La Montagne v. American Convenience Products, Inc.

Decision Date27 December 1984
Docket NumberNo. 83-2493,83-2493
Citation750 F.2d 1405
Parties36 Fair Empl.Prac.Cas. 913, 35 Empl. Prac. Dec. P 34,914 Roderick LA MONTAGNE, Plaintiff-Appellant, v. AMERICAN CONVENIENCE PRODUCTS, INC., Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Arthur J. Harrington, Charne, Glassner, Tehan, Clancy & Taitelman, Milwaukee, Wis., for plaintiff-appellant.

Clifford B. Buelow, Davis, Kuelthau, Vergeront, Stover, Werner & Goodland, S.C., Milwaukee, Wis., for defendant-appellee.

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. Sec. 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 that La Montagne did not respect him and complained that 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 February 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, and 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 this 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 in 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 filed with the Commission a notice to file a civil action.

On May 21, 1981, La Montagne commenced this action in the district court, alleging violation of the ADEA. The case was tried to a jury in the district court. The jury rendered a verdict for La Montagne. The Company moved for judgment notwithstanding the verdict, and the court granted the motion. La Montagne filed a timely notice of appeal.


The ultimate burden on a plaintiff in an age discrimination case is to prove that he was discharged because of his age. Golomb v. Prudential Insurance Co. of America, 688 F.2d 547, 550 (7th Cir.1982); 29 U.S.C. Sec. 623(a). To accomplish this, he must prove not that age was the sole factor motivating the employer to discharge him but that age was a "determining factor," in the sense that he would not have been discharged "but for" his employer's motive to discriminate against him because of his age. Loeb v. Textron, Inc., 600 F.2d 1003, 1019 (1st Cir.1979). The plaintiff may try to meet his burden directly, by presenting direct or circumstantial evidence that age was a determining factor in his discharge. See Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 239 (4th Cir.1982); Stanojev v. Ebasco Services, Inc., 643 F.2d 914, 920-21 (2d Cir.1981); Spagnuolo v. Whirlpool Corp., 641 F.2d 1109, 1113 (4th Cir.), cert. denied, 454 U.S. 860, 102 S.Ct. 316, 70 L.Ed.2d 158 (1981).

By far the more common method of proof, however, is that set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). 1 This indirect proof, as elaborated and clarified in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), requires the plaintiff first to prove a prima facie case of discrimination, by showing (1) that he was in the protected class, (2) that he was doing his job well enough to meet his employer's legitimate expectations, 2 (3) that in spite of his performance he was discharged, and (4) that the employer sought a replacement for him. Huhn v. Koehring, 718 F.2d 239, 243 (7th Cir.1983); Loeb v. Textron, Inc., 600 F.2d 1003, 1013 (1st Cir.1979). Success gives rise to a rebuttable presumption of discrimination, and the burden then falls on the defendant to articulate lawful reasons for the discharge. The defendant's burden is only one of production; the burden of persuasion rests at all times on the plaintiff. If the defendant articulates lawful reasons, the presumption is dissolved, and the burden falls on the plaintiff to prove that the proffered reasons are a pretext, by showing either that a discriminatory reason more likely motivated the employer or that the employer's proffered explanation is unworthy of credence. See Burdine, 450 U.S. at 253-56, 101 S.Ct. at 1093-95.

The special virtue of the indirect method of proof is that it allows victims of age discrimination to prevail without presenting any evidence that age was a determining factor in the employer's motivation. Age discrimination may be subtle and even unconscious. See Syvock v. Milwaukee Boiler Manufacturing Co., 665 F.2d 149, 154-55 (7th Cir.1981). Even an employer who knowingly discriminates on the basis of age may leave no written records revealing the forbidden motive and may communicate it orally to no one. When evidence is in existence, it is likely to be under the control of the employer, and the plaintiff may not succeed in turning it up. The indirect method compensates for these evidentiary difficulties by permitting the plaintiff to prove his case by eliminating all lawful motivations, instead of proving directly an unlawful motivation. 3


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