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Karagozian v. Luxottica Retail North America

United States District Court, D. Connecticut

November 23, 2015


          For Ohan Karagozian, Plaintiff: John R. Williams, LEAD ATTORNEY, New Haven, CT.

         For Luxottica Retail North America, Defendant: Patricia E. Reilly, Paul A. Testa, LEAD ATTORNEYS, Littler Mendelson, P.C.- NH, CT, New Haven, CT.


         Victor A. Bolden, United States District Judge.

         Plaintiff, 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.

         Luxoticca 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


         Luxoticca 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.

         While 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.

         A. Mr. Karagozian's Complaints About the Expired Permit

         On 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. § 20-150(c).

         In 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.

         Ms. 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.

         Mr. 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.

         Luxoticca 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 handling." Id.

         Mr. 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.

         On 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.

         B. Mr. Karagozian's Complaints About Inappropriate Duties

         Mr. 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.

         Mr. 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).

         Mr. 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.

         C. Luxoticca's Complaints about Mr. Karagozian's Performance

         Luxoticca 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

         Mr. 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.

         Luxoticca 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.

         Luxoticca 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. ΒΆ 31. Mr. Karagozian ...

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