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TRAVESSI v. SAKS FIFTH AVENUE INCORPORATED

August 15, 2005.

NERRY TRAVESSI, Plaintiff,
v.
SAKS FIFTH AVENUE INCORPORATED, Defendant.



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

MEMORANDUM DECISION AND ORDER

I. Introduction

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." (Id.).

  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 ...


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