United States District Court, S.D. New York
June 30, 2004.
NERRY TRAVESSI, Plaintiff,
SAKS FIFTH AVENUE INCORPORATED, Defendant.
The opinion of the court was delivered by: FRANK MAAS, Magistrate Judge
REPORT AND RECOMMENDATION TO THE HONORABLE GEORGE B.
[fn*] This Report and Recommendation was prepared with the
assistance of Heather Burke, a first-year student at Fordham Law
In this pro se suit, plaintiff Nerry Travessi
("Travessi")*fn1 alleges that Saks Fifth Avenue Incorporated
("Saks"), retaliated against her, in violation of Title VII of
the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e,
et seq., by refusing her request for seasonal employment once
it realized that she previously had filed a complaint with the
New York City Commission on Human Rights ("NYCCHR"). Saks has
moved to dismiss the Complaint, pursuant to Fed.R.Civ.P.
12(h)(3), for lack of subject matter jurisdiction. (See Docket
No. 10). For the reasons set forth below, the motion should be
denied. II. Facts
With one key exception noted below, the relevant facts are
undisputed and may be summarized as follows:
A. The Retaliation Claim
Travessi was a full-time Saks employee from 1979 to 1982 and
from 1984 to 1987. (Aff. of Nerry Travessi, sworn to on May 25,
2001 ("Travessi Aff."), ¶ 2). On April 1, 1987, she filed a
complaint against Saks with the NYCCHR. (See id. ¶ 7 & Ex.
3). The outcome of that complaint is not described in her papers.
During the 1998 Christmas season, Travessi completed an
application for seasonal employment with Saks. (Id. ¶ 2). A few
days later, a Saks representative telephoned Travessi, and
informed her that there were positions available, for which she
would be given priority due to her prior work experience at Saks.
(Id. ¶¶ 3, 4). Indeed, the representative told Travessi "please
Nerry, hurry up. We need you." (Id. ¶ 4). During a subsequent
interview, the Saks representative received a telephone call,
after which she advised Travessi that there had been a "mistake"
and that no positions were available. (Id. ¶ 6).
Although Travessi's form complaint alleges "national origin
retaliation," (Compl. ¶ 7), her grievance appears to be that Saks
allegedly refused to hire her in 1998 simply because she had
filed a complaint against Saks eleven years earlier. (See
Compl. ¶ 8). Travessi also contends that Saks retaliated against her by
giving other potential employers untrue, negative references.
(Travessi Aff. Ex. 1).
B. Procedural History
On January 28, 1999, Travessi filed a verified complaint with
the NYCCHR, in which she claimed that Saks had unlawfully
retaliated against her. (Id. Ex. 2). On December 21, 1999,
after an investigation, the NYCCHR dismissed this complaint for
lack of probable cause. (Id. Ex. 3). Although Travessi
requested further review on January 13, 2000, the NYCCHR affirmed
its earlier decision and dismissed her complaint on April 27,
2000. (See id. Exs. 4, 5).
On July 3, 2000, the federal Equal Employment Opportunity
Commission ("EEOC") sent Travessi and Saks a letter, which stated
that the EEOC had approved Travessi's request to withdraw her
complaint ("Withdrawal Letter"). (Id. Ex. 6). Saks contends
that Travessi's voluntary withdrawal of her complaint against
Saks sounds the death knell for this suit because Travessi failed
to exhaust her administrative remedies. (See Saks' Mem. of L.
("Saks Mem.") at 4-7). Travessi disagrees. She states in her
affidavit that she "never requested that [the] charge with the
EEOC be withdrawn, nor did [she] sign any papers for the
withdrawal of the charge." (Travessi Aff. ¶ 11). After receiving
the Withdrawal Letter, Travessi called the EEOC, which advised
her that it had been sent in error and that a right to sue letter
would be issued. (See id. ¶¶ 13, 15). The EEOC sent Travessi
that right to sue letter on August 11, 2000. (Id. Ex. 7). After receiving the right to sue letter, Travessi commenced
this action. Her complaint was received by the Pro Se Office of
this Court on October 3, 2000; thereafter, it was filed on
November 27, 2000. (See Decl. of Richard Granofsky, Esq., dated
April 13, 2001, Ex. A). Saks' motion to dismiss for lack of
subject matter jurisdiction was filed on April 13, 2001. (See
Docket No. 10). The matter was referred to me nearly three years
later to report and recommend on the motion. (See Docket No.
A. Standard of Review
Saks has moved to dismiss the Complaint, pursuant to
Rule 12(h)(3), for lack of subject matter jurisdiction. Rule 12(h)(3)
motions are subject to the same standards as motions to dismiss
for want of subject matter jurisdiction brought pursuant to
Rule 12(b)(1). See Peterson v. Continental Airlines, Inc.,
970 F. Supp. 246, 248-249 (S.D.N.Y. 1997); International Paving Sys.,
Inc. v. Van-Tulco, Inc., 866 F. Supp. 682, 688 n. 2 (E.D.N.Y.
1994). Accordingly, I have construed Saks' motion as a motion to
dismiss pursuant to Rule 12(b)(1).
Under Rule 12(b)(1), a case is properly dismissed for lack of
subject matter jurisdiction when the court lacks the statutory or
constitutional authority to adjudicate it. See Fed.R.Civ.P.
12(b)(1). In resolving a motion to dismiss for lack of subject
matter jurisdiction under Rule 12(b)(1), a district court is not
limited to the face of the complaint and may consider evidence
outside the pleadings. See Phifer v. City of New York, 289 F.3d 49, 55 (2d Cir. 2002); Robinson v. Gov't of Malaysia,
269 F.3d 133, 140-41 (2d Cir. 2001); Kamen v. American Tel. & Tel.
Co., 791 F.2d 1006, 1011 (2d Cir. 1986). Ultimately, the
plaintiff has the burden of proving by a preponderance of the
evidence that the court has subject matter jurisdiction to hear
the plaintiff's claims. Makarova v. United States,
201 F.3d 110, 113 (2d Cir. 2000); Malik v. Meissner, 82 F.3d 560, 562 (2d
Additionally, when a plaintiff proceeds pro se, the complaint
must be held "to less stringent standards than formal pleadings
drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972)
(per curiam). This Court, therefore, has an obligation to read
pro se pleadings liberally and "interpret them to raise the
strongest arguments that they suggest." Burgos v. Hopkins,
14 F.3d 787, 790 (2d Cir. 1994). In cases where the plaintiff
alleges a violation of civil rights, such as this one, this
principle is particularly applicable. See, e.g., Weinstein
v. Albright, 261 F.3d 127, 132 (2d Cir. 2001); Sykes v. James,
13 F.3d 515, 519 (2d Cir. 1993); Branum v. Clark, 927 F.2d 698,
705 (2d Cir. 1991).
B. Title VII
Before a federal suit can be filed in cases alleging
discrimination under Title VII, an administrative charge must be
filed with the EEOC. See 42 U.S.C. § 2000e-5(e)(1); see also
Fitzgerald v. Henderson, 251 F.3d 345, 358-59 (2d Cir. 2001).
In deferral states, such as New York, that have a fair employment
practice law, an employee's complaint must first be filed with the state agency
empowered to act against unlawful employment practices. See
42 U.S.C. § 2000(e)-5(c).*fn2 The subject matter jurisdiction
of the EEOC to investigate a claim and issue a notice of right to
sue vests only after the aggrieved party has filed with the state
agency and given that agency a chance to resolve the dispute.
Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756-57 (1979); Walsh
v. Lincoln Sav. Bank, FSB, No. 93 Civ. 1101 (LLS), 1995 WL
66639, at *1 (S.D.N.Y. Feb. 17, 1995). The court's jurisdiction
vests only after the EEOC has issued the plaintiff a right to sue
letter. See 42 U.S.C. § 2000(e)-5(f).*fn3 A plaintiff's failure to exhaust all of these administrative remedies deprives
the courts of subject matter jurisdiction. See Legnani v.
Alitalia Linee Aerree Italiane, S.P.A., 274 F.3d 683, 686 (2d
There is no question that Saks would be entitled to the
dismissal of Travessi's complaint if she withdrew her EEOC
complaint before the EEOC issued her a right to sue letter. See
Doe v. Odili Technologies, Inc., No. 3:96CV1957, 1997 WL
317316, at *5 (D.Conn. May 25, 1997) (exhaustion requirement not
satisfied because plaintiff withdrew her complaint); Connelly v.
West, No. 98 Civ. 6924 (RCC), 2001 WL 102350, at *5 (S.D.N.Y.
Feb. 7, 2001) (same); see also Brown v. City of New York,
869 F. Supp. 158, 170-171 (S.D.N.Y. 1994) (a request to withdraw
charges "mistaken or otherwise" removes jurisdiction from the
court). In this case, however, Travessi has stated under oath
that she never withdrew her EEOC complaint, and was advised by
the EEOC that the July 3, 2000 letter to the contrary was a
clerical error. (See Travessi Aff. ¶¶ 11, 13-15). Moreover, her
version of these events is consistent with the fact that the EEOC
issued her a right to sue letter after she called to complain
about the EEOC's mistake. Saks' contention that the right to sue
letter, and not the Withdrawal Letter, was erroneously issued is
sheer conjecture on its part.
For the foregoing reasons, Saks' motion to dismiss for lack of
subject matter jurisdiction should be denied. V. Notice of Procedure for Filing of Objections to this Report
The parties shall have ten days from the service of this Report
and Recommendation to file written objections pursuant to
28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil
Procedure. See also Fed.R.Civ.P. 6(a) and (e). Any such
objections shall be filed with the Clerk of the Court, with extra
copies delivered to the chambers of the Honorable George B.
Daniels, at the United States Courthouse, 40 Centre Street, New
York, New York 10007, to the chambers of the undersigned, at the
United States Courthouse, 500 Pearl Street, New York, New York
10007, and to any opposing parties. Any requests for an extension
of time for filing objections must be directed to Judge Daniels.
The failure to file timely objections will result in a waiver of
those objections for purposes of appeal. See Thomas v. Arn,
474 U.S. 140 (1985); Frank v. Johnson, 968 F.2d 298, 300 (2d
Cir. 1992); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e),