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.
-------------------------------------------------------------
EDMOND S. BANG,
                                 Plaintiff-Appellant,

                   v.                                                No. 09-1517-cv

IBM CORPORATION,
                                 Defendant-Appellee.
-------------------------------------------------------------
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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