    16-3592-cv
    Cargian v. Breitling USA, 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
ASUMMARY ORDER@). A PARTY CITING TO 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 10th day of September, two thousand eighteen.

    PRESENT:
                     PETER W. HALL,
                     RAYMOND J. LOHIER, JR.,
                          Circuit Judges,
                     JANE A. RESTANI, *
                          Judge.


    FREDERICK M. CARGIAN,

                             Plaintiff-Appellant,

                     v.                                            No. 16-3592-cv

    BREITLING USA, INC.,

                             Defendant-Appellee.


    For Plaintiff-Appellant:                        JANICE GOODMAN, Law Office of Janice
                                                    Goodman, New York, N.Y.

    For Defendant-Appellee:                         GLENN S. GRINDLINGER,          (James  M.
                                                    Lemonedes, Zev Singer, on the brief), Fox
                                                    Rothschild LLP, New York, N.Y.


    *Judge Jane A. Restani, of the United States Court of International Trade, sitting by
    designation.

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

District of New York (Daniels, J.).

      UPON      DUE      CONSIDERATION,          IT   IS   HEREBY       ORDERED,

ADJUDGED, AND DECREED that the judgment entered on September 29, 2016,

is VACATED and the case is REMANDED for further proceedings.

      Plaintiff-appellant, Frederick Cargian, appeals from a judgment entered by the

district court granting summary judgment to defendant-appellee, Breitling USA, in

this gender and age discrimination action. Cargian filed the action in February 2015

alleging he was discriminated against based on his sexual orientation in violation of

the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–e17 (Title VII) and based on his age

in violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621–634

(ADEA). Plaintiff also asserted supplemental claims under the New York State

Human Rights Law, New York Executive Law § 296 (State HRL), and the New York

City Human Rights Law, New York City Administrative Code § 8-101 (City HRL).

We assume the parties’ familiarity with the underlying facts, the procedural history

of the case, and the issues on appeal.

      The district court issued a memorandum and order on September 29, 2016,

granting summary judgment to Breitling on the ground that Title VII does not

prohibit private employers from discriminating against their employees based on

their sexual orientation. Relying on this Court’s decisions in Simonton v. Runyon, 232

F.3d 33, 35 (2d Cir. 2000), and Dawson v. Bumble & Bumble, 398 F.3d 211, 217–23

(2d Cir. 2005), the district court concluded that “discrimination based upon sexual



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orientation is not currently actionable under Title VII.” At the time the order was

issued, however, the district court lacked the benefit of the guidance provided by this

Court’s recent February 2018 decision in Zarda v. Altitude Express, Inc., 883 F.3d

100 (2d Cir. 2018) (en banc), which addresses this Circuit’s jurisprudence on sexual

orientation discrimination under Title VII. The Court in Zarda considered the

“changing legal landscape that has taken shape in the nearly two decades since

Simonton issued,” to reach the ultimate holding that “Title VII prohibits

discrimination on the basis of sexual orientation as discrimination ‘because of . . .

sex.’” Id. at 108. Additionally, Zarda overruled Simonton and Dawson to the extent

they held otherwise. Id.

      Because the legal framework for evaluating Title VII claims has evolved

substantially in this Circuit, we conclude the district court should have the

opportunity to consider in the first instance whether Cargian’s claims can survive a

motion for summary judgment after Zarda altered that legal landscape. Given that

the district court declined to exercise supplemental jurisdiction over Cargian’s

remaining claims in light of the dismissal of his federal law claims, the district court

is free to reconsider that aspect of its prior ruling on remand. In so concluding, we

express no opinion as to the proper resolution of Cargian’s Title VII and state law

claims on remand.




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     The district court’s grant of summary judgment is VACATED and the matter

REMANDED for further proceedings.

                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk of Court




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