16-3024-cv
Karagozian v. Sam’s East, Inc.


                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 22nd day of May, two thousand seventeen.

PRESENT: RALPH K. WINTER,
                 REENA RAGGI,
                                 Circuit Judges,
                 ALVIN K. HELLERSTEIN,
                                 District Judge.*
----------------------------------------------------------------------
OHAN KARAGOZIAN,
                                    Plaintiff-Appellant,

                                 v.                                        No. 16-3024-cv

SAM’S EAST, INC.,
                                   Defendant-Appellee.
----------------------------------------------------------------------
FOR APPELLANT:                                    John R. Williams,      Esq.,   New   Haven,
                                                  Connecticut.

FOR APPELLEE:                                    Hugh F. Murray, III, Pamela J. Moore, Sami
                                                 Asaad, McCarter & English, LLP, Hartford,
                                                 Connecticut.



*
  Judge Alvin K. Hellerstein, of the United States District Court for the Southern District
of New York, sitting by designation.

                                                     1
       Appeal from a judgment of the United States District Court for the District of

Connecticut (Warren W. Eginton, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the August 11, 2016 judgment of the district court is AFFIRMED.

       Plaintiff Ohan Karagozian, a licensed optician, appeals from an award of summary

judgment to defendant Sam’s East, Inc. (“Sam’s Club”) on Karagozian’s claim of sex

discrimination pursuant to the Connecticut Fair Employment Practices Act (“CFEPA”),

Conn. Gen. Stat. §§ 46a-60(a)(1) et seq.1 We review an award of summary judgment de

novo, resolving all ambiguities and drawing all inferences in favor of the non-movant,

and we will affirm only if the record reveals no genuine dispute of material fact.    See

Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986);

Matthews v. City of New York, 779 F.3d 167, 171–72 (2d Cir. 2015). We assume the

parties’ familiarity with the underlying facts and record of prior proceedings, which we

reference only as necessary to explain our decision to affirm.

       Sex discrimination claims under CFEPA are evaluated under the familiar

burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

See Kaytor v. Elec. Boat Corp., 609 F.3d 537, 556 (2d Cir. 2010); Craine v. Trinity Coll.,

259 Conn. 625, 636–37 & 637 n.6, 791 A.2d 518, 530–31 & 531 n.6 (2002). Under that

framework, the plaintiff bears the initial burden of establishing a prima facie case of

discrimination. See Craine v. Trinity Coll., 259 Conn. at 638, 791 A.2d at 531. The

1
  Although Karagozian also asserted claims for age and national-origin discrimination,
he does not pursue them in this appeal. Accordingly, we deem those claims waived.
See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998).

                                             2
burden then shifts to the employer to “articulate some legitimate, nondiscriminatory

reason” for the adverse action.     Id. at 643, 791 A.2d at 543. If the employer does so,

the ultimate burden is the plaintiff’s to prove that the justification is merely a “pretext for

an unlawful motive.” Id. at 644, 791 A.2d at 535. Karagozian challenges the district

court’s conclusion that, even assuming he could articulate a prima facie case, he failed to

adduce sufficient evidence to carry his ultimate burden. The argument fails on the

merits.

          Karagozian does not dispute any material fact of this case, including that (1) he

was convicted of a felony possession-with-intent-to-distribute drug offense in 1989;

(2) in applying for a Sam’s Club optician position, his hiring was contingent on

completion of a background check authorization form; (3) he disclosed his felony

conviction on that form; (4) Wal-Mart Stores, Inc., which owns Sam’s Club, has a

uniform policy against hiring those convicted of felony possession-with-intent drug

offenses for positions in the department to which Karagozian was applying; and (5) his

conditional offer of employment was rescinded pursuant to that “facially neutral hiring

policy.” Appellant’s Br. 16. Karagozian argues only that the hiring policy is neither

“nondiscriminatory” nor “legitimate,” see Craine v. Trinity Coll., 259 Conn. at 643, 791

A.2d at 543, because Equal Employment Opportunity Commission statistics demonstrate

that men and women are convicted of drug crimes at different rates, causing a “disparate

impact . . . upon male job applicants,” and Sam’s Club has not “articulate[d], much less

demonstrate[d], any business necessity for [its] policy” as applied to opticians,

Appellant’s Br. 13.

                                              3
       These arguments fail as a matter of law.         First, while the statistics—which

Karagozian cites for the first time on appeal—could be relevant to a disparate-impact

claim, Karagozian concedes that he does not bring such a claim. The statistics do not

support the disparate-treatment claim he brought because Karagozian’s burden on that

claim is to show that Sam’s Club’s justification for adverse action was a pretext for actual

discrimination, see Craine v. Trinity Coll., 259 Conn. at 644, 791 A.2d at 535, not the

policy’s possible discriminatory effect.2

       Second, while Karagozian concedes that Sam’s explanation for not hiring him was

“undoubtedly genuine,” he contends that the policy was not “legitimate” because it

lacked any “relationship to the job.” Appellant’s Reply Br. 6. That argument fails

because disputes as to the wisdom of an employment policy cannot alone raise an

inference of unlawful discrimination. See Delaney v. Bank of Am. Corp., 766 F.3d 163,

169 (2d Cir. 2014) (“[W]e do not sit as a super-personnel department that reexamines an

entity’s business decisions.” (internal quotation marks omitted)); Board of Educ. of City

of Norwalk v. Comm’n on Human Rights & Opportunities, 266 Conn. 492, 513, 832 A.2d

660, 672 (2003) (“[W]e do not second-guess an employer’s hiring standards.” (internal

quotation marks omitted)).        Accordingly, Sam’s Club’s justification cannot be

illegitimate for this reason.




2
  Because Karagozian concededly does not bring a disparate-impact claim, we need not
address whether the statistics, if properly presented as evidence, would be sufficient to
sustain such a claim.

                                             4
      We have considered Karagozian’s remaining arguments and conclude that they are

without merit.   Accordingly, the August 11, 2016 judgment of the district court is

AFFIRMED.

                                FOR THE COURT:
                                CATHERINE O’HAGAN WOLFE, Clerk of Court




                                         5
