In Toombs v. New York City Housing Authority, 2020 WL 5650423 (2d Cir. Sept. 23, 2020) (Summary Order), the court, inter alia, affirmed the dismissal of plaintiff’s race discrimination claim asserted under Title VII of the Civil Rights Act of 1964.
After summarizing the law, the court issued the following explanation as to plaintiff’s prima facie case:
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 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. …
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, 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 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.
The court found that defendants showed a legitimate, non-pretextual reason for plaintiff’s termination; while plaintiff contended that misbehavior reports were false, she did not produce any evidence to support this “bare allegation.”