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Karagozian v. Sam's East, Inc.

United States District Court, D. Connecticut

August 10, 2016

OHAN KARAZOGIAN, Plaintiff,
v.
SAM’S EAST, INC., Defendant.

          MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT

          WARREN W. EGINTON SENIOR UNITED STATES DISTRICT JUDGE

         In this action, plaintiff Ohan Karazogian alleges that defendant Sam’s East, Inc.’s decision not to hire him violated the Connecticut Fair Employment Practices Act (“CFEPA”).[1] Defendant has filed a motion for summary judgment on the complaint in its entirety. For the following reasons, the motion for summary judgment will be granted.

         BACKGROUND

         In support of the motion for summary judgment, the parties have submitted statements of undisputed facts with supporting exhibits. Plaintiff has admitted all of the facts stated in defendant’s statement of facts filed pursuant to Local Rule of Civil Procedure 56(a)(1).

         Between 1989 to 1993, plaintiff, who is of Armenian/Bulgarian descent, was incarcerated based on his felony conviction for cocaine distribution. He has a Connecticut optician license and worked as an optician at Luxottica from June 2012 until February 2012.

         Defendant is a wholly-owned subsidiary of Wal-Mart Stores, Inc.

         In March 2013, plaintiff applied for a part-time licensed optician position in Health and Wellness at defendant’s store in Orange, Connecticut. He had spoken with Steven Canada, the optical manager, who directed him to apply online for the opening in the Orange store.

         On March 14, 2013, Canada and the store manager, Frank Engel, interviewed plaintiff. Plaintiff maintains that the interview included a brief discussion of heritage.

         Engel extended plaintiff an offer of employment that was conditional upon completion of a successful drug test and background check as required by Wal-Mart. At the time relevant to this action, Wal-Mart had a policy not to hire for its Health and Wellness department an individual who had been convicted of possession with intent to distribute controlled substances. Wal-Mart adopted this policy after the United States Drug Enforcement Agency issued regulations that impose certain restrictions on persons that dispense or have access to controlled substances. See 21 C.F. R. § 1301.76(a).

         In accordance with the Wal-Mart background check process, plaintiff completed a background check authorization form. Plaintiff disclosed that he had a felony conviction for “possession w/intent.” An outside vendor, General Services, Inc. (“GIS”), conducted the background check on plaintiff. On March 19, 2013, GIS sent plaintiff a letter, notifying him that its report contained “information that is likely to have an adverse effect on your ability to obtain employment with Wal-Mart.” The letter enclosed the background report, which included a designation of plaintiff as “Non-Competitive.”[2]

         On March 19, 2013, GIS also notified Cynthia LoRusso, the Personnel and Training Coordinator at Sam’s Club, that it had completed the background check and designated plaintiff as “Non-Competitive.” On March 27, GIS notified plaintiff by letter that his conditional offer was rescinded. Plaintiff called the telephone number provided in the letter and was informed that his offer was rescinded due to his criminal conviction.

         In April 2013, defendant filled the licensed optician position with a woman who was 63 years old and had been cleared by the background check. In May 2013, defendant hired a woman, whom plaintiff alleges was 43 years old and of Hispanic descent, to fill a non-licensed optician position. Plaintiff had not applied for this position.

         DISCUSSION

         A motion for summary judgment will be granted where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden is on the moving party to demonstrate the absence of any material factual issue genuinely in dispute. American International Group, Inc. v. London American International Corp., 664 F.2d 348, 351 (2d Cir. 1981). In determining whether a genuine factual issue exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). "Only when ...


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