.
(Id. at ¶ 74.) Giocastro began to argue to Walton that one of the
counseling
memoranda
Walton
had
issued
to
Crenshaw
was
“unwarranted and outrageous,” after which Walton stated: “Don’t
you know who this is, she is the one who is going up against you
and Floyd.” 27 (Id.) Crenshaw alleges that Giocastro thereafter
immediately ceased defending her with respect to that counseling
memorandum. (Id.)
Crenshaw’s opposing evidence is sufficient to create a
genuine issue of material fact regarding causation with regard to
Walton and Alexander. First, Crenshaw’s allegations place many of
27 The purported statement made by Walton appears in Crenshaw’s affidavit
filed in support of plaintiffs’ opposition to the motion for summary
judgment, and was not referenced either in the amended complaint or
Crenshaw’s deposition. (See Crenshaw Decl. at ¶ 29.)
69
the adverse employment actions in close proximity to her protected
activity. In the same month (April 2009) that Walton allegedly
heard Crenshaw discussing Members for Change with colleagues and
told her to stop discussing the group, he issued her a counseling
memorandum for insubordination that she claims was baseless. (Pl.
56.1 at ¶¶ 68, 75; NYCHA 56.1 at ¶ 121.) Three more counseling
memoranda followed in May, each issued by Alexander. (Pl. 56.1 at
¶ 69; Niederhoffer Decl., Ex. 64.) There is a dispute as to whether
Alexander and Walton purportedly reduced her supervisory authority
one month after she became more vocal on behalf of Members for
Change. (Pl. 56.1 at ¶¶ 62-64.) The temporal proximity here could
lead a reasonable jury to find that her support for Thompson and
work on behalf of Members for Change was the but-for cause of (or
a substantial motivating factor behind) the adverse employment
actions. 28 See Bagley v. J.P. Morgan Chase & Co., No. 10-CV-1592,
2012 WL 2866266, at *10 (S.D.N.Y. July 12, 2012) (holding that
28
Alexander’s purported sexual assault of Crenshaw in April 2010 presents
a closer call as to causation. The complication arises because the
assault occurred in a window during which Crenshaw does not allege any
protected activity. The sexual assault occurred long after Rivers’ April
2009 discussion about Members with Change in front of Walton (Pl. 56.1
at ¶ 75), and two months before Alexander overheard her discussing
Members with Change in June 2010. (Id. at ¶ 76.) There is no direct
evidence of a retaliatory motive in the assault allegation, so causation
must be premised on temporal proximity. Because the April 2010 assault
allegedly occurred approximately one year after Crenshaw’s most recent
protected activity in April 2010, the court concludes that no reasonable
jury could find that Crenshaw’s protected activity in April 2009 was
either the but-for cause of, or a substantial motivating factor in, the
April 2010 assault.
70
less than three months was sufficient temporal proximity to support
a prima facie case of retaliation under the ADEA); Reuland v.
Hynes, No. 01-CV-5661, 2004 WL 1354467, at *11 (S.D.N.Y. June 17,
2004) (finding a four-and-one-half-month gap sufficient to sustain
an inference of causation for First Amendment retaliation claim).
Second, the causal nexus between her protected activity and the
adverse employment actions is strongly reinforced by Crenshaw’s
nearly
spotless
disciplinary
record
preceding
her
protected
activity.
By contrast, Crenshaw has failed to create a genuine
issue of material of fact as to Rhea’s participation. As discussed
with respect to Rivers (see supra Discussion Part IV.C), “[i]t is
well settled that the personal involvement of a defendant is a
prerequisite for the assessment of damages in a § 1983 action.”
Morrison, 2006 WL 2811802, at *19. Crenshaw states that between
2009 and 2010 she “regularly emailed NYCHA managers, including
Chairman Rhea[,] to complain” about her circumstances. (Crenshaw
Decl. at ¶ 27.) This bare statement is the only evidence offered
even
remotely
suggesting
Rhea’s
involvement
in
the
alleged
retaliation here. None of the purported emails Crenshaw referenced
in her affidavit appear in the record. 29 Further, there is no
29
The absence of emails to and from Crenshaw in the record is
particularly notable given that discovery uncovered a substantial number
of Rivers’ emails with NYCHA and Union officials.
71
indication that Rhea had any knowledge of Crenshaw’s political
activities or the actions purportedly taken by Alexander and
Walton. In any case, the “fact that Plaintiff may have written a
letter or emails does not automatically render the supervisory
official responsible for any constitutional violation.” Morrison,
2006 WL 2811802, at *20; see also Thomas v. Coombe, No. 95-CV10342, 1998 WL 391143, at *6 (S.D.N.Y. July 13, 1998) (“[T]he fact
that
an
official
ignored
a
letter
alleging
unconstitutional
conduct is not enough to establish personal involvement.”).
Crenshaw faces a similar problem with regard to Floyd
and Ferguson, the remaining Union defendants. With respect to
Floyd, plaintiffs’ briefing never suggests that any contact was
made between Floyd and Crenshaw. Crenshaw never even states that
Floyd knew who she was. In the only section of plaintiffs’ briefing
directly challenging defendants’ arguments regarding the personal
involvement of the individual defendants, not a single fact is
mentioned
to
support
Floyd’s
involvement
in
the
alleged
retaliation against Crenshaw. (See Pl. Opp’n at 40.) Additionally,
it is undisputed that “Floyd has no knowledge of any discipline
imposed by NYCHA on Crenshaw.” (Union 56.1 at ¶ 88; Pl. Resp. to
Union 56.1 at ¶ 88.) Floyd therefore cannot be held liable for any
retaliation directed at Crenshaw.
Union official Ferguson’s involvement presents a more
difficult issue. In plaintiffs’ amended complaint, they allege
72
that the NYCHA defendants repetitively disciplined Crenshaw “at
the behest of” Ferguson. (Am. Compl. at ¶ 90.) In her affidavit,
however, Crenshaw provides only a single allegation regarding
Ferguson’s involvement in the alleged retaliation. Crenshaw claims
that when she complained to Walton in March or April 2009 about
the increased workload and mistreatment she was experiencing at
NYCHA, Walton said he was not concerned about her complaining to
the Union because of his friendship with Ferguson, whom he had
known for nearly two decades. (Crenshaw Decl. at ¶ 28.) Plaintiffs’
56.1
statement
does
not
allege
any
further
involvement
by
Ferguson. 30 Even viewing the friendship between Walton and Ferguson
in the light most favorable to Crenshaw, it is insufficient to
create a genuine issue of material fact regarding Ferguson’s
involvement in the retaliatory acts at issue in this case. See
Kohlhausen v. SUNY Rockland Cmty. Coll., No. 10-CV-3168, 2011 WL
2749560, at *8 (S.D.N.Y. July 13, 2011) (holding that “mere fact”
of a union defendant’s friendship with the alleged harasser could
not support a conspiracy). Based on the evidence presented by
30
Plaintiffs’ briefing states that Crenshaw “made multiple complaints
to the Union, through Ferguson, regarding [her] treatment, and each time
the complaints were utterly ignored.” (Pl. Opp’n at 40.) Crenshaw does
not allege, however, that Ferguson participated in any way in addressing
any of her Union grievances. Her complaints about the Union’s failure
to represent her are directed principally at Union official Giocastro
(see Crenshaw Decl. at ¶¶ 29-30, 38), but Crenshaw never connects any
allegedly retaliatory conduct by Giocastro to Ferguson in her affidavit,
her 56.1 statement, or her briefing.
73
Crenshaw, no rational jury could find that Ferguson was personally
involved in the alleged retaliation directed at Crenshaw.
CONCLUSION
Defendants’ motions for summary judgment are GRANTED in
part and DENIED in part. The court concludes that all of the Union
defendants must be dismissed from this action. Rivers’ claims
against the NYCHA defendants are also dismissed. Crenshaw’s claims
survive,
but
individual
only
as
capacities.
against
The
Walton
only
and
remaining
Alexander
in
purportedly
their
adverse
employment actions are Crenshaw’s alleged loss of supervisory
authority and the allegedly baseless counseling memoranda she
received.
SO ORDERED.
Dated:
March 31, 2016
Brooklyn, New York
_____________/s/_____________
Kiyo A. Matsumoto
United States District Judge
74
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