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LIBRONT v. COLUMBUS MCKINNON CORP.

March 2, 1993

JAN LIBRONT, et. al, Plaintiffs,
v.
COLUMBUS McKINNON CORP., Defendant.



The opinion of the court was delivered by: WILLIAM M. SKRETNY

 LIBRONT, et al. v. COLUMBUS McKINNON CORP.

 83-CV-858S

 TABLE OF CONTENTS

 INTRODUCTION

 FACTS

 DISCUSSION

 
DEFENDANT'S OBJECTIONS TO DR. REIBER'S TESTIMONY
 
DEFENDANT'S MOTIONS FOR JUDGMENT AS A MATTER OF LAW
 
Judgment as a Matter of Law on Disparate Impact Claim
 
Judgment as a Matter of Law on Pattern or Practice Claim
 
PLAINTIFFS' INDIVIDUAL CLAIMS
 
Willfulness
 
Plaintiffs' Individual Claims
 
Plaintiff Jean Barnes
 
Plaintiff Dale Habicht
 
Plaintiff Edmund Koval
 
Plaintiff Kenneth Kreutzer
 
Plaintiff Stuart Larkey
 
Plaintiff Jan Libront
 
Plaintiff Vivian Nowark
 
Plaintiff Lois Quesnell
 
Plaintiff Chester Suits
 
Plaintiff Cecil Taylor, Jr.

 CONCLUSION

 ORDER

 INTRODUCTION

 Presently before this Court are the following motions of defendant Columbus McKinnon Corporation: (1) defendant's motion to preclude the testimony of plaintiffs' expert witness, Dr. Ronald Reiber; and (2) defendant's motion pursuant to Fed. R. Civ. P. 50(a) for judgment as a matter of law in its favor on the issues of (a) the voluntariness, coerciveness or subterfugal nature of the early retirement and enhanced early severance packages, (b) plaintiffs' disparate impact claim, (c) the individual claims of plaintiffs Riggie, Andrews, Kennedy, Salefske, and Wik, (d) plaintiffs' pattern or practice claim, and (e) the individual claims of the remaining twenty-three plaintiffs.

 Plaintiffs have filed a complaint seeking damages, alleging that they were terminated from defendant corporation on the basis of their age, in willful violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634. This Court has federal question jurisdiction over plaintiffs' claims under 28 U.S.C. § 1331. The present motions were made during trial, at the close of plaintiff's direct case.

 Plaintiffs allege that defendant unlawfully terminated their employment during the period of July 1, 1982 to August 3, 1983. Plaintiffs allege that they were terminated by various means: (1) an early retirement plan offered in July 1982; (2) an early retirement plan offered in April 1983; (3) an enhanced severance package offered in January 1983; *fn2" (4) an involuntary reduction in force in July 1982; and (5) an involuntary reduction in force in January 1983. Plaintiffs, who were all age 40 or older at the time of their terminations, contend that they were singled out for termination on the basis of their age, and that defendant willfully violated the ADEA. Although plaintiffs recognize that during the relevant period the ADEA specifically exempted employee benefit plans (e.g., early retirement and enhanced severance packages) from its coverage, they claim that those who opted for such packages did so involuntarily and were coerced by threats of layoff.

 Plaintiffs rely on three theories of liability. First, they allege that defendant's activities, when considered together, had a disparate impact on workers over the age of 40. In other words, they claim that a disproportionately large number of older workers were terminated, compared to younger workers. Second, plaintiffs contend that defendant engaged in a pattern or practice of intentional age discrimination. They argue that this entitles each individual plaintiff to a presumption that his or her termination was precipitated by unlawful motives. Finally, each plaintiff asserts an individualized claim of age discrimination. Each plaintiff claims that he or she has raised an inference that his or her termination was motivated by age, requiring defendant to articulate a lawful and legitimate reason for the termination.

 On the other hand, defendant maintains that plaintiffs' ages were not improperly considered in connection with its employment decisions. It contends that these decisions were motivated solely by severe economic conditions, and the need to reduce operating costs. Defendant argues that, in fact, a disproportionately low number of older workers were terminated through layoffs, and that plaintiffs were in no way coerced into accepting early retirement or enhanced severance packages. Defendant insists that although certain plaintiffs may have been advised that they could ultimately be laid off if they refused such a package, these plaintiffs were put in no worse a situation than younger workers. Furthermore, defendant argues that it never used the possibility of layoff as an ultimatum to coerce a plaintiff into accepting any of these packages.

 Trial commenced on January 4, 1993, and each plaintiff testified, with the exceptions of plaintiffs Carere and Kreutzer, who passed away prior to trial. Furthermore, a number of defendant's corporate executives were called and testified as plaintiffs' witnesses. Near the end of plaintiffs' case, plaintiffs' counsel indicated that plaintiffs' final witness would be Dr. Ronald Reiber. Dr. Reiber's testimony would be based on statistics he prepared indicating that, when the layoffs, early retirements, and enhanced early severances were considered together, a disproportionately large number of older workers were terminated by defendant. Plaintiffs intended to use this testimony to prove their disparate impact claim of age discrimination. At that point, defendant made the present motion to preclude the testimony of Dr. Reiber, arguing that his statistics were not relevant because they included the early retirement and enhanced early severance packages, which were sanctioned by the ADEA during the relevant period. Similarly, defendant moved for judgment as a matter of law on the issue of whether plaintiffs Riggie, Andrews, Kennedy, Salefske, and Wik were coerced into accepting early retirement or enhanced early severance, pursuant to Fed. R. Civ. P. 50(a). On the same basis, defendant moved for judgment as a matter of law on plaintiffs' pattern or practice claim, and on the individual claims of those five plaintiffs. Extensive oral argument on these motions was heard on February 19, 1993, which included an offer of proof regarding the admissibility of Dr. Reiber's testimony.

 Plaintiffs formally rested on February 24, 1993. Defendant immediately moved for judgment as a matter of law on plaintiffs' disparate impact claim, as well as the individual claims of the twenty-three remaining plaintiffs. Extensive oral argument on these motions was heard on February 26 and March 1, 1983.

 After reviewing all the evidence presented at trial, this Court holds that the testimony of Dr. Reiber is not relevant under Fed. R. Evid. 402 because plaintiffs have failed to raise an inference that the early retirement or enhanced early severance packages were subterfuges to evade the purposes of the ADEA, that the plaintiffs were constructively discharged, or that the packages were involuntary or coercive. Therefore, defendant's motion to preclude Dr. Reiber's testimony will be granted. For the same reason, defendant's motion for judgment as a matter of law on plaintiffs' disparate impact claim will be granted. Defendant's motion for judgment as a matter of law on the claims of Riggie, Andrews, Kennedy, Salefske, and Wik will be granted. Finally, defendant's motion for judgment as a matter of law on plaintiffs' pattern or practice claim, and on the individual claims of each of the remaining twenty-three plaintiffs will be granted.

 FACTS3

 Defendant Columbus McKinnon Corp. is a New York corporation with its headquarters in Amherst, New York. During the period relevant to this lawsuit, defendant was engaged in the manufacture of hoists, chains, and forgings. Its facilities included plants located in Tonawanda, New York; Abingdon, Virginia; Damascus, Virginia; and Manatee, Florida. During the relevant period, plaintiffs were employed at corporate headquarters or at one of these facilities.

 During the early 1980's defendant experienced a significant economic decline. Its financial reports indicate that its net domestic income declined over 70% during the fiscal years ending in March 1980 and March 1982 (exh. 741a). Defendant's net sales decreased by $ 33.3 million over the next fiscal year (exh. 741b), and defendant suffered a record loss of $ 4.7 million (exh. 741a). In response to these conditions, defendant adopted a number of cost saving measures, including a reduction in capital expenditures, salary reductions for all executive personnel, the closure of sales offices, and hiring freezes.

 Defendant also undertook the measures that are the subject of plaintiffs' claims. On June 15, 1982, defendant's corporate president, H.P. Ladds, Jr., circulated a memorandum to supervisory personnel requesting that the supervisors advise him of employees in their departments who were the "least productive," or with whom the supervisors were dissatisfied due to poor performance (exh. 99-C). The memorandum instructed the supervisors that they were to base their selections on "strictly performance," and that the selections were necessary "to identify and weed out marginal performers and surplus or superfluous positions." There is no reference to age in any of the instructions provided to the supervisors. As a result of the selections made by the supervisors, 46 employees were permanently laid off in July 1982, including plaintiffs Libront, *fn4" Barnes, Quesnell, Clark, Cornwell, Long, Carere, Hodkin, Grimes, Widener, Thomas, and Farris. In November 1982 plaintiff Luke was laid off as well.

 In July 1982 defendant further reduced its workforce by offering qualified employees a voluntary early retirement package. To be eligible for such a package, the employee must have had ten years of experience with defendant, and must have reached age 60 by the end of 1982. The package provided a monthly pension benefit that would not be actuarially reduced, despite the fact that the employee retired before age 65; a supplemental benefit equal to 25% of the employee's salary, not to exceed $ 650.00 per month, until the employee reached age 65; and continued life and health insurance. 45 of the 57 eligible employees who were offered this early retirement option accepted the package. One of those who accepted was plaintiff Riggie.

 In April 1983 defendant offered a second enhanced early retirement package to eligible employees. The benefits under this package were identical to those available under the July 1982 early retirement package. However, to be eligible for the April 1983 package the employee must have had ten years of experience with defendant, and must have reached age 58 by the end of 1982. Twenty-three of the thirty-one employees who were offered this second early retirement option accepted the package, including plaintiffs Andrews and Kennedy.

 Defendant's financial condition did not improve, and during the first few months of 1983 additional employees were laid off, including plaintiffs Dorko, Mikos, Nowark, Kreutzer, Habicht, Koval, Suits, Taylor, and Larkey.

 Plaintiff Rook was discharged from defendant's employ in August 1982, allegedly for repeatedly violating defendant's attendance policy. Rook had previously been cited for lateness and unexcused absence. On August 20, 1981 Rook received a warning for frequent lateness (exh. 748). On November 4 and December 16, 1981 Rook received reprimands for poor attendance (exhs. 749, 750). Rook was suspended for one day on July 13, 1982 (exh. 751), and for three days on March 23, 1982 (exh. 752).

 Overall, defendant's workforce was reduced by 31.6% during the period relevant to this lawsuit. During the relevant period, defendant involuntarily laid off 147 out of 789 non-union employees who were employed as of July 1, 1982. Sixty-three of those laid off (43%) were age 40 or over as of that date. It is important to note that no employee who rejected an early retirement or enhanced early severance package was subsequently laid off by defendant.

 Plaintiffs Libront, Barnes, and Quesnell filed this action on August 3, 1983, alleging that defendant terminated their employment because of their age. On November 30, 1984 the Hon. John T. Elfvin, United States District Judge for the Western District of New York, authorized plaintiffs to send notice of the action to defendant's former employees who were terminated during the relevant period and who were age 40 or over at the time of their terminations. Such a notice was sent to approximately 130 former employees, 27 of whom filed consents to opt-in" to this action, pursuant to Section 16(b) of the Fair Labor Standards Act, 29 U.S.C. § 216 (b). On August 13, 1985 Judge Elfvin granted plaintiffs leave to file an amended complaint. Plaintiffs filed an Amended Complaint, adding the 27 additional plaintiffs. On August 23, 1985 defendant moved to dismiss the Amended Complaint. Defendant's motion was granted, but plaintiffs were allowed to file a Second Amended Complaint. Plaintiffs filed a Second Amended Complaint naming the original three plaintiffs, plus 26 of the "opt-in" plaintiffs. On November 21, 1986 defendant moved to dismiss plaintiffs' Second Amended Complaint on a number of grounds. On July 13, 1987 Judge Elfvin granted defendant's motion to dismiss in part, and denied it in part. Among the rulings made by Judge Elfvin was that, although the claims of one of the remaining 26 "opt-in" plaintiffs had to be dismissed from the case, the remaining "opt-in" plaintiffs were "similarly situated" to the original three plaintiffs, and all of plaintiffs' claims could therefore be litigated together. Furthermore, Judge Elfvin held that any "opt-in" plaintiff who filed his or her notice to intervene in this lawsuit between two and three years after they received notice of their termination would be constrained to proving a willful violation of the ADEA, pursuant to Section 7(e) of the ADEA, 29 U.S.C. § 626(e)(1), which incorporates the statute of limitations provisions in Section 6(a) of the Portal-to-Portal Pay Act, 29 U.S.C. § 255(a).

 Shortly before trial, defendant made motions in mine seeking to preclude plaintiffs from introducing evidence regarding their disparate impact theory of age discrimination, and from introducing certain statistical evidence prepared by Dr. Reiber in support of plaintiffs' disparate impact theory. By a Decision and Order of this Court entered on November 23, 1992, *fn5" this Court did not expressly preclude plaintiffs from introducing any evidence in support of their disparate impact theory of age discrimination; however, the Decision established certain parameters for admissibility of any expert testimony offered in support of plaintiffs' disparate impact theory of age discrimination.

 Trial commenced on January 4, 1993. Defendant made the present motions at the conclusion of plaintiff's proof.

 DISCUSSION

 DEFENDANT'S OBJECTIONS TO DR. REIBER'S TESTIMONY

 Defendant's objection to the testimony of Dr. Reiber requires this Court to reiterate many of the principles set forth in its Decision and Order entered on November 23, 1992. That Decision and Order established the parameters for admissibility of any expert testimony to support plaintiffs' disparate impact theory of age discrimination.

 Plaintiffs have proffered Dr. Reiber's testimony as evidence of the effect of defendant's alleged Cost Savings Plan on employees over the age of forty. Plaintiffs have made an offer of proof to demonstrate the statistical relevance of Dr. Reiber's testimony. This offer of proof has shown that Dr. Reiber would testify that, when the number of employees terminated under the early retirement and enhanced severance packages are included in the sample, the statistics show a standard deviation of 14. This measure would show that defendant's Cost Savings Plan had a disparate impact on employees age 40 or over. Nonetheless, Dr. Reiber's statistics would not address each of the elements of the Cost Savings Plan individually. Rather, the statistics would be premised upon all the elements as a group. In fact, Dr. Reiber has previously indicated that, when the early retirement and enhanced severance packages are eliminated from the sample, no standard deviation exists that would indicate a violation of the ADEA. *fn6" Furthermore, the statistics would make no distinction between packages offered at different time periods, by different corporate branches, to different groups of employees.

 Statistical evidence may be highly relevant to a disparate impact claim. The Supreme Court has held that statistical proof alone may be sufficient to make out a prima facie case for disparate impact. International Bhd. of Teamsters v. United States, 431 U.S. 324, 339, 97 S. Ct. 1843, 1856, 52 L. Ed. 2d 396 (1977). Nevertheless, under Fed. R. Evid. 402 "for statistics to be valid and helpful in a discrimination case, 'both the methodology and the explanatory power of the statistical analysis must be sufficient to permit an inference of discrimination.'" Simpson v. Midland-Ross Corp., 823 F.2d 937, 944 (6th Cir. 1987), quoting Segar v. Smith, 238 U.S. App. D.C. 103, 738 F.2d 1249, 1274 (D.C.Cir. 1984), cert. denied, 471 U.S. 1115, 105 S. Ct. 2357, 86 L. Ed. 2d 258 (1985). In other words, the statistics upon which plaintiffs rely must refer to a proper sample of employees, and must not take impermissible factors into account.

 For example, in its earlier Decision and Order this Court explained that "plaintiffs . . . will not be allowed to lump all of the components of the Plan together and rely on the combined statistical analysis showing that the Plan had a net result of disparate impact. Plaintiffs will be required to make out a prima facie case by showing that each component had a disparate impact on older workers." The clear import of that holding was that plaintiffs and their expert witness would be required separately to analyze the layoffs, early retirement packages, and enhanced early severance package, to determine whether they each had a disparate impact on employees over the age of forty. See Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 108 S. Ct. 2777, 2789, 101 L. Ed. 2d 827 (1988); Lowe v. Commack Union Free School Dist., 886 F.2d 1364, 1371 (2d Cir. 1989), cert. denied, 494 U.S. 1026, 110 S. Ct. 1470, 108 L. Ed. 2d 608 (1990). The need for this type of separate analysis is especially pronounced because the early retirement and enhanced severance packages are presumed to be lawful under the ADEA.

 From plaintiffs' offer of proof, it is evident that Dr. Reiber intends precisely to lump the components of the Plan together to obtain a result of disparate impact. From the evidence introduced at trial, it is all the more clear that this strategy would be inappropriate. The evidence has shown that the Cost Savings Plan is not subject to attack as a "specific employment practice" that violates the ADEA. Watson at 994, 108 S. Ct. at 2789. Defendant implemented a number of different packages, including voluntary early retirement and voluntary enhanced early severance, which are presumed to be lawful under the ADEA. 29 U.S.C. § 623(f)(2)(1985). The evidence also has shown that the components of the Plan were introduced at different times and involved different pools of employees. These factors demonstrate the importance of challenging the components on an individual basis. Because Dr. Reiber's statistical evidence does not do this, it is not relevant to the issue of disparate impact and must be precluded.

 As mentioned above, the early retirement and enhanced severance packages are presumed to be lawful under the ADEA. As explained fully in this Court's previous Decision and Order, "The ADEA specifically exempts voluntary retirement packages and other employee benefit plans from the list of prohibited employment practices." Henn v. National Geographic Society, 819 F.2d 824 (7th Cir.), cert. denied, 484 U.S. 964, 108 S. Ct. 454, 98 L. Ed. 2d 394 (1987). 29 U.S.C. § 623(f)(2)(1985) states that it is not unlawful for an employer "to observe the terms . . . of any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this chapter. By "bona fide", the statute means that the plan exists and pays benefits. Public Employees Retirement Sys. of Ohio v. Betts, 492 U.S. 158, 166, 109 S. Ct. 2854, 2860, 106 L. Ed. 2d 134 (1989). By "subterfuge", the statute refers to intentional discrimination against older workers. Therefore, I earlier held that "in order to challenge the voluntary retirement or enhanced voluntary severance components of the Plan in the present case, the plaintiffs will be required to prove that these components were subterfuges to evade the ADEA." *fn7" I also explained that plaintiffs could challenge the impact of the early retirement and enhanced severance packages if plaintiffs could prove that they were coerced into accepting the packages, or that the packages were involuntary. Plaintiffs could prove constructive discharge by showing, for example, that they had too little time to consider the packages before deciding. This is consistent with the language of the ADEA, indicating that no employee benefit plan may "require or permit the involuntary retirement of any individual . . . because of the age of such individual." 28 U.S.C. § 623(f)(2)(1985).

 After fully reviewing all the evidence that has been presented during plaintiffs' case in chief, this Court finds that plaintiffs have failed to offer sufficient evidence from which it can be concluded that the retirement or enhanced severance packages were subterfuges to evade the ADEA, that the employees who accepted those packages were coerced into doing so, or that the employees were constructively discharged. Therefore, even if the alleged Cost Savings Plan as a whole could be considered as the "specific employment practice" at issue, § 623(f)(2) requires that these packages could not be considered together with the layoffs to reach a finding of disparate impact. The rationale for these findings will be more fully discussed below. Consequently, Dr. Reiber's testimony is not relevant and must not be admitted at trial.

 In the Simpson case previously cited, the plaintiff proffered statistical evidence demonstrating the average age of employees hired and fired during the relevant period. The Sixth Circuit held that plaintiff's evidence was not relevant to show intentional age discrimination because it included within the "terminated" class certain employees who "might have retired early under an incentive plan or might have accepted jobs elsewhere." Id. at 943. See also Geller v. Markham, 635 F.2d 1027 (2d Cir. 1980), cert. denied, 451 U.S. 945, 101 S. Ct. 2028, 68 L. Ed. 2d 332 (1981), in which the Second Circuit looked to the effect of the challenged practice only on the group specifically protected by the ADEA. Here, because Dr. Reiber would include in his statistical analysis those employees who were terminated pursuant to the early retirement or enhanced severance packages, and because plaintiffs have failed to offer sufficient evidence from which it can be concluded that these packages were unlawful, Dr. Reiber's statistics are not probative, and his testimony will be precluded under Fed. R. Evid. 402. See also Palmer v. Reader's Digest Assoc., 1992 U.S. Dist. LEXIS 3887, 1992 WL 73468 (S.D.N.Y. 1992).

 DEFENDANT'S MOTIONS FOR JUDGMENT AS A MATTER OF LAW

 To resolve defendant's motions for judgment as a matter of law, this Court has undertaken a thorough review of the testimony of each of the individual plaintiffs, as well as the testimony of a number of defendant's employees. During oral argument, counsel diverged somewhat in their recollection of these witnesses' testimony. This testimony is critical in determining whether a reasonable jury could conclude that the early retirement and enhanced early severance packages were subterfuges to evade the purposes of the ADEA, were involuntary, or were coercive. If the evidence presented would not support such a conclusion, then these packages must be considered lawful under 29 U.S.C. § 623(f)(2). Therefore, evidence regarding these packages would not be relevant in determining whether defendant's alleged Cost Savings Plan had a disparate impact on workers in the protected age group. If this evidence were not relevant, statistics regarding these packages would not be admissible. Finally, the individuals whose employment ended pursuant to these packages would have no cause of action under the ADEA.

 Furthermore, this testimony is critical in determining whether a reasonable jury could conclude that defendant engaged in a pattern or practice of intentional age discrimination, and whether each individual plaintiff has raised an inference that age was a motivating factor in their termination.

 Pursuant to Fed. R. Civ. P. 50(a), judgment as a matter of law is available where "a party has been fully heard with respect to an issue and there is no legally sufficient evidentiary basis for a reasonable jury to have found for that party with respect to that issue. . . . Motions for judgment as a matter of law may be made at any time before submission of the case to the jury." In other words, judgment as a matter of law is appropriate where "either party is unable to carry a burden of proof that is essential to that party's case. Notes of Advisory Committee on Rules. When considering a motion under Rule 50(a), "the court is not free to weigh the evidence or to pass on the credibility of witnesses or to substitute its judgment of the facts for that of the jury. Instead it must view the evidence most favorably to the party against whom the motion is made and give that party the benefit of all reasonable inferences from the evidence." 9 Wright & Miller, Federal Practice and Procedure: Civil § 2524.

 Judgment as a Matter of Law on Disparate Impact Claim

 Defendant has moved for judgment as a matter of law on plaintiffs' disparate impact claim. Defendant argues that plaintiffs have failed properly to demonstrate that defendant's employment practices had a disparate impact on employees over the age of 40. Defendant indicates that, when the number of employees terminated under the early retirement and enhanced severance packages is eliminated, there is no statistical showing of a disparate impact.

 In its previous Decision and Order, this Court explained to plaintiffs that the ADEA specifically exempts voluntary retirement packages and other employee benefit plans from the list of prohibited employment practices. Henn v. National Geographic Society, 819 F.2d 824 (7th Cir.), cert. denied, 484 U.S. 964, 108 S. Ct. 454, 98 L. Ed. 2d 394 (1987). 29 U.S.C. § 623(f)(2) states that it is not unlawful for an employer "to observe the terms of . . . any bona fide employee benefit plan such as a retirement, pension, or insurance plan, which is not a subterfuge to evade the purposes of this chapter." By "bona fide," the statute means that the plan exists and pays benefits. Public Employees Retirement Sys. of Ohio v. Betts, 492 U.S. 158, 166, 109 S. Ct. 2854, 2860, 106 L. Ed. 2d 134 (1989). By "subterfuge," the statute refers to intentional discrimination against older workers. United Air Lines v. McMann, 434 U.S. 192, 203, 98 S. Ct. 444, 450, 54 L. Ed. 2d 402 (1977) (subterfuge means a "scheme, plan, stratagem, or artifice of evasion"). Therefore, in challenging an early retirement or enhanced severance package as a subterfuge, "the employee bears the burden of proving that the discriminatory plan provision actually was intended to serve the purpose of discriminating in some nonfringe-benefit aspect of the employment relation." Betts at 181, 109 S. Ct. at 2868. This represents a significant difference from typical disparate impact cases, in which the plaintiff is not required to establish intentional discrimination as part of his prima facie case. See E.E.O.C. v. Chrysler Corp., 729 F. Supp. 1002, 1008 (S.D.N.Y. 1990) (the term "subterfuge" connotes a subjective element).

 Therefore, in order to challenge the voluntary retirement or enhanced voluntary severance components of the Plan in the present case, the plaintiffs were required to prove that these components were not bona fide, or that they were subterfuges to evade the ADEA. See Finnegan v. Trans World Airlines, Inc., 967 F.2d 1161 (7th Cir. 1992) (discussing voluntary retirement plans under the ADEA).

 Here, plaintiffs have failed to do either. The benefit packages provided to each of the five individuals certainly existed and paid benefits. Although the ADEA imposes the additional requirement that the benefits be substantial, the evidence shows that the benefits provided to the five plaintiffs were substantial.

 The evidence showed that the value of plaintiff Riggie's benefits under the first early retirement package was $ 13,762.24, in addition to health and life insurance benefits. Although plaintiff Andrews testified that she was displeased that the benefits offered under the second early retirement package were less than the amount she had been earning, the value of the benefits she received was $ 49,926.00. The value of plaintiff Kennedy's benefits under the second early retirement package was $ 47,528.00. The value of plaintiff Salefske's benefits under the voluntary enhanced severance package was $ 62,637.00. In fact, Salefske testified that the amount of these benefits, when added to his Social Security benefits, were more than his earnings while working for defendant. Plaintiff Wik first accepted the enhanced severance plan, and was then offered the benefits provided by the second early retirement package. The value of Wik's benefits under the voluntary early severance and second early retirement packages was $ 80,055.00. Wik testified that he wrote to Stone saying that he would have been happy to have received the benefits provided by the first early retirement package. However, Wik did not qualify for the first early retirement package because he was too young; he was not eligible for the second early retirement package because he had already left defendant's employ under the early severance package. Nevertheless, defendant provided Wik the benefits available under the second early retirement package.

 Finally, evidence was produced that the total value to the recipients of the first early retirement package was $ 1,792,239.00, and the total value to the recipients of the second early retirement package was $ 1,342,093.00.

 Although the benefits provided to each plaintiff may not equal the amounts of each plaintiffs' previous earnings while working, they are more than sufficient to meet the substantiality requirement under the ADEA. See, e.g., McMann at 207, 98 S. Ct. at 452 (plan is bona fide "as long as the benefits . . . are not so unreasonably small as to make the 'retirements' nothing short of discharges.") (White, J., concurring). The amounts offered to plaintiffs were considerably more than they would have received if they would have been laid off, and this Court finds that they were "substantial" for the purposes of § 623(f)(2). Plaintiffs offered no support for their contention that in order for benefits to be "substantial" they must be correlated to salary and pension increases to which the plaintiffs may have been entitled if they would have remained employed. Finally, the evidence does not support plaintiffs' allegations that the amounts paid under the challenged packages included pension payments to which ...


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