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Jang v. Biltmore Tire Co.

decided: July 30, 1986.

JOHN J. JANG, PLAINTIFF-APPELLANT,
v.
BILTMORE TIRE CO., INC., DEFENDANT-APPELLEE



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 83 C 6339- James B. Parsons, Judge.

Wood, Jr., and Ripple, Circuit Judges, and Eschbach, Senior Circuit Judge.

Author: Wood

WOOD, JR., Circuit Judge.

Plaintiff John Jang sued his former employer, defendant Biltmore Tire Co., Inc. ("Biltmore"), for age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. ยงยง 621 et seq. More specifically, Jang alleged that Biltmore fired Jang in violation of the ADEA. At the close of the jury trial below, Judge Parsons granted a directed verdict for Biltmore on the ground that Jang failed to prove that the legitimate, nondiscriminatory reason for Jang's firing articulated by Biltmore was a pretext for age discrimination. Jang now argues that the district court erred by not letting the pretext issue go to the jury. We affirm.

I

Before the trial, Jang and Biltmore stipulated that the only issue in this case was whether Biltmore discharged Jang in violation of the ADEA. The district court found the following facts relevant to Jang's claim.

Jang was born on March 15, 1931, in Korea. He immigrated to the United States in 1957 and became a naturalized citizen in 1982. Jang received a B.A. in liberal arts from Davis and Elkins College in West Virginia and has subsequently taken some undergraduate courses, including basic accounting, at Northwestern University.

In 1970, in response to a want ad, Jang began working as "top accountant" for Biltmore at a salary of $15,000 per year. While employed at Biltmore, Jang received yearly pay raises and in several years he received two raises. Biltmore usually gave all of its employees raises at Christmas time and adjusted employee salaries to compensate for inflation. Jang's raises were based upon the size of his salary and his position with Biltmore, not upon merit. Biltmore paid the tuition and costs for Jang to enroll in and attend the Advanced Management Institute at Lake Forest College, where Jang earned a Master of Sciences degree in management.

Biltmore retained the C.P.A. firm of Michael Silver and Company ("MS&C") as accountants and auditors. While Biltmore employed Jang, MS & C sent two auditors to Biltmore once a month to audit the books and records. The auditors would also pick up the necessary documents to prepare Biltmore's financial statements. MS & C would return the financial statements to Jang, who would attend a monthly meeting where the officers of Biltmore and representatives of MS & C would discuss the statements. The MS & C auditors also handled all of Biltmore's tax matters and managed Biltmore's profit-sharing trust. The cost to Biltmore for employing MS & C was substantial. Beginning in approximately 1974, MS & C began advising the president of Biltmore, Patrick Starr, that Jang lacked the ability to grow and continue to function in his job as Biltmore grew, and recommending Starr consider replacing Jang.*fn1 Apparently Starr did not inform Jang of those criticisms.

In February 1982 Jang underwent a brain operation. During Jang's absence, Starr requested that MS & C assign an auditor to Biltmore on a full-time basis. MS & C complied, assigning Gary Rosen to Biltmore during Jang's recuperation. Although Rosen was not a C.P.A. and lacked a master's degree in business or management, he was able to prepare the monthly financial statements and tax returns, implement new office procedures, render financial advice to Biltmore, and computerize Biltmore's accounts. Furthermore, the auditor's fees paid by Biltmore to MS & C were reduced as a result of Rosen's work.

Jang returned to work on July 13, 1982. Starr summoned Jang to his office and asked Jang whether he felt he could fulfill the physical and academic demands of his job.*fn2 Starr took no action at that time. However, on or about August 3, 1982, Starr again summoned Jang to his office. Starr told Jang he would be discharged on October 30, 1982. Starr told Jang that he could take the three months to pursue other employment and need not come to Biltmore during that time so long as he phoned in. Biltmore agreed to give Jang full pay during the three months and to reimburse him for fifty percent of the cost of hiring a jobsearch to locate a new job.

Starr subsequently spelled out Biltmore's reasons for terminating Jang. Starr stated that the company was growing and expanding and Jang was no longer capable of handling his job. Starr informed Jang that, based upon Jang's inability to prepare financial statements, read bank statements, and know or understand tax law, Biltmore had concluded that Jang was no longer qualified for his job. Starr also pointed out that a mistake by Jang in the payroll had cost Biltmore hundreds of dollars. Starr also informed Jang that he believed that Jang did not understand Biltmore's inventory procedures.

When Biltmore terminated Jang, it paid him five months severance pay (approximately $18,000), his profit-sharing portion (approximately $22,000, and one-half the cost of his search-firm fees ($2,000). Biltmore also gave him a three-year old automobile, owned by Biltmore, at cost (value approximately $2,800). Jang was approximately ...


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