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United States District Court, S.D. New York

June 30, 2004.


The opinion of the court was delivered by: FRANK MAAS, Magistrate Judge

[fn*] This Report and Recommendation was prepared with the assistance of Heather Burke, a first-year student at Fordham Law School.

I. Introduction

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. 15).

  III. Discussion

  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 Cir. 1996).

  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 Cir. 2001).

  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.

  IV. Conclusion

  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 and Recommendation

  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), 72(b).

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