Rivers v. New York City Housing Authority et al

Filing 64

ORDER denying 48 Motion to Amend/Correct/Supplement. Plaintiff Rivers's motion for leave to file supplemental pleadings and to re-open discovery as to the April 2013 events is denied. As previously ordered by the Honorable Kiyo A. Matsumoto, the parties shall file a joint status report within seven days of the filing of this order. Ordered by Magistrate Judge Marilyn D. Go on 3/31/2014. (Proujansky, Josh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - - - -X
JAKWAN RIVERS et ano.,
Plaintiffs,
- against -

ORDER

NEW YORK CITY HOUSING AUTHORITY, et al.,

CV 2011-5065 (KAM)(MDG)

Defendants.
- - - - - - - - - - - - - - - - - - - -X
In this action brought under 42 U.S.C. § 1983, plaintiff
Jakwan Rivers has moved for leave to file a Second Amended
Complaint1 to supplement the First Amended Complaint with
allegations regarding events that occurred following the filing of
this action and to assert an additional claim of retaliation
against defendants New York City Housing Authority ("NYCHA"), John

1

As a preliminary matter, I note that I have the authority to
decide plaintiff's motion to amend pursuant to 28 U.S.C.
§ 636(b)(1)(A). See Fielding v. Tollaksen, 510 F.3d 175, 178 (2d
Cir. 2007) (referring to a motion to amend as a non-dispositive
motion that a magistrate judge may decide without the parties'
consent"); Kilcullen v. New York State Dept. of Transp., 55 Fed.
App'x 583, 584 (2d Cir. 2003) (same); Marsh v. Sheriff of Cayuga
County, 36 Fed. App'x 10, 11 (2d Cir. 2002) (holding "that the
magistrate judge acted within his authority in denying this motion to
amend the complaint"). Thus, Fed. R. Civ. P. 72(a) governs any
objections to this order. See Rekowicz ex rel. Congemi v. Sachem
Cent. School Dist., 2012 WL 4172487, at *1 (E.D.N.Y. 2012); Point 4
Data Corp. v. Tri-State Surgical Supply & Equipment, Ltd., 2012 WL
3306612, at *1-*2 (E.D.N.Y. 2012); cf. Jean-Laurent v. Wilkerson, 461
Fed. App'x 18 (2d Cir. 2012) (remanding to district court to conduct
de novo review of magistrate judge’s denial of leave to amend which
effectively dismissed state law claims which had previously survived
a motion to dismiss).

Rhea, Local 237 International Brotherhood of Teamsters ("Local 237)
and Gregory Floyd.

BACKGROUND
The claims in this action arise from the employment, union
activities and political activities of plaintiffs Jakwan Rivers and
Debra Crenshaw.

Mr. Rivers began working for defendant New York

City Housing Authority ("NYCHA") in 1998 and at that time became a
member of defendant Local 237 International Brotherhood of
Teamsters ("Local 237").

Am. Compl. ¶¶ 12-13.

Rivers was later

elected to the position of Shop Steward within the union and
subsequently employed by Local 237 as a Business Agent.
17.

Id. ¶¶ 15,

In 2008, in response to what he perceived as deficiencies with

union governance under the leadership of defendant Gregory Floyd,
Rivers founded a business association called "Members for Change,"
which aspired to oust Mr. Floyd from presidency of the union, elect
Mr. Rivers and other preferred candidates to leadership positions
of the union and support William Thompson in his mayoral bid.
¶¶ 28-30.

Id.

Plaintiff Debra Crenshaw was a fellow NYCHA employee who

joined Members for Change and engaged in political activities in
support of the group's agenda.

Id. ¶¶ 82, 86.

Both plaintiffs allege that the defendants conspired to
retaliate against them for their political activities, by,
inter alia, subjecting them to excessive disciplinary actions and
false disciplinary reports, id. ¶¶ 40, 53, 73, 75, 90-96, 98-103;

-2-

terminating Mr. Rivers from his union position, id. ¶¶ 43;
assigning plaintiffs to burdensome job assignments for which they
were not trained and received inadequate support arising from his
transfer to a different work location, id. ¶¶ 46-51, 54-66, 69, 74,
77, 89; endangering Mr. Rivers by disclosing his full name to
residents of a housing development where he worked in 2010, id.
¶ 67; denying plaintiffs' claims for workers' compensation in 2010,
id. ¶¶ 81, 105; revoking Ms. Crenshaw's supervisory authority, id.
¶ 89; denying Ms. Crenshaw's request for leave to tend to her and
her husband's medical conditions, id. ¶¶ 104; and terminating Ms.
Crenshaw's employment.

Id. ¶ 106.

Plaintiffs also contend that

defendant Melethil Alexander sexually assaulted Ms. Crenshaw.
Plaintiff Rivers commenced this action on October 18, 2011.
He then filed an amended complaint on February 28, 2012, on
consent, to add Debra Crenshaw as plaintiff, to assert additional
claims and to join Carl Walton, Melethil Alexander and Remilda
Ferguson as defendants.
This Court originally set a fact discovery deadline of
September 28, 2012 and extended the deadline to January 18, 2013 at
a conference on November 28, 2012.

By letter motion filed on

December 28, 2012, Jonathan Friedman, who was then counsel of
record for plaintiffs, moved, on consent, for a further extension
of discovery to February 12, 2013 in order to conduct three
additional depositions.

Although granting this motion in light of

defendants’ consent, this Court cautioned "[n]o further extensions

-3-

absent a showing of utmost diligence."

Nonetheless, plaintiffs

sought a further extension on February 7, 2013 due to departure of
Mr. Friedman from Borrelli & Associates.

As new counsel for

plaintiffs admitted, notices of depositions had not yet been sent
for the three depositions previously sought.

This Court

reluctantly granted the request and extended discovery to March 1,
2013 to conduct the three depositions.

After a further extension

of fact discovery to March 20, 2013 to conduct one of the three
depositions due to scheduling problems encountered, the parties
completed discovery by the deadline.

At a pre-motion conference

held on April 18, 2013, Judge Matsumoto set a schedule for briefing
summary judgment motions contemplated by defendants.
On April 30, 2013, plaintiffs filed the instant second motion
to amend.

This Court required them to supplement with, inter alia,

a proposed pleading.

Plaintiffs then filed a proposed supplemental

complaint and additional submissions.
Plaintiff Rivers now seeks pursuant to Fed. R. Civ. P. 15(d)
to add allegations of retaliation that occurred subsequent to the
filing of this complaint and to re-open discovery.
Amend (ct. doc. 48), at 2-3.

Sec. Mot. to

Plaintiff Rivers alleges that he was

arrested for driving while intoxicated in November 2012, which he
promptly reported to NYCHA's Office of the Inspector General, as
required by NYCHA Guidelines.
¶¶ 108-09.

Prop. Sec. Am. Compl. (ct. doc. 54)

He asserts that in April 2013, a union trustee named

Curtis Scott warned Randy Thorne, a member of Members for Change,

-4-

that Mr. Rivers should not run in the upcoming union election
because Mr. Scott had "stuff" on Mr. Rivers, including information
regarding Mr. Rivers's arrest in November 2012.

Id. ¶¶ 110-14.

Shortly after this conversation, plaintiff Rivers learned that
posters had been hung in several NYCHA housing development
buildings and found some which bore the caption "Is this whom you
want to be the next President of Local 237" and contained
photocopied sections of his arrest report with his personal
information.

Id. ¶¶ 115-18.

Plaintiff contends that NYCHA must

have disclosed the fact of his arrest to Local 237.

Id. ¶¶ 143-45.

In opposing plaintiff's motion, NYCHA, Mr. Rhea, Ms. Finkelman
and Ms. Jasper (altogether "NYCHA defendants") argue that the
supplemental pleadings fail to allege that the NYCHA defendants
took any tortious actions related to the April 2013 events and that
re-opening discovery now would prejudice defendants by delaying
decision of summary judgment motions, briefing of which is
currently stayed.
at 2.

See NYCHA Resp. to Mot. to Amend (ct. doc. 50),

Local 237, Mr. Floyd, Mr. Alexander, Carl Walton and Remilda

Ferguson (altogether "Union defendants") argue that the amendment
is futile because the Union defendants are private actors and
cannot be held liable under § 1983.
Amend (ct. doc. 49), at 2.

See Union Resp. to Mot. to

The Union defendants also contend that

plaintiff fails to establish that he was the victim of any adverse
employment action as a result of the April 2013 events.

-5-

Id.

On January 24, 2014, plaintiff's counsel wrote in a two page
letter that "Defendants Local 237 and the NYCHA have continued with
their coordinated targeting of Plaintiff Rivers" and point to his
transfer from his current work assignment after return from
worker's compensation leave, even though he had been elected shop
steward.

See ct. doc. 61.

He also charges that NYCHA failed to

provide Rivers accommodations requested under the Americans with
Disabilities Act and deducted amounts from his paychecks, while the
Union failed to respond to Rivers's requests for assistance.

Id.

NYCHA stated in response that Rivers was assigned to a different
location because he had been on an extended leave of absence of
eleven months from August 2, 2012 through June 25, 2013, that
plaintiff did not receive a portion of his pay because his leave
had been exhausted and that plaintiff has filed a complaint with
the New York Commission on Human Rights.

See ct. doc. 63.

The

Union stated that a different shop steward was elected when Rivers
was on leave and the Union had no involvement in accommodations
under the ADA and paycheck deductions.

See ct. doc. 62.

DISCUSSION
Since more than twenty-one days elapsed between plaintiffs'
service of the complaint on defendants and the filing of this
motion and plaintiffs have already filed one amended complaint, Mr.
Rivers must obtain leave of the Court before he may amend the
complaint.

Fed. R. Civ. P. 15(a).

In this instance, plaintiff is

proceeding under Rule 15(d), which permits a party to "serve a
-6-

supplemental pleading setting out any transaction, occurrence, or
event that happened after the date of the pleading."
P. 15(d).

Fed. R. Civ.

The Court "may permit" a party to file a supplemental

pleading "on just terms."

Id.

In order to be successful on a motion to supplement, the
movant must allege "supplemental facts [that] connect the
supplemental pleading to the original pleading."

Weeks v. New York

State (Div. of Parole), 273 F.3d 76, 88 (2d Cir. 2001) (citing
Quaratino v. Tiffany & Co., 71 F.3d 58, 66 (2d Cir. 1995)),
abrogated on other grounds by Nat'l R.R. Passenger Corp. v. Morgan,
536 U.S. 101 (2002).

The Second Circuit has stated that a motion

to supplement should be granted "where such supplementation will
promote the economic and speedy disposition of the controversy
between the parties, will not cause undue delay or trial
inconvenience, and will not prejudice the rights of any other
party."

Borndholdt v. Brady, 869 F.2d 57, 68 (2d Cir. 1989).

Thus, aside from the additional requirement of a connection between
the supplemental and original pleadings, the standards for
examining a Rule 15(d) motion to supplement are essentially the
same as for a Rule 15(a) motion to amend.

See, e.g., Cancel v.

Goord, 2002 WL 171698 (S.D.N.Y. 2002) ("leave to supplement . . .
should be liberally granted"); Milligan v. Citibank, N.A., 2001 WL
1135943, at *9 (S.D.N.Y. 2001) (leave to supplement "may be denied
in the event of undue delay, bad faith, or prejudice to the
opposing party").

-7-

Delay alone does not justify denial of leave to amend.

See

Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008);
Rachman Bag Co. v. Liberty Mutual Ins. Co., 46 F.3d 230, 234 (2d
Cir. 1995); Richardson Greenshields Sec., Inc. v. Lau, 825 F.2d
647, 653 n.6 (2d Cir. 1987).

"The concepts of delay and undue

prejudice are interrelated -- the longer the period of unexplained
delay, the less will be required of the non-moving party in terms
of showing prejudice."

Davidowitz v. Patridge, 2010 U.S. Dist.

LEXIS 42322, at *5 (S.D.N.Y. 2010).

In evaluating whether

prejudice would result from amendment, a court should consider
whether the proposed amendment would: "(1) require the opponent to
expend significant additional resources to conduct discovery and
prepare for trial; (2) significantly delay the resolution of the
dispute; or (3) prevent the plaintiff from bringing a timely action
in another jurisdiction."

Monahan v. N.Y. City Dept. of Corr., 214

F.3d 275, 284 (2d Cir. 2000) (citing Block v. First Blood Assocs.,
988 F.2d 344, 350 (2d Cir. 1993)).
In determining whether a proposed amendment is futile, a court
must treat the motion to amend in the same manner as a motion to
dismiss, looking only at the face of the complaint, any documents
referred or attached to the pleadings, and accepting all the
allegations of the complaint as true.

See Aetna Cas & Sur. Co. v.

Aniero Concrete Co., Inc., 404 F.3d 566, 604 (2d Cir. 2005); Idearc
Media LLC v. Siegel, Kelleher & Kahn LLP, 2012 WL 162563, at *2-*3
(W.D.N.Y. 2012).

"An amendment to a pleading is futile if the

-8-

proposed claim could not withstand a motion to dismiss pursuant to
Fed. R. Civ. P. 12(b)(6)."

Lucente v. Int’l Bus. Machs., 310 F.3d

243, 258 (2d Cir. 2002) (internal citation omitted).

Dismissal

under Rule 12(b)(6) is, in turn, warranted "only if it appears
beyond a doubt that the plaintiff can prove no set of facts
supporting its claim that entitles it to relief."

Lamb v.

Henderson, 1999 WL 596271, at *2 (S.D.N.Y. 1999) (citations
omitted).

The decision to grant or deny a request to amend is

within the discretion of the district court. See, e.g., Foman v.
Davis, 371 U.S. 178, 182 (1962); John Hancock Mut. Life Ins. Co. v.
Amerford Int'l Corp., 22 F.3d 458, 462 (2d Cir. 1994).
The legal standard for analyzing a motion to amend for
futility is thus identical to the standard for a 12(b)(6) motion to
dismiss, which is well established.

In order to survive a motion

to dismiss, Rule 8 requires that a plaintiff proffer "sufficient
factual matter, accepted as true, to 'state a claim to relief that
is plausible on its face.'"

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)).

"A pleading that offers 'labels and conclusions' or 'a

formulaic recitation of the elements of a cause of action will not
do.'"

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

"Nor does a complaint suffice if it tenders 'naked assertion[s]'
devoid of 'further factual enhancement.'"
(quoting Twombly, 550 U.S. at 557).

Iqbal, 556 U.S. at 678

"Factual allegations must be

enough to raise a right to relief above the speculative level, on

-9-

the assumption that all the allegations in the complaint are true
(even if doubtful in fact)."

Twombly, 550 U.S. at 555.

The

plausibility standard requires "more than a sheer possibility that
defendant has acted unlawfully."

Iqbal, 556 U.S. at 678.

A plaintiff asserting a Section 1983 claim for retaliation for
exercise of First Amendment rights by his employer must show "(1)
[he] engaged in constitutionally protected speech . . . (2) [he]
suffered an adverse employment action; and (3) the speech was a
'motivating factor' in the adverse employment decision."

Looney v.

Black, 702 F.3d 701, 717 (2d Cir. 2012) (quoting Skehan v. Vill. of
Mamaroneck, 465 F.3d 96, 106 (2d Cir. 2006)).

An adverse

employment action "can take a wide variety of forms," Anemone v.
Metropolitan Transp. Auth., 629 F.3d 97, 120 n. 14 (2d Cir. 2011),
but in general, a "plaintiff sustains an adverse employment action
if he or she endures a 'materially adverse change' in the terms and
conditions of employment."

Joseph v. Leavitt, 465 F.3d 87, 90 (2d

Cir. 2006) (quoting Galabya v. New York City Bd. of Educ., 202 F.3d
636, 640 (2d Cir. 2000)) (discussing adverse employment actions in
the context of racial employment discrimination claims);
see also Kassner v. 2nd Avenue Delicatessen Inc., 469 F.3d 229, 238
(2d Cir. 2007) (discussing adverse employment actions in the
context of age discrimination).

Such action must be "more

disruptive than a mere inconvenience or alteration of job
responsibilities," such as "termination of employment, a demotion
evidenced by a decrease in wage or salary, a less distinguished

-10-

title, a material loss of benefits, significantly diminished
material responsibilities. . . "

Sanders v. New York City Human

Resources Admin., 361 F.3d 749, 755 (2d Cir. 2004) (discussing
racial discrimination and retaliation claims).

A single incident

of harassment is rarely deemed an adverse employment action; such
actions must be so "extraordinarily severe" as to constitute "an
intolerable alteration of the plaintiff's working conditions, so as
to substantially interfere with or impair his ability to do his
job," such as rape or "an obscene and humiliating verbal tirade."
Mathiramphuzha v. Potter, 548 F.3d 70, 78-79 (2d Cir. 2008)
(internal citations omitted) (supervisor's "unprofessional and
boorish" physical encounter with plaintiff insufficient to
constitute adverse employment action).

Action that consists of

"mere nastiness of colleagues or supervisors, or unprofessional
behavior is . . . not considered adverse employment action."
Carlucci v. Kalsched, 78 F. Supp. 2d 246, 256 (S.D.N.Y. 2000).
Because the "question of retaliation involves a defendants'
motive and intent, both difficult to plead with specificity in a
complaint. . . [i]t is sufficient to allege facts from which a
retaliatory intent on the part of the defendants reasonably may be
inferred."

Dougherty v. Town of North Hempstead Bd. of Zoning

Appeals, 282 F.3d 83, 92 (2d Cir. 2002).
passage of time.

These facts include the

It is well established that "the causal

connection needed for proof of a retaliation claim can be
established indirectly by showing that the protected activity was

-11-

closely followed in time by the adverse action."

Summa v. Hofstra

Univ., 708 F.3d 115, 127-28 (2d Cir. 2013) (quoting Cifra v. Gen.
Elec. Co., 252 F.3d 205, 217 (2d Cir. 2001)).

Logically,

therefore, "retaliation will not be inferred when a long period of
time passes between the exercise of a First Amendment right
(protected conduct) and the imposition of the allegedly
retaliatory" action.
(S.D.N.Y. 2004).

Contes v. Porr, 345 F. Supp. 2d 372, 383

There is no bright line rule as to the precise

length of time between events that may support an inference of
causation.

See, e.g., Espinal v. Goord, 558 F.3d 119, 129 (2d Cir.

2009) (citing Hollander v. American Cyanamid Co., 895 F.2d 80, 8586 (2d Cir. 1990) and Grant v. Bethlehem Steel Corp., 622 F.2d 43,
45-46 (2d Cir. 1980)) (comparing cases where, respectively, threemonth gap was too remote and another where eight-month gap
sufficiently close to support inference of causation).

Because the

contours of the relationship between temporal lag between events
and causal connection remains undefined, courts are able "to
exercise [their] judgment about the permissible inferences that can
be drawn from the temporal proximity in the context of particular
cases."

Espinal, 558 F.3d at 129; see also Summa, 708 F.3d at 128

(considering the "particular context" of the underlying events and
"other surrounding circumstances" in combination with several month
gap in events).
It is undisputed that plaintiff Rivers acted promptly in
moving to supplement the pleadings within a month after the April

-12-

2013 events.

See Sec. Mot. to Amend.

However, since discovery has

closed and a briefing schedule had been set for defendants' summary
judgment motions, permitting supplementation would unduly delay
this litigation and prejudice defendants.

See, e.g., Cerilli v.

Rell, 2010 WL 1330998, at *3 (D. Conn. 2010) (granting 15(d) motion
to supplement after parties filed cross-motions for summary
judgment would unduly delay litigation).

Because re-opening

discovery into the April 2013 events would involve discovery of at
least the two non-parties mentioned in the proposed Second Amended
Complaint and the New York City Police Department, granting
plaintiff's motion to supplement will not "promote the economic and
speedy disposition of the controversy between the parties."
Bornholdt, 869 F.2d at 68.
More significantly, plaintiff offers little more than
speculation connecting the April 2013 events with the retaliation
alleged in the complaint.

This lawsuit was filed in October 2011,

and the underlying events took place starting with the July 2008
founding of Members for Change through September 2011.
(ct. doc. 1); First. Am. Compl. ¶¶ 28-106.

See Compl.

Approximately five

months lapsed between Mr. Rivers's arrest and the posting of the
flyers and an even greater lapse in time since the events alleged
in the complaint.

See Prop. Sec. Am. Compl. ¶¶ 109, 111.

Assuming this five month gap is the appropriate measure, five
months' delay is not in itself so distant that causal connection is
impossible, since gaps of several months may support an inference

-13-

of causation where defendants are alleged to have waited for the
opportune moment to retaliate.

See Summa, 708 F.3d at 128 (four

month gap reasonable where alleged retaliatory events occurred on
"first moment in time when [defendants] could have retaliated
against [plaintiff] as she was not directly working for them over
the intervening months"); Espinal, 558 F.3d at 129-30 (six month
gap may support causation where "[i]t is plausible that the
officers waited to exact their retaliation . . . in order to have a
ready explanation for any injuries suffered by [plaintiff]").

In

contrast, where there is no convincing explanation for a gap of
several months, courts are much stricter about the proximity of
events that plausibly bear causal connection.

See, e.g., Clark

Cty. School Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (where
temporal proximity is plaintiff's sole evidence of causal
connection, the events must have occurred in "very close"
proximity; cases cited found three and four months too remote);
Tuccio Development, Inc. v. Miller, 423 Fed App'x 26, 27 (2d Cir.
2011) (two month gap too distant where plaintiffs offered no other
evidence to support retaliatory motive); Dayes v. Pace Univ., 2
Fed. App'x 204, 209 (2d Cir. 2001) (seven month gap too long to
support causation where plaintiff's evidence regarding retaliatory
animus was "minimal and ambiguous").
Critically, plaintiff not only has failed to offer an
explanation for the timing of the flyers after his arrest, he does
not provide any plausible explanation of how the posters relate to

-14-

the events underlying the complaint.

Approximately 18 months have

elapsed between the last acts of retaliation alleged in the
plaintiffs' First Amended Complaint -- Ms. Crenshaw's termination
in August 2011 and the assignment of Mr. Rivers to inappropriate
job assignments in September 2011 -- and the acts relating to Mr.
Rivers's arrest now alleged in the proposed second amended
complaint.

Plaintiff simply does not allege that any other

retaliatory activity has taken place since the filing of the
complaint and the proposed supplemental complaint.2

Cf. Gorman-

Bakos v. Cornell Co-Op Extension of Schenectady, 252 F.3d 545, 554
(2d Cir. 2001) (five month gap may support inference of causation
where "plaintiffs have provided evidence of exercises of free
speech and subsequent retaliatory actions" in the interim).
Plaintiff provides little explanation for his assertion that the
posters are in any way related to his employment with NYCHA aside
from his speculation that NYCHA officials divulged the information
to Local 237 supporters of defendant Rhea.

While plaintiffs may

ultimately be correct that the flyers were produced and
disseminated by persons who had the intention of harming plaintiff
Rivers's political standing in Local 237 and future elections, the
next election apparently is not scheduled to take place until

2

Although plaintiffs' counsel points to additional actions by
defendants in his letter of January 24, 2014, those acts apparently
occurred after Rivers returned from leave in June 2013 and hence
involved a greater lapse in time since the original retaliatory
activities alleged.
-15-

October 2014, more than a year after the posting.

Aff. of John

Rhea (ct. doc. 58-1) ¶ 8.
Although plaintiff speculates about who communicated what
information to the person or persons who posted the flyers, there is
no plausible indication that any of the defendants were involved
with the April 2013 events.

The only persons named specifically by

plaintiff are Mr. Curtis Scott, who is a non-party "supporter" of
defendant Floyd and has no apparent employment relationship with
plaintiff, and Mr. Randy Thorne, who is a member of Members for
Change.

Prop. Sec. Am. Compl. ¶¶ 111-12.

Plaintiff explains that

he reported the arrest to NYCHA's Office of the Inspector General
without suggesting how any of the NYCHA defendants would be privy to
such confidential information, let alone how they or the Union
defendants would acquire a copy of the police report.3

Plaintiff's

"mere conclusions and reference to a conspiracy are insufficient to
satisfy the pleading standards."

Andino v. Fischer, 698 F. Supp. 2d

362, 373 (S.D.N.Y. 2010); see also Pleener v. New York City Bd. of
Educ., 2007 WL 2907343, at *16 (retaliation claim dismissed where
plaintiff offered no more than conclusory assertions that harassing
incident "had any connection whatsoever" with protected activity).
In addition to the absence of a connection between the
supplemental pleadings and the current operative complaint,
3

As defense counsel correctly notes, the arrest of Rivers is a
matter of public record. According to the records of the New York
State Unified Court System available on Webcrims, the charges against
Rivers are still pending and the next court appearance is scheduled
for April 17, 2014 in the Kings County Criminal Court.

-16-

plaintiff's proposed supplement is futile because he fails to allege
an adverse employment action.

Plaintiff does not assert that he

suffered any change in salary, benefits, title or job
responsibilities because of the posting of the flyers.

As noted,

the only connection between the allegations regarding the posters to
any aspect of plaintiff Rivers' employment is his speculation that
NYCHA disclosed the fact of his arrest to members of Local 237 who
support the leadership of defendant Rhea.
144-45.

Prop. Sec. Am. Compl.

Even if carried out at the behest of defendants in

retaliation for the reasons alleged – and plaintiff's allegations to
that effect are deficient as discussed – such actions are
unprofessional and highly inappropriate but do not rise to the
"extraordinarily severe" level that constitutes a material change in
the terms and conditions of plaintiff's employment.

See, e.g.,

Negron v. Rexam, Inc., 104 Fed. App'x 768, 770 (2d Cir. 2004)
(posting of photographs humiliating to plaintiff did not constitute
adverse employment action); Grant v. Rochester City School Dist.,
2013 WL 3105536, at *7 (W.D.N.Y. 2013) ("Loss of reputation is not
generally considered an adverse employment action"); Uddin v. City
of New York, 2009 WL 2496270, at *17 (S.D.N.Y. 2009) (ordering
plaintiff to leave employment premises and calling police when
plaintiff disobeyed that order did not constitute adverse employment
action); Ellis v. Long Island Rail Road Co., 2008 WL 838766, at *6
(E.D.N.Y. 2008) (dissemination of posters banning plaintiff from
work premises was not adverse employment action).

-17-

This is not to say that plaintiff Rivers has no possible cause
of action against any persons involved in the posting of the flyers,
to the extent that he is able to name any individuals involved.
However, the proper forum for such action is not this particular
litigation, which concerns retaliatory employment actions taken by
defendants in response to Mr. Rivers's involvement with Members for
Change.

Since the April 2013 events happened relatively recently,

if he chooses to initiate a separate lawsuit to pursue the
perpetrators of the flyers, it is highly probable that the statute
of limitations on any tort he may allege has not yet run.
CONCLUSION
For the foregoing reasons, plaintiff Rivers's motion for leave
to file supplemental pleadings and to re-open discovery as to the
April 2013 events is denied.

As previously ordered by the Honorable

Kiyo A. Matsumoto, the parties shall file a joint status report
within seven days of the filing of this order.
SO ORDERED.
Dated:

Brooklyn, New York
March 31, 2014
/s/___________________________
MARILYN D. GO
UNITED STATES MAGISTRATE JUDGE

-18-