William KREGLER, Plaintiff-Appellant, v. CITY OF NEW YORK, Louis Garcia, Brian Grogan, Rose Gill Hearn, Keith Schwam, Darren Keenaghan, Sued Individually and in their official capacities, Jayme Naberezny, Defendants-Appellees, 604 F. App'x 44

SUMMARY ORDER From 1984 to 2004, Plaintiff-Appellant William Kregler worked for the New York City Fire Department (“FDNY”), first as a firefighter and then as a Fire Marshal. Following his retirement, Kregler applied to become a New York City Marshal on April 22, 2004. Appointment as a City Marshal required approval of the Mayor’s Committee on City Marshals, as well as approval by the New York City Department of Investigation (“DOI”). In March 2006, Kregler was notified by Defendant-Appellee Keith Schwam, Director of the Bureau of City Marshals within DOI, that he would not be appointed as a City Marshal.

In this action pursuant to 42 U.S.C. § 1988, Kregler, who was the President of the Fire Marshal’s Benevolent Association at the time, argues that his application was terminated in retaliation for his Association’s endorsement of Robert Morgenthau, who was running for re-election as Manhattan District Attorney against Leslie Crocker Snyder during the time that Kre-gler’s application was being reviewed.

Kregler appeals, inter alia, from the judgment of the district court (Marrero, J.) dismissing his amended complaint after a jury returned a verdict in favor of Defendant-Appellee Louis Garcia, from the district court’s decisions and orders granting

summary judgment in favor of Defendant-Appellees City of New York, Brian Gro-gan, Rose Gill Hearn, Keith Schwam, Darren Keenaghan, and Jayme Naberezny, and from decisions regarding discovery in the case. We assume the parties’ familiarity with the underlying facts and procedural history of the case, and with the issues on appeal. Kregler first argues that the district court’s judgment following the jury verdict must be reversed because the district court improperly instructed the jury. He contends (

i) that the jury instructions erroneously implied that the jury was required to find that Hearn, the Commissioner of DOI, acted to terminate his application with retaliatory animus, when his theory of the case was that Garcia harbored retaliatory animus and that Garcia’s animus ultimately caused Kregler’s application to be terminated, and (ii) that the jury instructions merged the adverse action and causation elements of his § 1983 First Amendment retaliation claim, when in fact the two elements were logically distinct and the adverse action element was not con-, tested.

Regardless of whether the district court’s jury instructions were erroneous, a new trial is not required in this case because Kregler cannot show that “considering the instruction^] as a whole, the cited errors were not harmless, but in fact prejudiced” him. Crigger v. Fahnestock & Co., 443 F.3d 230, 235 (2d Cir.2006).

The jury instructions and verdict sheet correctly made clear that in order for Garcia to be liable, the jury was first required to find that Kregler had proven by a preponderance of the evidence that Garcia harbored retaliatory animus toward Kregler on account of Kregler having engaged in protected speech. Because the jury found that Kregler had not proven that Garcia harbored such animus, he cannot show that the alleged errors in the instructions actually prejudiced him.

Kregler also contends that the district court erroneously excluded important evidence during the trial and improperly limited and sustained objections to fair arguments by his counsel during summation. “We review [the] district court’s evidentia-ry rulings for abuse of discretion, and will reverse only for manifest error.” Camer on v. City of New York, 598 F.3d 50, 61 (2010) (internal quotation marks omitted). “[A]n evidentiary error in a civil case is harmless unless the appellant demonstrates that it is likely that in some material respect the factfinder’s judgment was swayed by the error.” Tesser v.

Bd. of Educ. of City Sch. Dist. of City of New York, 370 F.3d 314, 319 (2d Cir.2004) (internal quotation marks and alterations omitted). “[T]he propriety of comment by counsel in closing argument is best evaluated, in most instances, by the trial judge. Exclusion, even of permissible comment, will generally not warrant granting a new trial unless actual prejudice results.” Enercomp, Inc. v. McCorhill Pub., Inc., 873 F.2d 536, 542 (2d Cir.1989).

Kregler’s challenges to the district court’s evidentia-ry rulings and to its sustainment of opposing counsel’s objections to his counsel’s arguments during summation fail because regardless of whether the district court erred, Kregler has failed to demonstrate that any of the alleged errors affected the jury’s judgment in any material respect. Kregler also argues that the district court erred in granting

summary judgment to Defendanh-Appellees Grogan, Hearn, Schwam, Keenaghan, Naberezny, and the City of New York. This Court reviews the district court’s grant of

summary judgment de novo, construing the evidence in the light most favorable to the non-moving party. Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir.2002). A motion for

summary judgment is appropriately granted when the movant shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). “A fact is ‘material’ when it might affect the outcome of the suit under governing law,” and “[a]n issue of fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir.2007) (internal quotation marks omitted). After reviewing de novo the district court’s decisions and orders granting

summary judgment to each of the Defendant-Appellees listed above, we conclude that the district court correctly granted

summary judgment to each of these Defendant-Appellees because they demonstrated that Kregler failed to raise a genuine issue of material fact in his claims against any of them. We have reviewed Kregler’s remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.