Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


United States District Court, S.D. New York

August 15, 2005.


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


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 papers on March 4, 2005 (Docket Nos. 35-36). Accordingly, the motion is fully submitted.*fn2

  III. Discussion

  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] cases.").

  B. Retaliation

  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 facia showing.

  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 retaliation case.

  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 relationship[.]
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 Circuit.").

  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 summary judgment.

  IV. Conclusion

  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.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.