Bang v. IBM Corporation , 371 F. App'x 176 ( 2010 )

09-1517-cv
Bang v. IBM Corporation
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH TH IS CO URT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 30 th day of March , two thousand ten.
PRESENT:
ROBERT D. SACK,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
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EDMOND S. BANG,
Plaintiff-Appellant,
v. No. 09-1517-cv
IBM CORPORATION,
Defendant-Appellee.
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APPEARING FOR APPELLANT: EDMOND S. BANG, pro se, Huntington Station,
New York.
APPEARING FOR APPELLEE: ALLAN S. BLOOM (Emily J. Ratté, on the
brief), Paul, Hastings, Janofsky & Walker LLP,
New York, New York.
Appeal from the United States District Court for the Eastern District of New York
(Arthur D. Spatt, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment entered on March 25, 2009, is AFFIRMED.
Plaintiff Edmond S. Bang appeals pro se from the judgment of the district court upon
a jury verdict in favor of defendant IBM Corporation (“IBM”), Bang’s former employer, with
respect to Bang’s claim that his termination violated the New York State Human Rights Law,
N.Y. Exec. Law § 290 et seq., and the Employee Retirement Income Security Act
(“ERISA”), 29 U.S.C. § 1001 et seq. In reviewing a challenge to a jury verdict, we examine
the record in the light most favorable to the prevailing party, and “[w]e will overturn a
verdict only if there is such a complete absence of evidence supporting the verdict that the
jury’s findings could only have been the result of sheer surmise and conjecture, or such an
overwhelming amount of evidence in favor of the appellant that reasonable and fair minded
men could not arrive at a verdict against [him].” Gronowski v. Spencer, 424 F.3d 285, 292
(2d Cir. 2005) (internal quotation marks and brackets omitted). To the extent Bang
challenges the district court’s denial of his post-verdict motion for judgment as a matter of
law, the same standard applies. See Madeira v. Affordable Housing Found., Inc., 469 F.3d
219, 227 (2d Cir. 2006). We assume the parties’ familiarity with the facts and procedural
history of the case, which we reference only as necessary to explain our decision to affirm.
Reviewing the record, as we must, in the light most favorable to IBM, we conclude
that the evidence presented to the jury – which included negative performance reviews, a
written evaluation of Bang’s work that he appears to have modified to be more favorable to
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himself, and an internal IBM email concerning billing procedure that Bang acknowledged
forwarding to an address outside the company – was more than sufficient to support a verdict
adverse to Bang. To the extent Bang challenges the credibility of IBM’s witnesses, “we
cannot weigh conflicting evidence, determine the credibility of witnesses, or substitute our
judgment for that of the jury.” Gronowski v. Spencer, 424 F.3d at 292.
Bang further contends that the district court erred in failing to admit evidence
pertaining to the settlement of an unrelated case from the Southern District of Illinois in
which IBM was alleged to have interfered with pension benefits. We review evidentiary
rulings for abuse of discretion, see Arlio v. Lively, 474 F.3d 46, 51 (2d Cir. 2007), and detect
none here, as Bang presented no evidence indicating that he was a participant in any pension
plan or contradicting the testimony of Michael Rice and Kelitza Gomez that they had no
knowledge of his participation in any such plan, see Fed. R. Evid. 401, 402. To the extent
Bang asks us to consider other evidence his attorney failed to present at trial, he has
identified no “extraordinary circumstances” that would warrant such consideration. See
International Bus. Machs. Corp. v. Edelstein, 526 F.2d 37, 45 (2d Cir. 1975).
We have considered Bang’s remaining arguments, and we conclude that they are
without merit. Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
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