RULING ON THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
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 whistle-blower 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
I. STATEMENT OF FACTS
Luxoticca hired Mr. Karagozian to work as a licensed optician at a Sears- Optical store in Waterford, Connecticut in September 2012. Defi’s Local Rule 56(a)l Stmt. ¶ 1, EOF No. 48. In this position, he filled prescriptions for eyeglasses, and fitted, sold, and repaired eyeglasses.'M-¶ 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. Kara-gozian’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)l 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(a). 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)l 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. Kara-gozian 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. Defi’s Local Rule 56(a)l Stmt. ¶ 14. On November 19 and November 20, 2012, Mr. Karagozian followed up again on the
Luxoticca claims that, on November 26, 2012, Ms. Kaufman explained to Mr. Kara-gozian 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 tpday” and apologizing for “being overly concerned for no apparent reason.” Def.’s Ex. 6, E-mail dated 11/26/2012. In the email 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 rénewal. PL’s Local Rule 56(a)2 Stmt. ¶ 17, EOF 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; Karago-zian 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. Kara-gozian also sent an e-mail to the Connecticut Department of Public Health expressing concerns about the permit. Def.’s Local Rule 56(a)l 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)l Stmt. ¶ 21..
B. Mr. Karagozian’s Complaints About Inappropriate Duties
Mr: Karagozian also claims that Luxotic-ca 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 them 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. Karagozi-an 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).
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 opticiáns that were hanging on the store’s wall in late October or early November 2012. Defi’s Local Rule 56(a)l Stmt. ¶ 25. Both sides agree that opticians are legally required to display their licenses iri 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 licensés. Id: ¶ 26; Karago-zian 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 Couhterstmt. ¶ 8; Kara-gozian 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)l 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)l 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 testified that he was not aware of these complaints but does not deny that the events underlying them occurred. PL’s Local Rule 56(a)l Stmt. ¶¶ 80-32; Karagozian Dep. 36:1-9.
Finally, Ms. Kaufman indicates that, “[o]n several occasions,” Mr. Karagozian violated Luxoticca policy by “not completing Perfect Pair Worksheets when selling glasses to customers and not filling out daily reconciliation envelopes for the Store.” Kaufman Deck ¶24. In one instance, Ms. Kaufman claims that Mr. 'Kar-agozian’s failure to fill out the proper worksheet resulted in a customer paying $160 less than he should have. Id. Mr. Karagozian does not specifically contest that he filled out forms improperly. He
. D. Mr. Karagozian’s Termination.
Luxoticea-terminated Mr. Karagozian on February 1, 2013. Def.’s Local Rule 56(a)l Stmt. ¶ 33.
Ms. Kaufman has denied that the termination decision was related in any way to Mr. Karagozian’s complaints. Kaufman Decl. ¶28. Mr. Karagozian contends that Ms. Kaufman and Ms. Arroyo merely told him that he was being terminated, without orally providing reasons, and asked him to read the Corrective Action Plan. Karagozi-ari 94:18-95:15,. 96:l-5.
Mr. Karagozian also testified that he did hot raise any objections to his termination at the meeting, because he did not want to discuss “something that was already predetermined.” Id. 100:21-101:2.
II. STANDARD
To grant a motion for summary judgment, the Court must determine that there are no genuine issues of material fact in dispute and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Bouboulis v. Transp. Workers Union of Am.,
Actions brought under section 31-51m are subject to the burden-shifting analysis .set out in McDonnell Douglas Corp. v. Green,
Once a plaintiff has made out the basic elements of his case, the' -burden shifts to the defendant to produce evidence, which, if true, “ “would permit the conclusion that there was a [non-retaliatory] reason for the adverse action.’-” Id. at 174 (emphasis and alteration in original) (quoting Gallo v. Prudential Residential Servs., Ltd. P’ship,
Section 31-51q claims are subject to a similar burden-shifting paradigm. See Fasoli v. City of Stamford,
III. DISCUSSION
Mr. Karagozian claims. that his complaints about the expired permit and the allegedly improper duties he was asked to perform to assist the optometrist qualify as protected speech under both. sections 31-51m and 31-51q. He argues that both of these issues that he complained about were violations of Connecticut law. Pi’s Opp. Br. 2, EOF No. 50. He also contends that his supervisors threatened, implicitly and explicitly, that he would be fired if he continued to complain. Id. at 2-3.
Luxoticca denies that its decision to terminate Mr. Karagozian was related in any way to his complaints, Kaufman Decl. ¶28, and argues that Mr. Karagozian’s two claims should be dismissed for any of three reasons. First, Mr. Karagozian did not engage in speech or conduct protected under either statute. Def.’s -Br. 4-6, 7-10,
The Court will analyze each of Mr. Kar-agozian’s claims in turn.
A. Retaliation for Reporting a Suspected Violation of Law (Count One— Section 31-51m)
Connecticut General Statutes section 31-51m prohibits the discharge or discipline of an employee because he “reports, verbally or in writing, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body.” Conn. Gen, Stat. § 31-51m(b). Public body is defined as any public or federal agency or employee thereof. Conn. Gen. Stat. § 31-51m(a)(4). An employee wronged under this statute may bring a civil action seeking “reinstatement of his previous job, payment of back wages and reestablishment of employee benefits to which he would have otherwise been entitled.” Conn. Gen. Stat. § 31-51m(c). The employée may also seek costs and attorney’s fees. Id.
To establish a prima facie case of retaliation under section 31-51m, Mr. Kar-agozian must show that a genuine issue of material fact exists on all of the following elements: (1) he engaged in protected activity as defined by section 31-51m, (2)‘he was subsequently terminated, and (3) there was a causal connection between his participation in the protected activity and his discharge. Arnone v. Enfield,
Mr. Karagozian has made two complaints that form the basis for his section 31-51m claim. To the extent his claim is based on his complaints about the additional duties he was asked to perform, which he- believed were improper for a licensed optician under Connecticut law, it cannot survive summary judgment. Mr. Karagozian has not demonstrated that he complained to a “public body” before he was terminated and, therefore, cannot satisfy the third causation element of his pri-ma facie case. To the extent his claim is based on the complaints about the expired permit, summary judgment must be denied.
1. Complaints About Inappropriate Duties
In retaliation cases, for a Causal relationship to exist between an alleged protected activity and an alleged adverse action, that adverse action must have occurred after or in response to the protected activity. See McAllister v. Queens Borough Pub. Library,
Mr. Karagozian was terminated on February 1, 2013 but did not complain to any external party until March 27, 2013. All of his other complaints on this issue were purely internal and, therefore, are not protected by the statute. See Conn. Gen. Stat. § 31-51m(b). Accordingly, Mr. Karagozian has not met his prima facie burden, and summary judgment must be , GRANTED on this aspect of his section 31-51m claim.
2. Complaints About Expired-Permit.
To the extent Mr. Karagoziaris claim is based on his complaints about the expired permit, Mr. Karagozian has satisfied the first and second elements of his prima facie burden. He complained to the Connecticut Department of Public Health, a public agency, before he was terminated. Such a complaint, even if informal, is protected by section 31-51m, because the statute protects employees who “disclose” or “report” an employer’s illegal activities, either verbally or in writing. Conn. Gen. Stat. § 31-51m (titled “Protection of employee who discloses employer’s illegal activities or unethical practices” and providing in subsection (b) that “[n]o employer shall discharge, discipline or otherwise penalize any employee because (1) the employee ... reports, verbally or in writing, a violation or a suspected violation of any state or federal law or regulation or any municipal ordinance or regulation to a public body”); see also Schmidt v. Yardney Elec. Corp., 4 Conn.App. 69, 75,
Luxoticca argues that Mr. Karagozian cannot show that he reported a violation of law because its actions constituted no more than “a technical violation.” Defi’s Br. 5. The Court disagrees. Connecticut law requires that scores that sell glasses register and display a valid permit. Conn. Gen. Stat. §§ 20-150(a), 20-151(a). Selling glasses in an unregistered store constitutes an unfair trade practice.' Conn. Gen. Stat. § 20-150(c). In complaining that the permit expired, Mr. Karagozian, therefore, made a good faith complaint that Connecticut law was being violated. See Arnone,
To establish a causal connection under section 31-51m, Mr. Karagozian must show that the protected action was “a motivating factor for employer retaliation, but not necessarily the only factor.” Fasoli,
In response, Luxoticca has provided a number of legitimate, non-retaliatory reasons for terminating Mr. Karagozian, including that customers complained about him and that he failed to complete required paperwork, causing a financial loss to Luxoticca on a sale. These contentions, if true, are non-retaliatory and legitimate reasons for terminating someone. Thus, to survive summary judgment, Mr. Karagozi-an must produce some evidence that these reasons were pretext.
“ ‘Pretext may be demonstrated either by the presentation of additional evidence showing that “the employer’s proffered explanation is unworthy of credence,” or by reliance on the evidence comprising the prima facie case, without more..” Lafond,
First, while Mr. Karagozian does not dispute "that the events underlying these complaints occurred, he disagrees that they should have resulted in his termination. Such a disagreement cannot satisfy Mr. Karagozian’s burden of showing that the legitimate reasons offered by Luxotic-ca are pretext. See Young v. Pitney Bowes, Inc., No. 3:03CV1161(PCD),
Second, Mr. Karagozian argues that pretext exists here because he testified that he was "not given any of the legitimate reasons when he was terminated. Pl.’s Opp. Br. 3, 9. Mr. Karagozian, however, admits that he received the Corrective Action Plan that lists the reasons he was fired. Karagozian 94:15-95:15. Although he does dispute that he threw away the other opticians’• licenses that he removed from the wall, PL’s Local Rule 56(a)l Stmt. ¶ 28, he does not dispute that customers complained about him or that he failed to properly complete Luxoticca forms. He also does not dispute the authenticity of the Corrective Action Plan.
Third and finally, Mr. Karagozian argues that the reasons provided for terminating him are pretext because Luxoticca claimed that he voluntarily resigned in a document filed with the Department of Labor. PL’s Opp. Br. 3, 9. As discussed above, there is ample record evidence, including Mr. Karagozian’s own testimony, which indicates he was terminated;
Accordingly, summary judgment on this aspect of Mr. Karagozian’s section 31-51m claim, based on the;,complaints about the expired permit, must be DENIED.
B. Retaliation for Engaging in Protected Speech (Count Two)
Under Connecticut law, an .employer is liable for compensatory and punitive damages as well as attorney’s fees and costs to an employee who was disciplined ór discharged “on account of the exercise by such employee of rights guaranteed by the first amendment to the United States Constitution or sections 3, 4, or. 14 of article first of the [Connecticut Constitution].” Conn. Gen. Stat. § 31-51q.
For Mr. Karagozian’s claim under section 31-51q to survive Luxoticca’s Motion for Summary. Judgment, he must demonstrate that a geiiuine question of fact exists on the following three elements: (1) that he engaged in constitutionally protected speech, (2) that his employer took an adverse action against him, and (3) that there was a casual relationship between the protected activity and the adverse action. McClain,
Mr. Karagozian easily satisfies the second element, because he was terminated. Luxoticca argues that the first and third elements are not met. The Court disagrees and finds that Mr. Karagozian has met his prima facie burden at this stage.
On the first element, the Connecticut Supreme Court has made clear that section 31-51q does not protect all types of speech and that it “should not be construed so as to transform every dispute about working conditions into a constitutional question.” Cotto v. United Techs. Corp.,
“ ‘To be protected by the First Amendment, speech must address a matter of public concern, and the employee’s interest in expressing himself on this matter must not be outweighed by any injury the speech could cause’ to employee relationships.” Emerick v. Kuhn,
The Second Circuit
Luxoticca argues that Mr. Kara-gozian’s complaints are not covered by section 31-51q, because they related to “matters' of personal concern related to his employment, rather than matters of public concern.” Def.’s Br. 9. The Court disagrees.
While Mr. Karagozian testified that he complained about these issues for fear of losing his license or going to jail, .his concern for his own well-being does not necessarily indicate that his complaints were not addressed to matters of public concern. See Sousa,
Mr. Karagozian also satisfies thé third element. To satisfy this element, Mr. Kara-gozian must show that his speech was “a substantial and motivating factor” in his termination. DiMartino v. Richens,
On the forth element, section 31-51q requires that “ ‘the employee’s right to speak is [not] outweighed by the.'.. employer’s interest in the effective operation of the workplace.’ ” Schumann,
Luxoticea does not argue that Mr. Kara-gozian cannot meet this element. It also does not contend that his complaints inter
Accordingly, Mr. Karagozian has met his prima facie burden. Luxoticca has provided non-retaliatory, legitimate reasons for his termination noted above — namely that he was the subject of customer complaints and failed to comply with company policy. It argues that these legitimate reasons warrant the grant of summary judgment, apparently relying on the McDonnell Douglas pretext framework.as it did for Mr. Karagozian’s section 31-51m claim. Def.’s Br. 11-14.
’ Luxoticca does not specifically invoke the defense that exists in First Amendment law under Mount Healthy. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
Under either standard, summary judgment cannot be granted. For the reasons discussed above under section 31-51m, Mr. Karagozian has produced evidence from which a reasonable juror could infer that the so-called “legitimate” reasons Luxoticca has provided for his termination were pretext. Luxoticca also has failed to satisfy its burden under Mount Healthy, as the record evidence raises an inference that Mr. Karagozian would not have been terminated if he had not engaged in protected conduct. See Smith,
For all of the foregoing reasons, the Defendant’s' Motion for Summary Judgment, ECF No. 46, is GRANTED on the portion of the section 31-51m claim based on Mr. Karagozian’s complaints abbüt performing duties as the optometrist’s assistant, rather than an optician. Summary judgment is DENIED with respect to Mr. Karagozian’s remaining claims.
SO ORDERED this 23rd flay of November 2015 at Bridgeport, Connecticut. ; ,
Notes
. These facts are based on a review of the pleadings, Local Rule 56(a) Statements, and any responses, as well as exhibits filed by both parties accompanying the Motion for Summary Judgment and associated briefing. Unless noted otherwise, facts described in this section are undisputed or the opposing party has not pointed to any contradictory evidence in the record.
. Mr. Karagozian contends that Luxoticea takes the position that he voluntarily left its employment. PL's Counterstmt, ¶ 12, In making this claim, he relies on a Notice of Potential Liability for Unemployment Benefits that Luxoticea filed. Pl.’s Ex. 4, Notice of Potential Liability dated 8/29/2014. However, all of the other evidence in the record indicates that Mr, Karagozian was terminated. Indeed, Lux-oticca explains that the representation made in the Notice of Potential Liability was a mistake that was clarified later in the proceeding. Mot. to Strike 1-2, ECF No, 52; see also Decision of Appeals Referee at 3, ECF No. 57.
. Mr. Karagozian denies the paragraphs in which Defendant asserts that he was termi- - nated. Pl.’s Local Rule 56(a)2 Stmt. ¶¶ 29, 34 (citing-¡Karagozian Dep. 36, 99-101). However, the passages of his. deposition testimony that he cites in support of these, denials do not controvert that he was terminated. Indeed, Mr. Karagozian-'s own deposition testimony indicates that he understood that he was terminated and that he was given a document, ■ the Corrective Action Plan, that provided reasons for that termination. Karagozian Dep, 94:15-95:15, 96:1-5.
. This statute applies to private. employers. Cotto v. United Techs. Corp.,
. The Court refers to federal case law defining the scope of the First Amendment, because Connecticut courts have determined that the scope of the First Amendment and section 31-51q are the same. See Baldyga v. City of New Britain, 554 F.Supp.2d 268, 278 (D.Conn.2008) (citation omitted); see also Bracey v. Bd. of Educ. of City of Bridgeport,
. The question of whether Mr. Karagozian's complaints are addressed to matters of public concern is a question of law, which the Court