United States District Court, D. Connecticut
Ohan Karagozian, Plaintiff: John R. Williams, LEAD ATTORNEY,
New Haven, CT.
Luxottica Retail North America, Defendant: Patricia E.
Reilly, Paul A. Testa, LEAD ATTORNEYS, Littler Mendelson,
P.C.- NH, CT, New Haven, CT.
ON THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
A. Bolden, United States District Judge.
Ohan Karagozian, has sued his former employer, Luxottica
Retail North America (" Luxoticca" ), alleging that
he was terminated in retaliation for engaging in certain
kinds of protected speech. Am. Compl., ECF No. 11. First, he
claims that he was terminated for complaining about unlawful
activity to his supervisors, the Connecticut Department of
Public Health, and the Board of Examiners for Optometrists in
violation of Connecticut's whistleblower statute,
Connecticut General Statutes section 31-51m. Compl. at Count
One, ECF No. 11. Second, he alleges that he was terminated
for engaging in speech on matters of public concern protected
by the First Amendment of the U.S. Constitution and sections
3, 4, and 14 of the Connecticut Constitution, in violation of
Connecticut General Statutes section 31-51q. Compl. at Count
Two, ECF No. 11. To address these alleged violations of law,
Mr. Karagozian seeks compensatory and punitive damages,
reinstatement to his former position, as well as costs and
attorney's fees. Id. at 7.
has moved for summary judgment on both of his claims.
Def.'s Mot. for Summ. J., ECF No. 46. For the reasons
that follow, the motion is GRANTED IN PART and DENIED IN PART
STATEMENT OF FACTS
hired Mr. Karagozian to work as a licensed optician at a
Sears Optical store in Waterford, Connecticut in September
2012. Def.'s Local Rule 56(a)1 Stmt. ¶ 1, ECF No.
48. In this position, he filled prescriptions for eyeglasses,
and fitted, sold, and repaired eyeglasses. Id.
¶ 4. He was supervised by the store's manager, Kira
Arroyo, who in turn was supervised by Regional Sales Manager
Amy Kaufman. Id. ¶ ¶ 2, 6.
employed by Luxoticca, Mr. Karagozian's complained about
two aspects of its business that form the basis for this
lawsuit. First, he complained both internally and to the
Connecticut Department of Public Health that the store was
operating with an expired permit. Second, he complained to
his supervisors and the Board of Examiners for Optometrists
that he was asked to perform duties that were illegal for a
licensed optician to perform under Connecticut law.
Mr. Karagozian's Complaints About the Expired
September 24, 2012, Mr. Karagozian told Ms. Arroyo that the
optical permit posted in the store had expired on September
1, 2012. Id. ¶ ¶ 5-6; Karagozian Dep.
44:13-45:1. He was concerned about the permit because he
understood that he could have his license revoked and be sent
to jail for working in a store with an expired permit.
Def.'s Local Rule 56(a)1 Stmt. ¶ 9. Under
Connecticut General Statutes section 20-150(a), "
optical glasses or kindred products or other instruments to
aid vision" may only be sold in a " registered
optical establishment." To register, a store " may
apply to the Department of Public Health" for " an
optical selling permit." Conn. Gen. Stat. § 20-151.
The permit " shall be conspicuously posted" in the
store that holds it. Id. A violation of this permit
requirement is an unfair trade practice. Conn. Gen. Stat.
response to Mr. Karagozian's complaint about the expired
permit, Ms. Arroyo followed up with Ms. Kaufman, who
contacted Luxoticca's legal department. Def.'s Local
Rule 56(a)1 Stmt. ¶ ¶ 6-7. The legal department
indicated that Luxoticca had applied to renew the permit and
would reach out to determine the status of that renewal.
Id. ¶ 7.
Arroyo did not convey to Mr. Karagozian the actions she took
to follow up on his concerns. He asked Ms. Arroyo about the
status of the permit " a week or two" after his
initial inquiry, and both sides agree that she told him, in
vague terms, that Luxoticca was " working on it."
Id. ¶ ¶ 8, 12. Ms. Kaufman also contacted
him by phone at an unknown later date and told him that the
company would take care of the issue. Id. ¶ 10.
Karagozian continued to ask about the permit because he was
not sure what precisely the company was doing to resolve the
situation. Id. ¶ ¶ 12-13; see
also Karagozian Dep. 47:8-17, 70:2-17. On October 11,
2012, Mr. Karagozian sent a reminder e-mail to Ms. Arroyo
about the permit. Def.'s Local Rule 56(a)1 Stmt. ¶
14. On November 19 and November 20, 2012, Mr. Karagozian
followed up again on the status of the permit by e-mail with
Ms. Arroyo and Ms. Kaufman. Id. ¶ ¶ 15-16.
claims that, on November 26, 2012, Ms. Kaufman explained to
Mr. Karagozian that the company had applied to renew the
permit and that the legal department was in the process of
determining the status of that application. Id.
¶ 17; Kaufman Decl. ¶ 13. Both sides also agree
that Mr. Karagozian sent an e-mail to Ms. Kaufman on November
26, 2012 indicating that he was glad she " clarified
everything today" and apologizing for " being
overly concerned for no apparent reason." Def.'s Ex.
6, E-mail dated 11/26/2012. In the e-mail Mr. Karagozian also
noted that " [t]he idea that the valid permit itself was
not on display is, as you said, a matter I shouldn't be
concerned about and that this is a matter that you're
Karagozian denies that anyone told him about the request for
renewal. Pl.'s Local Rule 56(a)2 Stmt. ¶ 17, ECF No.
50-2. He testified that he sent the e-mail on November 26,
2012 because he feared he would lose his job but also that
its contents were accurate. Karagozian Dep. 50:19-51:2. He
indicates that the tone of his conversations with Ms. Kaufman
about the permit was " agitated" and that her tone
" led him to believe" that he would lose his job if
he continued to complain about the permit. Pl.'s
Counterstmt. ¶ ¶ 2-6, ECF No. 50-2; Karagozian Dep.
46:16-47:3. He also contends that Ms. Arroyo told him at some
unknown date after his meeting with Ms. Kaufman that he would
be fired if he continued to " bother" supervisors
about the permit. Pl.'s Counterstmt. ¶ 5; Karagozian
Dep. 47:5-7, 67:17-68:8. Luxoticca has denied that Ms. Arroyo
made this statement but has not introduced any evidence
indicating that it did not happen.
November 26, 2012, the same day as his meeting with Ms.
Kaufman, Mr. Karagozian also sent an e-mail to the
Connecticut Department of Public Health expressing concerns
about the permit. Def.'s Local Rule 56(a)1 Stmt. ¶
20; Pl.'s Counterstmt. ¶ 7; Karagozian Dep.
64:11-65:1. The store received the renewed permit and began
displaying it in mid-January 2013. Def.'s Local Rule
56(a)1 Stmt. ¶ 21.
Mr. Karagozian's Complaints About Inappropriate
Karagozian also claims that Luxoticca required him to act as
an assistant to the licensed optometrist at its store, in
violation of state law. Id. ¶ 22-23; Pl.'s
Counterstmt. ¶ 10; Karagozian Dep. 78:23-79:14. The
allegedly inappropriate duties included ringing up optometric
fees, answering incoming calls to schedule appointments with
the doctor, responding to insurance inquiries, and receiving
and collecting information from patients before their
optometric exams. Karagozian Dep. 80:21-81:4; Def.'s Ex.
9, Letter dated 3/27/2013. Mr. Karagozian also testified that
he was asked to help a doctor put contact lenses in a
patient's eyes in September 2012, which he also believed
was not an appropriate duty for a licensed optician under
Connecticut law. Karagozian Dep. 85:1-10.
Karagozian contends that requiring him to perform these tasks
violated a Consent Order prohibiting licensed opticians to
act as " optometric assistants" under Connecticut
General Statutes section 20-138a(b). Pl.'s Ex. 3, Consent
Order at 2-3. Section 20-138a prohibits the practice of
optometry without a license but allows for the delegation of
" services" to " a trained optometric
assistant" or " an optometric technician," so
long as those services are performed under the licensed
optometrist's supervision. Conn. Gen. Stat. §
20-138a(a). A violation of this law is punishable as a class
D felony. Conn. Gen. Stat. § 20-138a(b).
Karagozian complained in September and October 2012 about
these work assignments to both Ms. Arroyo and Ms. Kaufman.
Pl.'s Counterstmt. ¶ 11; see also Pl.'s
Exs. 6, 7, E-mails dated 10/11/2012 and 9/20/2012; Karagozian
Dep. 84:6-13. Mr. Karagozian also complained externally to
the Board of Examiners for Optometrists about the work he
performed on March 27, 2013. Def.'s Ex. 9, Letter dated
3/27/2013. In addition, he testified that he was concerned
that performing these duties could jeopardize his license but
that he performed them because he " want[ed] to get a
paycheck." Karagozian Dep. 86:11-87:1.
Luxoticca's Complaints about Mr. Karagozian's
had three complaints about Mr. Karagozian's performance.
First, while employed by Luxoticca, Mr. Karagozian removed
the licenses of two other opticians that were hanging on the
store's wall in late October or early November 2012.
Def.'s Local Rule 56(a)1 Stmt. ¶ 25. Both sides
agree that opticians are legally required to display their
licenses in the store in which they work. Id. ¶
24. They also both agree that the opticians whose licenses
had been removed were working in the store at the time and
were upset about the removal of their licenses. Id.
¶ 26; Karagozian Dep. 55:22-56:7
Karagozian contends that he removed the licenses because he
believed the associates did not work at the store and that he
placed them in an envelope by the cash register. Pl.'s
Counterstmt. ¶ 8; Karagozian Dep. 52:1-16. He also
claims that he told Ms. Arroyo he was doing so and that she
had no objection. Pl.'s Counterstmt. ¶ 9.
claims that Mr. Karagozian told Ms. Kaufman that he had
thrown the licenses away and that he had done so because he
did not know whether the opticians worked at the store.
Def.'s Local Rule 56(a)1 Stmt. ¶ 28. Ms. Kaufman
contends that Mr. Karagozian admitted throwing the permits
away in a meeting she had with him at the end of December
2012, but Mr. Karagozian denies making this admission at any
time. Karagozian Dep. 51:10-12, 55:8-12, 62:12-63:2; Kaufman
Decl. ¶ 17; Pl.'s Local Rule 56(a)2 Stmt. ¶ 28.
also claims that customers complained about Mr. Karagozian on
several occasions during his employment. Def.'s Local
Rule 56(a) Stmt. ¶ ¶ 29-32; see also
Def.'s Ex. 8, Customer Complaints. The complaints include
allegations that Mr. Karagozian indicated that the offer a
customer asked about was only for " welfare people"
and that he charged the same customer for extras without
asking whether she wanted them. Def.'s Local Rule 56(a)1
Stmt. ¶ 30. Separately, another customer complained that
Mr. Karagozian did not offer him assistance promptly, asked
him whether a dog chewed the temple tips of his glasses, and
failed to replace the temple tips. Id. ¶ 31.
Mr. Karagozian ...