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Pak v. Verizon

July 8, 2010

SONG K. PAK, PLAINTIFF,
v.
VERIZON, DEFENDANT.



The opinion of the court was delivered by: Joyner, J.

MEMORANDUM AND ORDER

Before the Court is Defendant's Motion for Summary Judgment (Doc. No. 17), and responses thereto (Doc. Nos. 23, 29). For the reasons set forth in the attached Memorandum, Defendant's Motion is granted.

Background*fn1

Plaintiff, Song K. Pak, is an Asian-American and former employee of Defendant, Verizon. He brings this employment discrimination and discriminatory retaliation action under 42 U.S.C. § 1981. Plaintiff was hired by Verizon on September 25, 2006, to work forty hours per week as a Video Network Engineer in Freehold, New Jersey. Plaintiff's work team consisted of eight other employees, including another Asian-American male, an African male, and a Puerto Rican male. The other Asian-American, Matthew Chia, was the highest earning member of the group. As part of his employment, Plaintiff attended sixty training sessions, including a session about Verizon's Code of Business Conduct in January 2007.

In June 2007, Plaintiff's supervisor, Ferdinando DiMaggio, a white male, claims to have received reports from co-workers that Plaintiff had been leaving early and falsifying his time sheets. DiMaggio told his supervisor, David Luft, who referred the issue to Verizon Security after consulting with the Human Resources Department. According to Plaintiff, other team members left early on a regular basis. DiMaggio also suspected Plaintiff was accessing confidential Verizon software and data on his company-issued laptop without authorization.

Falsifying time sheets and unauthorized use of software are violations of Verizon's Code of Business Conduct, thus Verizon Security investigated each issue. Pending the outcome of the investigation, Plaintiff was suspended with pay on June 29, 2007. On this day, Plaintiff says that he complained to Verizon Security Personnel, Maritza Baca and Christopher Heiser, about DiMaggio's discrimination, though he made no mention of discrimination in his official statement written during the investigation.

On August 22, 2007, Verizon Security issued its investigation report indicating that "on 29 weekend workdays between January 13 and June 10, 2007 . . . Mr. Pak submitted 29 inaccurate time sheets concealing that he was off his assigned post for an unauthorized 47 hours and 52 minutes." DiMaggio was out of the office on all of these days. Verizon Security also found that Plaintiff accessed unauthorized software. Plaintiff later admitted to both of these violations of Verizon's Code of Business Conduct, though he claims that he worked from home on the days that he left early.

On August 24, 2007, Luft terminated Plaintiff's employment, citing Verizon Security's findings as cause. Verizon claims that Luft was unaware of any discrimination complaint that Plaintiff might have made with Verizon Security personnel, and Plaintiff did not make a formal complaint of discrimination pursuant to Verizon's Code of Business Conduct. DiMaggio, the only person who allegedly discriminated, played no role in the investigation or the decision to fire Plaintiff. On July 28, 2009, almost two years after his firing, Plaintiff brought this action.

Standard of Review

Summary judgment should be granted when "the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). The summary judgment rule should be interpreted to accomplish its primary purpose of "isolat[ing] and dispos[ing] of factually unsupported claims or defenses." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

If a party cannot "establish the existence of an element essential to the party's case," summary judgment is mandated.

Id. at 322. The party moving for summary judgment meets his burden by "showing . . . that there is an absence of evidence to support the nonmoving party's case." Id. at 325. The non-movant must then do more than raise "metaphysical doubts" about material facts. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Petruzzi's IGA Supermarkets v. Darling-Del. Co., 998 F.2d 1224, 1230 (3d Cir. 1993). For this reason the non-movant may not rely upon the "mere allegations or denials of his pleading." Fed. R. Civ. P. 56(e). Instead, he is required to offer "specific facts" from the record "showing there is a genuine issue for trial." Id.; see also Matsushita, 475 U.S. at 586.

Discussion

The Court grants Defendant's Motion for Summary Judgment as Plaintiff does not offer sufficient evidence to make out a prima facie case of employment discrimination or prove that Defendant's proffered reason for terminating Plaintiff's employment is pretextual. ...


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