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John Y. Kim v. Columbia University

May 19, 2011

JOHN Y. KIM , PLAINTIFF
v.
COLUMBIA UNIVERSITY, DEFENDANT



The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.

I.Introduction

Plaintiff, John Kim ("Mr. Kim"), appearing pro se, moves this Court for a new trial pursuant to Rules 59 and 60 of the Federal Rules of Civil Procedure. From November 8, 2010 to November 15, 2010, this Court held trial on Mr. Kim's claims of race and age discrimination and retaliation for his complaint of age and race discrimination against his former employer, Defendant, Columbia University ("Columbia" or "University"). Mr. Kim, then represented by three pro bono attorneys from the firm Vladeck, Waldman, Elias & Engelhard, P.C., brought his claims under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq, Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq, New York State Executive Law § 290 et seq, and the Administrative Code of the City of New York § 8-101 et seq. On November 15, 2010, the jury returned a verdict in favor of the Defendant on all claims.

Sixty days later, on December 16, 2010, Mr. Kim submitted his notice of motion for a new trial. Columbia submitted its opposition to the motion on January 18, 2011. Mr. Kim submitted his reply affirmation on February 23, 2011.

For the following reasons, Mr. Kim's motion is denied.

II.Factual Background

In 1986, Mr. Kim was hired as "consultant" at the Dohr Computer Lab at the Columbia Business School. (Tr. at 101.)*fn1 He worked at Columbia for "about six years," receiving numerous promotions and pay raises, including a promotion in 1990 to the position of Assistant Director of Microcomputer Systems, Computing Activities -- a position which elevated him to an Officer of the University. (Id. at 103, 108-17; Pl. Ex. 3,5,9.) Mr. Kim was recognized as an extremely hard-working and experienced employee with many hours of overtime. (Tr. at 109, 120; Pl. Ex. 2-6, 10-11.) He was terminated from employment on April 6, 1992. Mr. Kim was born in South Korea on September 26, 1948, making him thirty-eight years old when he was hired by Columbia, and forty-four years old when he was terminated from his employment. (Tr. at 94.)

On March 27, 1991, Mr. Kim's supervisor, Richard Sacks ("Mr. Sacks"), the Executive Director for Information Technology, issued a warning letter to the Plaintiff. (Id. at 127-30, Def. Ex. G.) In the letter, Mr. Sacks stated: (1) that in November 1990 the Plaintiff had previously disappeared from his job for two days without notice; (2) that the Plaintiff had been warned after that disappearance; (3) that the Plaintiff engaged in "bouts of inappropriate and uncivil behavior toward other members of the staff"; and (4) that the letter was a "formal and final warning," which notified Plaintiff that "[a]ny further behavior of the kind that has been discussed will result in [Plaintiff's] immediate dismissal." (Def. Ex. G.)

In July 1991, James Haggard ("Mr. Haggard") replaced Mr. Sacks as the Executive Director for Information Technology. (Tr. at 135.) In about September of 1991, Mr. Haggard hired Vanessa Clark ("Ms. Clark"), an MBA student, as a student employee. (Id. at 150, 620.) Ms. Clark described her duties as that of "the business manager of the department," (id. at 620), and testified that it was her role to "track equipment that was ordered, make sure it got paid for, make sure it was approved.follow the invoices through the university disbursement system, and reconcile[] those payments." (Id.)

Ms. Clark also testified that in about September or October of 1991, she, Mr. Kim and "everybody in the department who was involved in [product purchases]" developed the Internal Purchase Order ("IPO") form. (Id. at 622.) The goal of the form, she explained, "was to make sure [that] the equipment . ordered [by the department] was within the budget, and was appropriate, and approved by Jim Haggard, the Associate Dean of the department." (Id. at 622.)

Ms. Clark testified that on March 19, 1992, she and Mr. Kim got into a verbal altercation in Mr. Kim's office over his failure to follow IPO procedure before ordering certain equipment. (Id. at 625-26.) Ms. Clark testified that Mr. Kim "started yelling" at her, turned red in the face and seemed "to really just kind of snap and become.very, very angry." (Id. at 626.)Ms. Clark further testified that Mr. Kim followed her out of his office, "ranting and raving and very upset and agitated," and that he might have "either kicked [or] threw" a printer cartridge box after her. (Id.) The box hit the door jab of Ms. Clark's office, "at which point [she] closed the door and sat down at [her] desk." (Id.) Mr. Kim disputes Ms. Clark's characterization of the events and testified that at the time she approached him, he was busy with a student worker and that when he told her this, she was the one who "got excited" and told him that she was "sick and tired of chasing after paperwork." (Id. at 153.) Mr. Kim testified that he never physically threatened Ms. Clark and that he never threw or kicked any box at her. (Id.) Mr. Kim testified that after his altercation with Ms. Clark, he saw Mr. Haggard, told him "I can't believe the way you guys are treating me," and asked if they could "talk about this tomorrow." (Id. at 154.) Mr. Kim testified that Mr. Haggard said "okay" and that Mr. Kim then left the office for the day. (Id.)

Ms. Clark testified that she reported the incident to Mr. Haggard and that she wrote, at his request, a memorandum detailing her altercation with Mr. Kim. (Id. at 638.) Mr. Haggard then reported this incident to Rona Carr ("Ms. Carr"), the head of human resources at the Business School. (Id. at 817.) Mr. Haggard testified that he had a conversation with Ms. Carr about the incident between Ms. Clark and Mr. Kim, and that Ms. Carr's recommendation was immediate termination. (Id. at 818.) Mr. Haggard testified that he was not comfortable with terminating Mr. Kim at that time so he instead decided to place Mr. Kim on suspension. The following day, on March 20, 1992, Mr. Haggard and Ms. Carr met with Mr. Kim and placed Mr. Kim on a two-week suspension. (Id. at 819.)

Mr. Haggard testified that during Mr. Kim's suspension, he "discovered that the issues with compliance with -- in particularly [sic] with purchases and procurement process were more than just not following departmental policy." (Id. at 819.) Mr. Haggard testified that "[t]here were cases where there were actions taken that were not consistent with the school's or the university's purchasing policy.I discovered that the depth of the issue in terms of the purchasing was more serious than I originally understood." (Id. at 819-20.) On April 1, 1992, Haggard presented a memorandum to Jerry Lewis ("Dean Lewis"), Associate Dean for Administration, highlighting Mr. Kim's "repeated[] disregard[ of] both university and departmental purchasing and control procedures." (Def. Ex. K.) Mr. Haggard also testified that during Mr. Kim's suspension, either "the day of the incident or the following day when he was given suspension" he became aware of the previous "final warning letter" given to Mr. Kim by Mr. Sacks. (Tr. at 836.) After learning the extent of Mr. Kim's violations of university and departmental policies, and becoming aware of the previous "final warning letter," Mr. Haggard came to the decision to terminate Mr. Kim upon his return. (Id.)

On April 6, 1992, Mr. Kim returned to work as directed, and found "a note under [his] door" -- a letter of suspension dated March 23, 1992. (Id. at 157.) The letter stated that Mr. Kim's "continued disregard for departmental policies and procedures, and unprofessional behavior towards [his] co-workers will not be tolerated, for any reason." (Def. Ex. J.) The letter also stated that Mr. Kim would be suspended from employment effective Monday, March 23, 1992 through Friday, April 3, 1992 and that Mr. Kim should "return to work [on] Monday, April 6, 1992 at your normally scheduled time." (Id.) Mr. Kim then reported to Ms. Carr in Human Resources, as instructed by the letter. (Tr. at 159.) At the meeting, Ms. Carr presented Mr. Kim with a letter of "release," which she gave Mr. Kim an opportunity to sign. (Def. Ex. L). A "release" is defined by the Columbia University Personnel Policy Manual as "a termination at the discretion of the University." (Def. Ex. H at § 113.2.)*fn2 The letter indicated the release would be effective as of April 6, 1992 and conditioned Mr. Kim's release upon an agreement of confidentiality regarding the contents of the agreement and upon Mr. Kim's "release and discharge [of] the University, and its trustees, officer and employees, from all claims.in connection with [his] employment by the University and [his] layoff there from, including all claims arising under the Equal Pay Act of 1963.Title VII of the Civil Rights Act of 1964.the New York Human Right Law.and the Age Discrimination in Employment Act." (Def. Ex. L.) Mr. Kim did not sign the letter and rather asked Ms. Carr if he could meet with Dean Lewis. (Tr. at 159-60.) Mr. Kim testified that he went to speak with Dean Lewis who told him "[he] was fired" and provided Mr. Kim with a copy of the April 1, 1992 letter from Mr. Haggard highlighting the various violations of university procedures which became apparent during Mr. Kim's suspension. (Def. Ex. K, Tr. at 163-64.) Mr. Kim testified that the document consisted of "a number of false accusations.[and that he] told Jerry Lewis that all of these accusations were baseless and totally untrue." (Tr. at 164.)

Soon after his termination, Mr. Kim wrote to Columbia University's Vice President for Personnel Management and Human Resources, requesting a formal hearing to contest his suspension and termination. (Pl. Ex. 12, id. at 174-75.) In addition, on April 29, 1992, Mr. Kim filed an internal discrimination complaint to Columbia's Office of Equal Opportunity and Affirmative Action alleging discrimination on the basis of his race, age, and unspecified disability. (Pl. Ex. 13.) According to University policy, a three attempting to perform the job duties but was unable to perform satisfactorily and was not able to transfer to member committee -- one member chosen by the complainant, another chosen by the Business School and a third chosen by the first two members -- would review Mr. Kim's grievance and his internal discrimination complaint. (Tr. at 176.) Mr. Kim selected John C. Burton ("Dean Burton"), former Dean of the Business School,*fn3 the school chose Mark Olson ("Mr. Olson"), Deputy Vice President for Student Administrative Services, and Dean Burton and Mr. Olson together selected Joseph Kissane ("Mr. Kissane"), Director of the Summer Session, as the Chairperson and final member of the grievance committee. (Id. at 176-77.) The committee convened in June of 1992 and interviewed Ms. Carr, Mr. Haggard, Dean Lewis, Ms. Clark and Mr. Kim. (Pl. Ex. 27.) On June 25, 1992, Mr. Kissane circulated a draft report that concluded: 1) "the department's action to release Mr. Kim from employment was not carried out according to proper procedure"; and 2) "[t]he department's decision that Mr. Kim's release was required may be supportable." (Id.) A second draft report prepared by Mr. Kissane on July 13, 1992, stated that "the Graduate School of Business acted properly first in its suspension and then in its release of John Kim." (Pl. Ex. 29.) A third draft report prepared on September 28, 1992 contained the same conclusion. (Pl. Ex. 33.) The final report concluded that the suspension and release of Mr. Kim were proper and was sent to Senior Vice President Joseph Mullinix on October 16, 1992. (Pl. Ex. 34.) One committee ...


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