United States District Court, S.D. New York
August 15, 2005.
NERRY TRAVESSI, Plaintiff,
SAKS FIFTH AVENUE INCORPORATED, Defendant.
The opinion of the court was delivered by: FRANK MAAS, Magistrate Judge
MEMORANDUM DECISION AND ORDER
In this pro se action, plaintiff Nerry Travessi
("Travessi") 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 against Saks with the
New York City Commission on Human Rights ("NYCCHR"). Saks has
moved for summary judgment pursuant to Rule 56 of the Federal
Rules of Civil Procedure. (See Docket No. 31). On January 26,
2005, the parties consented to my exercise of jurisdiction over
this matter for all purposes in accordance with
28 U.S.C. § 636(c). (See Docket No. 30). Pursuant to that authority, and
for the reasons set forth below, the summary judgment motion is
granted. II. Facts
Unless otherwise noted, the following facts are set forth in
the light most favorable to Travessi:
A. Retaliation Claim
Travessi was a full-time Saks employee in the 1970s and from
1984 to 1987, when she took a brief medical leave. (Aff. of Nerry
Travessi, sworn to on Feb. 11, 2005 ("Travessi Aff."), ¶¶ 5, 12).
On April 1, 1987, she filed a complaint against Saks with the
NYCCHR, in which she alleged that Saks had harassed her, denied
her equal terms and conditions of employment, and retaliated
against her by not reinstating her after her medical leave,
because she is from South America and had a disability. (See
id. ¶ 3 & Ex. 1; Decl. of Thomas Catalano, Esq., dated Jan. 21,
2005 ("Catalano Decl."), Ex. C). Saks evidently responded to this
complaint through its in-house counsel. (See Catalano Decl. Ex.
D at 5).
On March 28, 1989, the NYCCHR issued a Determination and Order
finding that there was no probable cause to believe that Saks had
engaged in the discriminatory practices about which Travessi
complained. (Travessi Aff. Ex. 1 (Determination and Order dated
Mar. 28, 1989)). Thereafter, on January 8, 1990, the NYCCHR
vacated its Determination and Order after Travessi complained
that some of her witnesses had not been interviewed. (Id.
(Determination and Order dated Oct. 31, 1994)). Following a
remand and additional interviews of Travessi's witnesses, the NYCCHR once again determined that there was no probable cause to
believe that Saks had discriminated against Travessi. (Id.)
During this period, Travessi also filed a pro se complaint,
based on the same allegations, in the Eastern District of New
York. See Travessi v. Saks Fifth Avenue, No. 92 CV 0504 (EHN)
(SMG) (E.D.N.Y. Aug. 11, 1994); see also Catalano Decl. Ex. G
(Mem. and Order, dated Aug. 11, 1994). The complaint originally
was dismissed "without prejudice to the Plaintiff to re-file her
complaint within one year." (Catalano Decl. Ex. G at 1). Travessi
subsequently requested an additional year to file a new action
because the NYCCHR was continuing to investigate her claim.
(Id.). Although this request was granted, Travessi never
re-filed her complaint. (Id.; Catalano Decl. ¶ 7).
On July 6, 1998, Travessi wrote to the NYCCHR requesting to
have her case reopened because the NYCCHR failed to interview
relevant witnesses. (See Reply Decl. of Thomas Catalano, Esq.,
dated Mar. 4, 2005 ("Reply Decl."), Ex. A). In her letter,
Travessi claimed that she was unable to pursue the matter earlier
because she "had breast surgery and was feeling altogether weak."
In response, the NYCCHR contacted Saks' counsel, Frances
Maloney, Esq., to determine Saks' position. By letter dated
October 2, 1998, Ms. Maloney urged the NYCCHR to deny Ms.
Travessi's request. (Reply Decl. Ex. A). In preparing that
letter, Ms. Maloney apparently never spoke with anyone in Saks'
Human Resources Department, relying instead exclusively upon the documents that
Saks previously had filed in the NYCCHR case. (See Reply Decl.
of Francis Green Maloney, Esq., dated Mar. 2, 2005, ¶¶ 3, 4).
During the 1998 Christmas season, Travessi completed an
application for seasonal employment with Saks, with the
expectation that she would be kept on as a full-time employee
after the Christmas season. (Travessi Aff. ¶ 12). A few days
later, a Saks representative telephoned Travessi, stating that
there were "plenty of" positions available. (Id. ¶¶ 13, 14).
Indeed, the representative told Travessi "please Nerry, hurry up.
We need you. You have priority over other applicants because you
worked with us before. With your experience it would be great. We
give priority to people who worked for us before." (Id. ¶ 14).
The representative also scheduled an interview with Travessi.
(Id. ¶ 13). At the ensuing interview, the Saks representative
received a telephone call, during which she said to the caller,
in substance, "[C]omplaint? Why would she file a complaint
against me? I just met her.'" Thereafter, the Saks representative
advised Travessi that there had been a "mistake," and that were
no available positions after all. (Id. ¶¶ 16, 17, 18).*fn1 Although Travessi's form complaint alleges "national origin
retaliation," (Compl. ¶ 7), the gravamen of her allegations
appears to be that Saks refused to hire her in 1998 in
retaliation for a complaint that she had filed against Saks
eleven years earlier. (See Travessi Aff. ¶ 27). Travessi also
contends that Saks retaliated against her by giving other
potential employers untrue, negative references, thereby
preventing her from working anywhere else. (See id.). She has
provided no details, however, to substantiate this claim.
B. Procedural History
On February 17, 1999, Travessi made a dual filing of her
verified complaint with the NYCCHR and the federal Equal
Employment Opportunity Commission ("EEOC"), claiming that Saks
had unlawfully retaliated against her. (Catalano Decl. Ex. I). As
noted in my earlier Report & Recommendation in this case, the
NYCCHR dismissed Travessi's complaint for lack of probable cause
on December 21, 1999. (See Docket No. 16 (Report and Rec. dated June 30, 2004) at 3).
Thereafter, on April 27, 2000, the NYCCHR reaffirmed that
decision. (Id.). On August 11, 2000, the EEOC issued Travessi a
right-to-sue letter. (Id.).
Thereafter, Travessi's complaint in this action was timely
filed with the Pro Se Office on November 27, 2000. (See Docket
No. 2). Following the close of discovery regarding liability,
Saks filed its motion for summary judgment on January 24 (see
Docket Nos. 31-33); Travessi filed her opposing papers on
February 24 (Docket No. 34); and Saks filed its reply papers on
March 4, 2005 (Docket Nos. 35-36). Accordingly, the motion is
A. Standard of Review
Under Rule 56(c) of the Federal Rule of Civil Procedure,
summary judgment is appropriate only when:
the pleadings, depositions, answers to
interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law. In deciding a motion for summary judgment, the court must "view
the evidence in the light most favorable to the party against
whom summary judgment is sought and . . . draw all permissible
inferences in favor of that party." Fischl v. Armitage,
128 F.3d 50, 55 (2d Cir. 1997). The Court also must accept as true
the non-moving party's evidence, if supported by affidavits or
other evidentiary material. See Kulak v. City of New York,
88 F.3d 63, 70 (2d Cir. 1996). Assessments of credibility, choosing
between conflicting versions of the events, and the weighing of
evidence are matters for the jury, not for the court. Fischl,
128 F.3d at 55. See also Fed.R.Civ.P. 56(e) 1963 advisory
committee's note. Thus, "[t]he court's function is not to resolve
disputed issues of fact but only to determine whether there is a
genuine issue of material fact to be tried." Fischl,
128 F.3d at 55.
To defeat a motion for summary judgment, the non-moving party
cannot merely rely upon allegations contained in the pleadings
that raise no more than "some metaphysical doubt as to the
material facts." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Rather, the nonmoving party
must offer "concrete evidence from which a reasonable juror could
return a verdict in his favor." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986).
The Second Circuit has cautioned that summary judgment is often
inappropriate in cases where the trier of fact will have to delve
into an employer's intent because that intent is an issue as to
which direct evidence is rarely available. See, e.g., Gallo v. Prudential Residential Servs. Ltd. P'ship,
22 F.3d 1219, 1224 (2d Cir. 1994); Patrick v. LeFevre, 745 F.2d 153,
159 (2d Cir. 1984). However, when an employer has explained its
conduct and the plaintiff has offered only conclusory assertions
in opposition, summary judgment may be granted. See, e.g.,
Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) ("To allow a
party to defeat a motion for summary judgment by offering purely
conclusory allegations of discrimination, absent any concrete
particulars, would necessitate a trial in all [discrimination]
Under Title VII, it is illegal for an employer to retaliate
against an employee who has exercised her statutory right to
complain about conduct that she considers discriminatory. See
Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001); see
also Davis v. State Univ. of N.Y., 802 F.2d 638, 642 (2d Cir.
1986) ("A finding of unlawful retaliation is not dependent on the
merits of the underlying discrimination complaint."). To make out
a prima facie case of retaliation, Travessi must show that
(1) she participated in a protected activity, (2) Saks knew of
this activity, (3) she was subjected to an adverse employment
action, and (4) there is a causal connection between the
protected activity and the adverse employment action. See
Cifra, 252 F.3d at 216; Holt v. KMI-Continental, Inc.,
95 F.3d 123, 130 (2d Cir. 1996). The last of these elements can be
established: (a) "directly through evidence of retaliatory
animus directed against a plaintiff by the defendant;" or (b)
"indirectly by showing that the protected activity was followed closely by discriminatory treatment . . .
or through other evidence such as disparate treatment of fellow
employees who engaged in similar conduct. . . ." DeCintio v.
Westchester County Med. Ctr., 821 F.2d 111, 115 (2d Cir. 1987)
(internal citations omitted) (emphasis in original).
Retaliation claims, like other Title VII claims, are evaluated
using the familiar burden-shifting analysis set forth in
McDonnell Douglas v. Green, 411 U.S. 792 (1973). Accordingly,
once a plaintiff has demonstrated a prima facia case of
retaliation, the burden shifts to the defendant to point to a
legitimate, non-retaliatory reason for the disputed action.
Richardson v. New York State Dep't of Corr. Servs.,
180 F.3d 426, 443 (2d Cir. 1999). If the defendant meets this requirement,
the presumption arising out of the prima facie showing drops
out of the case, and the burden of persuasion rests with the
plaintiff, who must establish that the challenged actions were
motivated by discriminatory or retaliatory animus. See Reg'l
Econ. Cmty. Action Program, Inc. v. City of Middletown,
294 F.3d 35, 49, 54 (2d Cir. 2002).
In this case, Travessi alleges that Saks retaliated against her
because it knew that she previously had made complaints to the
NYCCHR. (Travessi Aff. ¶ 3). There is no dispute that the filing
of a complaint with the NYCCHR is a protected activity under
Title VII. Moreover, Saks clearly knew of Travessi's complaint
since its in-house counsel became involved in the proceeding.
Travessi also has shown that she was not rehired, which clearly
is an adverse employment action. See Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 234 (2d Cir. 2000) ("A claim of
refusal to re-hire an individual following the filing of an
employment discrimination charge may be a basis for a claim of
retaliation."); Carr v. Health Ins. Plan of Greater New York,
Inc., No. 99 Civ. 3706 (NRB), 2001 WL 563722, at *2 (S.D.N.Y.
May 24, 2001) (same) (quoting Weissman). Accordingly, Travessi
has satisfied the first three prongs of the required prima
Saks' decision not to rehire Travessi occurred more than eleven
years after the initial filing of her discrimination claim,
(see Travessi Aff. ¶¶ 3, 12), which, in this Circuit, typically
would be far too long a period of time for the Court to assume a
causal connection between the two events. See, e.g.,
Richardson, 180 F.3d at 447 (holding that a two-year gap is
"too wide to support the inference" of retaliation); Smith v.
Principi, No. 01 Civ. 10012 (LMM), 2004 WL 1857582, at *8
(S.D.N.Y. Aug. 19, 2004) (four years between the protected
activity and discriminatory treatment deemed "simply too long" to
prove a causal connection) (citing Hollander v. Am. Cyanamid
Co., 895 F.2d 80, 85-86 (2d Cir. 1990)); Gurry v. Merck & Co.,
Inc., No. 01 Civ. 5659 (RLC), 2003 WL 1878414, at *6 (S.D.N.Y.
Apr. 14, 2003) (fifteen months); Daly v. Presbyterian Hosp.,
No. 98 Civ. 4253 (NRB), 2000 WL 8268, at *6 (S.D.N.Y. Jan 4,
2000) ("a lapse of time of over one year . . . in the absence of
other direct or circumstantial evidence of retaliation, is
insufficient"). Here, however, Travessi still was seeking to
pursue her 1987 retaliation complaint as late as July 1998, only
a matter of months before she sought reemployment at Saks. (See Reply Decl. Ex. A). At the first stage of the
McDonnell Douglas analysis, the Court will assume that this is
sufficient to satisfy the fourth prong of a prima facia
Under the McDonnell Douglas burden-shifting analysis, once
Travessi has established a prima facia case, the burden
shifts to Saks to proffer a legitimate, non-discriminatory reason
for its decision not to rehire her. At this stage, Saks' burden
is "not a demanding one; [it] need only offer such an explanation
for [its] decision." Bickerstaff v. Vassar Coll., 196 F.3d 435,
446 (2d Cir. 1999).
In its papers, Saks has proffered several non-discriminatory
reasons for its failure to hire Travessi. At the outset, between
September 26 and December 5, 1998, Saks received 2,647
applications for seasonal employment. (See Decl. of Debra
McRae, dated Jan. 20, 2005 ("McRae Decl."), ¶ 5; Catalano Decl.
Ex. J (Saks' 1998 Holiday Employment Recap)). From that applicant
pool, Saks hired 185 associates for the 1998 season, only twelve
of whom were hired between December 1 and 10, 1998; most of the
others were interviewed prior to November 30. (Id. ¶¶ 5, 6).
More to the point, Saks notes that Travessi's application was
sloppily completed. (See Catalano Decl. Ex. H; McCrae Decl. ¶
9). Saks notes further that the application reflects an
unexplained twelve-year gap in Travessi's employment history.
(See McCrae Decl. ¶ 8). According to Saks' Vice President of
Human Resources for its Fifth Avenue Store, both of these
problems would have prevented Travessi from being hired to fill one of the few seasonal positions that remained
open at the time of her interview. (Id.). Since neither of
these reasons is discriminatory, Saks has met its burden of
production in this case.*fn3
At the last stage of the McDonnell Douglas analysis, Travessi
must show that Saks' decision not to hire her in 1998 was
motivated by retaliatory animus. To survive summary judgment with
respect to this issue, Travessi must provide "supporting and
opposing affidavits . . . made on personal knowledge, [and] . . .
set forth such facts as would be admissible in evidence."
Fed.R.Civ.P. 56(e). Here, the principal support that Travessi offers
regarding Saks' motivation is the statement of an unidentified
Saks interviewer who allegedly participated in a telephone
conversation with another unidentified Saks employee, who
presumably directed the interviewer not to rehire Travessi. This
proof, which is being offered to prove the truth of the matter
asserted, i.e., that Saks and its employees knew of her 1987
discrimination claim and refused to rehire her as a result of it,
contains two levels of hearsay. See Fed.R. Evid. 801(c)
("Hearsay is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted."). Accordingly, this evidence is inadmissible unless it is either nonhearsay or falls
within one of the recognized hearsay exceptions under the Federal
Rules of Evidence.
Here, the only potential avenues for admissibility appear to be
Rules 801(d)(2)(C) and (D) of the Federal Rules of Evidence,
which relate to admissions by a party opponent. These rules
provide that a statement is not hearsay if
the statement is offered against a party and is . . .
(C) a statement by a person authorized by the party
to make a statement concerning the subject, or (D) a
statement by the party's agent or servant concerning
a matter within the scope of the agency or
employment, made during the existence of the
Fed.R. Evid. 801(d)(2)(C), (D).
To be admissible under Rule 801(d)(2)(C), a statement must be
made by a person authorized by Saks to make that statement. To be
admissible under Rule 801(d)(2)(D), the statement must be made by
a person who had an agency or employment relationship with Saks,
the statement must have been made during the course of this
relationship, and the statement must relate to a matter within
the scope of the person's employment or agency. See Pappas v.
Middle Earth Condo. Ass'n, 963 F.2d 534, 537 (2d Cir. 1992);
Hillert v. Prona v. Ship Mgmt., Inc., No. 01 Civ. 7440 (HBP),
2004 WL 1555159, at *1 (S.D.N.Y. July 12, 2004). "The authority
granted in the agency [or employment] relationship need not
include authority to make damaging statements, but simply the
authority to take action about which the statements relate."
Pappas, 963 F.2d at 538. Also, the declarant need not have
personal knowledge of the subject matter about which he speaks. See United States v. Lauersen, 348 F.3d 329,
340 (2d Cir. 2003) ("[W]e have not required personal knowledge
for statements by a party's agent."), cert. denied,
541 U.S. 1044 (2004); accord Hillert, 2004 WL 1555159, at *2.
In this case, Travessi is relying on the alleged out-of-court
statements of two unidentified Saks employees to prove the
truth of the matters asserted. Because the alleged employees have
not been identified, the Court cannot determine whether (1) they
were authorized by Saks to speak on the subjects alleged, or (2)
their purported statements fell within the scope of their
employment at Saks. Additionally, Travessi has not offered
sufficient circumstantial evidence to enable the Court to resolve
either of these issues. Cf. Pappas, 963 F.2d at 537-39
(finding statement of unnamed employee admissible where there was
sufficient circumstantial evidence of his employment by defendant
ski resort and authority to speak on the subject at issue).
Accordingly, the statements are inadmissable. See Pittman by
Pittman v. Grayson, 149 F.3d 111, 124 (2d Cir. 1998) (statement
of employee flight attendant about "a story that [she had] heard"
was inadmissible because the source of the story was
unidentified); Zaken v. Boerer, 964 F.2d 1319, 1323-24 (2d Cir.
1992) (statement sought to be introduced as admission was
properly excluded where party seeking to introduce it could not
identify the declarant); Evans, 192 F. Supp. 2d 247, 265-66 n.
129 (same) (collecting cases).
The only other proof that Travessi could conceivably offer in
an effort to establish Saks' retaliatory animus relates to the
fact that she was turned down for employment approximately four months after she attempted to
breathe new life into her eleven-year-old NYCCHR claim. However,
even if Saks were shown to have knowledge of that effort, the
evidence would, in all likelihood, be insufficient to establish
the requisite causal link. See, e.g., Hollander,
895 F.2d at 85-86 (holding that four months is too long to prove a causal
connection); Pelligrino v. County of Orange,
313 F.Supp. 2d 303, 317 (S.D.N.Y. 2004) (McMahon, J.) ("A four month temporal
gap . . . is considered quite weak temporal correlation in this
Accordingly, because Travessi has failed to adduce any
admissible evidence from which a finder of fact could reasonably
infer that Saks' failure to hire her was attributable to her
decision to engage in a protected activity, Saks is entitled to
For the foregoing reasons, Saks' motion for summary judgment
(Docket No. 31) is granted, and the Clerk of the Court is
respectfully requested to close this case.