*1 ‐ ‐ cv N.Y.C. Hous. Auth. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE WITH THE NOTATION SUMMARY ORDER A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL

At stated term United States Court Appeals Second Circuit, held Thurgood Marshall United States Courthouse, Foley Square, York, th day June, two thousand seventeen. PRESENT: RALPH K. WINTER,

GUIDO CALABRESI,

DENNY CHIN,

Circuit Judges. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

DEBRA CRENSHAW,

Plaintiff , JAKWAN RIVERS,

Plaintiff Appellant ‐ ‐ cv NEW YORK CITY HOUSING AUTHORITY, JOHN B.

RHEA, individual, GLORIA FINKELMAN,

individual, CAROLYN JASPER, individual, LOCAL INTERNATIONAL BROTHERHOOD OF TEAMSTERS, GREGORY FLOYD, Appellees CARL WALTON, individual, MELETHIL

ALEXANDER, individual, REMILDA

FERGUSON, . ^[*]

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

FOR PLAINTIFF ‐ APPELLANT: Alexander T. Coleman, Michael J. Borrelli,

Pooja Bhutani, Borrelli & Associates, P.L.L.C., Great Neck New York.

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

CAROLYN JASPER:

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

Appeal from United States District Court Eastern District New York (Matsumoto, J.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED judgment AFFIRMED

Plaintiff ‐ appellant Jakwan appeals from August dismissing defendants appellees Housing Authority ), then Chairman John NYCHA Deputy General Manager Operations Gloria Finkelman, Director Queens/Staten Island Management Department Carolyn Jasper (together, *3 Defendants ), and Local 237 International Brotherhood Teamsters ʺ Local 237 ʺ ) and Local President Gregory Floyd (together, Union ) Amendment, Monell and U.S.C. 1983. explained its reasoning a Memorandum and Order issued March 31, 2016. See Rivers N.Y.C. Hous. Auth. F. Supp. 3d (E.D.N.Y. Judgment was entered on August 3, 2016, and filed a timely notice appeal on August 12, assume parties familiarity with underlying facts, procedural history, issues appeal, which we reference as necessary explain our decision ﬃ rm.

1. Background employed as maintenance worker from January when he began working Local business agent. Floyd became president Local March Eventually, took issue with number Floyd decisions policies, several colleagues organized slate run Floyd. publicly opposed Floyd endorsed different candidate New York City mayor than Floyd had endorsed. contends thereafter high level Local employees began

harass him. In January Floyd dismissed Rivers, returned maintenance worker. He contends supervisors harassed him treated him unfairly upon return agency. March filed administrative petition Board Collective Bargaining, claiming Local colluded

to place him in Bronx, far from his home, in for his opposition to Floyd (the ʺ Petition NYCHA and Rivers signed written stipulation in August in which Rivers released and Local from claims relating to claims in petition in exchange placement facility closer to his home. In September 2009, was transferred South Jamaica Houses in Queens.

According Rivers, harassment did stop after his transfer. He asserts he was inadequately trained his position, which resulted two ‐ job injuries, his supervisors ridiculed him began assign him excessively physically strenuous tasks. In November 2009, complained about his treatment staff by email Jasper, his supervisor, Margo Madden. training he received response his complaint was sporadic, ʺ superficial, insufficient. App. complains his supervisors issued him three baseless counseling memoranda, he was repeatedly denied overtime opportunities leave under Family Medical Leave Act care ailing mother. filed second administrative petition Board Collective Bargaining, which withdrew June

On October Debra Crenshaw commenced this action alleging Amendment U.S.C. *5 After the close of discovery, the district court granted summary judgment for the NYCHA Union Defendants all claims. This appeal followed.

2. Discussion

We review grant motion for summary judgment de novo , construing the facts, resolving all ambiguities, drawing all reasonable inferences favor the non moving party. Walsh v. N.Y.C. Hous. Auth. , ʺ Summary judgment is appropriate ʹ if movant shows there is genuine dispute as material fact movant entitled judgment as law. ʹʺ Id. (quoting Fed. R. Civ. P. 56(a)). We ask whether record taken as whole lead rational trier fact ﬁ nd for non moving party. ʺ Matsushita Elec. Indus. Co. Zenith Radio Corp. U.S. (1986). asserts individual NYCHA defendants ‐‐ Finkelman, Jasper ‐‐ retaliated him exercising free speech association rights

under First Amendment. He liable same retaliatory conduct Monell Department Social Services U.S. (1978), Union Defendants conspired Defendants violate Amendment rights. discuss arguments Defendants Union Defendants turn.

A. Finkelman, and Jasper

To establish prima facie case based on the Amendment, must show the following: (1) speech addressed of public concern, (2) suffered an adverse employment action, and (3) causal connection between the speech the adverse employment action. Wrobel Cty. of Erie (2d Cir. 2012). On appeal, challenges the determinations second third elements of claim. first argues took inappropriately narrow

view alleged adverse employment actions taken (1) declining consider actions taken more than one year after protected speech (2) failing consider allegedly retaliatory actions collectively context earlier conduct was subject settlement Petition.

counseling memorandum. ^[3] Not only did this conduct take place over a year after 2009 Local 237 elections, but does not point to admissible evidence from which jury infer that those actions were motivated by retaliatory animus.

Nor do seven actions analyzed by district court, considered together, even in conjunction with post 2010 events, form ʺ critical mass ʺ of seemingly minor incidents ʺ that can support retaliation claim. ^[4] Phillips Bowen 278 109 (2d Cir. ʹ s allegations suffer from lack supporting information, including which, if any, defendants were involved in each event, rely inadmissible hearsay statements from various Local employees. See Wright Smith, 1994) [I]t well settled in this Circuit personal involvement defendants in alleged constitutional deprivations prerequisite an award damages ʺ (internal quotation marks omitted)). Drawing all inferences favor, admissible record evidence establishes isolated criticism Rivers; decision contest workers ʹ compensation ; allegations physically strenuous work assignments *8 one specific example such an assignment; denials requests to transfer, for training, for overtime, for FMLA leave; grants other Rivers requests for training, overtime, FMLA leave; the issuance several counseling memoranda. When looked at individually or as whole, no reasonable jury could find that the alleged actions constituted ʺ pattern nearly constant harassment. ʺ Phillips at

Finally, contends the erred in concluding that rational jury find causal connection between protected speech physically strenuous assignment he received in November Assuming arguendo assignment was an adverse employment action, evidence who assigned task is his own conclusory statement Madden began assigning [him] most physically strenuous responsibilities . . . rather than any other maintenance worker. ʺ App. fact, his formal complaint Madden, he advised her was directed complete assignment. Accordingly, without any other evidence connecting assignment defendant, cannot establish causal connection between assignment his protected speech.

retaliation discrimination for seeking workers ʹ compensation. Special App. (second alteration original) (quoting Ridgway Metro. Museum Art No. CV WL *5 (S.D.N.Y. Apr. 2007)). exclusive remedy referred applies when act taken seeking workers ʹ compensation Here, contested workers ʹ compensation claim Amendment ‐ protected speech. Any error, however, was harmless, claim nevertheless fails similar reasons other claims: first, ultimately awarded workers compensation, second, there lack causal link between challenge workers ʹ compensation protected conduct.

A municipal entity may be sued under § if its ʺ policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said represent official policy, inflicts injury. ʺ Monell , U.S. at When alleges relevant acts ʺ were taken or caused by official whose actions represent official policy, must determine whether official final policymaking authority particular area involved. ʺ Jeffes v. Barnes , (2d Cir. 2000). Whether official possessed final policymaking authority particular area local government business question state law. Id.

A municipal entity can be held liable actions lower level employees where policymaking official ordered actions taken or ʺ exhibits deliberate indifference constitutional deprivations caused by subordinates, such official inaction constitutes ʹ deliberate choice. ʹʺ Amnesty Am. Town W. Hartford 2004) (quoting City Canton Harris, U.S. (1989)). latter case, acquiescence may ʹ be properly thought city policy or custom actionable ʹʺ Id. (quoting Canton U.S. argues erred granting summary favor because allegedly retaliatory acts were directed then ‐ Chairman, who common sense . . exercises policymaking authority NYCHA. Appellant Br. Public Housing Law vests *10 the agency ʹ s responsibilities in a seven member board. N.Y. Pub. Hous. Law § Although § provides designation chairman board, it does not delegate any policymaking authority chairman particular. See id. evidence that presents support Rhea policymaking authority is deposition testimony by Finkelman that chairman is highest title ʺ NYCHA. App. Thus, because failed establish matter law that Rhea possessed final policymaking authority regarding work assignments other personnel issues, claims against NYCHA must be dismissed. See Jeffes , F.3d at Where plaintiff relies not on formally declared or ratified policy, but rather on theory conduct given official represents official policy, it incumbent on establish element law.

B. Union Defendants agree grant summary on conspiracy against individual Union defendant. To extent argues Floyd agreed retaliate exercising his Amendment rights, we have already determined jury decide favor on his claim. See Singer Fulton Cty. Sheriff *11 119 (2d Cir. 1995) ( ʺ [A § 1983 conspiracy claim] will stand insofar as can prove sine qua non § 1983 action: violation federal right. ʺ ). challenges ʹ s dismissal his Local failure demonstrate Local policy or practice engaging complained conduct. Rojas Alexander ʹ Dep ʹ t Store, Inc. 1990) [ Monell ʹ s] rationale has been extended private businesses. Although have established instead Floyd individual with final policymaking authority support claim, he points evidence such authority other than Floyd title. Thus, we are unable conclude law Floyd possessed policymaking authority regarding personnel decisions, Local cannot be liable alleged Monell

Finally, because claim fails NYCHA, cannot maintain Local conspired violate constitutional rights. See Singer have considered remaining arguments conclude they are

without merit. Accordingly, we AFFIRM court.

FOR THE COURT: Catherine O Hagan Wolfe, Clerk

[*] Clerk Court respectfully directed amend official caption conform above.

[1] filed workers compensation after July injury eye socket. Although contested claim, it ultimately granted.

[2] After denied part defendants motions summary Crenshaw, Crenshaw filed stipulation dismissal Crenshaw remaining claims.

correctly notes [w]e do attempt determine outer limits temporal proximity analyzing causation. Cioffi Averill Park Cent. Sch. Dist. Bd. Educ. Nonetheless, our review record indicates based post actions must fail because reasonable jury find causal connection between protected speech those actions. cites three incidents occurred after November 2010: (1) February counseling memorandum later rescinded accompanying loss pay, (2) denials transfer requests February March (3) March

[3] cites two hearsay statements individual Union employees

[4] In light stipulation signed settlement Petition, we do not consider events predating release our analysis. note, however, did consider these events background, stating it would ʺ blind itself events preceding th[e] stipulation. Special App.

[5] analyzing this claim, stated point[ed] authority indicating an employer decision contest workers ʹ compensation benefits can constitute an adverse employment action purposes claim, that, [i]n fact, Workers Compensation Law provides ʹ exclusive remed[y] ʹ employees

[6] Because cannot show Rhea final policymaking authority regarding work assignments, discipline, other personnel issues, argument liable because Rhea notice deliberately disregarded constitutional violations other employees fails. See Amnesty Am.