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Montagne v. American Convenience Products Inc.

December 27, 1984


Appeal from the United States District Court for the Eastern District of Wisconsin -- No. 81 C 569 John W. Reynolds, Chief Judge.

Before CUMMINGS, Chief Judge, ESCHBACH, Circuit Judge, and FAIRCHILD, Senior Circuit Judge.

ESCHBACH, Circuit Judge. Plaintiff Roderick La Montagne brought this action against his former employer, American Convenience Products, Inc. (the "Company"), seeking damages for age discrimination in connection with the termination of his employment allegedly in violation of the Age Discrimination in Employment Act, 29 U.S.C. ยง 623(a) ("ADEA"). La Montagne won a jury verdict at trial, but the district court granted the Company's motion for judgment notwithstanding the verdict. The only issue on appeal is whether the district court properly entered judgment n.o.v. We affirm.


Roderick La Montagne served as vice president of marketing and sales for the Company from the date of its formation in 1974 until June 20, 1980, when he was discharged. He has an MBA from Stanford. At the time of his discharge he was 51 years old.

The Company manufactured paper products for the food service industry. Besides La Montagne there were three other officers, all in their fifties: George A. Bark (president), Fred W. Martin (senior vice president), and F. Joseph David (secretary-treasurer). They owned 75% of the Company's stock and were the only directors.

During La Montagne's tenure as vice president of marketing and sales the Company's annual sales grew from $9 million to $20 million, and La Montagne received regular salary increases and increasing bonuses. His personnel file contained no adverse evaluations, indeed, no evaluations of any kind. He was never warned that his job was in jeopardy.

La Montagne's relations with Bark (the president) were strained. In 1978 Albert Pirhofer, whom La Montagne had recently fired from his post as customer service manager, told Bark that La Montagne had spoken insultingly of Bark and had kept information from him. Bark believed La Montagne did not respect him and complained that La Montagne did not communicate with him and was creating divisiveness in the sales and marketing department.

At a meeting of the board of directors in December 1979 Bark told Martin and David that he was "fed up" with the lack of communication and divisiveness and wanted to keep La Montagne's bonus at last year's level. Martin and David prevailed on him to increase it. Bark said that he intended to terminate La Montagne.

In 1979 the Company acquired a foam-producing operation, which became the Foamware Division, also under the general marketing supervision of La Montagne. Bark talked to Norman Zweibel, the division's manager, about the hiring of a production manager. On Feberuary 20, 1980, Zweibel wrote to Bark, saying:

After analyzing our requirements, availability and cost of people etc., I have now come to the conclusion that our best bet may be to hire a bright young individual with some supervisory experience, mechanical aptitude and/or background, an a lot of ambition and intelligence -- one who learns fast and well -- and teach him to do the job we want done.

Bark did not recall answering the letter.

The Foamware Division was troubled from the start. Sales were slow during 1979. La Montagne put into effect a program to increase sales. The program worked, but the division nevertheless continued to operate at a loss. Bark was upset and called a meeting for March 6, 1980, of the Company's officers, Zweibel, and certain staff people. At the meeting Bark asked La Montagne for his proposals. La Montagne said that he did not pretend to have a solution and suggested bringing in an expert consultant. Bark was angered by this response and dismissed the meeting. The next day David returned to First Wisconsin National Bank a lender's inquiry form concerning La Montagne on which David wrote that La Montagne's prospects for continued employment were "good."

At the next quarterly meeting in April, Bark was dissatisfied with the report of sales and marketing. At that point he decided to discharge La Montagne and informed Martin and David. He decided, however, to wait until after the National Restaurant Association show in the last part of May.

Bark picked William Sutton, age 47, the Company's western regional sales manager, to replace La Montagne. Martin and David approved. Martin was concerned that Sutton, who lived in California, might not want to relocate to Milwaukee. On June 16, 1980, Bark went to the west coast to offer Sutton the job. He offered Sutton a $10,000 raise and improved fringe benefits. Sutton was pleased but asked for time to consider.

On June 20, 1980, Bark called La Montagne into his office and discharged him. La Montagne left the Company premises immediately and spent the rest of the day on the telephone to his associates at the Company and to persons who might help him in the search for a new job. Late in the evening he reached Fred Martin. Angry and agitated, he told Martin what had happened. According to La Montagne, Martin said that he had told Bark that Bark should not discharge La Montagne until he had a younger man to replace him. Martin denies making this statement.

On June 25 Sutton declined Bark's offer of La Montagne's job. The next day, after consulting with Martin and David, Bark offered to Gregory P. Ibsen the job of manager of marketing and sales -- La Montagne's job without the status and responsibilities of an officer of the Company. Ibsen had been with the Company and its predecessor since 1973 and in 1980, at age 34, held the post of products manager. Bark offered him a $10,000 raise, and Ibsen accepted.

On February 5, 1981, La Montagne filed a charge of discrimination with the Equal Rights Division of the Wisconsin Department of Industry, Labor, and Human Relations and with the Equal Employment Opportunity Commission. He also ...

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