Toombs v. New York City Housing Authority ( 2020 )

19-3109
Toombs v. New York City Housing Authority
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND
IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS
COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR
AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 23rd day of September, two thousand twenty.
PRESENT: DENNIS JACOBS,
GERARD E. LYNCH,
RICHARD J. SULLIVAN,
Circuit Judges.
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DISIREE TOOMBS,
Plaintiff-Appellant,
v. No. 19-3109-cv
NEW YORK CITY HOUSING AUTHORITY,
Defendant-Appellee,
JOHN LOPEZ, in his official and individual capacity,
JOHN and JANE DOES 1-10, and XYZ CORP. 1-10,
Defendants.
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FOR APPELLANT: RUDY ARTIN DERMESROPIAN,
Rudy A. Dermesropian, LLC, New
York, NY.
FOR APPELLEE: JANE LIPPMAN, New York, NY.
Appeal from a judgment of the United States District Court for the Southern
District of New York (Laura Taylor Swain, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Plaintiff-Appellant Disiree Toombs appeals from an order of the Southern
District of New York (Swain, J.), granting summary judgment in favor of her
former employer, the New York City Housing Authority (“NYCHA”), on
Toombs’s claims of race discrimination, retaliation, and hostile work environment
under Title VII of the Civil Rights Act of 1964. We assume the parties’ familiarity
with the underlying facts, procedural history of the case, and the issues on appeal,
to which we refer only as necessary to explain our decision.
We review the district court’s grant of summary judgment de novo,
“construing the evidence in the light most favorable to the non-moving party and
drawing all reasonable inferences in her favor.” Mihalik v. Credit Agricole
Cheuvreux N. Am., Inc., 715 F.3d 102, 108 (2d Cir. 2013).
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I. Toombs’s Race Discrimination Claim
Toombs argues that she was discharged on the basis of her race, a claim we
analyze under the three-step burden shifting analysis established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). See Weinstock v. Columbia Univ.,
224 F.3d 33, 42 (2d Cir. 2000). To establish a prima facie case of discrimination, a
plaintiff must show that she (1) “is a member of a protected class,” (2) “was
performing [her] duties satisfactorily,” and (3) “was discharged,” and that (4) her
“discharge occurred under circumstances giving rise to an inference of
discrimination on the basis of [her] membership in the protected class.” Graham v.
Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000). The employer must then offer a
legitimate, nondiscriminatory reason for its actions, which the plaintiff may show
is a pretext for prohibited discrimination. See Reeves v. Sanderson Plumbing Prod.,
Inc., 530 U.S. 133, 143 (2000).
Toombs has not established a prima facie case of racial discrimination. Her
claim mainly rests on her allegation that Superintendent Lopez said to a group of
Black and Hispanic workers, “I want you out of here so I can bring in my people.”
Toombs Br. at 16. But, as the district court found, Toombs did not hear this
statement directly, and was unable to provide any admissible evidence that it was
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ever made. See Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 71 (2d Cir.
2000) (finding that “while second-hand comments may be relevant, a district court
deciding a summary judgment motion must be provided with admissible
evidence demonstrating the truth of the non-movant’s assertions”). Here, a
supervisor at the Riis Houses testified that, at some point, she had heard some
unidentified people say that Lopez made statements of “that nature prior to me
getting there.” App’x at 297. This vague testimony, however, is both inadmissible
hearsay and touched only on comments made over a year before Toombs was
terminated. It therefore does not support Toombs’s prima facie case. See Tomassi
v. Insignia Fin. Grp., Inc., 478 F.3d 111, 115 (2d Cir. 2007) (“[T]he more remote and
oblique the remarks are in relation to the employer’s adverse action, the less they
prove that the action was motivated by discrimination.”), abrogated in part on other
grounds by Gross v. FBL Fin. Servs. Inc., 557 U.S. 167 (2009).
The remainder of Toombs’s claim rests on broad, vague allegations
regarding her former colleagues. For instance, Toombs alleged that, at the time
Lopez started, 75% of the caretakers at Riis Houses were Black, and that the
number decreased to 50% – although she also testified that she did not know the
racial composition of the workforce. Setting aside her contradictory assertions,
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Toombs submitted no actual evidence supporting that accusation. She never
sought documents concerning the number of employees during discovery, nor did
she file any motions complaining of the failure to disclose such documents. See
Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (noting that a plaintiff “may not rely
on mere speculation or conjecture as to the true nature of the facts to overcome a
motion for summary judgment” (citation omitted)). Defendants, by contrast,
submitted evidence showing that while Lopez was Superintendent, at least three
caretakers who identify as Black left Riis Houses because they were promoted; of
the three caretakers who were terminated, one was Hispanic; and five caretakers
who identify as Black started working at Riis Houses.
Our conclusion is not upset by Toombs’s examples of perceived unfair
treatment. A plaintiff may, of course, support her prima facie case “by
demonstrating that similarly situated employees of a different race were treated
more favorably,” but those employees must be “similarly situated in all material
respects.” Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999)
(internal quotation marks omitted). Toombs has failed to demonstrate as much.
While she contends that Hispanic caretakers were given more overtime hours than
Black caretakers, she provides no evidence that this was in fact true, nor does she
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show that the relevant caretakers were “similarly situated” to her such that it
would give rise to an inference of discrimination. And while she points to the
adverse treatment of two specific coworkers, she does not connect that treatment
to any discriminatory intent.
Moreover, Defendants have shown a legitimate, non-pretextual reason for
Toombs’s termination – her extensive record of inferior performance and
misbehavior, including her failure to satisfactorily complete her probation.
Toombs suggests that several years’ worth of misbehavior reports were false, but
she has not provided any evidence to bolster her bare allegation. And although
she submitted a CD showing photos that she contends support her view that she
was a satisfactory employee, she has not explained how they do. Conjecture and
“conclusory allegations or denials” are just not enough. See Hicks, 593 F.3d at 166
(citation omitted).
II. Toombs’s Retaliation Claim
Toombs asserts that she was fired for complaining about racially
discriminatory conduct. Title VII makes it unlawful “for an employer to
discriminate against any” employee because she opposed a practice made
unlawful by Title VII or participated in a Title VII investigation or proceeding. 42
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U.S.C. § 2000e–3(a). Retaliation claims are also analyzed under the burden-
shifting analysis provided by McDonnell Douglas. A “plaintiff alleging retaliation
in violation of Title VII must show that retaliation was a ‘but-for’ cause of the
adverse action, and not simply a ‘substantial’ or ‘motivating’ factor in the
employer’s decision.” Kwan v. Andalex Grp. LLC, 737 F.3d 834, 845 (2d Cir. 2013)
(citation omitted). She can do so “by demonstrating weaknesses, implausibilities,
inconsistencies, or contradictions in the employer’s proffered legitimate,
nonretaliatory reasons for its action.” Id. at 846.
Even if we assume that Toombs has established a prima facie case of
retaliation, Defendants have offered a non-retaliatory reason for her dismissal –
one that Toombs has not shown to be pretextual. Again, Toombs broadly alleges
that the complaints against her were falsified. But there is absolutely nothing in
the record supporting this, nor is there anything in the record indicating Lopez’s
retaliatory intent beyond a supervisor’s inadmissible testimony about rumors that
Lopez had made comments of a discriminatory “nature prior to [the supervisor]
getting there.” App’x at 297. This is insufficient. 1
1 To the extent Toombs argues that her disciplinary citations were themselves retaliatory, her
retaliation claim still fails. As the district court carefully explained, Toombs had no direct
evidence that those who issued the citations knew about her complaints – and her citations either
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III. Toombs’s Hostile Work Environment Claim
Finally, Toombs contends that her employer created a hostile work
environment, in violation of Title VII. To prove this claim, she “must produce
enough evidence to show that ‘the workplace [was] permeated with
discriminatory intimidation, ridicule, and insult, that [was] sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.’” Rivera v. Rochester Genesee Reg’l Transp. Auth., 743 F.3d
11, 20 (2d Cir. 2014) (quoting Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 102 (2d
Cir. 2010)). Because Toombs has not provided any admissible evidence that would
allow a jury to infer anything even close to that, she cannot show that she suffered
from a hostile work environment under Title VII.
* * *
We have considered the rest of Toombs’s arguments and conclude that they
are without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O=Hagan Wolfe, Clerk of Court
came several months after she complained about race or involved what Toombs admitted to be
her own misconduct.
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