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 
4

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 burdenshifting 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.