as threats of termination, but as an indication that his supervisors simply would not give him a guarantee that he would not be laid off. Therefore, Wik said he was "up against a brick wall." Two of his six children were going to college, and he was supporting his wife. Therefore, the enhanced severance package provided him with a guaranteed source of income.
Also relevant to the issue of subterfuge was evidence produced throughout the trial that no one who refused any of the early retirement or enhanced severance packages was thereafter laid off.
After considering this testimony, together with all the other testimony adduced by plaintiffs at trial, this Court concludes that plaintiffs have failed to raise an inference that any of the early retirement or enhanced severance packages was a subterfuge to evade the purposes of the ADEA. Plaintiffs' testimony demonstrates that each plaintiff accepted the offer because each believed it was a guarantee, in contrast to the prospect of remaining in the pool of employees subject to layoff. Plaintiffs offered no evidence that any of the packages was a "scheme, plan, stratagem, or artifice of evasion." McMann at 203, 98 S. Ct. at 450. On the contrary, plaintiffs' evidence reveals that layoffs were not made on the basis of age, and that those employees age 40 or over who remained in the pool of employees were impacted less severely by the layoffs than younger workers. Indeed, the evidence shows that no employee who refused an offer of early retirement or enhanced severance was thereafter terminated. Any statements made by corporate officers that involved the possibility of layoffs were explained by the plaintiffs themselves not as threats, but as indications that the officers were not giving a guarantee against layoff. Plaintiff Riggie was even told by supervisory personnel that he was not likely to be laid off. As plaintiff Andrews indicated, the time was filled with stress and pressure due to poor business conditions; however, this, without more, is not sufficient to raise an inference of subterfuge.
Furthermore, Bodnar v. Synpol, 843 F.2d 190 (5th Cir.), cert. denied, 488 U.S. 908, 109 S. Ct. 260, 102 L. Ed. 2d 248 (1988) resolves the question of whether the "special deal" provided to Kenneth Heim may be understood as proof of subterfuge. Courts have found evidence of subterfuge where offers of early retirement were made to employees on a selective basis, and where certain employees were excluded from the plan. See, e.g., Downey v. Southern Natural Gas Co., 649 F.2d 302 (5th Cir. 1981). Nonetheless, Bodnar explains, "An employer may implement an early retirement plan that does not extend to all potential eligible employees if objective factors explain the exclusions." Bodnar 843 F.2d at 193. There, the court held that plaintiffs failed to refute or undermine defendant's explanation that exceptions were made for essential employees. The court wrote, "Surely an employer faced with the need to cut its workforce in order to survive . . . may not be required to cut off its ability to survive as well in order to escape ADEA liability for an early retirement bonus program." Id. In the present case, defendant's officers have testified that Heim possessed unique qualifications and was a necessary employee. Heim was plant manager at the Tonawanda plant, and participated in a program to evaluate defendant's chain-making operations nationwide. Plaintiffs have failed to refute or undermine this evidence in any way. Therefore, the "special deal" provided to Heim does not give rise to an inference of subterfuge. In fact, plaintiffs' allegation is undermined by the fact that Heim was considerably older than many of the employees who chose early retirement or enhanced severance.
Finally, although plaintiffs' counsel argued that the first early retirement package was a subterfuge because it was offered immediately after layoffs, the proof adduced at trial does not support this argument. Significantly, plaintiff Riggie did not testify that he was coerced into accepting early retirement as a result.
Another way the five plaintiffs listed above would have been able to challenge the impact of the early retirement or enhanced severance components of the Plan would have been to produce evidence that these packages were in fact coercive or involuntary. Section 623 provides that such packages are not exempted from the ADEA if they "require or permit the involuntary retirement of any individual . . . because of the age of such individual." Plaintiffs' counsel claimed during oral argument that the five plaintiffs were not given enough time to make a reasonable decision whether to accept the offer of early retirement or enhanced severance. The Second Circuit has explained, "We believe it is relevant to the determination of voluntariness whether the employees received sufficient time to make a decision." Paolillo v. Dresser Indus., Inc., 821 F.2d 81 (2d Cir. 1987). In Paolillo, plaintiffs stated in deposition testimony that they felt "pressured by the haste in which the plan was implemented and the lack of time they were given to come to a decision." Id. at 84. After learning of the details of the plan in Paolillo, two of the plaintiffs were given one weekend in which to decide, and another plaintiff was given only one day. These plaintiffs were first notified of the plan only five or six days before the deadline for the decision. There was also a factual issue of whether two of the plaintiffs were ever provided with relevant pension and insurance information. Therefore, summary judgment for the defendant was not appropriate. The Second Circuit explained that trial was necessary so that these facts could be considered together with the facts that the plaintiffs failed to ask for additional time to decide, failed to express dissatisfaction with the deadline, and affirmed on the plan acceptance form that their choice was voluntarily made. Also relevant was the possibility that plaintiffs felt pressured to accept the plan because of uncertain business conditions, rather than by the method of the plan's implementation. Id. at 39.
Here, plaintiffs' counsel argued that plaintiffs felt pressured by the short time period. This argument is not supported by the evidence that plaintiffs adduced at trial. The evidence produced at trial indicates that whoever requested more time to make a decision was given an extension. Furthermore, none of the five employees who testified on this issue complained to their supervisors about the time period, or requested additional time. None of this evidence was countered by evidence that the plaintiffs felt rushed, or were made uncomfortable by the deadlines.
Plaintiff Riggie testified that he received an early retirement offer on July 7, 1982. He had until July 31, 1982 to decide. Although Riggie stated that he never received a copy of the plan or a plan summary, he does recall receiving a plan booklet, which he never bothered to "pour through." Furthermore, he met with Hansen on July 21, 1982. On that date, Hansen explained the terms of the package to him, and provided him with a Pension Option Estimate. Riggie never requested additional time to decide. He testified that he had all the information necessary for him to make a decision. He consulted with his wife and family. He testified that the decision was his own, and was voluntary, although he stated there were unspecified "extraneous circumstances." Riggie accepted the offer of early retirement on July 28, 1982--two days before the deadline.
Plaintiff Andrews testified that she received an offer of the second early retirement package some time before April 15, 1983. She had until April 29, 1983 to decide. On April 15, 1983 she met with Hansen, who explained the terms of the package to her. She testified that she had all the necessary information by April 17, 1983. She accepted early retirement on April 29, 1983. Andrews did not testify that she had been rushed or that she felt uncomfortable with the deadline.
Plaintiff Kennedy testified that she received an offer of the second early retirement package on approximately April 11, 1983. She had until April 29, 1983 to decide. On April 11, 1983 she spoke to Hansen, who explained the terms of the package to her. Her only concern was that she wanted a reassurance that she would not be laid off if she refused the package, but she was not given a reassurance. She had sufficient time to consult with her husband, her family, and her fellow employees. Kennedy did not testify that she had been rushed or that she felt uncomfortable with the deadline. She accepted early retirement on April 29, 1983, the day of the deadline. She testified that she waited until the last day to accept in case she wanted to change her mind.
Plaintiff Salefske testified that he received an offer of enhanced early severance on January 26, 1983. He had until February 15, 1983 to decide. On January 28, 1983 Salefske met with Hansen, who explained the terms of the package to him. Salefske also met with Chrzanowski on that day. Chrzanowski informed him that Chrzanowski needed to have a decision by February 1, 1983. Salefske did not ask for an extension or object to the deadline. He accepted enhanced early severance on February 1, 1983. He did not testify that he had been rushed or that he felt uncomfortable with the deadline.
Plaintiff Wik testified that he received an offer of enhanced early severance on January 26, 1983. He had until February 15, 1983 to decide. On January 27, 1983 he met with corporate officers, who read the plan to him. They also read that the deadline was February 15, 1983, but told Wik that they wanted him to decide by January 31, 1983. On January 28, 1983 Hansen explained the terms of the package to him. Wik did not ask for more time to decide, nor did he object to the deadline. Wik signed the acceptance on January 31, 1983, but did not provide it to Chrzanowski until February 1, 1983. Nevertheless, his acceptance was not refused as untimely. Wik did not testify that he had been rushed or that he felt uncomfortable with the deadline.
Therefore, the facts of this case are similar to those in Henn, where the court wrote, "The plaintiffs in this case do not say that they lacked information about the terms of the offer. All had time to discuss the offer with families and financial advisers. They complain that they felt pressure and perceived the choice to be excruciating, but that is not important." Id. at 829. Here, the deadlines provided to the five plaintiffs above were, on the whole, significantly more generous than those implicated in Paolillo. More importantly, however, the evidence adduced at trial simply fails to support counsel's argument that the plaintiffs were rushed or railroaded into accepting the packages. None of the plaintiffs expressed such a sentiment, and there is no other evidence in the record indicating that defendant pressured or coerced plaintiffs into accepting the packages. Therefore, plaintiffs have failed to adduce sufficient evidence to support an inference that their acceptance of the packages was involuntary.
Finally, an exception to § 623(f)(2) has been recognized in cases of "constructive discharge"--that is, "working conditions so onerous or demeaning that the employee has effectively been fired in place and compelled to leave." Henn, 819 F.2d at 826. Nonetheless, plaintiffs can only prove constructive discharge if maintaining the status quo would violate the ADEA:
The appropriate question in early retirement cases [is] whether the existing conditions (ignoring the offer of early retirement) violate the ADEA. . . .
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